Webco Industries, Inc. v. National Labor Relations Board , 90 F. App'x 276 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 16 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
WEBCO INDUSTRIES, INC.,
Petitioner and Cross-
Respondent,
Nos. 01-9532 &
v. 01-9533
NATIONAL LABOR RELATIONS NLRB
BOARD, (No. 17-CA-19898)
Respondent and Cross-
Petitioner.
UNITED STEELWORKERS OF
AMERICA
Intervenor.
ORDER AND JUDGMENT *
Before O’BRIEN, Circuit Judge, McWILLIAMS, and BRORBY, Senior Circuit
Judges.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Webco Industries, Inc. appeals a decision of the National Labor Relations
Board (Board) finding it violated § 8(a)(1) 1 and (a)(3) 2 of the National Labor
Relations Act (Act) 3; the Board cross-appeals for enforcement, and the United
Steel Workers of America (Union) intervenes in support of the Board. Exercising
jurisdiction under 29 U.S.C. § 160(e) and (f) (2002), we grant the Board’s cross-
application for enforcement.
The issues presented are: (1) whether substantial evidence supports the
findings of the alleged violations; (2) whether Bryan O’Connell was a supervisor
and therefore barred from relief under the Act; (3) whether Eric Martin is barred
from relief because he signed a severance agreement releasing Webco from claims
under the Act; and (4) whether relief for Bryan O’Connell and Charlie Williams is
1
Section 8(a)(1) of the National Labor Relations Act corresponds to 29
U.S.C. § 158(a)(1) (2002), which provides: “It shall be an unfair labor practice
for an employer . . . to interfere with, restrain, or coerce employees in the exercise
of the rights guaranteed in section 157 of this title [§ 7 of the Act] . . . .” 29
U.S.C. §157 provides: “Employees shall have 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 bargaining or other mutual aid or protection . . . .”
2
Section 8(a)(3) of the National Labor Relations Act corresponds to 29
U.S.C. § 158(a)(3), which provides: “It shall be an unfair labor practice for an
employer . . . by 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 . . . .”
3
29 U.S.C. §§ 151-169.
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time barred under § 10(b) 4 of the Act.
Nature of the Case
On October 8, 1998, the Union filed an unfair labor practices charge with
the Board’s regional director against Webco alleging, inter alia, violation of §
8(a)(1) and (a)(3) of the Act, stemming from the discharge 5 of a number of
employees in alleged retaliation for Union activity. Based on these charges, later
amended, the Board’s general counsel, by the acting regional director, filed a
complaint, later amended, against Webco.
After conducting a hearing on the amended complaint, an administrative
law judge issued a decision on September 17, 1999, sustaining certain charges,
dismissing others and recommending remedial relief. By Decision and Order
dated July 19, 2001, the Board found Webco violated § 8(a)(1) 6 and (a)(3) 7 of the
4
Section 10(b) of the National Labor Relations Act corresponds to 29
U.S.C. § 160(b). It provides: “[N]o complaint shall issue based upon any unfair
labor practice occurring more than six months prior to the filing of the charge
with the Board . . . . Any such complaint may be amended by the member, agent,
or agency conducting the hearing or the Board in its discretion at any time prior to
the issuance of an order based thereon.”
5
While one of the employees (Robert Leasman) was discharged during his
probationary term, Webco characterizes the other employees as having been “laid
off.” However, in light of Webco’s own policy that laid-off employees could
never again apply for employment with the company, the event is properly
described as a discharge. For purposes of this proceeding, the two terms are
interchangeable.
6
Webco interfered with the § 7 [29 U.S.C. § 157] rights of Messrs.
Schooley, O’Connell, Rogers, and Morris through coercive interrogation about
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Act and issued an order of relief.
Standard of Review
“The findings of the Board with respect to questions of fact if supported by
substantial evidence on the record considered as a whole shall be conclusive.” 29
U.S.C. § 160(e); see 29 U.S.C. § 160(f). In measuring substantiality, we weigh
the whole record, including evidence leading to inferences contrary to Board
findings. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488 (1951).
