The full case caption appears at the
end of this opinion. Flaum, Circuit Judge. Jet Star, Inc. petitionsfor review of the National Labor RelationsBoard’s (“NLRB” or “Board”) decision affirming anadministrative law judge’s (“ALJ”) finding thatthe Company violated Sections 8(a)(1) and 8(a)(3)of the National Labor Relations Act (“NLRA” or”Act”), 29 U.S.C. sec. 151 et seq., bydischarging employee John Krueger in retaliationfor his union activities. The Board ordered JetStar to make Krueger whole for the discriminationhe suffered, including reinstatement, back pay,the removal of any reference to the unlawfuldischarge from his employment file, and theposting of an appropriate notice. The Boardcross-petitions this Court for enforcement ofthat order and, for the reasons stated herein, weenter final judgment enforcing the Board’sdecision and order in full. I. Facts Jet Star is a corporation primarily engaged inthe business of delivering jet fuel to airports.The Company employs 180 employees at seventeenterminals nationwide. It has forty employees andseventeen trucks at its facility in Hammond,Indiana. John Krueger, the Jet Star employee who is thesubject of the Board’s unfair labor practicecharge in this case, was a driver at theCompany’s Hammond facility. He began working forJet Star in July 1995, and received Companysafety awards in both 1995 and 1996. The Companyalso gave Krueger a quarterly safety bonus, aswell as a gift certificate in appreciation forhis help in handling damaged trucks. Prior tocoming to work at Jet Star, Krueger hadaccumulated approximately ten years experiencedriving trucks and approximately twenty yearsexperience as an automobile mechanic. In March 1996, Krueger and another drivervisited the offices of Teamsters Local 142 andtold officials of that union that the drivers atJet Star were interested in improving their wagesand working conditions. Soon after, Krueger beganto speak with other drivers about improving theirbenefits. Krueger also attended union meetingsand distributed union buttons and authorizationcards. Local 142 eventually filed a petition forcertification as the employees’ collective-bargaining representative, and the RegionalDirector of the NLRB scheduled a representationelection for June 1996. During the election campaign, the Companyinstituted mandatory meetings with its drivers atwhich its management argued against unionrepresentation. Krueger defended the union atthese meetings, and insisted that the employeesdeserved higher wages. When the union electionwas conducted, Krueger served as the unionobserver. Jet Star employees voted against unionrepresentation nineteen to fourteen. In 1996 and early 1997, at about the same timeas the union campaign, Jet Star began toexperience excessive clutch and transmissionfailures in trucks at its Hammond facility. As aresult of these problems, the Company was forcedto make two costly transmission replacements intruck #296, as well as two transmissionreplacements and a clutch replacement in truck#298. Jet Star believed these equipment failuresto be a direct result of employee abuse. TheHammond Terminal Lead Mechanic, Bill Atkins,informed Jet Star’s Chief Executive Officer,Darryl Guiducci, that it was Krueger who wasabusing the trucks. In response to its equipment problems, Jet Starscheduled Safety Performance Observations(“SPOs”) for nine drivers at the Hammondfacility, including Krueger. During the SPOs,Guiducci, who oversees maintenance at theCompany, rode with each driver and observed howhe operated the truck. When he rode with Krueger,Guiducci noticed that Krueger was starting thetruck from a stopped position in fourth or fifthgear and was slipping the clutch badly. When atruck is operated in this manner, excessive heatis generated and the clutch and transmission canburn out, causing serious damage andnecessitating extensive repairs. At the conclusion of his SPO with Krueger,Guiducci informed Krueger that he would have tocease starting the truck in fourth or fifth gearbecause it caused the clutch to slip andconsequently burned out the clutch and thetransmission. Krueger acknowledged that he wasstarting the truck in this manner, but statedthat he did not know it would damage the truck.Guiducci then demonstrated the proper way tostart the truck, and told Krueger to watch aninstructional video on the proper use of theclutch. Krueger was not formally disciplined atthis time. In January 1997, the Company informed thedrivers that they would be hauling gas fuel, andKrueger inquired as to whether they were toreceive a higher wage for carrying a moredangerous fuel. The Company denied this requestfor a pay raise. At about this time, severaldrivers approached Krueger about starting anotherunion campaign. Krueger told them that they wouldhave to wait a year before they could holdanother election, but he urged them to go to theunion hall and “to stay together.” After other drivers began to express interestin a renewed union campaign, Krueger contactedofficials at Teamsters Local 705. He explained toa representative at Local 705 that several of thedrivers had expressed concern about theleadership of Local 142, and asked therepresentative how Local 705 would go aboutaddressing the drivers’ concerns. In total,Krueger