v. NATIONAL LABOR RELATIONS BOARD v.  Tnt Logistics of North America, Incorporated

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 TNT LOGISTICS OF NORTH AMERICA,
INCORPORATED,
Petitioner,
No. 04-1131 v.
NATIONAL LABOR RELATIONS BOARD,
Respondent. 
 NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v. No. 04-1200 
TNT LOGISTICS OF NORTH AMERICA,
INCORPORATED,
Respondent. 
On Petition for Review and Cross-Application for
Enforcement of an Order of the
National Labor Relations Board.
(12-CA-22309)
Argued: February 4, 2005
Decided: June 24, 2005
Before WILKINSON and WILLIAMS, Circuit Judges,
and Henry F. FLOYD, United States District Judge for the District
of South Carolina, sitting by designation.
Enforcement granted in part and denied in part; remanded by pub-
lished opinion. Judge Wilkinson wrote the opinion, in which Judge
Williams and Judge Floyd joined.

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COUNSEL
ARGUED: James Michael Walters, Atlanta, Georgia, for TNT Logis-
tics of North America, Incorporated. Elizabeth Ann Heaney,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
the Board. ON BRIEF: Rhonda R. Wilcox, FISHER & PHILLIPS,
Atlanta, Georgia, for TNT Logistics of North America, Incorporated.
Arthur F. Rosenfeld, General Counsel, John E. Higgins, Jr., Deputy
General Counsel, John H. Ferguson, Associate General Counsel,
Aileen A. Armstrong, Deputy Associate General Counsel, Julie B.
Broido, Supervisory Attorney, NATIONAL LABOR RELATIONS
BOARD, Washington, D.C., for the Board.
OPINION
WILKINSON, Circuit Judge:
TNT is a company with a contract to provide delivery services for
Home Depot. It discharged one of its drivers after he was involved in
three successive mishaps causing property damage. Around the time
of the third incident, the employee sent a letter to his supervisors indi-
cating his intent to form a union with his co-workers. The NLRB
found that the company committed unfair labor practices by firing the
driver and by telling him that the company’s contract with Home
Depot disallowed unions.
We agree that it was unlawful for TNT to imply that unions were
not permitted at one of its locations, but we disagree that TNT vio-
lated the NLRA by firing its driver. Given this employee’s recent
track record of carelessness, we think TNT sufficiently established
that it had a legitimate business interest in the driver’s termination.
Therefore, enforcement of the Board’s order will be granted in part
and denied in part. We remand so the remedy may be adjusted in
accordance with this decision.
I.
TNT Logistics of North America, Inc. ("TNT") is a transportation
company that transacts business throughout the East Coast. It has a
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contract with several Home Depot stores in Florida to deliver mer-
chandise to the stores’ customers.
James Morgan was employed by TNT as a driver. From 1999 to
2001, Morgan worked in TNT’s facility in New Castle, Pennsylvania.
Drivers at that facility are represented by a union, and Morgan served
on the negotiating team of that union while he was there. Morgan also
had prior union experience. Before working for TNT, he was
employed as a paid union organizer for the Teamsters Union in
Youngstown, Ohio.
In the spring of 2001, for personal reasons, Morgan asked TNT to
transfer him to one of the company’s facilities in Florida. TNT
accommodated Morgan’s request, and found a job for him in its Cape
Coral, Florida, location. The drivers at this location — which has an
office inside a Home Depot store — were not represented by a union.
Approximately one year after being transferred to Florida, Morgan
was involved in a string of accidents, each requiring TNT to compen-
sate Home Depot for the resulting property damage. These three inci-
dents all occurred within thirty days of each other.
The first mishap occurred on May 17, 2002, when eleven pallets
of paving stones fell from Morgan’s truck as he was driving on the
highway. The loss totaled $924.80. Morgan claims that he was not
disciplined for this incident, but admits that he was called in by his
supervisor, Patrick Callahan, to discuss what took place. Although
Callahan does not recall issuing Morgan a formal warning, he does
remember discussing the incident with Morgan "at length" because
"the nature of this accident was potentially very harmful" and "actu-
ally a pretty ugly ordeal."