However, we will not “negative the function of the Labor Board as one of those
agencies presumably equipped or informed by experience to deal with a
specialized field of knowledge, whose findings within that field carry the
authority of an expertness which courts do not possess and therefore must
respect.” Id. Nor will we “displace the Board’s choice between two fairly
conflicting views, even though the court would justifiably have made a different
choice had the matter been before it de novo.” Id. Substantial evidence denotes
“not the degree of evidence which satisfies the court that the requisite fact exists,
but merely the degree which could satisfy a reasonable factfinder.” Allentown
Mack Sales & Serv., Inc. v. N.L.R.B., 522 U.S. 359, 377 (1998) (emphasis in the
Union activities, implied threat of reprisal for exercise of rights to organize and
interference with rights to solicit Union support.
7
Webco discharged Messrs. Schooley, O’Connell, Rogers, Morris, Wilson,
Teague, Leasman, Martin, Ruckman, and Williams in retaliation for Union
support.
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original); see N.L.R.B. v. Wilhow Corp., 666 F.2d 1294, 1299 (10th Cir. 1981).
Credibility and weight determinations belong to the Board, Wilhow Corp. at 1299-
1300, and we will not set them aside “absent extraordinary circumstances.”
Medite of New Mexico, Inc. v. N.L.R.B., 72 F.3d 780, 792 (10th Cir. 1995). As to
the Board’s legal conclusions, “[i]n reviewing the NLRB’s interpretation of the
NLRA, we recognize that Congress made a conscious decision to continue its
delegation to the Board of the primary responsibility of marking out the scope of
the statutory language . . . .” Colorado-Ute Elec. Ass’n, Inc. v. N.L.R.B., 939
F.2d 1392, 1400 (10th Cir. 1991) (quotations and citations omitted), cert. denied
sub nom., 504 U.S. 955 (1992). While we accord great deference to legal rulings
of the Board, we “must reject administrative constructions which are contrary to
clear congressional intent.” N.L.R.B. v. Oklahoma Fixture Co., 295 F.3d 1143,
1145 (10th Cir. 2002), enf. granted, 332 F.3d 1284(2003) (quoting Chevron
U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843 n.9 (1984), reh’g
denied, 468 U.S. 1227(1984)).
Background
Webco Industries, Inc. is a manufacturer and distributor of specialty steel
tubing. Its largest facility, Southwest Tube, is located in Sand Springs,
Oklahoma. On October 7, 1998, due to a precipitous market decline, conceded by
the Board’s general counsel and the Union, Webco laid off fifty-three of its 273
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employees at the Southwest Tube facility. The Union contended the ten alleged
discriminatees were selected for discharge because of their Union sympathies and
activities. Webco denied the allegation and showed that employees without
Union sympathies, including supervisory personnel, were also laid off, and
employees with Union sympathies were retained. But history informs the debate.
The Union tried to organize the Southwest Tube facility beginning in early
1997. In connection with that campaign, Webco was charged with unfair labor
practices. 8 The campaign was suspended in April of 1997, but resumed on
August 19, 1998, 9 with handbilling 10 just outside the Southwest Tube facility by
Union organizer Jim Teague. Supervisor Ted Dye, who observed the handbilling,
testified his presence was intended to ward off any anti-Union misbehavior. Of
the ten alleged discriminatees, eight of them (Messrs. Morris, Rogers, Schooley,
Wilson, Martin, Ruckman, O’Connell and Williams) were active in both the 1997
and 1998 Union organizing efforts, and six served on an in-house organizing
committee (Messrs. Morris, Rogers, Schooley, Wilson, Ruckman and O’Connell).
Richard Teague was not employed by Webco at the time of the 1997 effort, but
8
See Webco Indus., Inc. v. N.L.R.B., 217 F.3d 1306 (10th Cir. 2000)
(upholding NLRB decision finding Webco violated § 8(a)(1) and (a)(3) of the
Act).
9
Unless otherwise indicated, all date references are to 1998.
10
The handbill announced a Union organizing meeting that evening.
