Herrick & Smith, Petitioner, v. National Labor Relations Board, Respondent, 802 F.2d 565 (1st Cir. 1986)

On May 11, 1983, charging party Mary Moran, a legal secretary employed by the now dissolved Boston law firm of Herrick & Smith, accompanied by a small number of other secretaries, met, at the suggestion of one of the partners, with the firm's managing partner, Remis. The purpose of the meeting, for which Moran had prepared an agenda, was to voice dissatisfaction with employee relationships, and to air specific complaints. The National Labor Relations Board warrantably found that this was activity protected by Section 7 of the Act. 29 U.S.C. § 157. The meeting was pleasantly conducted on both sides, and, even on the firm's evidence, there were airable grievances.¹  On June 17, 1983, Moran was discharged. The ALJ, although, at one point, finding that petitioner did have a valid complaint, found that the real reason for the discharge was her having "engaged in concerted activities." Stating that it had carefully examined the record, the Board affirmed the findings and proposed order without opinion. Petitioner seeks review.

Whether the ALJ was correct or not, on this single question of fact this is the most inflated case about a minimum matter--one secretary, no general course of improper conduct, no union, and no novel principle--that it has ever been our misfortune to encounter. The ALJ, who never once suggested curtailment, permitted the trial to extend over 14 days between October 31, 1983 and March 13, 1984. The resulting transcript ran to 2400 pages,²  "abbreviated" for us to 1072 pages. Even thus abbreviated, we are treated, not only to endless repetition, but to pages of whether a partner signed two overtime slips, or three, or whether an absence was on a Wednesday or a Thursday, all of no conceivable significance except to demonstrate that memories were not perfect, and that no detail of office life was too unimportant to escape minute and unrestricted exploration.³  This was not foot dragging by petitioner. General Counsel introduced 52 exhibits, of which those reproduced fill 156 pages of appendix, giving us a total of 1344 pages to review in addition to the ALJ's decision.⁴ 

Having embarked on such a scrutiny, the ALJ followed it up, on November 20, 1984, with a Decision of 52 tightly written pages, each with over 50 lines of text, if no footnotes. By sampling segments, we compute the Decision to run over 30,000 words. The expense of all this, in time and money, is not our concern, but the burden on our time for obligatory review most certainly is. The Board may choose to express its approval in a single sentence, but even a superficial reading of the Decision convinced us that there could well be weaknesses that its extraordinary length served to conceal. Study reveals this to be so.

Preliminarily, we comment upon the ALJ's methodology. It is, of course, proper, indeed usual, to form an opinion that a particular witness is credible, or not credible. And it is also true that a generally credible witness may sometimes not speak the truth. But the degree that the ALJ switched back and forth between individual witnesses is almost startling. Again, a witness will be rejected on one occasion because self-serving, but accepted the next without apparent hesitation. In one conference each participant was the credible one sometimes, and not credible others. All these things are possible, but in a lifetime on both sides of the bench the present writer has never possessed such total confidence in his discernment. Unfortunately, as will appear, it here led to trouble.

Coming to the merits, to start with the high points, as already mentioned the May 11 meeting, on which the ALJ relied, was not hostilely formed, but was suggested by a member of the firm, was agreeably presented, and was admittedly justifiable. In fact, the basis for the ALJ's decision was the self-drawn inference--the Board has not answered petitioner's pointing out that there were no expressions, or indications of any kind, unless the discharge itself be such--that annoyance at the airing of justifiable complaints caused the discharge. This is a damned-if-you-do, damned-if-you-don't, approach. Annoyance would seem equally inferable, and perhaps more so, if the complaints had been wholly unjustified. Under the circumstances, we think there should be something more tangible than the mere fact there was a meeting. It would seem an extraordinary policy if simply because there was a meeting, even one suggested by the employer, and later someone was discharged, an ALJ could, without more, infer impropriety. Particularly this should be so when the ALJ found, post, that Moran did thereafter furnish cause for legitimate employer dissatisfaction.

To continue, Moran was what was known as a "floater," a secretary who would be assigned for extra work, or to fill in for secretaries who were absent, for one reason or another. Sometimes one assignment would be for a considerably long period, as occurred from late 1981 to the spring of 1983. The ALJ found that over the long run, her performance reports ranged from the excellent to the critical, and in between.

In May, 1983, Moran was assigned to a partner, Thomas Anninger, who had lost his regular secretary and was looking for a new one. He appears to have been difficult to please, and erratic in his views, but, at least to some extent, he and Moran hit it off. In fact, they did so sufficiently well that when Anninger testified that, two or three weeks before the final episode, he told Mrs. Cashman, the personnel director, that when he returned from his vacation week of June 13th, he did not wish Moran back, the ALJ refused to believe him. In relying simply on the fact that things were going well, the ALJ failed to look back to a finding, eight Decision pages earlier, that, though no date was set, it was clearly understood from the beginning that this was a temporary assignment.

