Detroit Newspapers

National Labor Relations Board - Board Decisions

Jul 27, 2007

350 N.L.R.B. 352 (N.L.R.B. 2007)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
350 NLRB No. 38
352
Detroit Newspaper Agency, d/b/a Detroit Newspapers
and Detroit Mailers Union No. 2040, Interna-
tional Brotherhood of Teamsters. Case 7–CA–
425441
July 27, 2007
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER , AND WALSH
On September 28, 2004, the National Labor Relations
Board issued its Decision and Order in this proceeding.2
The Board found that the Respondent violated Section
8(a)(3) and (1) by discharging employee Thomas Hydorn
for engaging in union and protected activities and or-
dered, among other things, that the Respondent offer
Hydorn immediate reinstatement. Member Schaumber
dissented.
Subsequently, the Respondent filed a petition for re-
view of the Board’s Order with the United States Court
of Appeals for the District of Columbia Circuit, and the
Board cross-petitioned for enforcement. On January 20,
2006, the court remanded the proceeding to the Board
“for clarification and further consideration,” because the
Board’s “analysis as currently constituted [was] not suf-
ficiently clear to allow for meaningful review.” Detroit
Newspaper Agency v. NLRB, 435 F.3d 302, 312 (D.C.
Cir. 2006). The Court directed the Board to
first explain whether the evidence suggesting disparate
treatment in discipline is among the factors that the
Board meant to consider in concluding that the General
Counsel met its burden of demonstrating that antiunion
animus was a motivating factor in the [Respondent’s]
discharge of Hydorn.
Id. The Court then stated that:
[I]f the Board meant to include disparate treatment in
discipline in analyzing [the General Counsel’s burden],
the Board must consider whether it would still reach
the same result in light of this court’s holding that its
other [grounds for finding that the General Counsel had
met his burden] are not supported by substantial evi-
dence.
Id. [Emphasis added.]
By letter dated September 14, 2006, the Board notified
the parties that it had accepted the remand and invited the

1 We have amended the caption to reflect the disaffiliation of the In-
ternational Brotherhood of Teamsters from the AFL–CIO effective July
25, 2005.
2 342 NLRB 1268 (2004).
parties to file statements of position. Thereafter, the Re-
spondent filed a supplemental brief on remand.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Court’s opinion fully sets forth the underlying
facts of the case and describes the Board’s original deci-
sion. We accept the Court’s holding as the law of the
case. As we explain below, consistent with the terms of
the Court’s remand, we have reexamined our original
decision and have determined that the Board did not
mean to rely on evidence of disparate treatment to find
that the General Counsel had established a prima facie
case of unlawful discrimination. Because the Court has
rejected, as unsupported by substantial evidence, those
grounds on which the Board did rely for its finding, we
now conclude that the General Counsel has failed to
carry his burden of proof. Accordingly, we dismiss the
complaint, as the Court’s remand expressly permits us to
do.3
In response to the Court’s remand, we must clarify the
Board’s original intention with respect to the disparate-
treatment evidence involved here. To do so we are con-
strained to interpret our earlier decision, and not to recast
it in light of the Court’s determination that certain find-
ings cannot stand. As we understand the remand, the
Board is not free now to consider the disparate treatment
evidence if, in fact, we did not originally rely on this
evidence in finding that the General Counsel had estab-
lished a prima facie case.
Our original decision stated, among other things, that
“blatant disparity is sufficient” for a prima facie case of
unlawful motive.4 Despite that statement of the potential
significance of disparate treatment in establishing ani-
mus, however, the Board did not analyze the record evi-
dence of disparate treatment in discussing the General
Counsel’s prima facie case. Rather, the Board made de-
tailed findings concerning the poststrike environment in
which the discharge occurred, the factual discrepancies
between the stated reason for the discharge and Hydorn’s
actual conduct, and the Respondent’s failure to comply
with its disciplinary and investigative guidelines. Based
on that assessment, the Board concluded that the General
Counsel had presented a prima facie case of discrimina-
tory motive.5

3 435 F.3d at 312 (observing that the “Board may, if appropriate,
change its judgment on reconsideration and dismiss the unfair labor
practice charges”).
4 342 NLRB at 1270, citing New Otani Hotel & Garden, 325 NLRB
928 fn. 2 (1998).
5 The element of disparate treatment is mentioned only tangentially
in the Board’s evaluation of the prima facie showing. At fn. 11, the
majority took exception to the dissent’s view that the Respondent did
not follow its investigative guidelines because it considered Hydorn
DETROIT NEWSPAPERS 353
Not until its evaluation of the Respondent’s rebuttal
argument (that the Respondent would have discharged
Hydorn even in the absence of his union activity) did the
Board meaningfully address the matter of disparate treat-
ment.6 Only in this context did the Board examine in
detail the direct evidence presented by the General Coun-
sel that 37 nonstrikers had been less harshly disciplined
than Hydorn for insubordination. The Board’s consid-
eration of disparity of treatment in rebutting the Respon-
dent’s defense is not the same as considering that factor
in support of the General Counsel’s case.
In sum, based on our review of the original decision in
this proceeding, we conclude that the Board did not con-

irredeemable through corrective action. 342 NLRB at 1271 fn. 11. The
majority found that nonstrikers who engaged in similar or more egre-
gious conduct were issued corrective discipline rather than being dis-
charged, demonstrating that the Respondent tolerated such behavior
and did not need to resort to extraordinary measures with respect to
Hydorn. Other than this minor mention, the Board’s decision is silent
regarding the evidence of disparate treatment as it pertained to the
prima facie case.
6 The Respondent presented evidence that it had similarly discharged
for insubordination six employees who had not participated in the
strike. In rejecting the Respondent’s argument, the Board not only
found the six cases factually distinguishable from Hydorn’s, but also
cited “significant evidence” of disparate treatment produced by the
General Counsel. 342 NLRB at 1272–1273.
sider the evidence of disparate treatment in determining
that the General Counsel had satisfied his prima facie
burden. Under the terms of the court’s remand, we may
not do so here for the first time. In view of the court’s
rejection of the grounds upon which the Board relied in
finding animus, we conclude that the General Counsel
failed to establish a prima facie case. We necessarily
make no findings regarding the second portion of the
Court’s remand, i.e., whether, assuming that the Board
had meant to consider the evidence of disparate treatment
originally (which we find it did not), that evidence alone
would satisfy the General Counsel’s burden to show
animus in this case.7
ORDER
The complaint is dismissed.

7 Although the Board did not consider disparate treatment in analyz-
ing the prima facie showing in this case, Members Liebman and Walsh
reaffirm the principle that evidence of blatant disparity is sufficient to
satisfy the General Counsel’s burden to show discriminatory motiva-
tion. See New Otani, supra; Fluor Daniel, supra.
Member Schaumber agrees that the Board’s prior decision did not
consider disparate treatment in analyzing the General Counsel’s prima
facie case. Further, he reaffirms his original dissent. Accordingly, he
concurs in the dismissal of the complaint.