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took a handbill from Jim Teague and attended the Union meeting on August 19,
1998. Robert Leasman was a probationary employee with Webco who began
employment in the latter part of July 1998. He also took a flyer from Jim Teague
on August 19 and attended the Union meeting that evening. Unlike the others, all
of whom were laid off on October 7, he was discharged without explanation on
August 24. Richard Teague was a brother of Union organizer Jim Teague, and
Gary Schooley and Robert Leasman were related to Jim Teague by marriage.
Webco management testified as to the process for selecting the fifty three
employees laid off on October 7. In late September, founder and chief executive
officer Bill Weber and his daughter, chief operating officer Dana Weber,
informed Ms. Robin Robinette, human resources director, that facility
reorganization and layoffs were necessary to meet a declining market. Ms.
Robinette took charge of the effort to thin the labor force, assisted by Messrs.
Tom Lewis, Don Holder, and Doug Jackson of senior management. The Webers
offered broad guidance to this group, declaring attitude to be the number one
factor in determining which employees would be kept and which let go. Attitude
was described as a willingness to be flexible in job assignments, do whatever
needed to be done, and be a team player. Senior management reviewed personnel
files, discussed the matter, and prepared the initial list of employees to be
released. In the days leading up to the first lay-offs on October 7, middle
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managers were invited into the process and given an opportunity to remove names
from the release list.
Five former members of Webco middle management testified at the hearing
(Messrs. Whittenburg, O’Brien, Cash, Nance, and Krevett). Each of them claimed
senior Webco management exhibited anti-union animus. 11 All except Mr.
Whittenburg (who left Webco in 1996) testified that active Union activity was a
reason for placing an employee on the October 7 discharge list. According to the
collective testimony of these managers, at the final meetings to firm up the layoff
list, all ten of the alleged discriminatees were variously mentioned as pro-Union
and in need of discharge (Mr. Leasman had already been discharged on August
24). At these meetings, Ms. Robinette wondered aloud how Richard Teague and
Robert Leasman were ever hired, since they were both related to Union organizer
Jim Teague. Members of senior management described Richard Teague and
Robert Leasman as “union plants.” At a meeting on October 7, some managers
defended employees who had been placed on the layoff list. Chief executive
11
As the administrative law judge put it, “[T]he witnesses are generally
independent and mutually corroborating and despite certain unlikely aspects . . . I
believe their testimony. In so finding, I have considered that each could have a
motive to fabricate. But when taken together there is just too much evidence to
disbelieve.” (R. Vol. IV, Decision of Administrative Law Judge, at 20.)
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officer Mr. Bill Weber told the assembled group their jobs were on the line for
any name they removed from the list.
Was O’Connell a Supervisor or an Employee?
Webco argues it did not violate § 8(a)(1) and (a)(3) of the Act with respect
to Bryan O’Connell because he was a supervisor and not an employee. The Act
excludes supervisors 12 from its protection. The employer carries the burden of
proving an individual is a supervisor. N.L.R.B. v. Kentucky River Cmty. Care,
Inc., 532 U.S. 706, 712 (2001). “Employees are statutory supervisors if (1) they
hold the authority to engage in any 1 of the 12 listed supervisory functions [see
n.12], (2) their exercise of such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment, and (3) their authority is
held in the interest of the employer.” Id. at 713 (quotations and citations
omitted). One nominally a supervisor may not enjoy his exempt status under the
Act because the degree of independent judgment exercised is measurably
12
“The term ‘supervisor’ means any individual having authority, in the
interest of the employer, to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other employees, or responsibly to direct
them, or to adjust their grievances, or effectively to recommend such action, if in
connection with the foregoing the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent judgment.” 29
U.S.C. § 152(11).
“The term ‘employee’ . . . shall not include . . . any individual employed as
a supervisor . . . .” 29 U.S.C. § 152(3).
