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Good Samaritan Medical Center v. National Labor Relations Board

United States Court of Appeals, First Circuit

May 31, 2017

GOOD SAMARITAN MEDICAL CENTER, Petitioner, Cross-Respondent,
NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner. NATIONAL LABOR RELATIONS BOARD, Petitioner, Cross-Respondent,
1199 SEIU UNITED HEALTHCARE WORKERS EAST, Respondent, Cross-Petitioner.


          Joseph W. Ambash, with whom Reyburn W. Lominack, III and Fisher & Phillips LLP, were on brief, for Good Samaritan Medical Center.

          Betsy Ehrenberg, with whom Pyle Rome Ehrenberg PC, was on brief, for 1199 SEIU United Healthcare Workers East.

          Gregoire F. Sauter, Attorney, National Labor Relations Board, with whom Usha Dheenan, Supervisory Attorney, Richard F. Griffin, Jr., General Counsel, Jennifer Abruzzo, Deputy General Counsel, John H. Ferguson, Associate General Counsel, and Linda Dreeben, Deputy Associate General Counsel, were on brief, for The National Labor Relations Board.

          Before Torruella and Barron, Circuit Judges, and Lisi, [*] District Judge.

          TORRUELLA, Circuit Judge.

         Camille A. Legley, Jr. was a probationary employee hired by Good Samaritan Medical Center ("Good Samaritan"). During an orientation training he questioned a union delegate's alleged remark that he had to join 1199 SEIU United Healthcare Workers East ("the Union"), in order to work at Good Samaritan. The exchange became heated and the following day Good Samaritan terminated his employment claiming that his conduct had violated its civility policy. Upon Legley's complaint, an administrative law judge ("ALJ"), followed by the National Labor Relations Board ("NLRB" or "the Board"), found that the Union caused Good Samaritan to discharge Legley because of his protected conduct, in violation of Section 8 of the National Labor Relations Act ("NLRA" or "the Act"). Good Samaritan Med. Health Ctr., 361 N.L.R.B. No. 145 (Dec. 16, 2014). The NLRB ordered the Union and Good Samaritan to, inter alia, reinstate Legley with back pay and rescind the workplace civility policy. Because we find considerable contradictory evidence in the record that the NLRB failed to consider, we do not find substantial evidence on the record as a whole that Legley was discharged because of his protected conduct and decline enforcement of the NLRB's order.

         I. Background

         A. Hiring Process

         During the fall of 2011 Legley applied and interviewed for a position at Good Samaritan as a part-time boiler operator. Good Samaritan has a collective-bargaining agreement with the Union pursuant to which employees are required to either be members of the Union or to pay it an agency-service fee.[1] Also of relevance, Good Samaritan maintains a workplace civility policy.[2]

         Between September and November of 2011 Legley attended multiple interviews with Facilities Manager Sean Brennan as well as two employees who report to Brennan: Kevin Jordan and Neal Nicholaides. Jordan and Nicholaides are both union delegates. On November 28, 2011, Good Samaritan offered Legley a job on the weekend evening shift at its Brockton, Massachusetts location. On December 5, 2011, Legley reported to Good Samaritan's human resources department in order to complete required paperwork and to submit to a required physical. In their testimony to the ALJ, three women who met with Legley that day, Human Resources Manager Jennifer Patnaude, administrative assistant Jennifer Dorsey and medical assistant Annette Miller, all testified that they found Legley to be difficult. Legley testified that on this date he met with "two or three ladies, "[3] and he did not perceive there to be any conflicts; he believed he was cooperative and did not give them a hard time in any way. Patnaude, on the other hand, was so concerned about Legley's behavior that she called Brennan to ask if he really wanted to hire Legley. Brennan replied in the affirmative stating that Legley had interviewed well and was being hired to fill a difficult-to-staff shift.

