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National Labor Relations Board v. Long Island Airport Limousine Service Corp.

decided: October 4, 1972.


Friendly, Chief Judge, Lumbard and Feinberg, Circuit Judges.

Author: Feinberg


The National Labor Relations Board petitions to enforce its order, 191 NLRB No. 16, issued against Long Island Airport Limousine Service Corp. (the Company), upon findings that the Company violated section 8(a)(1) of the National Labor Relations Act by interrogation, threats, and giving the impression of surveillance, and sections 8(a)(3) and (1) of the Act by discharging the chief union organizer.*fn1 Although this is a close case -- the trial examiner and two of the five Board members would have dismissed the complaint -- there is substantial evidence on the record considered as a whole to support the Board's findings. Accordingly, we enforce its order.

The Section 8(a)(3) Violation

The Company operates a limousine service between two Long Island counties and Kennedy and LaGuardia Airports. The Company's main office and garage is in Farmingdale, Long Island; it also has a small dispatcher's office at Kennedy Airport. In late October 1969, the Union began a campaign to organize the Company's approximately 40 drivers. Its organizer was Michael Tritsch, who had been a Company driver since the preceding March. There was testimony that on November 3, Tritsch obtained the signature of driver Leonard Johnson on a Union card, that the solicitation occurred in the Kennedy Airport office, which measures about eight by 12 feet, and that a Company supervisor was a few feet away at the time. Later the same day at LaGuardia Airport, Tritsch asked two other drivers to join the Union and gave one of them blank authorization cards. Shortly thereafter, Tritsch was approached by another driver, Mel Prisco, who said "that he had heard about the Union" that day from another driver and that Tritsch "was one of the instigators [of] union activity." He asked why Tritsch had not "approached" him about the Union. Tritsch told Prisco that he had not attempted to solicit a card from him "because he was a known company informer." Prisco told Tritsch that, in his opinion, the Company could not "afford" to have a Union.

The very next day Tritsch was fired.*fn2 When he reported to work in the afternoon, he had with him his manifest and cash receipts from the previous day. As was customary, Tritsch entered the clerical office to turn them in, but Company manager Salvatore A. Marino suddenly appeared, told Tritsch he would accept the manifest and receipts, and directed him out of the office and into the garage. There Marino looked at the manifest and told Tritsch that he was suspended. When Tritsch asked why, Marino told him it was for failing to put on his manifest the amount of mileage he had covered the previous day.

At the hearing before the trial examiner, Company witnesses testified that on November 4 they did not know of either the existence of an organizational campaign or of Tritsch's connection with it and that Tritsch had been fired because he was an unsatisfactory employee. Marino testified that he had suggested at some earlier time to Walter Stuart, the Company president, that Tritsch be discharged, that Stuart had "left the matter to me," and that the reasons for the discharge were Tritsch's failure to record mileage and submission of incomplete gasoline receipts. Stuart testified that on November 4 he had ordered Marino to discharge Tritsch after an office employee had shown him Tritsch's incomplete gasoline receipts and that this decision had also been based on Tritsch's poor employment record, including past speeding violations, frequent lateness, and failure to turn in daily cash receipts promptly.

The trial examiner, apparently under the impression that there had to be direct evidence that the Company knew that a Union was attempting to organize employees, found the testimony insufficient to establish such knowledge. The Board, by a three to two vote, disagreed, finding that the Company had been aware of Union activity. The Board based this finding on the circumstantial evidence in the record, stating:

Particularly pertinent are the facts that Tritsch was the union spearhead; that he had actively engaged in card solicitation on the day before his discharge; of the timing of the discharge; of the abrupt nature of the discharge; of the contradictory testimony of Respondent's witnesses regarding the decision to effectuate the discharge; of the shifting and essentially pretextual reasons offered as cause for the discharge; and of the disparate treatment according to Tritsch for his alleged misdeeds. This evidence raises more than a suspicion of illegal motivation. Indeed, the only plausible inference that can be drawn from this record is that Respondent did learn of Tritsch's union activities and discharged him for these activities. Accordingly, we find that Respondent discriminatorily discharged Tritsch in violation of Section 8(a)(3) and (1) of the Act.