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circumscribed by the employer. “It falls clearly within the Board’s discretion to
determine, within reason, what scope of discretion qualifies” to separate an
employee from a supervisor. Id. “It was the Senate’s [prevailing] view [during
enactment of 29 U.S.C. § 152(11)] that employees such as ‘straw bosses,’ who
had only minor supervisory duties, should be included within the Act’s
protections.” N.L.R.B. v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S. 267,
281 (1974). We accord great weight to a Board determination of supervisory
status “since the gradations of authority responsibly to direct the work of others
. . . are so infinite and subtle . . . .” N.L.R.B. v. Dixon Indus., Inc., 700 F.2d 595,
598 (10th Cir. 1983) (quotations and citations omitted).
Mr. O’Connell, one of twelve trainers at the plant, was responsible for
training in the cold draw department. His immediate supervisor was shift
business manager Mark McIllwain. Mr. O’Connell spent about half his time
training new employees on equipment, and the other half of his time he operated a
machine on the shop floor or ran errands for his supervisor. He also trained
veteran employees shifting from one piece of equipment to another. He exercised
judgment in how to train an employee. He initialed time cards. He had the
authority to send an employee home sick if Mr. McIllwain was absent. He
critiqued employees on how well they were doing their jobs and offered input on
whether an employee would advance from one pay level to another. He could
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offer a recommendation on whether to keep a probationary employee, but he could
not make the decision. He assisted in the employee evaluation process, although
all employees participated in a team evaluation effort. On occasion, he signed
employee evaluations. He signed reprimands of other employees about three
times at the instruction of his supervisor, and after his supervisor had asked him
to investigate the situation. He attended management meetings representing his
department on perhaps three occasions in place of his supervisor. These meetings
concerned safety and production. When his supervisor was absent, which
occurred about four times, he was in charge of the department. He was paid an
hourly wage that exceeded the highest wage in the department by about twenty-
five cents per hour.
Mr. Nance, general business manager of the cold draw department and
McIllwain’s superior, testified it was rare for a trainer to fill in for his immediate
supervisor because company policy directed a shift business manager be on duty
at all times. According to Mr. Nance, when a trainer was not training he was
usually operating a machine on the shop floor. He considered a trainer a lead
person with no authority to hire or issue disciplinary action, although he might
sign a disciplinary form along with his shift business manager and the general
business manager. Actual discipline was approved by management only.
According to his testimony, the purpose of a trainer “was pretty strictly to keep
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the work and production flowing and teach people how to run machines and that
sort of thing.” (R. Vol. I at 289).
Notwithstanding the testimony from Mr. O’Connell and Mr. Nance, Ms.
Robinette testified trainer responsibilities were in writing, and Mr. O’Connell
spent all of his time training, which included training on company policies and
procedures. Mr. O’Connell denied having been shown the written responsibilities
of trainers, and he denied training on company policies and procedures. Ms.
Robinette claimed Mr. O’Connell had the authority to initiate disciplinary action
and to suspend other employees. She added he wore a supervisor’s uniform and
parked in a management parking lot for which he needed a special pass.
From this litany of job descriptors, Webco argues Mr. O’Connell had the
responsibility to direct, evaluate, discipline and suspend other employees, and in
so doing he exercised independent judgment. The Board concluded Webco failed
to prove supervisory status for Mr. O’Connell, and the record supports its
decision. Missing in Webco’s case is a direct link between Mr. O’Connell’s
exercise of his job responsibilities and company decisions “to hire, transfer,
suspend, lay off, recall, promote, discharge, assign, reward, or discipline other
employees.” 29 U.S.C. § 152(11). The Board concluded Mr. O’Connell was an
insignificant player in company decisions affecting other employees. His
participation was at most ministerial and attenuated, as in signing reprimand slips
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at the instruction of his supervisor. Adopting the reasoning of the Board, we
agree Mr. O’Connell performed only the kinds of “minor supervisory duties”
envisaged by legislative history as insufficient to establish supervisory status.
Bell Aerospace, 416 U.S. at 281.
