254 N.L.R.B. 960 (N.L.R.B. 1981)

WQBS-AM Radio

National Labor Relations Board - Board DecisionsFeb 24, 1981

254 N.L.R.B. 960 (N.L.R.B. 1981)

Corp. San d/b/a "La Gran Cadena" De Periodistas, Artes Grafiacas Ramas Anexas afiliada AFLCIO. 8(a)(l) certain 8(a)(3) 8(a)(1) m~tivation.~ 8(a)(1) con6011ing" ' N.LR.B. Rejining F.2d (In Libew F.2d 195 (1st Cohti's Furniturn. Inc. N.LR.B., F.2d Cir. N.LR.B. Billen Ca. Inc., F.2d C'tr. 1968). J ~ d g e , ~ 8(a)(1) termination. dual-motiva- tion Mt. Dktrict Board - find 8(a)(1) Wall Products Inc.. (1950), F.2d basim Inc., aoolv es- .. sentially i.e., reason Respondent 960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Quality Broadcasting of Juan WQBS-AM Radio Station and Union y a The Newspaper Guild, Case 24-CA-39 16 February 24, 198 1 SUPPLEMENTAL DECISION AND ORDER On March 21, 1979, the National Labor Rela- tions Board issued a Decision and Order1 in this proceeding, finding that Respondent violated Sec- tion of the National Labor Relations Act, as amended, by discharging Peter John Porrata be- cause of his having engaged in protected concerted activity. Subsequently, on May 21, 1979, Respondent filed a petition for review of the Board's Decision and Order with the United States Court of Appeals for the First Circuit. Thereafter, the Board and Respondent filed a joint motion to withdraw the petition for review in order to allow the Board to reconsider its Decision and Order in light of various decisions of that court involving the standard to be used in adjudicating alleged vio- lations of Section of the Act and those al- leged violations of Section of the Act, such as the instant case, that involve an issue of a re- spondent's On July 30, 1979, the First Circuit granted the parties' motion to withdraw the petition for review, without prejudice to its future reinstatement upon a supplemental decision by the Board. Subsequently, the case was returned to the Board for reconsideration. The Board has reconsidered its original Decision and Order in light of the record, exceptions, and brief and has decided to affirm the findings and conclusions contained in its original Decision and Order for the reasons set forth below. The complaint alleged and the Administrative Law Judge found that Respondent violated Section of the Act by discharging Porrata in retali- ation for his having engaged in protected concert- ed activity, specifically his giving advice to other employees about overtime, and his activities in con- nection with that problem. The Administrative Law Judge rejected Respondent's defense that it terminated Porrata because of his allegedly defi- cient work performance. In reaching his determina- tion, the Administrative Law Judge concluded that Respondent's "dominant and motive in discharging Porrata was his giving advice to em- ' 241 NLRB 318 (1979). v. Eastern Smelting and Corporation. 598 666 Cir. 1979); Mutual Insurance Company v. N.L.R.B., 592 Cir. 1979); v. 505 1293 (la 1977); and v. Shoe 397 801 (1st , 254 NLRB No. 1 18 ployees about overtime, and his activities in con- nection with that problem, and not dissatisfaction with his performance as an employee. The record, in particular the testimony credited by the Administrative Law provides ample support for his finding that Respondent's discharge of Porrata violated Section of the Act. Thus, Respondent's program manager, Pedro Riuz, complained to Porrata about his activities in con- nection with employee overtime pay claims, even going so far at the time of the discharge as to pro- vide a thinly veiled hint that the real reason for Respondent's action was that particular activity. Furthermore, as noted by the Administrative Law Judge, the defense of alleged poor work perfor- mance is contradicted by the fact that Respondent permitted Porrata to work as a radio announcer on its station for an extended period after it had alleg- edly determined that his work performance was so poor as to require his We agree with the Administrative Law Judge that Respondent's explanation for that is unconvincing. Accordingly, we agree with the conclusion that Respondent's real motive for the discharge was Porrata's activi- ties in connection with the overtime pay claims and not dissatisfaction with his performance as an em- ployee. Subsequent to the issuance of our previous Deci- sion and Order in this case, the First Circuit issued its decision in N.L.R.B. v. Eastern Smelting. supra, in which it articulated and applied in cases the causation analysis used by the Su- preme Court in Healthy City School of Education v. Doyle, 429 U.S. 274 (1977). Although the instant case is a pretext case, not a dual motivation case, we that under any analy- sis Respondent's discharge of Porrata violated Sec- tion of the Act.' In this regard, we note that the Administrative Law Judge applied a Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions rue incorrect. Standard Dry 91 NLRB 544 enfd. 188 362 (3d Cir. 1951). We have carefully examined the record and find no for reversing his findings. Also, subsequent to the issuance of our prior Decision in this pro- ceeding, the Board issued its decision in Wright Line, a Division of Wright Line, 251 NLRB 1083 (1980). In that case the Board discussed at length the issue of causation in dual motivation cases and set forth the standard it will . in such cases in the future. The instant case is a pretext case, one in which the Employer's defense of busi- ness justification is found to be without merit. The General Counsel pre- sented a prima facie case that the discharge of Porrata was unlawfully motivated by showing that Riuz complained to Porrata about his over- time pay claim activities just several days before the discharge, renewed that complaint at the time of the discharge, and even provided a thinly veiled threat that such conduct constituted the real for the dis- charge. Although attempted to demonstrate that it dis- charged Porrata because of poor work performance, it was unable to pre- sent convincing evidence in support of that defense. 1 here.5 Sec Coletti's wpm; nnd Billen Shoe Ca. I=, mpm. supm, arguable p l m greater burden General than m Mr N.L.R.R Eastern Corpomtion, wpm, Mr 8(a)(1) lqc) 318), Corp. d/b/a/ Puerto Rico, 96 WQBS-AM RADIO STATION "dominant and controlling motive" test consistent with several First Circuit pronouncements concern- ing the appropriate standard to be applied in cases presenting the type of issue involved In any event, we believe that the Administrative Law Judge's method of analysis was sufficient to satisfy any of the various causality tests that have been ar- ticulated as appropriate for this type of case. Ac- cordingly, we reaffirm our previous Decision and Furniture v. N.L.R.B.. N.L.R.B. v. As noted in Wright Line, the "dominant motive" test a of proof on the Counsel required by Healthy. However, in v. Smelt- ing and Refining the First Circuit appeared to have moved away from the "dominant motive" test towards adoption of the test outlined in Healthy. Order that Respondent violated Section of the Act by discharging Porrata. ORDER Pursuant to Section of the National Labor Relations Act, as amended, the National Labor Re- lations Board reaffirms its Order issued in this pro- ceeding on March 2 1, 1979 (reported at 241 NLRB and hereby orders that the Respondent, Qual- ity Broadcasting of San Juan WQBS-AM Radio Station "La Gran Cadena," Santurce, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said Order.