NOT RECOMMENDED FOR FULL TEXT PUBLICATION
                           File Name: 05a0340n.06
                              Filed: May 3, 2005

                                     Nos. 03-2527, 04-1004

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


GUARDIAN AUTO TRIM, INC.,                         )
                                                  )
       Petitioner/Cross-Respondent,               )
                                                  )
v.                                                )   ON APPEAL FROM THE NATIONAL
                                                  )   LABOR RELATIONS BOARD
                                                  )
NATIONAL LABOR RELATIONS BOARD,                   )
                                                  )
       Respondent/Cross-Petitioner.               )
                                                  )
                                                  )
_____________________________________             )


BEFORE:        BATCHELDER and COLE, Circuit Judges; RUSSELL, District Judge*

       RUSSELL, District Judge. Guardian Auto Trim, Inc. (“Guardian”) appeals a finding from

the National Labor Relations Board (“NLRB”) that Guardian violated Sections 8(a)(3) and 8(a)(1)

of the National Labor Relations Act (29 U.S.C. § 158(a)(3) and (1)) by discharging employees

Jimmie Powell and Brian Smith because of their union activity. Guardian argues that the NLRB’s

decision should be reversed for two reasons. First, Guardian argues that because the NLRB rejected

some of the Administrative Law Judge’s (“the ALJ”) findings regarding animus that no evidence

of animus is present as required under the applicable case law. Second, Guardian argues that the

finding of disparate treatment should be reversed because the NLRB and the ALJ failed to consider


       *
       Honorable Thomas B. Russell, United States District Judge for the Western District of
Kentucky, sitting by designation.
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Guardian Auto Trim v. NLRB

the way in which the Human Resources Department has treated similar conduct. For the reasons

stated below, we affirm the decision of the NLRB.

       BACKGROUND

       Guardian has a plant in Evansville, Indiana that manufactures plastic automotive trim parts.

In 1999, the International Union of Electronic, Electrical, Salaried, Machine & Furniture Workers

(“Union”) began organizing an election for the employees to vote on whether they wanted union

representation. The election was held in April 2000 and the Union lost.

                Mr. Powell and Mr. Smith are union supporters, and Powell and Smith had worked

for Guardian for almost eleven and four years, respectively. During the Union election campaign

in 1999 and 2000, they campaigned for the union by giving out handbills at the plant, wearing t-

shirts and buttons, and talking to other employees about the Union. Even after the Union lost the

election, Mr. Powell and Mr. Smith handed out handbills again in June and December of 2000. On

March 19-21, 2001, Mr. Powell and Mr. Smith attended a NLRB hearing on charges against

Guardian of unfair labor practices and election objections arising from Guardian’s conduct during

the campaign.

        On October 14, 2001, Mr. Smith and Mr. Powell were working a weekend overtime shift

under temporary group leader, Kenneth Maikranz. Mr. Maikranz ordered the workers to stop

working because the parts that they were going to load on the paint line were defective. According

to standard procedure, Mr. Maikranz asked the workers to clean the line before the next shift began.

Instead of cleaning the line, Powell and Smith left the line to smoke a cigarette.

         Powell and Smith walked off without cleaning the line because they thought it was

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Guardian Auto Trim v. NLRB

clean enough. Unfortunately, Maikranz, who was a first-time group leader, thought it was not

clean enough. When Powell and Smith went to the time clock to punch out, Maikranz came over

and told them, “we don’t walk off the line without the line being clean, we don’t do that on this

line.” Powell replied that he did not know what Maikranz was talking about but they could

discuss it the following weekend. Both Powell and Smith punched out and went home.

          The incident was brought to the attention of Jeff Evans, Guardian’s Employee Human

Relations Manager. Evans conducted an investigation but did not take the statements of some of

the other workers, including Steve Phipps, who was a known union supporter. Powell and Smith

were fired because they “walked off the job” and for insubordination.

      The NLRB’s General Counsel issued a Complaint and Notice of Hearing on June 27, 2002,

alleging that Guardian violated Sections 8(a)(3) and 8(a)(1) of the Act by discharging Mr.

Powell and Mr. Smith in retaliation for their union activity. A hearing was held on September

30, and October 1, 2002. On December 31, 2002, the ALJ issued a decision finding that

Guardian violated Sections 8(a)(1) and 8(a)(3) in firing Powell and Smith. On September 30,

2003, the NLRB issued its Decision and Order agreeing with the conclusion of the ALJ. The

NLRB based its decision to uphold the ALJ’s decision on evidence that Guardian did not follow

its progressive discipline policy and its disparate treatment of Powell and Smith as opposed to

other conduct for which Guardian’s employees were fired. Guardian’s employee handbook, in

effect at the time Powell and Smith were fired, had a “Corrective Action” provision which

stated:

               Corrective action is administered impartially and consistent with

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Guardian Auto Trim v. NLRB

              the nature of the circumstances. Especially serious misconduct
              such as theft, physical violence or the threat of violence, abusive
              language or conduct toward a supervisor, destruction of Company
              property, disregard of workplace safety practices, or violation of
              Company policies such as the Policy Against Harassment,
              Substance Abuse Policy, etc., may result in immediate discharge.
              In most cases, such as those involving below-expectations
              performance, excessive absences, etc., corrective action will be
              administered progressively, according to the following steps:
                      Step 1–Counseling: The supervisor will document the
              nature of the counseling (First Warning).
                      Step 2–The employee will be issued a written record of the
              issue and the measures needed for improvement (Second
              Warning).
                      Step 3–Suspension: The employee must complete a written
              statement committing to improve with regard to the issue at hand
              before returning to work (Final Warning).
                      Step 4–Termination of employment.
              The Company reserves the right to modify this policy as
              appropriate. Factors that are considered in deciding on appropriate
              corrective action include an employee’s past work record, length
              of service, and other mitigating circumstances.

      The NLRB articulated in a footnote what parts of the ALJ’s opinion it did not rely on :

In affirming this conclusion that the Respondent’s proffered basis for the
               discharges was pretextual, we do not rely on the judge’s findings
               that the Respondent conducted an incomplete and skewed
               investigation of the October 14, 2001 incident involving the
               employees, or that the discipline imposed by the Respondent was
               not in proportion to the misconduct engaged in by the employees.
               We also do not rely on the judge’s finding that the Respondent’s
               general animus was demonstrated in an earlier Board case in which
               the Respondent was found to have violated the Act. Guardian
               Automotive Trim, Inc., 

(2002).

    The NLRB stated that it did “rely particularly on disparate treatment to show the

Respondent’s antiunion motive for discharging Powell and Smith.” By “disparate treatment,”

the NLRB meant that, “[Guardian] failed to follow its own progressive discipline policy. That

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Guardian Auto Trim v. NLRB

is, it did not issue a lesser corrective action to Powell and Smith as it did in regard to other

employees disciplined by the Respondent for similar conduct.”

       ANALYSIS

       The NLRB found that Guardian violated section 8(a)(1) and (3) of the Act by discharging

Powell and Smith because of their union activity. We review the NLRB’s findings of fact and its

application of law to the particular facts under the “substantial evidence” standard. Time Auto.

Transp., Inc. v. Nat’l Labor Relations Bd., 

, 499 (6th Cir. 2004). “Substantial

evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.’” 

Edison Co. v. NLRB, 

, 229 (1938)). In this case,

we must determine whether substantial evidence supports the NLRB’s conclusion that

Guardian’s actions against Powell and Smith violated section 8(a)(1) and (3) of the Act.

        The NLRA guarantees employees “the right to self-organization, to form, join, or assist

labor organizations . . . .” 29 U.S.C. § 157. Section 8(a)(1) makes it an unfair labor practice “to

interfere with, restrain, or coerce employees in the exercise of [those] rights . . . .” 29 U.S.C. §

158(a)(1). Section 8(a)(3) bans “discrimination 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). An employer violates both Sections 8(a)(1) and (3) of the

Act when it discharges employees because of union activity. Metropolitan Edison Co. v. NLRB,

, 698 n.4 (1983); Birch Run Welding & Fabricating, Inc. v. NLRB, 

,

1179 (6th Cir. 1985).

       This court looks to the NLRB’s Wright Line test in assessing an employer’s motivation in

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Guardian Auto Trim v. NLRB

unlawful discrimination cases. NLRB v. Main Street Terrace Care Center, 

, 541

(6th Cir. 2000); Wright Line, 

(1980)(approved by the United States Supreme

Court in NLRB v. Transportation Management Corp., 

(1983)). Under the Wright

Line test, counsel for the NLRB first has the burden of establishing a prima facie case of

unlawful discrimination. Main Street Terrace Care 

. If the NLRB

establishes a prima facie case, then the burden shifts to Guardian to prove by a preponderance of

the evidence that it would have taken the same action against Powell and Smith even if they had

not been involved with the Union. 

a prima facie case, the NLRB must show: (1) the employee was engaged in

protected activity; (2) the employer knew of the employee’s protected activity; and (3) an

inference that anti-union animus motivated the employer’s adverse employment action, at least

in part, or that the protected conduct was a motivating factor in the adverse action. NLRB v.

General Fabrications Corp., 

, 226 (6th Cir. 2000). In this case, there is no dispute

that Powell and Smith were both advocates for the Union before and after the election, and that

Guardian’s management knew of their Union involvement. Only the third element, which

examines the motivation of the employer, is at issue.