Martin Severance Agreement
Webco next contends it did not violate § 8(a)(1) and (a)(3) of the Act with
respect to Eric Martin because he signed a severance agreement providing for the
payment to him of $569.40 (less usual withholdings) in exchange, inter alia, for
his promise not to file a complaint with the Board concerning his discharge and
his release of Webco from all employment-related claims. Mr. Martin signed the
agreement when he was discharged on October 7, without taking the opportunity
Webco gave him to discuss it with an attorney or Union officials. On October 8,
the Union filed its first charge against Webco, not naming Mr. Martin as an
alleged discriminatee. He was so named in the first amended charge filed by the
Union on December 29. The Board’s acting regional director issued a complaint
on March 8, 1999. Neither the Board’s general counsel nor the Union had notice
of the agreement when it was signed, and both objected to giving it effect. The
Board, in a divided opinion, upheld the administrative law judge’s decision
finding the severance agreement did not bar relief for Mr. Martin under the Act.
In Independent Stave Co, Inc., employees on whose behalf unfair labor
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practices were filed reached private, non-Board settlement agreements with the
employer, approved by their union, and requested withdrawal of charges.
Independent Stave Co, Inc., 287 N.L.R.B. 740 (1987). The Board’s general
counsel objected, relying on Board precedent which suggested a private
settlement agreement should be rejected if it does not mirror the complete remedy
which the alleged discriminatees might achieve on all charges in a concluded
unfair labor practice proceeding. The Board noted its “power to prevent unfair
labor practices is exclusive, and that its function is to be performed in the public
interest and not in vindication of private rights and the Board alone is vested with
lawful discretion to determine whether a proceeding, when once instituted, may
be abandoned.” Id. at 741 (quotations and citations omitted). The Board then
revised its test for evaluating whether to give effect to private, non-Board
settlement agreements:
[I]n order to assess whether the purposes and policies
underlying the Act would be effectuated by our approving
the agreement, the Board will examine all the surrounding
circumstances including, but not limited to, (1) whether
the charging party(ies), the respondent(s), and any of the
individual discriminatee(s) have agreed to be bound, and
the position taken by the General Counsel regarding the
settlement; (2) whether the settlement is reasonable in
light of the nature of the violations alleged, the risks
inherent in litigation, and the stage of the litigation; (3)
whether there has been any fraud, coercion, or duress by
any of the parties in reaching the settlement; and (4)
whether the respondent has engaged in a history of
violations of the Act or has breached previous settlement
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agreements resolving unfair labor practice disputes.
Id. at 743. In giving effect to the agreements, the Board noted the settlement
terms were reasonable and respondent had no history of violating the Act. Id.Again, in Hughes Christensen, the validity of private settlement agreements
was before the Board. In September and October 1992, the union filed charges
based on the non-selection of certain employees for transfer to a new company
facility. Hughes Christensen Co., 317 N.L.R.B. 633, 634 (1995), enf. denied on
other grounds, 101 F.3d 28 (5th Cir. 1996). In November, the Board’s regional
director dismissed the charges, and the union appealed. Id. While appeal of the
dismissal was pending, three employees signed private settlement agreements. Id.In April 1993, the appeal was sustained and the charges reinstated. Both the
union and the general counsel opposed giving effect to the severance agreements,
although there was no contention they were fraudulent. Id. Nevertheless,
applying the Independent Stave test, the Board enforced the agreements. The
Board specifically stated the agreements were “a reasonable adjustment in light of
the potential costs and risks inherent in any litigation.” Id. Further, the Board
emphasized the company “does not have a history of violating the Act . . . .” Id.Here, the administrative law judge examined all of the surrounding
circumstances, applied the Independent Stave test and declined to give effect to
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Mr. Martin’s private settlement agreement. As in Hughes Christensen, the Union
and general counsel opposed the settlement agreement and there was no
contention it was fraudulent. The administrative law judge, however,
distinguished Hughes Christensen, particularly noting the respondent’s history of
prior violation of the Act. As to the agreement’s reasonableness, he further
distinguished Hughes Christensen on the grounds the Martin severance agreement
was executed before charges were filed, suggesting it was thus impossible for the
judge to evaluate its reasonableness “in light of the nature of the violations
alleged, the risks inherent in litigation, and the stage of litigation.” Independent
Stave Co, Inc., 287 N.L.R.B. at 743. A majority of the Board adopted the
administrative law judge’s reasoning, and so do we. We are particularly
compelled to this conclusion by consideration of the responsibility of the Board to
effectuate the purposes of the Act, an exercise to which we accord great
deference. Oklahoma Fixture, 295 F.3d at 1145. While we concur in the
principle of just settlement of claims, in this instance the Board’s refusal to give
effect to the Martin severance agreement came after an examination of the totality
of the circumstances and a reasoned application of the Independent Stave test; it
is thus a lawful exercise of Board discretion with which we will not interfere.
