PETITION FOR REVIEW AND CROSS APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD (Board No. 4-CA-9776)
Before Aldisert, Van Dusen and Garth, Circuit Judges.
This case does not require us to decide a novel legal issue. Rather, the controversy turns on application of the substantial evidence standard to a National Labor Relations Board decision that is based on testimonial evidence rejected as incredible by an administrative law judge. Disagreeing with the facts found by the administrative law judge and reversing his decision, the Board determined that Eastern Engineering & Elevator Co., Inc., discharged Robert Shepherd, a mechanic, because of his protected activity, and thereby violated §§ 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (3).*fn1 Eastern has petitioned us to review and set aside the Board's order, arguing that it was not supported by substantial evidence. The Board has cross petitioned for enforcement. We will refuse enforcement, grant the petition for review, and set aside the order.
Because the facts form the crux of this case, we will set them forth in detail and highlight the areas of controversy. We will also delineate the testimony that formed the basis of the Board's order. Finally, we will assess the record as a whole, applying the substantial evidence standard set forth at 29 U.S.C. § 160(f), in light of relevant judicial interpretations.
Eastern, a small Philadelphia, Pennsylvania, firm that installs and services elevators, has maintained a collective bargaining relationship for a number of years with Local 5, International Union of Elevator Constructors. The administrative law judge found, and there is no evidence to the contrary, that the relationship between the company and the union has been good. The union represents Eastern's foremen, mechanics and helpers.
In October, 1978, thirteen of Eastern's helpers took a union-administered mechanic's examination. Five passed and according to company practice they advanced automatically to mechanic status entitling them to a thirty per cent pay increase. Eastern determined that it could absorb only three additional mechanics. Given unfettered discretion by the terms of the collective bargaining agreement, Eastern decided to retain all five of the new mechanics and to lay off two of its existing mechanics. This case concerns Eastern's decision to lay off Robert Shepherd, one of the two.*fn2
Shepherd, the union, and the general counsel maintained that Shepherd was laid off because he filed an internal union charge against a fellow employee. The substance of the charge was that on one occasion the employee, Edward Carswell, had allowed a non-unit person, company president Stephen Zipf, to perform unit work. The incident occurred when Eastern was called to respond to a fire emergency. The general counsel's theory was that the filing of the intra-union charge was protected activity. Eastern denied that it was a factor in the decision and explained that Shepherd was laid off because he was not performing his duties adequately. According to Eastern, Shepherd refused to answer emergency calls, his work was substandard, and he had conflicts with customers, fellow employees, and management.
The administrative law judge found that Eastern had established a non- pretextual legitimate business reason for laying off Shepherd not motivated by Shepherd's charge. The Board rejected the ALJ's findings and concluded that Eastern's explanation was a pretext for impermissible motives.
Shepherd had been hired by Eastern as a probationary helper in February, 1973, and was promoted to service mechanic in early 1976, a position he held until his layoff on November 15, 1978. He described his duties as routinely servicing elevators on a prescribed route and making immediate repairs in the event of a breakdown.
On cross examination Shepherd at first denied that his duties included answering emergency calls, also known as call-backs, after regular hours. He also denied refusing to answer call-backs. After the collective bargaining agreement was admitted into evidence, the parties agreed that it imposed on Shepherd and other mechanics a responsibility to attempt to answer after-hours call-backs.*fn3 When confronted with Eastern's records of his refusals to answer specific call-backs, Shepherd conceded that his prior testimony was incorrect. App. at 47.
Shepherd then claimed as an excuse that he no longer had use of a company car and that without it he did not consider himself bound to answer call-backs. Eastern previously had supplied Shepherd with a company car for about one year when his route extended from Perth Amboy, New Jersey, to Wilmington, Delaware. He admitted, however, that Eastern does not supply all of its maintenance mechanics with cars, and that he lost use of the company car when his route was changed to a "walking route" in Center City Philadelphia. Prior to having a company car, Shepherd also serviced Center City buildings and during that time he used his own vehicle to get to and from his route. After losing the car, Shepherd took a trolley to work from his home in South ...