The second mishap occurred just five days later. On May 22, 2002,
Morgan left several bags of concrete outside at a customer’s construc-
tion site. A rainfall ruined the concrete, forcing TNT to pay approxi-
mately $258 to cover the loss. Morgan says the customer authorized
him to leave the concrete at the site, but TNT’s company policy pro-
vides that any customer authorization of this sort must be written and
endorsed with the customer’s signature. Although once again Mor-
gan’s file contains no warning about this incident, Morgan admits to
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being called and questioned about it by Callahan. During that conver-
sation, Callahan recalls specifically admonishing Morgan that "he was
wrong" to leave the mortar mix unattended, but he does not remember
formally announcing "this is a warning. You’ve got one more shot."
Finally, the third mishap occurred on the morning of June 14, 2002,
when Morgan dropped a birdbath as he tried to load it onto his truck.
The birdbath was worth $32. Morgan was not specifically disciplined
for this incident, but he was contacted by a supervisor on that day to
discuss it.
Around the same time of this third accident, TNT received a letter
written by Morgan indicating his "intentions along with other TNT
employees to form a union." The letter was dated Wednesday, June
12, 2002, and Morgan says he read it to a co-worker over a two-way
radio around that time. Morgan mailed the letter to TNT supervisors
on June 13, and he faxed the letter to them on the morning of June
14. TNT manager Allan Tishman says he learned of the birdbath inci-
dent on the morning of June 14, but he did not receive Morgan’s letter
until later that afternoon.
The next Monday, June 17, Tishman e-mailed TNT’s labor and
employment director, Jack Webb, the following message:
One of our drivers, James Morgan . . . has had the following
cargo claims in the last month. He was issued a verbal warn-
ing on 5-27 after the second incident, he had the third on
Friday 6-14. Would this be sufficient for termination?
The message then detailed the three incidents described above. Webb
responded by asking whether other drivers had been fired for similar
occurrences. Apparently satisfied with Tishman’s response, Webb
recommended firing Morgan.
On June 18, 2002, Patrick Callahan asked to speak to Morgan.
Morgan initially responded that he had a right to a lawyer during a
disciplinary hearing, but eventually permitted the meeting to proceed.
Morgan then threatened to file NLRB charges, explaining "I think this
is about union activity." According to Morgan, Callahan responded by
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stating, "You know you can’t have a union here because TNT has a
contract with Home Depot that says that unions are disallowed in the
operation and they would lose their contract." When Morgan asked
how Callahan knew this, Callahan explained "I didn’t read it verbatim
but I know that’s the policy that they have."
Callahan then walked Morgan to another supervisor’s office where
Morgan was handed a termination letter. The letter explained that
Morgan was being discharged for "unsatisfactory job performance" as
determined "[b]ased on the frequency and number of claims" he had
been involved in.
Morgan brought unfair labor charges before the NLRB. An ALJ
heard the case on April 7, 2003, and issued a decision on May 13,
2003. The ALJ found TNT to be in violation of the National Labor
Relations Act ("NLRA" or "the Act"), but he made this decision
"[n]otwithstanding [a] concern that Morgan’s testimony may have
exaggerated his union activity."
On November 28, 2003, the ALJ’s decision was largely adopted by
the NLRB, which concluded that TNT violated the Act in two differ-
ent ways. First, it found TNT to be in violation of section 8(a)(1) of
the Act for telling Morgan that unions were not allowed due to the
company’s contract with Home Depot. Second, it determined that
TNT violated section 8(a)(1) and (3) of the Act for discharging Mor-
gan because of his protected activities in support of a union. See 29
U.S.C. § 158(a) (2000).
The Board’s order required that TNT offer Morgan reinstatement
and make him whole for any lost earnings. It further ordered the com-
pany to "cease and desist from . . . [t]elling employees that it is futile
for them to select a union as their collective-bargaining representa-
tive," and it required that TNT post a notice to its employees inform-
ing them of their right to "[f]orm, join, or assist a union." TNT now
appeals.
We review the Board’s factual findings to determine if they are
"supported by substantial evidence on the record considered as a
whole." 29 U.S.C. § 160(e) (2000); Universal Camera Corp. v.