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Sec. 8(a)(1) Violations
Gary Schooley
Mr. Schooley was a draw bench operator before being discharged on
October 7. He was active in both the 1997 and 1998 Union campaigns. Jim
Teague, the Union organizer, was his brother-in-law. On September 7, a few
weeks after the Union renewed its campaign to organize Webco, supervisor Jene
Harmon called Mr. Schooley at home and asked him how Union activities were
going. Mr. Schooley claimed not to know, stating he was trying to stay out of it
and “lay low.” (R. Vol. I at 361). This was false, by Mr. Schooley’s own
testimony, since he was at the very time trying to convince other employees to
sign Union cards and attend meetings.
Bryan O’Connell
Mr. O’Connell was also active in both the 1997 and 1998 Union organizing
campaigns. He offered unrefuted testimony that on September 7 his supervisor,
Mr. McIllwain, called him at home, and informed him his own superior, Mr.
Nance, had called to say Mr. O’Connell had been discussing the Union with other
employees. Mr. O’Connell denied this to Mr. McIllwain. Later that week, Mr.
McIllwain approached Mr. O’Connell on the shop floor, and asked him if he was
talking Union again. He told Mr. O’Connell that Larry O’Brien, quality assurance
manager, had informed him Mr. O’Connell had been discussing the Union with
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Jerry Rogers at break time. Mr. O’Connell denied this, although he had discussed
Union issues with Mr. Rogers on previous occasions. Mr. McIllwain then told
Mr. O’Connell that Mr. O’Brien had told him to “keep an eye on” him.
Jerry Rogers and Roy Morris
Messrs. Rogers and Morris, both Union activists in the 1997 and 1998
campaigns, were employed as quality assurance auditors under the direct
supervision of Charlie Conn. Both were laid off on October 7, while the third
quality assurance auditor was retained in a restructured position. Messrs. Rogers
and Morris worked in an area of the plant described as the tensile room, which
also doubled as an informal break room. An official break room was across the
hall. According to each of them, on September 18, Mr. Conn came into the
tensile room and locked the door behind him. He informed them that while it was
acceptable to take their breaks in the tensile room, Union talk was only
appropriate on break time and in the official break room across the hall. Mr.
Conn himself took occasional lunch breaks with Messrs. Rogers and Morris in the
tensile room, where they discussed family and recreational matters. He asked Mr.
Rogers if he was still serious about getting the Union into the plant. They
discussed Union activities and then other subjects. 13
13
Webco suggests Mr. Rogers initiated the conversation, and argues the Act
is not violated when an employee who is an avowed union supporter initiates
discussion of the union with the employer. However, the record indicates Mr.
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Analysis
The Board found the interrogation of Mr. Schooley and Mr. Rogers to be
coercive, that of Mr. O’Connell to constitute an intent by management to surveil
in order to discourage Union activities, and that of Messrs. Rogers and Morris to
be an attempt to restrain Union discussion on break time in a de facto break room,
while permitting discussion of other subjects in the same room, all in violation of
§ 8(a)(1) of the Act. We agree.
Webco cites to Rossmore House, 269 N.L.R.B. 1176 (1984), aff’d sub nom.