      We have held that the following factors create an inference of anti-union animus: (1) the

company’s expressed hostility toward unionization combined with knowledge of the employees’

union activities; (2) inconsistencies between the proffered reason for discharge and other actions

of the employer; (3) disparate treatment of certain employees compared to other employees with

similar work records or offenses; (4) a company’s deviation from past practices in implementing

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Guardian Auto Trim v. NLRB

the discharge; and (5) proximity in time between the employees’ union activities and their

discharge. 

of these factors, substantial evidence supports the NLRB’s decision

that counsel for the NLRB at least established an inference that anti-union animus or the

employees protected conduct motivated Guardian to fire Powell and Smith.

     Under the first factor, Guardian had expressed hostility toward unionization and had known

that Powell and Smith were union supporters. Guardian expressed its hostility toward unions by

a section in the employee handbook titled “Our Position Regarding Unions:”

               As a Company employee, no third party charges you dues, tries to
               speak for you, or interferes with the successful relationship we are
               working to achieve….We are also convinced that where there are
               unions, there frequently is trouble, tension, and hostility–and the
               ever present possibility of strikes….Our customers believe in us.
               We continually tell them they can count on us to deliver on time,
               that our people work together to solve their problems, and that we
               are free from labor strife, outside controls, strikes, or even the
               threat of strikes.

       Mr. Evans testified that he had seen Powell and Smith wearing union shirts and buttons

       prior to discharging them.

        Under factor five, we must consider the proximity in time between the union activities

of Powell and Smith and their discharge. Powell and Smith were fired in October 2001, while

Guardian was defending the Union’s unfair labor practice suit against it arising from Guardian’s

conduct during the campaign and election in April 2000. In December 2001, an administrative

law judge found in favor of the Union. Even after the Union lost the election, Powell and Smith

continued to disburse handbills in June and December 2000. On March 19-21, 2001, Powell and

Smith attended the NLRB hearing on the Union’s allegations.

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Guardian Auto Trim v. NLRB

        Although there is no evidence in the record showing that Powell and Smith engaged in

Union activity in or around October 2001, the fact that they continued advocating for the Union

during the unfair labor practice suit, combined with the fact that the suit was ongoing in October

2001, is sufficient to find that proximity in time between the employees’ union activities and

their discharge creates an inference of anti-union animus.

        Under factors two, three, and four, substantial evidence suggests that there were

inconsistencies, disparate treatment, and deviation from past practice in discharging Powell and

Smith. The ALJ examined the instances of discipline in the record where employees were

disciplined for going on break without permission or for refusing to follow directives. The

Board concluded that the harshest penalty given in similar situations was a Final Warning. But in

one exception, an employee was fired for failing to do what she was told to do. In contrast to

Smith and Powell, who had worked eleven years and four years, respectively, the fired employee

had only worked two and a half months. Under Guardian’s discipline policy, when determining

the appropriate disciplinary action, Guardian should consider the employee’s past work record

and length of service as mitigating factors. Therefore, substantial evidence supports the

conclusion that the Guardian should have considered the work record and length of service as

mitigating factors in Powell and Smith’s case.

        Guardian alleges that the NLRB failed to adequately consider three instances where the

Human Resource Department fired employees. The NLRB did consider these cases but found

that the misconduct in those cases was more “egregious.” Those incidents were considered

under Guardian’s discipline policy as “serious misconduct” with such examples being listed as

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Guardian Auto Trim v. NLRB

“theft, physical violence or the threat of violence, abusive language or conduct toward a

supervisor, destruction of Company property, disregard of workplace safety practices, or

violation of Company policies such as the Policy Against Harassment, Substance Abuse Policy,

etc.”

        All of the three incidents were “serious misconduct” justifying immediate discharge. One

employee repeatedly refused to remove jewelry or gloves while on the line, which was a

“disregard of workplace safety practices.” Another employee refused to follow an instruction,

yelled, walked off the line, and left without punching out. The supervisor thought he had quit

but later he was fired for “abusive language or conduct toward his supervisor.” The third

employee was fired for using profanity toward his supervisor and threatening to hurt his

supervisor, which were “threats of violence” and “abusive language toward a supervisor.”

         In contrast, Powell and Smith did not yell at or threaten a supervisor. They did not

walk off the line because production on the line had already stopped. Additionally, other group

leaders allowed employees to leave the line when it was as clean as it was when Powell and

Smith left on October 14, 2001. Even if “abusive…conduct toward a supervisor” was broadly

interpreted to cover their insubordination, that insubordination was not as severe as the

insubordination of the other fired employees. Consequently, substantial evidence supported the

NLRB’s distinction between Powell and Smith’s situation and other situations where Guardian

fired employees.

         For the foregoing reasons, there was substantial evidence to support the NLRB’s

finding that counsel for the NLRB had established a prima facie case of improper motivation.