         B. Orientation Meeting

         Legley's first day of work was December 19, 2011 when he reported for a mandatory training. Legley and three other new hires (all women) reported to the building's lobby and then, due to an elevator malfunction, were required to walk up five flights of stairs to the training room. Legley lagged behind the other attendees and, as a result, the first session had already begun when he entered the training room. Legley took a seat at the head of the table, closest to the presenter.

         The first twenty minutes of the orientation were dedicated to the Union. On this day the Union's portion of the orientation was presented by Darlene Lavigne who had been employed at Good Samaritan for almost 30 years. She had also been a union delegate for the previous ten years and gave these presentations approximately twice a month. Lavigne's presentation typically included information on the Union and its benefits and included handouts explaining the Union as well as paperwork soliciting contact information from the new employees.[4]

         The events of this meeting are under dispute. Three individuals testified about it before the ALJ: Lavigne, Legley and Kimberly Derby, one of the other new hires. Legley testified that when he arrived in the room he expected to find an HR representative, so he was confused by the fact that the discussion seemed to be focused on the Union. He further testified that the woman speaking (later identified as Lavigne) "was talking about you had to join the union to work here and all of that." Legley stated that he "was so mixed up with what was going on, " because he expected a human resources representative and instead received a "union steward."

         Not long into the presentation, Legley reportedly said to Lavigne "I understand there's a state or federal law that you don't have to join a union, " to which Lavigne reportedly stated "You still have to join the union." According to Legley, at this point Lavigne "got kind of upset."

         Lavigne continued with her presentation and Legley proceeded to read the materials given to him. Within these materials he found a paragraph essentially stating that "you do not have to be a member of 1199, the union, and that you can contribute your monies to some agency in the hospital." Legley proceeded to read the relevant language out loud to Lavigne, who, according to Legley, "got very upset and mad." Legley testified that after this "she was in a different mood, she was -- you could tell she was very upset and everything." Legley believes that Lavigne said on four to six occasions that they had to join the Union in order to work at the hospital.

         Legley admitted that he "was a little upset because I didn't know what was going on. I thought it was going to be an HR meeting and it turned out to be a union meeting, and I just never ran into a situation like this before, " but he denied raising his voice and being angry, disruptive or rude.[5] In contrast, he characterized Lavigne as "[r]ude, aggressive, she looked mad, she was definitely upset that I asked a couple of those questions." Legley testified that Lavigne looked at him with "evil eyes."

         Derby testified that she also understood Lavigne to be saying that "in order to work for Good Samaritan Hospital . . . you needed to join the union." Derby described the meeting as "an open forum meeting, so I don't necessarily think he interrupted her" and said that while he had a loud voice "he had a normal tone." Derby testified that Lavigne's response was that yes, he did have to join the Union. She testified that Lavigne became irritated after Legley told her that he thought there was a law saying that he did not have to join the Union. Derby felt that Legley's questions were not "being validly answered."

         At the same time, Derby also stated that the "conversation was escalating" and described both Lavigne and Legley as "irritated" in demeanor. Derby referred to Legley's demeanor as "irritated and passionate, " said that his "voice became louder, " indeed, that "[b]oth parties had raised voices." Derby agreed that he was "pretty passionate about being sure there was a law, " "was very forceful and energetic in his presentation, " that "he was a big guy with a big voice, so the impression he made on you was of a big presence in the room, " and that there seemed to be an "escalation."

         Derby testified that Legley asked if he could make copies of all of the paperwork and that Lavigne "was really irritated with him for asking to make copies." Derby said that it was around this time that Lavigne asked Legley his name and what department he would be working in and "stated that she knew the people that worked down there, and she was going to warn them that he was coming, and that they would not put up with him." Derby testified to being horrified by this exchange because she took it to be "a threat."