Hotel Employees & Restaurant Employees Union, Local 11 v. N.L.R.B., 760 F.2d
1006 (9th Cir. 1985), for the proposition that employer-initiated questioning of an
avowed union supporter concerning union activities does not violate § 8(a)(1) of
the Act. However, the holding was fact specific. To determine whether
questioning violates the Act, we consider “whether under all of the circumstances
the interrogation reasonably tends to restrain, coerce, or interfere with rights
guaranteed by the Act . . . . [E]ither the words themselves or the context in which
they are used must suggest an element of coercion or interference.” Rossmore
House, 269 N.L.R.B. at 1177 (citation and footnote omitted); accord,
Presbyterian/St. Luke’s Med. Ctr. v. N.L.R.B., 723 F.2d 1468, 1475 (10th Cir.
Conn led Mr. Rogers into the Union discussion, and thus supports the
administrative law judge’s finding of coercive interrogation.
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1983). “A violation is established if the questions asked, when viewed and
interpreted as the employee must have understood the questioning and its
ramifications, could reasonably coerce or intimidate the employee with regard to
union activities.” Presbyterian/St. Luke’s, 273 F2d at 1475 (quotations and
citation omitted).
It is uncontested Messrs. Schooley, O’Connell and Rogers were avowed
Union supporters. The fact that Mr. Harmon called Mr. Schooley at his home and
inquired about Union activities, and the fact that Mr. Schooley felt a need to
falsely deny his Union involvement evidences a context suggesting coercion. The
same is true of the questioning of Mr. Rogers, prefaced by his supervisor locking
the door of the tensile room. The merits of the alleged violation concerning Mr.
O’Connell are perhaps the most convincing. He was questioned about his Union
activities during a telephone call to his home and once on the job site, and he was
informed management was going to “keep an eye” on him. Webco’s recent
history of unfair labor practices provides additional coercive context to each of
these conversations. With good reason, Webco offers no defense in its brief to the
allegation of attempting to ban Union discussion from a de facto break room
during break time. Bearing in mind “a reviewing court must recognize the
Board’s competence in the first instance to judge the impact of utterances made in
the context of the employer-employee relationship,” N.L.R.B. v. Gissel Packing
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Co., 395 U.S. 575, 620 (1969), we uphold the Board’s findings of the listed §
8(a)(1) violations.
Sec. 8(a)(3) Violations
The Board upheld the administrative law judge’s findings that in
discharging Mr. Leasman and in laying off Messrs. Morris, Rogers, Schooley,
Wilson, Teague, Martin, Ruckman, O’Connell, and Williams, Webco violated §
8(a)(1) and (a)(3) of the Act. 14
Analysis
In an unfair termination action under the Act, “the General Counsel need
show by a preponderance of the evidence only that a discharge is in any way
motivated by a desire to frustrate union activity . . . .” N.L.R.B. v. Transportation
Mgmt. Corp., 462 U.S. 393, 399 (1983). However, “proof that the discharge
would have occurred in any event and for valid reasons amount[s] to an
affirmative defense on which the employer carrie[s] the burden of proof by a
preponderance of the evidence.” Id. at 400. The employer “does not violate the
NLRA . . . if any anti-union animus that he might have entertained did not
contribute at all to an otherwise lawful discharge for good cause.” Id. at 398.
The Board concluded the general counsel had established its case, and Webco had
14
“Although § 8(a)(1) and(a)(3) are not coterminous, a violation of § 8(a)(3)
constitutes a derivative violation of § 8(a)(1).” Metropolitan Edison Co. v.
N.L.R.B., 460 U.S. 693, 698 n.4 (1983).
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failed to establish its affirmative defense. We agree.
The record is replete with evidence of Webco’s anti-union animus in the
face of two successive Union organizing campaigns in 1997 and 1998, evidenced
in particular by the damning testimony of its former executives, the prior unfair
labor practice charges relative to the 1997 campaign, and the course of conduct
leading to the § 8(a)(1) violations discussed above. All of the persons discharged
were known Union activists, except Messrs. Leasman and Richard Teague, who
were known relatives of Union organizer Jim Teague. Webco personnel
monitored Union handbilling on August 19, 1998, the kick-off to the new
organizing campaign. At this time, Messrs. Leasman and Richard Teague took
handbills from Union organizer Jim Teague.