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       In order to meet its burden of showing that it would have fired Powell and Smith even if

they were not Union advocates, Guardian alleges that it followed its disciplinary policies in

firing Powell and Smith for their allegedly “serious” misconduct. Substantial evidence supports

the NLRB’s finding that Guardian did not meet its burden. The record supports a finding that

Powell and Smith’s misconduct was not “serious” and that Smith and Powell were disciplined

differently than other employees who were similarly insubordinate. Powell and Smith are two

employees with long tenure and good work records, yet they were discharged because they failed

on one occasion to follow cleanup instructions from a person who was not their normal boss.

There was no evidence in the record to suggest Powell and Smith were disrespectful or

uncooperative to their group leaders, or to other supervisors, on any other occasion in their

history as Guardian employees. Besides one warning each for attendance, there is no evidence

of any other disciplinary action taken against Powell and Smith in the years they worked at

Guardian. In light of their employment history, it was reasonable for the NLRB to find that

Powell and Smith’s failure to follow Maikranz’s clean-up direction was not one of the limited

cases of “especially serious misconduct” for which discharge is appropriate under Guardian’s

disciplinary policy. Guardian’s disciplinary policy would therefore require, as in “most cases,”

that Guardian give Powell and Smith each two warnings and a suspension before firing them.

Powell and Smith were not, however, given first or second step warnings or suspensions.

        The fact that Guardian fired Powell and Smith, but in past similar circumstances issued

warnings or suspensions, provides substantial evidence to support the NLRB’s finding that

Guardian did not meet its burden of establishing that it would have taken the same action if

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Guardian Auto Trim v. NLRB

Powell and Smith had not been involved with the Union.

       CONCLUSION

        Because substantial evidence supports the NLRB’s finding that Guardian violated

Sections 8(a)(3) and 8(a)(1) of the National Labor Relations Act by discharging employees

Jimmie Powell and Brian Smith for union activity, we AFFIRM the NLRB’s order.




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        ALICE M. BATCHELDER, Circuit Judge, Dissenting. I respectfully dissent, not

because I have any quarrel with either the reasoning or the result in the majority opinion, but

because the record in this case contains absolutely no evidence upon which we can determine

that we have jurisdiction over this appeal. According to the NLRB’s decision, all of the activity

complained of occurred in Indiana. The record contains no reference to or evidence of any

activity or business facility anywhere other than in Indiana. Guardian’s brief says that

jurisdiction is proper in this court under 29 U.S.C. § 160(f), but does not discuss the factual basis

for jurisdiction. The NLRB’s Cross-Application for Enforcement specifically states that

        The Court has jurisdiction over this cross-application pursuant to Section 10(e)
        and (f) of the National Labor Relations Act, as amended (29 U.S.C. § 160 (e) and
        (f)), because the Respondent is aggrieved by the Board’s order. Venue is proper
        in this Circuit because the unfair labor practice(s) occurred in Evansville, Indiana.

The NLRB’s brief explicitly states that jurisdiction is proper in the Sixth Circuit because the

activity that is the subject of the action occurred in Indiana. But Indiana, the parties may be

surprised to learn, is not in the Sixth Circuit.

        The statutes cited by the NLRB provide, in pertinent part:

        (e) Petition to court for enforcement of order; proceedings; review of judgment

        The Board shall have power to petition any court of appeals of the United States,
        or if all the courts of appeals to which application may be made are in vacation,
        any district court of the United States, within any circuit or district, respectively,
        wherein the unfair labor practice in question occurred or wherein such person
        resides or transacts business, for the enforcement of such order . . .

29 U.S.C. § 160(e).

        (f) Review of final order of Board on petition to court



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Guardian Auto Trim v. NLRB

       Any person aggrieved by a final order of the Board granting or denying in whole
       or in part the relief sought may obtain a review of such order in any United States
       court of appeals in the circuit wherein the unfair labor practice in question was
       alleged to have been engaged in or wherein such person resides or transacts
       business . . .

29 U.S.C. § 160(f).

Additionally, Rule 15(b) of the Federal Rules of Appellate Procedure, which governs

applications to enforce orders of the NLRB, requires that the application must contain, among

other things, “the facts upon which venue is based.” FED. R. APP. P. 15(b)(3).

       Not wanting to be too hasty in concluding that we lack jurisdiction over this appeal, we

specifically inquired of the parties what the basis for jurisdiction in this circuit might be. The

petitioner did not respond, but the NLRB sent a letter advising that counsel for Guardian had

“represented” to counsel for the Board that Guardian has facilities in Michigan and Kentucky,

and therefore, jurisdiction is proper under Section 10(f) of the NLRA (29 U.S.C. § 160(f)).

While I do not question that jurisdiction is indeed proper in this circuit if Guardian has facilities

within this circuit, I do not think that the representation of counsel for one party based on the

representation of counsel for the other suffices to demonstrate the facts upon which our

jurisdiction must be premised.




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