NLRB, 340 U.S. 474, 487-88 (1951). See also Beth Israel Hosp. v.
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NLRB, 437 U.S. 483, 501 (1978) (same standard used to review the
application of law to facts). "It is not, of course, our job to review de
novo the factual determinations of the Board. Still, substantial evi-
dence review is an objective assessment of the sufficiency of the evi-
dence." Dorsey Trailers, Inc. v. NLRB, 233 F.3d 831, 839 (4th Cir.
2000) (internal citation omitted). Upon making this inquiry, we
enforce one of the Board’s holdings, but deny enforcement of the
other.
II.
The Board concluded that TNT violated section 8(a)(1) of the
NLRA which makes it illegal for employers "to interfere with,
restrain, or coerce employees in the exercise of" their protected rights
under the Act. 29 U.S.C. § 158(a)(1). It based this decision on the
ALJ’s uncontested finding that Supervisor Callahan told Morgan,
"You know you can’t have a union here because TNT has a contract
with Home Depot that says that unions are disallowed in the operation
and they would lose their contract." The ALJ found that since Calla-
han, a manager, worked in an office inside Home Depot, it is reason-
able to assume he knew about the terms of TNT’s contract with the
store.
Callahan’s comments could potentially dissuade TNT employees
from seeking to organize a union. The implication was inescapable
that if a union was formed, TNT would lose its contract with Home
Depot and the drivers would subsequently lose their jobs. As the ALJ
noted, this conclusion is "particularly reasonable considering that
[TNT] located its offices in Home Depot stores. Should [it] lose its
contract with Home Depot, it would in all likelihood lose those
offices as well." TNT Logistics of N. Am., 340 N.L.R.B. No. 141,
2003 WL 22855558 at *9 (2003).
We have previously held that an employer commits unfair labor
practices when it comments to its employees on the futility of forming
a union and threatens job loss at the prospect of union organization.
See Weis Markets, Inc. v. NLRB, 265 F.3d 239, 243-44 (4th Cir.
2001). We find substantial evidence in the record to support the
Board’s finding that TNT violated the Act in this way.
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III.
We next address whether TNT violated the Act by firing Morgan.
We conclude that it did not.
A.
Section 8(a)(3) of the NLRA prohibits an employer from engaging
in "discrimination in regard to hire or tenure of employment or any
term or condition of employment to encourage or discourage mem-
bership in any labor organization." 29 U.S.C. § 158(a)(3). "Because
an employer’s motives may often be a mix of legitimate and discrimi-
natory reasons, the Board established a procedure in Wright Line, to
deal with such mixed-motive cases." Medeco Sec. Locks, Inc. v.
NLRB, 142 F.3d 733 (4th Cir. 1998) (citing Wright Line, 251
N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir. 1981)).
The Wright Line inquiry consists of two steps. "First, the NLRB
General Counsel must prove by a preponderance of the evidence that
anti-union animus was a substantial or motivating factor in the dis-
charge." Dorsey Trailers, 233 F.3d at 839. To meet this burden, the
NLRB must show: "(1) that the employee was engaged in protected
activity, (2) that the employer was aware of the activity, and (3) that
the activity was a substantial or motivating reason for the employer’s
action." Medeco Sec., 142 F.3d at 742.
Once that prima facie case is established, the second step in the
Wright Line analysis shifts the burden to the employer to prove "that
the discharge would have occurred even in the absence of the pro-
tected activity." USF Red Star, Inc. v. NLRB, 230 F.3d 102, 106 (4th
Cir. 2000). "An employer does not violate Section 8(a)(3) when it
would have taken the same action for legitimate business reasons."
Dorsey Trailers, 233 F.3d at 841. However, if "the employer’s stated
lawful reasons are non-existent or pretextual, the defense fails." USF
Red Star, 230 F.3d at 106.
B.
Under the Wright Line inquiry, we must first address whether the
employee was engaged in protected activity. Employee activity pro-
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tected under section 7 of the NLRA includes "the right to self-
organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection." 29 U.S.C. § 157 (2000).