Prior to the week of June 6 Anninger had told Moran that he was going on vacation the 13th, and that the week of the 6th was to be very busy. Monday morning, the 6th, Moran had to be in court on a personal matter, but, without his knowledge or assent, she took the rest of the day off. Thereafter, on either Wednesday or Thursday, she was out sick. The ALJ found that Anninger complained to Cashman on Thursday that, to quote the ALJ, "he 'had it up to here with Moran' and could not count on her; that the week had been 'horrible,' and that he wanted a different secretary when he returned." Cashman asked him for a written appraisal. He came in on Saturday the 11th to clean up, and wrote an unfavorable appraisal, concluding that he felt Moran should be discharged. The ALJ refused to believe Cashman's testimony that he had recommended this last on Thursday because, in his own testimony, he had failed to recall it. There is no reason why Anninger would make this recommendation Saturday and not Thursday, and nothing of substance turned on it, but Cashman, who was credited in many matters, was disbelieved here because she was not corroborated.

Continuing with Anninger, we would have thought that his upset about his pre-vacation week, which we consider many lawyers less high strung would sympathize with, would figure in the ALJ's thinking in weighing the causes for his recommending Moran's discharge. Instead, it is entirely discounted in favor of the May meeting. "Anninger impressed me as a man who does not take criticism lightly," and that was that.

While it is not a determinative matter, it might not be amiss to note the revelation that Moran made on May 11 as to Anninger's conduct that is found to have annoyed him so much that on June 11, if not on June 9, he recommended her discharge. On an occasion in early May, having been told by Moran that she could not stay after 5:00, Anninger had expressed his irritation by saying, "Shit, shit, shit." Moran said nothing at the time, but the next day she reported it, with a written memo, to the personnel director. "This is how we are treated, Mrs. Cashman." Cashman told her that, in the future, she should speak up and complain directly to Anninger.⁵  Our problem is not so much that we have difficulty in regarding Moran's raising this at the May meeting as so serious in Anninger's mind that he wanted her discharged,⁶  as it is in following the ALJ's thinking. How could the criticism have affected him so little that, following the meeting, their relations were so fundamentally good that the ALJ was unable to credit his testimony that he told Cashman he did not want her back after his vacation, but affected him so much that his reaction to the week of June 6 was just make-believe, a cover-up excuse for seeking her discharge? The logic of this entirely escapes us. The ALJ does, it is true, point to some favorable appraisals that Anninger gave Moran after May 11, but here, why would he have done this quite unnecessary act if criticism of him at the meeting was rankling? The ALJ travels both sides of the street, seemingly without recognizing it, and, at any rate, without explaining it.

Turning to Cashman, the ALJ found that she "was not as unconcerned about the complaints made about her to Remis as she testified to being." Again, as with Anninger, there was no affirmative evidence of this concern, unless shown by the June events themselves. The ALJ even disbelieved Moran's account that Cashman avoided her. Concern was found by the process of disbelieving Cashman's testimony that she was not concerned. Though tempting, it is fallacious to think that disbelief of testimony warrants an affirmative finding to the contrary. If a plaintiff must show that it rained on Saturday and calls the defendant, who testifies that it did not rain, no amount of confidence of the trier in his ability to conclude that defendant was lying can serve to constitute proof of a rainfall. Cf. NLRB v. Joseph Antell, Inc., 358 F.2d 880 (1st Cir. 1966). Were the rule otherwise, any plaintiff could prove any case in the world simply by calling his opponent and getting him to deny it, and then arguing he was a liar. The Board does not like this principle, but it faces more than our own decision. Cf. Anderson v. Liberty Lobby, Inc., --- U.S. ----, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (disbelief of libel defendant's testimony of his good faith cannot warrant a finding of lack of good faith, viz., of malice).

On June 16, Cashman met with Moran to discuss Anninger's unfavorable appraisal, together with other matters, including reports that she had been "bad-mouthing" the firm. Moran reacted very hostilely, saying it was all "ludicrous," and wanting, instead, to discuss her own complaints. With respect to this conference, and the one the next day, the ALJ credited Cashman over Moran in all respects but one. A memo was prepared of what had been said, and, admittedly, Moran refused to sign it. The ALJ found, "Moran credibly testified that she did not recall Cashman telling her that she only wanted Moran to sign a memo to acknowledge that the conversation took place, and not as an indication that she agreed with the substance of what she had been told." Four pages later this became, "Moran denied in her testimony ... that she was told that she was not being asked to acknowledge that the contents of the memo were substantially accurate, but only that it correctly reflected what was said the day before. At that point Moran appeared more forthright and candid than did Cashman, and I therefore credit Moran." In point of fact, Moran testified three times that she did not recall, but when asked whether she would deny, refused to do so. Ergo, Moran appears "candid" in saying something she did not even say at all.

Finally, the memorandum itself, which Moran testified was given her to read, concluded with the following:

I have read and understand the contents of this memorandum.