SNE Enterprises, Inc. v. National Labor Relations Board , 257 F. App'x 642 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1881
SNE ENTERPRISES, INCORPORATED,
Petitioner,
versus
NATIONAL LABOR RELATIONS BOARD,
Respondent.
No. 06-1917
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
versus
SNE ENTERPRISES, INCORPORATED,
Respondent.
On Petition for Review and Cross-Application for Enforcement of an
Order of the National Labor Relations Board. (9-CA-40915; 9-CA-
41191; 9-CA-41291; 9-CA-41338)
Argued: September 25, 2007 Decided: December 7, 2007
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Petition for review denied; cross-application for enforcement
granted by unpublished opinion. Judge Shedd wrote the opinion, in
which Judge Wilkinson joined. Judge Niemeyer wrote an opinion
concurring in part and dissenting in part.
ARGUED: Grant T. Pecor, NANTZ, LITOWICH, SMITH, GIRARD & HAMILTON,
Grand Rapids, Michigan, for SNE Enterprises, Inc. David A. Seid,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for the Board.
ON BRIEF: Ronald Meisburg, General Counsel, John E. Higgins, Jr.,
Deputy General Counsel, John H. Ferguson, Associate General
Counsel, Aileen A. Armstrong, Deputy Associate General Counsel,
Robert J. Englehart, Supervisory Attorney, NATIONAL LABOR RELATIONS
BOARD, Washington, D.C., for the Board.
Unpublished opinions are not binding precedent in this circuit.
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SHEDD, Circuit Judge:
This dispute arises out of a successful organizing campaign by
the United Steelworkers of America (the “Union”) at the Huntington,
West Virginia plant (the “Plant”) of SNE Enterprises, Inc. (“SNE”),
and out of SNE’s subsequent challenge to the results of the Union
election. SNE petitions for review of an order of the National
Labor Relations Board (the “Board”), determining that SNE
unlawfully (1) withheld a wage increase during the Union campaign
and failed to conduct planned wage reviews; (2) discharged employee
Benny Moore because of his union activity; (3) prohibited employee
Dana Adkins from speaking with co-workers about a disciplinary
incident and discharged him for violating that prohibition; and (4)
discharged supervisor Ruth Adkins for testifying adversely to SNE’s
interests in a Board proceeding. The Board cross-applies, seeking
enforcement of its order. Because substantial evidence supports
the Board’s decision and resulting order, we grant enforcement and
deny SNE’s petition for review.
I
Section 7 of the National Labor Relations Act, 29 U.S.C. § 151et seq. (“NLRA” or the “Act”), provides that “[e]mployees 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
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the purpose of collective bargaining or other mutual aid or
protection.” 29 U.S.C. § 157. Section 8(a)(1) of the Act makes it
an unfair labor practice for an employer “to interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed in” § 7. 29 U.S.C. § 158(a)(1). Section 8(a)(3) makes
it 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.” 29 U.S.C. § 158(a)(3).
We must affirm the Board’s interpretations of the NLRA if they
are “rational and consistent with the Act,” and we must affirm the
Board’s factual findings if they are “supported by substantial
evidence on the record considered as a whole.” Medeco Sec. Locks,
Inc. v. NLRB, 142 F.3d 733, 742 (4th Cir. 1998)(internal citations
and quotations omitted). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.” Consol. Diesel Co. v. NLRB, 263 F.3d 345, 351 (4th
Cir. 2001) (internal quotation and citation omitted). If
substantial evidence exists, we must uphold the Board’s decision
“even though we might have reached a different result had we heard
the evidence in the first instance.” NLRB v. Daniel Const. Co.,
731 F.2d 191, 193 (4th Cir. 1984). Credibility determinations are
left to the discretion of the Board absent “exceptional
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circumstances.” NLRB v. Air Prods. & Chem., Inc., 717 F.2d 141,
145 (4th Cir. 1983).
II
A.
As found by the Board, SNE’s policy was to conduct wage
reviews at the Plant twice per year. Although these reviews did
not automatically result in a wage increase, SNE decided in early
2004 that it would grant a wage increase in March. Around this
time period, the Union began its organizing campaign at the Plant.
When SNE learned of the Union campaign, it posted a notice at the
Plant stating that although “[a] wage increase was scheduled to be
announced and implemented at the end of this week,” SNE had decided
not to implement the increase while the Union vote was pending.
J.A. 792. The notice further stated that “[i]f the union is
rejected in the vote, we will be free to implement a wage increase
after the election.” Id. After the Union pledged not to file any
unfair labor practice charges if SNE implemented the planned
increase, SNE posted another notice again stating that a wage
increase would be granted if the Union lost the election. SNE also
failed to conduct wage reviews in September 2004 and March 2005,
notwithstanding its policy.