While Webco offered no explanation for the discharge of probationary
employee Robert Leasman, it explained the discharge of the remaining nine
alleged discriminatees was due to plant restructuring, a review of their personnel
files and an evaluation of their attitude. The administrative law judge offered this
concerning the personnel records upon which Webco relied:
The fact is for even the worst alleged discriminatee,
certain sections support General Counsel’s theory; for
even the best alleged discriminatee, certain sections
support Respondent’s theory. Those employees among the
53 laid off, who are not claimed to be alleged
discriminatees also had records which could be argued
from either side. For good measure, my attention is also
called to those employees not laid off who in some cases
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had equally inconsistent records. The result of this tidal
wave of reports, evaluations, reviews, and the disciplinary
write-ups is in my opinion, inconclusive.
Webco Indus., 334 N.L.R.B. 77 at 30, 2001 WL 831622(2001) (quoting Webco
Indus., 1999 WL33454714 (Sept. 17, 1999) (citation omitted)).
As well, each of the nine employees discharged in at least partial reliance
upon alleged poor personnel records testified no explanation was given for their
discharge other than poor market conditions requiring downsizing. This was the
company response even when two employees specifically asked if their discharge
was due to anything in their work record. When Mr. O’Connell challenged
supervisor Mr. Nance about the reason for his layoff, Mr. Nance offered the stock
economic justification and added, “sometimes when people hear things, they hold
a grudge.” (R. Vol. I at 579). When Mr. Wilson asked why he was being
discharged, a company supervisor told him it was due to economic conditions and
his name was “pulled . . . out of a hat.” (R. Vol. I at 603). As to “bad attitude,”
the Board relied on its own precedent and characterized this terminology as a
codeword for union sympathizer. See Highland Yarn Mills, Inc., 313 N.L.R.B.
193, 211 (1993).
On the sum of the evidence, and after an exhaustive review of the record,
we believe the Board had a substantial basis for finding Webco employed the
opportunity provided by a legitimate economic layoff to rid itself of persons it
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regarded as actual or potential troublesome Union activists, by blending them in
with the discharge of other employees who had no demonstrated Union
sympathies, and, in fact, by retaining some employees who may have had
quiescent Union leanings. Despite Webco’s efforts to camouflage its intent, the
Board correctly found the general counsel met its burden of establishing unlawful
termination of the ten alleged discriminatees, and Webco failed to establish its
affirmative defense of legitimate discharge.
§10(b) of the Act
Webco contends § 10(b) of the Act bars relief for Messrs. O’Connell and
Williams because their names were added to the action by way of an amended
charge, dated April 30, 1999, which was filed more than six months after the
alleged unfair labor practices at issue. However, the same practices that gave rise
to the timely filed charges gave rise to the amended charges.
The Board allowed the amendment by relying on its enunciated procedure
in Redd-I, Inc.: “[W]e would not find the amendment barred under Section 10(b)
. . . because the discharge occurred within 6 months of a timely filed charge and
the alleged violation appears to be closely related to the allegations of that
charge.” 290 N.L.R.B. 1115 (1988). To determine whether a charge is “closely
related” to a timely filed charge, the Board examines (1) whether the untimely
charges concern the same legal theory as the timely charge, (2) whether they arise
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from the “same factual situation or sequence of events,” and (3) whether the
respondent would raise the “same or similar defenses.” Id. at 1118; see also,
Facet Enterprise, Inc. v. N.L.R.B., 907 F.2d 963, 979 (10th Cir. 1990) (allowing
amendment alleging an unfair labor practice closely related to a timely filed
charge).
We defer to the Board’s authority to construe provisions of the Act,
Oklahoma Fixture, 295 F.3d at 1145, agree with the Board’s application of its test
to the facts of this case, and conclude § 10(b) of the Act does not bar relief for
Messrs. O’Connell and Williams.
Conclusion
We conclude the Board at all times acted within its authority, and
substantial evidence supports its findings. Therefore, we GRANT enforcement of
the Board’s order and DENY Webco’s petition for review.
Entered by the Court:
TERRENCE L. O’BRIEN
United States Circuit Judge
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