         In contrast to Legley's testimony, Lavigne testified that the first thing Legley did when he walked in the room was point a finger at her and say "[y]ou were supposed to meet me in the lobby." She described him as interrupting a total of three or four times to complain about not being met downstairs and having to climb all the flights of stairs. She described his presence as being overbearing. She felt that he "was consuming the meeting." She testified that "[h]e wasn't yelling, but he was talking loudly. He was exerting his power, like he was just --it was all about him, all about him and his questions, his concerns." Lavigne testified that if someone does not want to join the Union she typically tells them there is information in "the yellow section on the back of [the] form" but that "he didn't let me." She testified that she "was upset because of the interruptions, the rudeness, the overpowering of my presentation." She described him as "[o]verbearing. I thought he was scaring the other ladies, myself. I mean they're like they were shocked. They were like waiting to see like what's going to happen next." She said that at the end of the session she "was really emotionally upset . . . To be treated in such a manner." She testified that he was disrespectful by "[c]onstantly interrupting. Constantly making me feel that I didn't know what I was doing, constantly taking over the whole presentation, the whole presence of the room." She testified that her main concern was not his questioning whether he had to join the Union but "his rudeness, his overpowering of the whole meeting. I mean I was just there to give information to people, not to make people do anything."

         By the end of the meeting Legley had completed the application to join the Union. He testified that he "wanted to be like everyone else" and there "seemed to be a lot of benefits to belonging to this union." Derby completed an application in which she elected to make a contribution to the political action fund, though at a rate lower than that recommended by Lavigne. Derby testified that when she left the meeting she "still felt like I had to join the union."

         C. Post-Orientation Meeting

         Lavigne testified that as she exited from the meeting she encountered Rebecca Cadima, the human resources representative who would lead the remainder of the orientation, and told her "he really, really gave me a hard time. And [Cadima] said, I know, he gave me a hard time, too." She further testified that after she arrived home she called Mary Ellen Leveille, an employee of the Union who was the lead administrative organizer for the team that included Good Samaritan, to vent, saying to Leveille that she owed her "big time" and that at the orientation Lavigne had

had this person, he was rude. He was constantly interrupting me. He wouldn't let me give a proper presentation. He was overbearing. And I've never, ever had a new employee act like this. Why would someone come into a new business, the first day, and act like this? You don't do that.

         Leveille testified that "[Lavigne] was choked up, like she was crying" and "I've never seen her be upset like with this situation." Leveille further testified that Lavigne told her that Legley "was very intimidating. He started pointing his finger at me and yelling at me, and I couldn't get through everything I had to tell everybody." Leveille stated that "my impression was that she just got so flustered because he just came in the room and, in her words, he blew up the orientation." When asked if at some point Lavigne mentioned his question of whether he had to join the Union, Leveille replied

I don't recall. I mean because that wasn't what the conversation was. She was really upset. I was trying to calm her down because she just felt very intimidated by the situation that had happened. I don't even recall talking about anything to do with union membership, because that wouldn't be important.

         Lavigne next called Nicholaides, who testified that he received a call from Lavigne on December 19 after the orientation meeting. Nicholaides said that he could tell from her voice that she "was extremely upset, " that "her voice was shaky, she told me she had never been treated this way before, that he came in right from the get-go complaining that he had to walk up the stairs, " and that "he was calling her a liar basically, and [saying] that she wasn't telling the truth."[6]

         Nicholaides testified that because "[Lavigne] was so upset I immediately called [Cadima] . . . to see if she could just give me some more insight on what happened." Cadima reported that she had not seen what transpired, but said that she felt they were "going to have [their] hands full with [Legley]. He ran [them] through the ringer." Nicholaides further testified that his conversation with Cadima did not involve any discussion of the content of the dispute between Lavigne and Legley and that his primary concern was how upset Lavigne was because "it's just not [Lavigne]'s nature to get that upset. And I was very concerned for her when she called -- she sounded over the phone like she was practically in tears."