The Board concluded that SNE’s failure to grant the March
2004 wage increase and its failure to conduct wage reviews in
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accordance with its policy violated §§ 8(a)(1) and (3) of the Act.
“An employer’s obligation with regard to wage increases during a
representation campaign is to proceed as it would have proceeded
without regard to union considerations.” In re Earthgrains Co.,
336 N.L.R.B. 1119, 1129 (2001), enforced, 61 Fed. Appx. 1, 7 (4th
Cir. 2003). An employer violates the Act when it withholds a
planned wage increase during an organizing campaign without a
legitimate business purpose. S. Maryland Hosp. Ctr. v. NLRB, 801
F.2d 666, 668 (4th Cir. 1986).
We conclude the Board’s determination is supported by
substantial evidence. There is evidence in the record to support
the Board’s conclusion that SNE had established a practice of
conducting biannual wage reviews. The notices posted by SNE
support the Board’s conclusion that SNE had decided to grant a wage
increase in March 2004 and that it did not do so because of the
Union. SNE does not dispute that it did not actually grant the
increase, nor that it did not conduct wage reviews in September
2004 and March 2005.
B.
The Board also concluded that SNE violated §§ 8(a)(1) and (3)
of the Act by discharging employee Benny Moore for his union
activity. Moore worked at the Plant from 1997 to 2004. He was
responsible for initiating the Union campaign at the Plant, was a
member of the Union organizing committee, and solicited other
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employees to join the Union. SNE maintained a policy against
employee solicitation during work time. In February 2004, Moore
was discharged for asking a co-worker to sign a union card during
working time, in violation of that policy.
Although an employer may prohibit employee solicitation during
working time, an employer may not enforce an otherwise valid no-
solicitation rule against union solicitation, while permitting
non-union solicitation. Willamette Indus., Inc., 306 N.L.R.B.
1010, 1017 (1992). The Board concluded that SNE selectively
enforced its no-solicitation policy against Moore, while tolerating
non-Union solicitation. There is testimony in the record that
SNE’s no-solicitation policy was not enforced against non-union
solicitors. Employee Charles South testified that “solicitation is
virtually every day. It’s all over the plant. It’s open.” J.A.
800. Other testimony indicated that employees sold various items
such as candles, Girl Scout cookies, or tickets to Plant-related
activities during work time, sometimes in the presence of
supervisors. Accordingly, we hold that substantial evidence
supports the Board’s conclusion that SNE unlawfully terminated
Moore.
C.
The Board also determined that SNE violated § 8(a)(1) of the
Act by prohibiting employee Dana Adkins from speaking with co-
workers about a disciplinary incident and by discharging him for
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violating that prohibition. Adkins was employed by SNE from 2003
to 2004. In April 2004, Adkins broke the computer screen of a
piece of machinery he was operating. As a result, he was placed on
final warning status, suspended for four days, and instructed not
to speak with anyone concerning his discipline while SNE’s
investigation of the incident was pending.
The next month, after SNE’s investigation was complete, Adkins
attempted to apply for a material handler position, but was told he
could not do so because he was on final warning status. When
Adkins stated that he had never received the warning, SNE presented
it to him the next day. Adkins disagreed with the written
warning’s statement that he had used “inappropriate and offensive
language while talking with maintenance” concerning the broken
computer screen. Adkins then spoke with the maintenance employee
in question concerning the incident, for which he was discharged.
An employer violates the Act when it maintains confidentiality
rules that prohibit employees from discussing the terms and
conditions of their employment and by discharging an employee for
violation of such a rule, unless substantial business
justifications outweigh the protected rights involved. See, e.g.,
Medeco Sec. Locks, Inc. v. NLRB, 142 F.3d 733, 746-47 (4th Cir.
1998). SNE argues that its instruction to Adkins not to discuss
his discipline was justified by the need to protect the integrity
of its investigation of the broken computer screen, and by SNE’s
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desire to prevent conflict on the Plant floor, as Adkins had a
temper.
The Board concluded that SNE’s proffered justifications did
not outweigh Adkins’s § 7 right to discuss his employment
conditions. The Board noted that by the time SNE discharged
Adkins, its investigation of the broken computer screen was
complete, and thus could not have been jeopardized by Adkins’s
discussion of the incident. In addition, the Board concluded that
SNE’s desire to prevent conflict at the Plant was too general to
outweigh Adkins’s right to discuss his discipline in the particular
circumstances here, where Adkins’s warning contained what he
believed was an unjust allegation that prevented him from bidding
for a job.