In this court the Company again argues that there was no evidence that it had knowledge of Union activity before discharging Tritsch and that it was improper for the Board to make the double inference that the Company knew of such activity and of Tritsch's involvement with it.

We reject the Company's argument -- apparently accepted by the trial examiner -- that its knowledge of Union activities cannot be proved circumstantially. It is true that in many -- perhaps most -- section 8(a)(3) cases, an employer's knowledge of an organizing campaign is either conceded or overwhelmingly proved by direct evidence, and the real issues are whether the employer also knew that a particular employee was so engaged and fired him for that reason. E. g., NLRB v. Pembeck Oil Corp., 404 F.2d 105 (2d Cir. 1968), vacated and remanded on other grounds, 395 U.S. 828, 89 S. Ct. 2125, 23 L. Ed. 2d 737 (1969), order enforced, 433 F.2d 308 (2d Cir. 1970) (per curiam) (organizer fired "within hours" after company received union request for recognition); NLRB v. United Mineral & Chemical Corp., 391 F.2d 829 (2d Cir. 1968) (organizer fired one day after union meeting; testimony that supervisor stated this was reason for dismissal). But this is not always the case. E. g., NLRB v. Dorn's Transportation Co., 405 F.2d 706 (2d Cir. 1969). More important, there is no good reason why the two factual propositions -- employer knowledge of general Union activity and employer anti-Union motivation in discharging a particular employee -- need be proved by different types of evidence. As to each, direct evidence may not be obtainable and circumstantial evidence and "inferences of probability drawn from the totality of other facts," NLRB v. Park Edge Sheridan Meats, Inc., 341 F.2d 725, 728 (2d Cir. 1965), are perfectly proper. See, e.g., NLRB v. Dorn's Transportation Co., supra ; NLRB v. Firedoor Corp., 291 F.2d 328 (2d Cir.), cert. denied, 368 U.S. 921, 7 L. Ed. 2d 136, 82 S. Ct. 242 (1961).

In this case the circumstantial evidence in the record furnished substantial support for the Board's findings. Tritsch was the union "spearhead" for organizing the Company's drivers, the timing of his discharge was "stunningly obvious," NLRB v. Rubin, 424 F.2d 748, 750 (2d Cir. 1970), a Company supervisor was only a few feet away when Tritsch allegedly obtained Johnson's signature on a union card,*fn3 and Tritsch was approached later that day by a reputed Company informer, who already knew that Tritsch was soliciting union support. In addition, the abruptness of Tritsch's discharge, the conflicting accounts of the reasons for his dismissal, and evidence of failure to impose severe discipline on other employees who failed to record mileage all lend support to the Board's findings that the Company "did learn of Tritsch's union activities and discharged him for these activities." It is true that there was testimony in the record that Tritsch had violated various Company rules and regulations in the past. The Company also introduced evidence of a particularly serious incident, occurring two months before, that involved missing daily cash collections, and the Company claimed that Tritsch had been warned that he would be discharged if the situation occurred again; Tritsch denied this. The trial examiner did not resolve this controversy, and the Board took note of the prior incidents but concluded that they were not the reason for the discharge. While we would not go so far as to say, as the Board did, that discriminatory intent in firing Tritsch was the "only plausible inference that can be drawn from this record," it was certainly a permissible one, even though the trial examiner chose not to make it.*fn4 In short, there was substantial evidence to support the Board's finding of a section 8(a)(3) violation.

The Section 8(a)(1) Violations

After Tritsch was discharged, the Union's campaign continued. On November 10, 1969, two Union officials appeared at President Stuart's office, stated that they had authorization cards from a majority of the drivers and asked for union recognition. The Company declined, and a representation election was held on January 8, 1970. The Union won the election, was thereafter certified as bargaining representative, and, by the conclusion of the hearing before the trial examiner, was bargaining with the Company. However, in the period prior to and just after the election various incidents occurred that, along with the discharge of Tritsch, ...

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