         Leveille testified that following her conversation with Lavigne she called Nicholaides and, using "some choice words, " said "what the heck is going on, a worker that is going to be working with you guys just gave [Lavigne] a really hard time in orientation. She called me. She's crying. And you know [Lavigne]; this isn't like her, what's going on." They both testified that their conversation focused on how surprising it was that someone would act like that on their first day of work.

         Testimony is somewhat confusing as to when anyone in management at the hospital heard about what happened. There is some indication that Nicholaides may have spoken to Brennan, the facilities manager. [7] Whenever the conversation occurred, Nicholaides was clear that the focus of any conversation was "how disruptive [Legley] was at the meeting and how upset he got [Lavigne]." Nicholaides testified that the content of the dispute was not discussed because he "was told [Legley] joined the union, so to me that was a nonissue."

         The next day, December 20, was Legley's first day in the boiler room. Jordan, whose job it was to train Legley, testified that when Legley arrived at work that morning, he said "[w]e may have a little problem" and went on to say that he "had a disagreement with the girl giving the orientation." Jordan took Legley to meet with the other two union delegates, Nicholaides and Monahan, because he thought it sounded as though there might "be a disciplinary problem." Jordan said that Legley told the three of them that "the girl at the orientation wasn't telling the whole truth. She said you had to join the union" and he said something to the effect of "[m]aybe I'm not a good fit here."[8]

         Patnaude, Nicholaides and Kenyon each testified that later that day at a luncheon Nicholaides approached Patnaude, Tom Watts (the head of Human Resources) and Kenyon to talk about what had happened at the orientation and how upset Lavigne was when he spoke to her.

         Patnaude's testimony was the most detailed as to the content of the conversation. She testified that they

talked about the incidents at orientation, how rude [Legley] was to [Lavigne], that he had made her cry she was so upset. And I, at that time, expressed the fact that I didn't want to hire him in the first place and he was disrespectful when he came in and interviewed with me, he was very rude. And then when he came in to complete his new hire paperwork, he was rude to the HR staff. He was also rude when he went to employee health.

         After Nicholaides left, Patnaude, Watts and Kenyon

talked about the length of time it would take to train [Legley], to get him up to speed with the facility and the different duties that he would have beyond what he would do as a boiler operator, and decided at that point to cut our losses and terminate his employment.

         Kenyon testified that Legley's questions about joining the union did not impact his decision to terminate him and that his primary concern was that "these are not the kind of individuals that we want working at Good Samaritan, you know, we treat [people] with dignity and respect. We expect other people to treat other people with dignity and respect." Kenyon did not want to invest resources training someone who was going to behave this way. Kenyon further testified that he did know the content of Legley's objections at the time he made the decision to terminate him. Jordan testified that after the decision was made Kenyon told him something to the effect of "Mr. Legley being trouble and not a good fit because of the 'I believe' code and said he wasn't going to take a chance of having [a] disruption in the department."

         Patnaude testified that ultimately it would have been Kenyan who would terminate an employee in his department, though she said that the decision was more typically a collaborative one between herself, Watts and Kenyon. She testified that Legley was terminated "[f]or his inappropriate disrespectful behavior." She further elaborated that:

[H]e was disrespectful and rude at every point along the process to hire him. And then once he came on board, was very disrespectful in the orientation, made our employee very upset by his behavior, and then also expressed the fact that he wasn't even sure he wanted to work here the next day. And also taking into account the fact that it would take time to train him and the shift he would be on, and there would really be no supervision on that shift, and that was a concern.

         She also explained that they were concerned that they could be "subjecting our employees on the night shift to that behavior, " meaning "getting upset, getting frustrated with [Lavigne], just being, you know, being upsetting to other people. And if he's going to do that on his first day of employment, what's he going to do when he's comfortable[?]" She testified that his "comments regarding his questions about the necessity of joining the union" did not play any role in the decision to terminate his employment.

         D. Procedural Background

         1. ALJ

         Legley filed a complaint with the NLRB. Following a hearing, the ALJ concluded that both Good Samaritan and the Union had violated the NLRA in discharging and causing the discharge of Legley (respectively). He additionally found that Lavigne threatened unspecified reprisals against Legley in violation of Section 8(b)(1)(A) of the Act.