had approximately six or sevenconversations with union officials at Local 705. In February 1997, at the request of unionsupporter Wesley Gillian, Jet Star dispatcher AmyGregory faxed a copy of Local 705′s bylaws todriver John Ramos. The faxed document wasreceived at the motel at which Ramos was staying,but he never received the document. Eventually,Ed Bell, Jet Star’s Director of Operations,obtained a copy of the bylaws. Gregory was thenasked if she knew anything about the bylaws bythe Hammond facility’s Terminal Manager, MarkSmith. When Gregory responded that she did not,Smith stated: “[W]e need[ ] to start pushing theissue of writing drivers up. And three inparticular because they are getting the [u]nionvote.” According to Gregory, Smith named Kruegeras one of the drivers he was particularlyconcerned about. Gregory also testified that sheoverheard a conversation between Smith and Bellduring which Smith said he needed some reason tofire Krueger. On March 10, 1997, Krueger left the Hammondfacility to deliver a load of jet fuel to MidwayAirport in Chicago, Illinois. While Krueger wasexiting the terminal parking lot, Fleet ManagerRobert Mulligan and Terminal Manager Smithobserved him starting the truck in too high agear. Krueger completed his delivery to Midwayand, when he informed the Company he had extrafuel remaining, he was instructed to make asecond delivery that he successfully completed. When Krueger reported to work on March 11,1997, he was told that Smith wanted to see him.When Krueger reported to Smith’s office, he wasgiven a discharge form signed by Smith andwitnessed by Mulligan. The form stated thatKrueger was being discharged for abuse ofequipment in violation of Company RuleI(a)(4).
[FOOTNOTE 1] Smith told Krueger that the dischargewas not his idea, and that the order came fromCompany headquarters. Gregory testified thatafter Kreuger left she overheard Smith say, “[W]efinally got him.” On April 17, 1997, Krueger filed an unfairlabor practice charge against Jet Star with theChicago regional office of the NLRB. In hischarge, Krueger alleged that Jet Star violatedSections 8(a)(1) and 8(a)(3) of the NLRA when itterminated his employment based upon his unionactivities. The Chicago regional office issued acomplaint on the charge and a hearing wasconducted before ALJ Robert Giannasi on June 29and 30, 1998. On September 16, 1998, the ALJ ruled that JetStar discriminatorily discharged Krueger inviolation of Sections 8(a)(1) and 8(a)(3) of theNLRA. The case was then transferred to the NLRB.On March 27, 1999, the NLRB issued its decisionand order adopting the ALJ’s rulings, findings,and conclusions. Jet Star now petitions forreview of the NLRB’s March 27 decision and order,and the NLRB cross-petitions for enforcement ofthat order. II. Analysis The Board affirmed the decision of the ALJ inwhich the ALJ found that in discharging KruegerJet Star violated Sections 8(a)(1) and 8(a)(3) ofthe NLRA. Section 7 of the Act guaranteesemployees “the right to self-organization, toform, join, or assist labor organizations, tobargain collectively through representatives oftheir own choosing, and to engage in otherconcerted activities for the purpose ofcollective bargaining or other mutual aid orprotection . . . .” 29 U.S.C. sec. 157. Section8(a)(1) protects these rights by making it anunfair labor practice for employers “to interferewith, restrain, or coerce employees in theexercise of [their Section 7 rights] . . . .” 29U.S.C. sec. 158(a)(1). Section 8(a)(3) also helpsto effectuate employees’ ability to unionize byprohibiting employers from “discriminati[ng] inregard to hire or tenure of employment or anyterm or condition of employment to encourage ordiscourage membership in any labor organization.”29 U.S.C. sec. 158(a)(3). It is well-established that Jet Star violatedSections 8(a)(1) and 8(a)(3) of the NLRA if itdischarged Krueger because of his unionactivities. See NLRB v. Transportation ManagementCorp., 462 U.S. 393, 398 (1983); NLRB v. JoyRecovery Tech. Corp., 134 F.3d 1307, 1314 (7thCir. 1998); NLRB v. Dorothy Shamrock Coal Co.,833 F.2d 1263, 1266 (7th Cir. 1987). We firstlook to whether the NLRB’s General Counsel,representing Krueger, established a prima faciecase that the employer acted with an unlawfulmotivation. See Transportation Management, 462U.S. at 398; Wright Line, a Div. of Wright Line,Inc., 251 NLRB 1083, 1089 (1980), enforced 662F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S.989 (1982). If so, we then look to whether theemployer was able to rebut that evidence or toshow that the job action would have been takeneven in the absence of the employee’s protectedactivities. See Transportation Management, 462U.S. at 398; Wright Line, 251 NLRB at 1089. In this case, Jet Star first contends that theBoard’s decision was in error because the GeneralCounsel failed to establish a prima facie case ofdiscrimination. To make out a prima facie case,the General Counsel must show: (1) that theemployee engaged in a protected activity; (2)that the employer had knowledge of the employee’sactivities; and (3) that the employer acted withanti-union animus. See Director, Office ofWorkers’ Compensation Programs, Dep’t of Labor v.Greenwich Collieries, 512 U.S. 267, 278 (1994).In order to uphold the Board’s determination, weneed only find that the decision is supported bysubstantial evidence in the record considered asa whole. 