“It is the primary responsibility of the Board and not of the
courts to strike the proper balance between the asserted business
justifications and the invasion of employee rights in light of the
Act and its policy.” NLRB v. Fleetwood Trailer Co., 389 U.S. 375,
378 (1967) (internal citation and quotation omitted). We find no
reason to disturb the Board’s weighing of competing considerations
here.
D.
Finally, the Board determined that SNE violated § 8(a)(1) of
the Act by discharging supervisor Ruth Adkins. The Board rejected
SNE’s contention that it terminated Ruth Adkins for “telling the
9
untruth” in a Board proceeding, and concluded that she was
discharged because she testified against SNE’s interests.
Ruth Adkins worked at the Plant from 1998 until 2004, holding
a lead position beginning in 2002. Prior to the election, the
Board determined that the lead position was supervisory. As a
supervisor, Ruth Adkins was prohibited by SNE from advocating on
behalf of the Union during the Union campaign. After the election,
SNE filed objections in another NLRB proceeding, including an
objection that the election should be set aside because some of the
leads supported the Union. Ruth Adkins was subpoenaed to testify
at a Board hearing on SNE’s challenges to the Union election. At
the hearing, Ruth Adkins testified that she had not advocated for
the Union after she was determined to be a supervisor. When she
returned to work following the hearing, SNE terminated her,
claiming that her testimony in the hearing conflicted with what she
had earlier told SNE’s management and attorneys about her
involvement with the Union, specifically, that she had engaged in
Union solicitation.
An employer violates § 8(a)(1) of the Act by discharging a
supervisor for testifying in a Board proceeding where the testimony
impacts employee § 7 rights. Glover Bottled Gas Corp., 275
N.L.R.B. 658, 658 n.7 (1985), enforced, 801 F.2d 391 (2d Cir.
1986). If an employer seeks to justify such a discharge on the
grounds that the testimony was false, the employer must “show
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affirmatively not only that the testimony was false, but also that
it was willingly and knowingly false, that it was uttered with
intent to deceive, and that it related to a substantial issue.”
Id. at 673 (internal quotation and citation omitted).
We hold that the Board’s conclusion that SNE failed to carry
this burden of proof is supported by substantial evidence. The ALJ
declined to credit the testimony of several SNE witnesses that Ruth
Adkins did advocate for the Union on the grounds that these same
witnesses had not testified to that effect during the proceedings
on SNE’s challenge to the election. Citing discrepancies in the
testimony of SNE attorney Grant Pecor, the ALJ likewise declined to
credit his testimony that Ruth Adkins lied in the Board hearing.
We decline to disturb the ALJ’s credibility determinations.*
III
Because we conclude that the Board’s findings are supported by
substantial evidence, we deny SNE’s petition for review and grant
the Board’s cross-application for enforcement of its order.
PETITION FOR REVIEW DENIED;
CROSS-APPLICATION FOR ENFORCEMENT GRANTED
*
SNE’s claim that it was denied a fair hearing because the ALJ
was biased is without merit. We find no evidence of bias on this
record. Similarly, SNE’s allusion to prior cases over which the
ALJ presided is irrelevant to the issues raised in this proceeding.
See Fieldcrest Cannon, Inc. v. NLRB, 97 F.3d 65, 69 (4th Cir. 1996)
(“A decision-maker’s ruling deserves to rise or fall on the case at
hand, not on the results in other cases that have little bearing on
the issues before us.”).
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NIEMEYER, Circuit Judge, concurring in part and dissenting in part:
Except with respect to the disposition based on the discharge
of Ruth Adkins, a supervisor, I concur in the majority opinion.
With respect to Adkins, I respectfully dissent.
A supervisor generally does not enjoy the protections of § 7
of the NLRA. But there are exceptions. In USF Red Star, Inc. v.
NLRB, 230 F.3d 102, 106 (4th cir. 2000), we noted that although
supervisors are not explicitly covered by the NLRA, § 8(a)(1) “is
violated if a supervisor’s discharge results from his refusal to
commit an unfair labor practice” (emphasis added). But we have not
held, as the majority now holds, that § 7 employee rights are
violated when a supervisor is fired for giving testimony in a Board
proceeding. Firing a supervisor for giving testimony is something
quite different from firing a supervisor for committing an unfair
labor practice against an employee. Accordingly, I would grant the
petition of SNE Enterprises, Inc., with respect to the Board’s
decision on Ruth Adkins’ discharge and deny the NLRB’s petition to
enforce in that limited respect.
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