         In arriving at these findings the ALJ believed the applicable precedent to be Atlantic Steel Co., which asks whether an employee has lost protection of the Act via misconduct on his part. 245 N.L.R.B. 814, 816 (1979). He therefore focused his analysis on the interaction between Legley and Lavigne, and he concluded that Legley did not make "any statements that could be construed as being threatening or profane, " nor did he act in an "overly aggressive manner." Rather, "[a]t most, both Legley and Lavigne raised their voices when he said he didn't have to become a union member and she said that he did." He determined that "the evidence convinces me that nothing that [Legley] said or did at this meeting could compel a conclusion that he lost the protection of the Act by virtue of any misconduct on his part." Applying the test annunciated in Atlantic Steel, he found that Legley's misconduct could not justify his discharge, and stated that "in the absence of legally defined misconduct, " he could not

separate the protected nature of his comments from the way he made the comments. As his behavior at the meeting did not meet the criteria of Atlantic Steel, [Legley's] statements regarding union membership and the tone in which he made the statements cannot be disentangled. Therefore, as the Company discharged Legley because of these protected statements, a Wright Line analysis is not even appropriate.

         2. NLRB

         The NLRB agreed with the findings and conclusions of the ALJ, though with slightly modified legal analysis. With regard to the Union, the NLRB first found that the Union caused Legley's discharge. Applying two different frameworks, duty of fair representation and Wright Line, the NLRB then concluded that the Union's conduct in causing Legley's discharge violated the Act. Wright Line, a Div. of Wright Line, Inc., 251 N.L.R.B. 1083 (1980), enforced on other grounds, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982), approved in NLRB v. Trans. Mgmt. Corp., 462 U.S. 393 (1983). With regard to Good Samaritan, the NLRB applied Palmer House Hilton and Mohamad Safavi Unite Here, Local 1, 353 N.L.R.B. 851 (2009), and concluded that "the Employer learned of Legley's protected conduct at or near the same time as the Union's effective request that he be disciplined for that conduct" and then further "failed to show that it would have discharged Legley in the absence of his protected activity." Having so concluded, the NLRB affirmed the ALJ's finding that both the Union and the employer violated the Act.

         II. Legal Frameworks

         A. Standard of Review

         In examining factual determinations, the question we must answer is whether the NLRB's decision is "supported by substantial evidence on the record considered as a whole." 29 U.S.C. § 160(e). The requirement that there be "substantial evidence" arose out of the Supreme Court's interpretation of the Wagner Act, which provided that "[t]he findings of the Board as to the facts, if supported by evidence, shall be conclusive." Act of July 5, 1935, ch. 372, § 10(e), 49 Stat. 453. The Supreme Court interpreted this to indicate "substantial evidence, " meaning "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938). Over time, however, it became the practice of some of the courts of appeal to uphold the Board's findings whenever "the evidence supporting the Board's result was 'substantial' when considered by itself." Universal Camera Corp. v. NLRB, 340 U.S. 474, 478 (1951). In other words, all that was required of the reviewing court was to "find in the record evidence which, when viewed in isolation, substantiated the Board's findings." Id. Apparent dissatisfaction with this level of review led to an amended standard in the Taft-Hartley Act, which amended 29 U.S.C. § 160(e) to its present form: "The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive." Id. at 478-86. Interpreting this amended standard, the Supreme Court held that its effect was to "definitively preclude[] . . . a theory of review" that allowed the reviewing court "to determine the substantiality of evidence supporting a . . . Board decision merely on the basis of evidence which in and of itself justified it without taking into account contradictory evidence or evidence from which conflicting inferences could be drawn." Id. at 487-88. In other words, "[t]he substantiality of the evidence must take into account whatever in the record fairly detracts from its weight." Id. at 488.