29 U.S.C. sec. 160(e); see UniversalCamera Corp. v. NLRB, 340 U.S. 474, 488 (1951);Beverly Farm Found., Inc. v. NLRB, 144 F.3d 1048,1051 (7th Cir. 1998). Under the substantialevidence standard, a court may not “dabble infactfinding, . . . [or] displace reasonabledeterminations simply because [it] would havecome to a different conclusion if [it] reviewedthe case de novo.” NLRB v. Augusta Bakery Corp.,957 F.2d 1467, 1471 (7th Cir. 1992) (quoting NLRBv. P*I*E Nationwide, Inc., 923 F.2d 506, 513 (7thCir. 1991)). In challenging the evidence supporting theBoard’s decision, Jet Star argues that theCompany had no knowledge, at the time itdischarged him, of Krueger’s union activitiesfollowing the defeat of Local 142 in the June1996 representation election. In this regard, JetStar notes that Krueger himself testified that hedid not wear or distribute any unionparaphernalia in the presence of Companyofficials after the election, and that he did notinform Jet Star management of his unionactivities nor identify himself as a unionspokesperson at any Company meetings. Jet Starcontends that the only hint it had of Krueger’sunion affiliation was his union activities priorto the certification election, and hisparticipation as an observer in that election. The Company’s knowledge of Krueger’s unionactivities was primarily established bydispatcher Gregory’s testimony. Gregory testifiedthat in January 1997, Terminal Manager Smithannounced his intention to begin “writing up”Krueger and two other drivers who were “gettingthe [u]nion vote.” Furthermore, Gregory statedthat she overheard Smith tell Director ofOperations Bell that he had to find some reasonto fire Krueger. Finally, after Krueger wasfired, Gregory overheard Smith say “we finallygot him.” This testimony as to Smith’s commentsis evidence that Smith had knowledge of Krueger’sunion activities, and strongly supports aninference that the Company’s discharge of Kruegerwas motivated by the Company’s anti-union animus.See Dorothy Shamrock Coal, 833 F.2d at 1267(stating that “comments [that] demonstrate a’manifest hostility’ toward union activity . . .are relevant in determining the Company’s motivefor its conduct”). Jet Star does acknowledge that Gregory’stestimony indicates knowledge of Krueger’s unionactivities on the part of the Company, butasserts that this testimony was so incrediblethat the ALJ should have disregarded it. We mustaffirm credibility determinations made by theALJ, and adopted by the Board, in the absence ofextraordinary circumstances. See J.C. Penney Co.v. NLRB, 123 F.3d 988, 995 (7th Cir. 1997);Dilling Mechanical Contractors, Inc. v. NLRB, 107F.3d 521, 524 (7th Cir. 1997). Such extraordinarycircumstances “include a clear showing of bias bythe ALJ, an utter disregard for uncontrovertedsworn testimony or the acceptance of testimonywhich on its face is incredible.” Carry Co. ofIl., Inc. v. NLRB, 30 F.3d 922, 928 (7th Cir.1994). In this case, Jet Star argues that theALJ’s credibility determination as to Gregory’stestimony was irrational and patently incrediblebecause her testimony was manifestly contradictedby other evidence in the record. Gregory testified that she faxed a set of Local705′s bylaws to a union supporter at a Milwaukeehotel, but that she did not know what thedocuments were. According to Jet Star, thistestimony was contradicted by that of another JetStar driver, Wesley Gillian, who testified thathe gave Gregory the bylaws to fax and stated,”John wanted to see a copy of the bylaws.” Inaddition, Jet Star argues that Gregory herselftestified that Gillian asked her to fax a copy ofthe bylaws, and that she admitted during crossexamination that she “faxed some bylaws of theunion to a Super 8 in Milwaukee.” Jet Starcontends that both Gillian’s and Gregory’sstatements contradict Gregory’s assertion thatshe did not know she was faxing a copy of thebylaws, and that the ALJ therefore erred infinding her testimony credible. The deferential standard of review that weapply to the credibility determinations of theALJ is based on our desire to avoid”redetermining credibility ‘on the basis of acold record.’” Joy Recovery, 134 F.3d at 1312(quoting Carry Co., 30 F.3d at 928). In thiscase, Jet Star has failed to show that the ALJ’sacceptance of Gregory’s testimony was irrationalor patently incredible because none of thetestimony cited by the Company clearlycontradicts that of Gregory. Gillian’s testimonyindicates that he told Gregory that the documentto be faxed was a copy of the bylaws, but it doesnot establish that Gregory in fact knew they werebylaws. And, while Gregory herself referred tothe documents as bylaws, it is possible that thisreference only indicates the state of herknowledge at the time she testified. Gregory’sreference to bylaws does not prove that she knewthe documents were bylaws at the time she faxedthem, and does not demonstrate that the ALJ’scredibility determination was irrational orpatently erroneous. In addition to Smith’s comments about Krueger,the timing of the discharge itself supports aninference that Krueger was dismissed because ofhis union-related activities.