We recognize that this language is broadly-worded. However, it is not
without limits. As we have noted, "[t]he purpose of the act was not
to guarantee to employees the right to do as they please." Joanna Cot-
ton Mills Co. v. NLRB, 176 F.2d 749, 752 (4th Cir. 1949)(internal
citation omitted).
Determining whether activity is protected or not depends on a
proper identification of the activity’s purpose. "[I]t is not the motive
of the participants that we are concerned with here but the purpose of
the activity." Id. at 753. To be protected "the purpose of the concerted
activities must be the mutual aid or protection of the employees." Id.
By contrast, "personal missions are not the sort of concerted activity
which the statute protects." Media Gen. Operations, Inc. v. NLRB,
394 F.3d 207, 212 (4th Cir. 2005). See also Blaw-Knox Foundry &
Mill Mach. Inc. v. NLRB, 646 F.2d 113, 116 (4th Cir. 1981).
Moreover, the Act is not meant to be used offensively as a sword
— to discourage one’s employer from making an impending layoff.
The Act instead seeks to provide a shield — to protect employees
who wish to band together and engage in concerted activity for their
mutual benefit. See Standard Prods. Co., Rocky Mount Div. v. NLRB,
824 F.2d 291, 293 (4th Cir. 1987).
Morgan’s activity comes very close to blurring this distinction. He
engaged in little or no union organizing activity before his string of
mishaps. His letter to TNT claimed an intent to negotiate on behalf
of many employees. But seen in its full context, his behavior seems
to demonstrate "personal and private" goals, unconnected to any pur-
pose "to induce group activity." See Blaw-Knox Foundry, 646 F.2d at
116.
Morgan knew first-hand the proper steps to begin a union organiz-
ing campaign since he had been a paid union agent earlier in his
career. Interestingly, however, many of the usual indicia of such a
campaign are absent here. There is no evidence, for example, that
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Morgan ever wore union paraphernalia or distributed union literature.
In this regard, the ALJ himself expressed reservations:
Morgan’s testimony that he "got serious" about union orga-
nizing in late May 2002 warrants careful examination. Typi-
cally, in a union organizing campaign, one or more
employees will obtain authorization cards from a particular
union and then ask other employees to sign them. Union
officials and supporters devote considerable time and energy
to these solicitations because, to obtain a Board-conducted
election, they must demonstrate to the Board that at least 30
percent of the employees in the contemplated unit desire an
election.
Curiously, the present record does not indicate that Morgan
asked any employees to sign anything to demonstrate their
interest in an election.
TNT Logistics of N. Am., 340 N.L.R.B. No. 141, 2003 WL 22855558
at *6-7 (2003)(internal citation omitted).
To be sure, it is not necessary to obtain signed authorization cards
in order to qualify for protection under the NLRA. However, in this
case, it is dubious that Morgan’s activity was undertaken for the pur-
pose of advancing any group interest when, as the ALJ observed, "the
evidence indicates [that Morgan] may have been the only person
involved in the organizing drive." Whether there was in fact a genuine
organizing drive at all is open to question.
The evidence does suggest, however, that Morgan spoke with other
employees about their working conditions and at the very least read
his June 12 letter to a co-worker before sending it to his supervisors.
In light of this, we shall indulge the generous assumptions mandated
by the standard of review in section 10 of the Act, and decline to rest
decision on the ground that Morgan’s letter-writing was beyond the
Act’s broad definition of protected concerted activity.
C.
We do decline to enforce the Board’s order with respect to Mor-
gan’s termination for another reason. TNT successfully established
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that Morgan "would have been fired even in the absence of union
activity." Pirelli Cable Corp. v. NLRB, 141 F.3d 503, 523 (4th Cir.
1998). Employers may overcome an unfair labor practice charge by
demonstrating "that a worker’s deficiencies, economic necessity, or a
legitimate business policy compelled" the discharge. Sam’s Club v.
NLRB, 173 F.3d 233, 242-43 (4th Cir. 1999)(citation omitted). TNT
made such a showing here.