         This means that while "the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence, " NLRB v. Hilliard Dev. Corp., 187 F.3d 133, 140 (1st Cir. 1999) (quoting Am. Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 523 (1981)), our review "must take contradictory evidence in the record into account, " Howard Johnson Co. v. NLRB, 702 F.2d 1, 2 (1st Cir. 1983), and "[t]he Board . . . may not distort the fair import of the record by ignoring whole segments of uncontroverted evidence, " Hilliard at 140 (quoting Maine Yankee Atomic Power Co. v. NLRB, 624 F.2d 347, 360 (1st Cir. 1980)). Moreover, "[w]hen the Board purports to be engaged in simple factfinding, . . . it is not free to prescribe what inferences from the evidence it will accept and reject, but must draw all those inferences that the evidence fairly demands." Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 378 (1998).

         While the substantial evidence standard governs our review of the facts, we also evaluate the Board's decision for "mistakes of law . . . and arbitrary and capricious reasoning." Boch Imports, Inc. v. NLRB, 826 F.3d 558, 565 (1st Cir. 2016) (quoting The Edward S. Quirk Co., Inc. v. NLRB, 241 F.3d 41, 42 (1st Cir. 2001)). One of the bases for finding an agency decision arbitrary and capricious is a deviation from its own prior precedents without sufficient explanation or reasoning. Shaw's Supermarkets, Inc. v. NLRB, 884 F.2d 34, 36-37 (1st Cir. 1989).

         B. Protected Activity

         The Act both grants employees the right to form and join unions and to refrain from such activity, 29 U.S.C. § 157 (Section 7), and it defines as an unfair labor practice any action by the employer that "interfere[s] with, restrain[s], or coerce[s] employees in the exercise" of those rights. 29 U.S.C. § 158(a)(1) (Section 8(a)(1)). Employers may not discriminate "in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization, " 29 U.S.C. § 158(a)(3) (Section 8(a)(3)), and it is unlawful for a labor organization or its agents either "to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 157 of this title, " (Section 8(b)(1)(A)) or "to cause or attempt to cause an employer to discriminate against an employee" (Section 8(b)(2)) in violation of this provision. 29 U.S.C. § 158(b)(1)(A), (b)(2). Neither side disputes that in asserting a right not to join the Union Legley was engaging in protected activity. The question is whether Legley was discharged because of his protected activity or for some other, lawful, reason.

         C. Mixed Conduct Cases

         Mixed conduct cases confront this very question: was the employee terminated because of his protected conduct or was he terminated for a lawful reason? The decision of the ALJ focused on Legley's actions during the orientation meeting and asked whether they were such as to deprive Legley of the protections of the Act "by virtue of any misconduct on his part." In posing the question this way, the ALJ relied upon the balancing test enunciated in Atlantic Steel, 245 N.L.R.B. at 816. In so doing the ALJ misconstrued Atlantic Steel and its applicability to the facts of this case. Atlantic Steel involved an employee who made derogatory comments to his supervisor during a discussion over a grievance regarding the assignment of overtime work. Id. at 814. In resolving the case the NLRB established a framework for evaluating whether an employee "who is engaged in concerted protected activity can, by opprobrious conduct, lose the protection of the Act" and created a balancing test for those situations. Id. at 816. In other words, as applied by the ALJ in this case, the question was whether the employee's conduct was such that it would "compel a conclusion that he lost the protection of the Act." Here the ALJ looked to whether Legley "made any statements that could be construed as being threatening or profane" or "acted in an overly aggressive manner."

         Elsewhere, however, the NLRB has asserted that Atlantic Steel is only applicable to employee-employer interactions "rather than to employee-union confrontations." Laborers' Int'l Union of N. Am., 359 N.L.R.B. No. 117, slip op. at 3 n.10 (May 3, 2013). Perhaps for this reason, in reviewing the ALJ's decision, the NLRB shifted the legal terrain and applied three different frameworks: (1) duty of fair representation, (2) the Wright Line test and (3) the Palmer House Hilton scenario.[9] It applied the first two to the Union's actions in allegedly causing Legley's discharge and the latter to Good Samaritan's decision to terminate Legley's employment.