[FOOTNOTE 2] See NLRB v.O’Hare-Midway Limousine Serv., 924 F.2d 692, 697(7th Cir. 1991) (holding that the timing of adischarge may indicate the existence of anunlawful motive). At the time Krueger wasdischarged, Jet Star employees had expressedinterest in renewing a campaign to unionize theHammond facility. Furthermore, Krueger’sdischarge came only shortly after Smith expressedconcern about drivers who were “getting the unionvote,” and after he specifically stated thatmanagement needed a reason to fire Krueger. Thetiming of Krueger’s discharge, coupled with theevidence of anti-union animus presented by theGeneral Counsel, provides a sufficient basis forthe Board’s finding that Jet Star committed anunfair labor practice by discharging Kruegerbecause of his union activities. See NLRB v.Shelby Memorial Hosp. Ass’n, 1 F.3d 550, 568 (7thCir. 1993) (stating that an employer’sdiscriminatory motive can be proved throughcircumstantial evidence); Justak Bros. & Co. v.NLRB, 664 F.2d 1074, 1077 (7th Cir. 1981) (same). Jet Star attempts to rebut the inference thatit fired Krueger based upon his union activitiesby arguing that it actually discharged himbecause of its good-faith belief that he wasabusing equipment. According to Jet Star, it wasnot Krueger’s union activities that led to hisfiring, but rather the damage to the trucksKrueger caused through his consistent mishandlingof them. Jet Star further contends that becauseof his abusive treatment of equipment, Kruegerwould have been fired even in the absence of hisunion-related efforts. The Board rejected theCompany’s abuse of equipment rationale as apretext, and we look only to whether there wassubstantial evidence in the record to supportsuch a finding. 29 U.S.C. sec. 160(e); seeUniversal Camera Corp., 340 U.S. at 488; BeverlyFarm Found., 144 F.3d at 1051. In this case, Jet Star claims that itdischarged Krueger because he was abusing theequipment by starting trucks in too high a gear.Yet when Smith and Mulligan allegedly saw Kruegerexit the parking lot in fourth or fifth gear onMarch 10, 1997, Krueger was not called back towork nor was he prevented from making a seconddelivery that day. Moreover, Krueger was neverformally warned about the potential consequencesof abusing the trucks, and was discharged withouteven a cursory investigation into the reportedmisconduct. See NLRB v. Advanced Transp. Co., 979F.2d 569, 574 (7th Cir. 1992) (holding thatevidence of a cursory investigation can give riseto an inference of an unlawful motive). Whilethis evidence is not conclusive as to Jet Star’smotivation, it does provide sufficientevidentiary support for the Board’s determinationthat the abuse of equipment rationale offered byJet Star was a pretext to cover the fact thatKrueger was discharged because of his unionactivities. The Board’s conclusion that the abuse ofequipment justification was only a pretext isfurther supported by Jet Star’s handling ofprevious problems with employees abusingequipment. Other drivers who damaged Companytrucks in minor ways were apparently not firedfor their first offense. Rather, the only first-time offenders the Company did discharge werethose involved in serious accidents with highdegrees of damage. While the Company contendsthat the clutch and transmission failuresinvolved in this case are more analogous to themajor damage that led to previous dismissals, theBoard disagreed. More significantly, the Boardfound that Jet Star failed to present anyconcrete evidence that it believed that Krueger’soperation of the trucks led to the damage theCompany claims to have sustained.