Morgan was fired because his recent behavior indicated a pattern
of negligence that TNT felt it could not afford to ignore. Three
instances of carelessness in thirty days is a lot for a company to con-
done from an employee before taking action to protect itself. Mor-
gan’s mishaps go right to the heart of TNT’s mission. Home Depot
depends on the proper delivery of its products to build customer satis-
faction, and TNT must maintain good customer service in order to
retain its contract with Home Depot. The fact that Morgan claimed
involvement in union activity does not eviscerate TNT’s ability to
guard against costly liability and protect its legitimate business inter-
ests. "After all, the Act is not a shield for the incompetent even
though the incompetent seeks immunity under the mantle of union
membership or activity." Standard Prods. 824 F.2d at 293 (internal
citation omitted).
The Board was not convinced by TNT’s stated business interests
in firing Morgan. It concluded that TNT had impermissibly fired
Morgan for his activities in support of the union. In these "dual
motive" scenarios — situations where the company has both a legiti-
mate and an illegitimate reason for the employment action — we
require that the Board articulate "an affirmative and persuasive reason
why the employer rejected the good cause and chose a bad one." Stan-
dard Prods., 824 F.2d at 292 (quoting Firestone Tire & Rubber Co.
v. NLRB, 539 F.2d 1335, 1337 (4th Cir. 1976)). See also Pirelli Cable
Corp., 141 F.3d at 523. For the reasons that follow, we do not think
substantial evidence supports the Board’s conclusion that TNT’s rea-
sons for dismissing Morgan were illegitimate.
First, our case law indicates that "in practically every ‘dual-motive’
case in which the employer’s reason for discharge has been found
pretextual and for the ‘bad reason,’ the employees involved had had
a good work record." Standard Prods., 824 F.2d at 293. In the major-
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ity of these cases, where the company’s stated reason for the firing is
rejected, the fired employee’s "work record was, if not exceptionally
good, not marked by repeated reprimands and an unsatisfactory work
record." Id.
By contrast, employers who fire workers with significantly flawed
records are more often given the benefit of the doubt regarding their
proffered reasons. In NLRB v. Instrument Corp., 714 F.2d 324, 329-
30 (4th Cir. 1983), we held that the termination of four employees
with "unblemished work records" violated the Act, but the termina-
tion of a fifth employee — with a checkered work record — did not.
Similarly, in McLean Trucking Co. v. NLRB, 719 F.2d 1226, 1229
(4th Cir. 1983), we held that the termination of a zealous union advo-
cate was still proper since his "overall work-performance record
amply justified his discharge." In light of this pattern, which our pre-
cedent has identified, we think the Board erred in discounting the pos-
sibility that Morgan was fired for his spotty employment record.
Second, we think the Board erroneously focused on the fact that
Morgan’s final mistake — the one involving the broken birdbath —
cost TNT a mere $32. The ALJ felt it was unlikely that the company
would fire a driver over such an insignificant loss, and it therefore
concluded that Morgan’s termination was "difficult to explain except
for the fact that management had become aware of Morgan’s union
activities right before it decided to discharge him." TNT Logistics of
N. Am., 340 N.L.R.B. No. 141, 2003 WL 22855558, at *12 (2003).
To begin with, cost may not be the sole measurement of the seri-
ousness of an incident for the simple reason that customer satisfaction
is not always quantifiable. And even if the broken birdbath caused no
undue delay in delivery service, TNT was not evaluating the birdbath
incident in a vacuum. It was concerned not by the financial loss suf-
fered as a result of any of these three incidents in isolation, but rather
by Morgan’s emerging pattern of recklessness that this final incident
confirmed. Indeed, this third mishap — while concededly much less
costly than the other two — was the proverbial straw that broke the
camel’s back. As Morgan’s supervisor, Patrick Callahan, explained,
"I believe a year of being safe . . . buys you some more time. . . . But
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three in a thirty-day period[,] I have never seen that in my experience
with the Company."*
Morgan complains that TNT let the first two incidents pass without
consequence to him, and only took action after the third. But a com-
pany ought not to be criticized for giving an employee multiple
chances, or penalized for having a disciplinary policy that is forgiving
in the first or even second instance.
