Petition to enforce order of the National Labor Relations Board requiring reinstatement with back pay of two discharged employees since employees were discharged in violation of 29 U.S.C. § 158(a)(1), (3).
Before Oakes, Circuit Judge, and Blumenfeld*fn* and Mehrtens,*fn** District Judges.
This is a petition by the National Labor Relations Board (Board) to enforce*fn1 an order requiring a building maintenance firm to reinstate with back pay two porters, Thomas Soto and Jaime Veve, employed by the firm at One Penn Plaza in Manhattan at the time of their discharge. The firm, Owners Maintenance Corp. (the Company), a subsidiary of Helmsley-Spear, Inc., provides maintenance services to various buildings in Manhattan. As a member of the Realty Advisory Board, a multi-employer bargaining association, the Company is party to a collective bargaining contract with Local 32B of the Service Employees International Union (the Union). The Board, agreeing with the position of its administrative law judge, determined that the discharges violated Section 8(a) (1) and (3) of the Labor Management Relations Act (Act).*fn2 The Company opposes enforcement on the ground that the Board improperly declined to defer to an arbitrator's award exonerating the Company. Specifically, the arbitrator held that although the men had been discharged without just cause, they had not been discharged in violation of Section 8(a)(3) and had forfeited their right to reinstatement with back pay by distributing leaflets in support of their grievance. The Company's objections to the Board's petition are unavailing. Accordingly, we grant the Board's petition.
Thomas Soto was employed from early May, 1973, until his discharge on July 3, 1975; within a month after his hiring he was promoted to a "position like that of acting foreman." Jaime Veve was hired in January, 1974, and discharged the same day as Soto. Both men had signed job application forms in which they denied ever having been arrested. However, each had been arrested Soto during labor picketing at Nathan's Restaurant, for trespassing in a Vietnam veterans' demonstration and for marijuana possession,*fn3 and Veve for the same picketing and for parading without a permit in an antiwar demonstration.*fn4
Both men, who were concededly capable employees, educated other employees, particularly those who were Spanish-speaking, as to their rights under the union contract and assisted them in bringing grievances to the attention of the Union which they had joined. They also presented and supported grievances of other employees against the Company in connection with discriminatory work assignments, nepotistic hiring practices, the discharge of a shop steward,*fn5 and the Company's termination of coffee breaks. In addition, during the three months prior to their discharge, Soto and Veve aided nonunit employees of the Company, including an individual with a grievance over working hours and matrons protesting lower pay for work equal to that of porters. Soto and Veve also compiled contract demands on behalf of the security guards for use in negotiations with the Company. This assistance earned Soto the sobriquet "back door lawyer" by a Company representative.*fn6 In May of 1975, Soto was formally elected shop steward.
At about the same time, the Company began investigating the two men. The investigation was initiated by John Cuomo, a police force veteran newly made director of security at One Penn Plaza. The proffered justification for the investigation was a supposed anonymous phone call suggesting that Soto and Veve were involved in thievery in the building and were "bad people associated with bad groups." The two activists were maintained under surveillance, but not just in their daily duties; Cuomo personally observed Soto's loft building at West 21st Street and described it as "very suspicious." He also obtained from a police department source the "yellow sheets" which supposedly contained Soto's and Veve's arrest records and erroneously reported to the Company that Soto had previously been implicated in a heroin sale.
Although Helmsley-Spear officials had not been concerned with transfers of the One Penn Plaza maintenance employees in the past, Helmsley-Spear Property Manager Isolini referred in a June 18 memo to Company Vice President Muller to "the continuing problems" the Company had been having with Soto and Veve and requested their transfer. Two weeks later, on July 3, 1975, Soto and Veve were discharged for "falsification of records."
The two employees filed a grievance alleging the illegality of their discharge. On July 9, 1975, they distributed a leaflet*fn7 to the public on the sidewalk in front of the entrance to One Penn Plaza. They distributed another leaflet in early October indicating that an arbitration hearing was scheduled for October 7, 1975, and requesting "fellow working people" to "please help Tommy Soto and Jaime Veve get their jobs back." The second leaflet also contained an open letter to the arbitrator from "over 20 members of Local 32B names withheld for fear of repression." Soto distributed this leaflet at 420 Lexington Avenue, where the shop steward that he and Veve had helped had been transferred, and at the Helmsley-Spear offices on 42nd Street.
On April 13, 1976, the contract arbitrator rendered his opinion and award. He found that the "falsification of job applications did not constitute just cause for discharge," principally on the nonreliability of the anonymous tip, the incomplete and inaccurate investigation and the Property Manager's memorandum of June 18. But he found that the discharges were not unlawful within Section 8(a)(3) of the Act on the wholly speculative basis that "(t)he Company may have had many other reasons for discharging the grievants which it chose not to air during the proceeding." And he found on the authority of Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50, 95 S. Ct. 977, 43 L. Ed. 2d 12 (1975), that the post-discharge, pre-arbitration leaf-letting was not protected activity under Section 7 of the Act*fn8 and constituted "gross disloyalty toward the Company" justifying denial of reinstatement. He awarded Soto and Veve back pay but only from July 3 to July 9, 1975, when they first engaged in leaf-letting. See note 7 Supra.
The Board, adopting its administrative law judge's opinion, refused to defer to the arbitrator's award because it was repugnant to the policies and purposes of the Act. The Board concluded that Soto and Veve were discharged because of their union and concerted activities and that their leaf-letting was protected by Section 7 of the Act.
We reach our conclusion to enforce the Board's petition for several reasons. First, there is no requirement that the Board mechanically defer to an arbitration award. Second, substantial evidence supports the Board's conclusion that the Company violated Section 8(a)(1) and (3) of the Act. And finally, we believe that the post-discharge, ...