[FOOTNOTE 3] Absent amore conclusive connection between Jet Star’sdismissal of Krueger and its asserted belief thatKrueger caused the damage to Jet Star’s trucks,we cannot determine that the Board erred infinding Jet Star’s asserted justificationpretextual. See NLRB v. Thor Power Tool Co., 351F.2d 584, 587 (7th Cir. 1965) (stating that theBoard may disregard an employer’s assertedjustification when it “furnishe[s] the excuserather than the reason” for the action). Jet Star complains that even accepting theBoard’s pretext finding, the Board did not go onto determine whether Jet Star would have firedKrueger even had he not engaged in unionactivity. However, that argument is necessarilyanswered by our conclusion that there wassufficient evidence in the record to support theBoard’s determination that the Company’s assertedjustification was pretextual. Where the Boardfinds that the proffered reason for a dischargewas pretextual, we cannot conclude that thedischarge would have occurred in the absence ofthe protected activity. See Wright Line, 251 NLRBat 1089. Furthermore, the Board’s pretext findinglends added support to its determination that JetStar discharged Krueger based on his unionactivities. See Union-Tribune Publishing Co. v.NLRB, 1 F.3d 486, 490-91 (7th Cir. 1993);Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466,470 (9th Cir. 1996) (stating that where anemployer’s stated justification is pretextual, itcan be inferred “that the motive is one that theemployer desires to conceal–an unlawful motive–at least where, as in this case, the surroundingfacts tend to reinforce that inference”). Inthese circumstances, we cannot conclude that therecord lacks substantial evidence supporting theBoard’s conclusion that Jet Star’s asserted non-discriminatory rationale was pretextual. III. Conclusion We find that there is substantial evidence inthe record to support the Board’s conclusion thatJet Star violated Sections 8(a)(1) and 8(a)(3) ofthe NLRA by firing Krueger because of his union-related activities. Accordingly, we deny JetStar’s request to set aside the Board’s decisionand order dated May 27, 1999, and enter finaljudgment enforcing that decision and order infull. :::FOOTNOTES:::
FN1 Company Rule I(a)(4) is titled “Tampering withand/or abusing Company owned or leasedequipment,” and is set forth in the employeehandbook. According to the handbook, a violationof Rule I(a)(4) is a major violation and thepunishment for a first infraction is a minimumone-week suspension without pay or,alternatively, termination.
FN2 Jet Star argues that the timing of Krueger’sdischarge actually supports an inference that itwas not union-related. According to Jet Star, ifit wanted to terminate Krueger based upon hisunion activities, it would have done so inNovember 1996 after he was observed starting thetruck in too high a gear during the SafetyPerformance Observation. In such circumstances,an employer’s decision not to terminate anemployee at the first opportunity could underminean inference of anti-union animus. Carry Co., 30F.3d at 929 n.4; NLRB v. Newman-Green, Inc., 401F.2d 1, 4 (7th Cir. 1968). However, at the timeGuiducci conducted the SPOs, there was noindication that Jet Star was concerned aboutunionization. Local 142 had already beendefeated, and the new union movement had not yetbegun. In contrast, by March 1997, Jet Star wasaware of Krueger’s renewed union activities, andhad reason to be concerned about potentialunionization at its Hammond facility.
FN3 The only evidence Jet Star presented of Krueger’smishandling of the trucks was Guiducci’stestimony and notes that Krueger started thetruck in too high a gear during his SafetyPerformance Observation, and the testimony ofSmith and Mulligan that they observed Kruegerexit the Company parking lot in too high a gear.Were the ALJ to have credited this testimony, JetStar could certainly argue that the recordsupported its contention that Krueger wasdischarged for an abuse of equipment. However,the ALJ rejected this testimony as incredible,and did not believe the Company’s assertedjustification. Because we do not second-guess anALJ’s credibility determinations absentextraordinary circumstances, Augusta BakeryCorp., 959 F.2d at 1467, and because we do notfind any such circumstances present in this case,we find no evidence in the record that supportsJet Star’s argument that its abuse of equipmentrationale was not pretextual.
Jet Star, Inc. v. NLRB In the United States Court of Appeals for the Seventh Circuit Jet Star, Inc., Petitioner/Cross-Respondent, v. National Labor Relations Board, Respondent/Cross-Petitioner. Nos. 99-2488 & 99-2778 Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.No. 13-CA-35087–Robert A. Giannasi, Administrative LawJudge. Argued: January 10, 2000 Decided: April 4, 2000 Before: FLAUM, MANION, and EVANS, Circuit Judges.