Third, we are troubled by the Board’s emphasis on the "suspicious
timing" of Morgan’s discharge. The Board argues that Morgan was
fired immediately after the company learned of his union activity,
allowing TNT to "effectively nip[ ] any union activity in the bud." But
if this were so, it is hard to explain why TNT would grant Morgan’s
request to transfer to its Florida location (a location with non-
unionized employees), when it was well aware of Morgan’s long his-
tory as an avid union supporter, including his leadership role for the
union at TNT’s Pennsylvania facility. Seen in this context, the "suspi-
cious timing" of Morgan’s discharge is not suspicious at all, and is
well explained by the fact that Morgan was fired on the heels of his
involvement in three unfortunate incidents that cost the company
more than $1200 within a thirty-day period.
Finally, we disagree with the Board’s reliance on the fact that TNT
did not conduct a thorough investigation to determine just how much
blame should be ascribed to Morgan for each accident. In suggesting
that he might not be at fault for these three incidents, Morgan asks
that we believe that a driver bears no responsibility for the safe stor-
*The parties are in dispute about whether there have been any TNT
employees with work records comparable to Morgan’s. One possible
candidate is Glenn Todd. The Board points out that Todd was not dis-
charged by TNT despite having two incidents in 60 days that caused
damage to three pieces of property. As another potential comparator to
Morgan, TNT offers Leslie Detlef. Detlef is a former TNT employee
who was fired after being involved in four different incidents causing
property damage within seven months time. We note that neither candi-
dates’ work record mirrors Morgan’s history of three mishaps in thirty
days, and we are not convinced that either comparison sheds much light
on TNT’s actions here.
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age and transport of his load, that he further bears no responsibility
for leaving deliveries exposed to the elements in violation of company
policy and in the absence of a customer’s authorizing signature, and
finally that we disregard the ALJ’s own assessment that Morgan’s
performance at work was anything but commendable. TNT Logistics
of N. Am., 340 N.L.R.B. No. 141, 2003 WL 22855558 at *12 (2003).
TNT adheres to a progressive disciplinary policy. This means that
typically an oral warning is followed by a written warning which is
then followed by termination. But this policy, as TNT explains, is a
"discretionary policy" — it is not one that is rigidly inflexible. The
Act encourages employees to join labor unions and bargain collec-
tively. "The Act does not require that an employer cease its legitimate
business practices or suspend its proper disciplinary prerogatives."
Consolidated Diesel Co. v. NLRB, 263 F.3d 345, 352 (4th Cir. 2001).
While it is true that Morgan’s file contained no documentation of
warnings, Morgan admits to being contacted by a supervisor after
each of the three incidents. When an employee has no less than three
conversations of this sort with his boss in such a short time period,
we find it hard to believe that he does not understand that his job per-
formance is hardly exemplary.
Here, TNT’s entire business depended on reliable deliveries of
Home Depot products. It is undisputed that, within thirty days time,
eleven pallets of paving stones fell from Morgan’s truck onto the
highway, several bags of concrete Morgan left outside a customer’s
construction site were ruined by rain, and a birdbath fell and broke as
Morgan was trying to lift it onto his truck. As the ALJ himself recog-
nized, "[i]t cannot be disputed that Morgan had displayed some seri-
ous problems." TNT Logistics of N. Am., 340 N.L.R.B. No. 141, 2003
WL 22855558 at *12 (2003). It is altogether admirable for Morgan
to have pro-union sympathies, but that does not relieve him of the
duty to be a competent employee.
A cautionary note is in order. We emphasize that our decision does
not authorize employers to subject employees with pro-union sympa-
thies to any unreasonably demanding standard. But that is not what
happened here. In light of Morgan’s recent rash of mishaps, and the
long-recognized "right of employers to maintain discipline in their
establishments," Republic Aviation Corp. v. NLRB, 324 U.S. 793, 798
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(1945), we decline to enforce the Board’s holding that TNT violated
the Act by firing Morgan. The evidence is insufficient to support such
a conclusion.
IV.
In sum, we enforce the part of the Board’s order as it relates to
TNT’s unfair labor practices through Callahan’s comments. But we
deny enforcement for the part that relates to TNT’s alleged violation
of the Act for firing Morgan. On remand, the remedy shall be modi-
fied to conform with this decision.
ENFORCEMENT GRANTED IN PART AND
DENIED IN PART; REMANDED
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