         1. Duty of Fair Representation

         The duty of fair representation refers to the Union's "statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct." Vaca v. Sipes, 386 U.S. 171, 177 (1967). This duty applies to all union activity. Air Line Pilots Ass'n, Int'l v. O'Neill, 499 U.S. 65, 67 (1991). A breach of this duty occurs "only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith." Vaca, 386 U.S. at 190. Indeed, the doctrine has its origins in "a series of cases involving alleged racial discrimination by unions." Id. at 177.

         The standard is "tripartite, " which means that the union activity in question cannot be arbitrary or discriminatory or in bad faith. O'Neill, 499 U.S. at 77. Union actions are arbitrary "only if [the union's conduct] can be fairly characterized as so far outside a 'wide range of reasonableness, ' that it is wholly 'irrational' or 'arbitrary.'" Id. at 78 (quoting Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953)). Discrimination refers to racial and gender discrimination as well as other distinctions made among workers, including lack of union membership. Breininger v. Sheet Metal Workers Int'l, 493 U.S. 67, 78 (1989). "A union acts in bad faith when it acts with an improper intent, purpose, or motive, " and "[b]ad faith encompasses fraud, dishonesty, and other intentionally misleading conduct." Spellacy v. Airline Pilots Ass'n-Int'l, 156 F.3d 120, 126 (2d Cir. 1998); see also Márquez v. Screen Actors Guild, Inc., 525 U.S. 33, 47 (1998) (finding no bad faith where there was "no intent to mislead"); Mock v. T.G. & Y. Stores Co., 971 F.2d 522, 531 (10th Cir. 1992) ("Bad faith requires a showing of fraud, deceitful action or dishonest action."); Baxter v. United Paperworkers Int'l Union, Local 7370, 140 F.3d 745, 747 (8th Cir. 1998) ("[t]o prove bad faith, [plaintiff] needed to establish the existence of fraud, deceitful action, or dishonest conduct").

         In instances where the allegation is that the union caused an employee's discharge, the NLRB has employed a presumption that any such act is itself a violation of Section 8. Int'l Union of Operating Eng'rs, Local 18, 204 N.L.R.B. 681 (1973) enforcement denied 555 F.2d 552 (1977) ("When a union . . . causes an employee's discharge, it has demonstrated its influence over the employee and its power to affect his livelihood in so dramatic a way that we will infer--or, if you please, adopt a presumption that--the effect of its action is to encourage union membership on the part of all employees who have perceived that exercise of power."). This presumption can be rebutted either by arguing that the union acted pursuant to a union security clause (not at issue here) or through what is referred to as a "necessity defense." Radio-Elecs. Officers Union v. NLRB, 16 F.3d 1280, 1284 (D.C. Cir. 1994). This defense consists of showing that the union's actions were "done in good faith, based on rational considerations, and were linked in some way to its need effectively to represent its constituency as a whole." Operative Plasterers & Cement Masons, Local No. 299, 257 N.L.R.B. 1386, 1395 (1981).

         2. Wright Line

         In this case the NLRB applied a second framework for evaluating the Union's conduct, derived from the NLRB's decision in Wright Line. 251 N.L.R.B. at 1083. The question in Wright Line was whether an employee was terminated because of protected conduct or because of his unprotected behavior. The NLRB held that the General Counsel had to make a prima facie showing "that the employee's conduct protected by § 7 was a substantial or a motivating factor in the discharge." Transp. Mgmt., 462 U.S. at 399-400. This test is satisfied by demonstrating: "(i) the employee's engagement in the protected activity; (ii) the employer's knowledge of that activity; (iii) the employer's antipathy toward it; and (iv) a causal link between the antipathy and the adverse employment action." E.C. Waste, Inc. v. NLRB, 359 F.3d 36, 42 (1st Cir. 2004) (citing Transp. Mgmt., 462 U.S. at 401-3).

