Detroit Newspapers

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 350 NLRB No. 38 352 Detroit Newspaper Agency, d/b/a Detroit Newspapers and Detroit Mailers Union No. 2040, Interna- tional Brotherhood of Teamsters. Case 7–CA– 425441 July 27, 2007 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS LIEBMAN, SCHAUMBER , AND WALSH On September 28, 2004, the National Labor Relations Board issued its Decision and Order in this proceeding.2 The Board found that the Respondent violated Section 8(a)(3) and (1) by discharging employee Thomas Hydorn for engaging in union and protected activities and or- dered, among other things, that the Respondent offer Hydorn immediate reinstatement. Member Schaumber dissented. Subsequently, the Respondent filed a petition for re- view of the Board’s Order with the United States Court of Appeals for the District of Columbia Circuit, and the Board cross-petitioned for enforcement. On January 20, 2006, the court remanded the proceeding to the Board “for clarification and further consideration,” because the Board’s “analysis as currently constituted [was] not suf- ficiently clear to allow for meaningful review.” Detroit Newspaper Agency v. NLRB, 435 F.3d 302, 312 (D.C. Cir. 2006). The Court directed the Board to first explain whether the evidence suggesting disparate treatment in discipline is among the factors that the Board meant to consider in concluding that the General Counsel met its burden of demonstrating that antiunion animus was a motivating factor in the [Respondent’s] discharge of Hydorn. Id. The Court then stated that: [I]f the Board meant to include disparate treatment in discipline in analyzing [the General Counsel’s burden], the Board must consider whether it would still reach the same result in light of this court’s holding that its other [grounds for finding that the General Counsel had met his burden] are not supported by substantial evi- dence. Id. [Emphasis added.] By letter dated September 14, 2006, the Board notified the parties that it had accepted the remand and invited the 1 We have amended the caption to reflect the disaffiliation of the In- ternational Brotherhood of Teamsters from the AFL–CIO effective July 25, 2005. 2 342 NLRB 1268 (2004). parties to file statements of position. Thereafter, the Re- spondent filed a supplemental brief on remand. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Court’s opinion fully sets forth the underlying facts of the case and describes the Board’s original deci- sion. We accept the Court’s holding as the law of the case. As we explain below, consistent with the terms of the Court’s remand, we have reexamined our original decision and have determined that the Board did not mean to rely on evidence of disparate treatment to find that the General Counsel had established a prima facie case of unlawful discrimination. Because the Court has rejected, as unsupported by substantial evidence, those grounds on which the Board did rely for its finding, we now conclude that the General Counsel has failed to carry his burden of proof. Accordingly, we dismiss the complaint, as the Court’s remand expressly permits us to do.3 In response to the Court’s remand, we must clarify the Board’s original intention with respect to the disparate- treatment evidence involved here. To do so we are con- strained to interpret our earlier decision, and not to recast it in light of the Court’s determination that certain find- ings cannot stand. As we understand the remand, the Board is not free now to consider the disparate treatment evidence if, in fact, we did not originally rely on this evidence in finding that the General Counsel had estab- lished a prima facie case. Our original decision stated, among other things, that “blatant disparity is sufficient” for a prima facie case of unlawful motive.4 Despite that statement of the potential significance of disparate treatment in establishing ani- mus, however, the Board did not analyze the record evi- dence of disparate treatment in discussing the General Counsel’s prima facie case. Rather, the Board made de- tailed findings concerning the poststrike environment in which the discharge occurred, the factual discrepancies between the stated reason for the discharge and Hydorn’s actual conduct, and the Respondent’s failure to comply with its disciplinary and investigative guidelines. Based on that assessment, the Board concluded that the General Counsel had presented a prima facie case of discrimina- tory motive.5 3 435 F.3d at 312 (observing that the “Board may, if appropriate, change its judgment on reconsideration and dismiss the unfair labor practice charges”). 4 342 NLRB at 1270, citing New Otani Hotel & Garden, 325 NLRB 928 fn. 2 (1998). 5 The element of disparate treatment is mentioned only tangentially in the Board’s evaluation of the prima facie showing. At fn. 11, the majority took exception to the dissent’s view that the Respondent did not follow its investigative guidelines because it considered Hydorn DETROIT NEWSPAPERS 353 Not until its evaluation of the Respondent’s rebuttal argument (that the Respondent would have discharged Hydorn even in the absence of his union activity) did the Board meaningfully address the matter of disparate treat- ment.6 Only in this context did the Board examine in detail the direct evidence presented by the General Coun- sel that 37 nonstrikers had been less harshly disciplined than Hydorn for insubordination. The Board’s consid- eration of disparity of treatment in rebutting the Respon- dent’s defense is not the same as considering that factor in support of the General Counsel’s case. In sum, based on our review of the original decision in this proceeding, we conclude that the Board did not con- irredeemable through corrective action. 342 NLRB at 1271 fn. 11. The majority found that nonstrikers who engaged in similar or more egre- gious conduct were issued corrective discipline rather than being dis- charged, demonstrating that the Respondent tolerated such behavior and did not need to resort to extraordinary measures with respect to Hydorn. Other than this minor mention, the Board’s decision is silent regarding the evidence of disparate treatment as it pertained to the prima facie case. 6 The Respondent presented evidence that it had similarly discharged for insubordination six employees who had not participated in the strike. In rejecting the Respondent’s argument, the Board not only found the six cases factually distinguishable from Hydorn’s, but also cited “significant evidence” of disparate treatment produced by the General Counsel. 342 NLRB at 1272–1273. sider the evidence of disparate treatment in determining that the General Counsel had satisfied his prima facie burden. Under the terms of the court’s remand, we may not do so here for the first time. In view of the court’s rejection of the grounds upon which the Board relied in finding animus, we conclude that the General Counsel failed to establish a prima facie case. We necessarily make no findings regarding the second portion of the Court’s remand, i.e., whether, assuming that the Board had meant to consider the evidence of disparate treatment originally (which we find it did not), that evidence alone would satisfy the General Counsel’s burden to show animus in this case.7 ORDER The complaint is dismissed. 7 Although the Board did not consider disparate treatment in analyz- ing the prima facie showing in this case, Members Liebman and Walsh reaffirm the principle that evidence of blatant disparity is sufficient to satisfy the General Counsel’s burden to show discriminatory motiva- tion. See New Otani, supra; Fluor Daniel, supra. Member Schaumber agrees that the Board’s prior decision did not consider disparate treatment in analyzing the General Counsel’s prima facie case. Further, he reaffirms his original dissent. Accordingly, he concurs in the dismissal of the complaint.