         The defendant can either rebut this prima facie showing, or it can seek to prove "by a preponderance of the evidence that the discharge rested on the employee's unprotected conduct as well and that the employee would have lost his job in any event." Transp. Mgmt., 462 U.S. at 400. In other words, "proof that the discharge would have occurred in any event and for valid reasons amount[s] to an affirmative defense on which the employer carrie[s] the burden of proof by a preponderance of the evidence." Id.

         Wright Line itself did not involve union activity. Rather, it concerned an employer who had terminated an employee for allegedly legitimate reasons. The framework that case established, however, has been applied by the NLRB in cases involving union activity. See Int'l Union, SPFPA, Local 444, 360 N.L.R.B. No. 57, slip op. at 10-11 (Feb. 28, 2014); Teamsters "Gen." Local Union No. 200, 357 N.L.R.B. 1844, 1852 (2011); Int'l Ass'n of Bridge, Structural and Ornamental Ironworkers, Local 340, 347 N.L.R.B. 578, 579 (2006); United Paperworkers Int'l Union, Local 1048, 323 N.L.R.B. 1042, 1044 (1997).

         3. Palmer House Hilton

         The Board cited Palmer House Hilton in upholding the ALJ's determination that "the Employer violated the Act when it discharged Legley." Palmer House Hilton involved an employee who was discharged because he was delinquent in paying his union dues even though he had entered into a payment plan with the union. 353 N.L.R.B. at 852. The Board there held that "[a]n employer violates the Act when it discharges an employee at the request of the union when it has reasonable grounds for believing that the request was unlawful." Id. (citing Valley Cabinet & Mfg., 253 N.L.R.B. 98, 99 (1980), enforced, 691 F.2d 509 (9th Cir. 1982)) (internal citations removed).

         Palmer House Hilton and the cases it cites all involved a union request to discharge an employee pursuant to a union security clause. By definition, those cases do not involve a motivation for the employer to discharge the employee other than the union's request. However, the facts of this case are more complicated. Here, Good Samaritan asserts a lawful motivation for the discharge of Legley. That moves this case out of the Palmer House Hilton line of cases (in which the only motivation is the union request) and into the Wright Line framework (which is focused on determining which motivation, among multiple possibilities, actually led to the employee's discharge). Indeed, the NLRB appears to have recognized this when it found that Good Samaritan "failed to show that it would have discharged Legley in the absence of his protected activity." This is an affirmative defense under the Wright Line analysis, though it has no role to play under the Palmer House Hilton scenario. We therefore find that Good Samaritan's decision to discharge Legley should be evaluated under the Wright Line test, not Palmer House Hilton.[10]

         There is an alternative line of cases that the NLRB could have turned to if its intent was to impose a heightened duty on the employer: NLRBv.Burnup & Sims, Inc., 379 U.S. 21, 23 (1964); Associated Grocers of New Eng., Inc.v.NLRB, 562 F.2d 1333, 1338 (1st Cir. 1977). This line of cases applies where an employee is discharged for unprotected conduct that has not in fact occurred, even though the employer was motivated by the alleged unprotected conduct in discharging the employee. In these cases, the General Counsel has the burden of "affirmatively show[ing] that the misconduct did not in fact occur." Pepsi-Cola Co., 330 N.L.R.B. 474 (2000). The NLRB did not cite this line of cases in its decision, however, suggesting that it perceived the case to fall squarely within Wright Line, and we believe for good reason.[11] The question is whether any conduct at all occurred that could have been interpreted by the employer as a violation of the civility policy. So long as some such conduct occurred, our analysis is squarely within Wright Line, which "is designed to preserve what has long been recognized as the employer's general ...

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