Caterpillar Logistics, Inc. v. NLRB , 835 F.3d 536 ( 2016 )


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  •                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 16a0407n.06
    Case Nos. 15-1433, 15-1611
    UNITED STATES COURT OF APPEALS
    FILED
    Jul 19, 2016
    FOR THE SIXTH CIRCUIT                        DEBORAH S. HUNT, Clerk
    CATERPILLAR LOGISTICS, INC.,                     )
    )
    Petitioner/Cross-Respondent,              )
    )       ON PETITION FOR REVIEW OF A
    v.                                               )       DECISION AND ORDER OF THE
    )       NATIONAL LABOR RELATIONS
    NATIONAL LABOR RELATIONS BOARD,                  )       BOARD
    )
    Respondent/Cross-Petitioner,              )
    )
    and                                              )
    INTERNATIONAL UNION, UNITED
    AUTOMOBILE, AEROSPACE AND
    AGRICULTURAL IMPLEMENT
    WORKERS OF AMERICA, UAW,
    Intervening Respondent.
    ____________________________________
    Before: COLE, Chief Judge; MERRITT and GRIFFIN, Circuit Judges.
    MERRITT, Circuit Judge.        In this labor relations case, Caterpillar Logistics, Inc.
    (“Caterpillar”) petitions for review of an order of the National Labor Relations Board (“the
    Board”) finding that Caterpillar committed unfair labor practices in connection with a
    2013 representation election and also unlawfully discharged an employee. The Board cross-
    applies for full enforcement of its order. Reviewing the administrative record for substantial
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    evidence, we affirm the Board’s order in full. Caterpillar’s petition for review is thus DENIED,
    and the Board’s application for enforcement is GRANTED.
    I. Factual and Procedural History1
    On September 27, 2013, employees at Caterpillar’s Clayton, Ohio facility voted on
    whether they would be represented as a union by the United Automobile Workers (“UAW”).
    The representation election failed; 188 employees voted for representation, and 229 voted
    against. In October 2013, the UAW filed objections to conduct that allegedly violated the
    National Labor Relations Act (“the Act”) and impacted the election results. Particularly relevant
    here, the UAW objected to two instances of interrogation, the creation of the impression of
    improper surveillance, and the improper announcements of an employee bonus and new smoking
    shelters shortly before the vote.
    The first alleged instance of interrogation and the alleged instance of the creation of an
    impression of surveillance occurred during a workday in late August 2013. The night before, the
    UAW held its first organizing meeting, with no supervisors or management personnel in
    attendance. The following day at work, Caterpillar supervisor Nick Ewry approached employee
    (and meeting attendee) John Sponsler, who was working alone at the time, and asked Sponsler
    what he thought about the union. Sponsler explained that he favored unionization but that he
    feared retaliation if the union vote failed. Prior to this encounter, he had never revealed his
    union support to a manager or supervisor and was “extremely nervous about anyone knowing
    about” his involvement.
    1
    Because we hold that the administrative fact-finding was supported by substantial
    evidence, see infra Part II, we primarily rely on those facts in this summary. While we document
    some major factual disputes here, we ultimately accept the administrative adjudicators’
    resolution of those disputes. Id.
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    According to Sponsler, Ewry responded that he did “not think [Sponsler] had anything to
    worry about,” that “he did not think there would be any retaliation whatsoever, and that upper
    management already knew everyone that . . . [was] involved.” Afterwards, Sponsler spoke to
    multiple colleagues about his encounter with Ewry, and told them that he “was afraid that
    someone had given the company information and surveilled [the union] meeting, because of
    [Ewry’s] comment about upper management knowing everyone . . . involved.”
    The second alleged instance of interrogation occurred around the same time. Following a
    mandatory anti-union meeting organized for employees by the management, supervisor Cory
    Butcher approached employee Marquis Applin while Applin was working alone and proceeded
    to ask Applin what he thought about the meeting and whether he had made a voting decision.
    Butcher also said that if the union vote succeeded, he would no longer be able to talk to Applin
    “one on one.” During the conversation, Applin was “nervous” and “kind of shocked,” and he
    later testified that he tried not to indicate that he was a union supporter for fear of being fired.
    Applin would later relay his encounter with Butcher to other Caterpillar employees.
    The first alleged instance of an improper announcement of an employee benefit came at
    an employee meeting on September 18, when Caterpillar General Manager Brian Purcell and
    Safety Manager Kevin Rivera announced to plant employees a one-time $400 safety bonus,
    which was ultimately paid out in December 2013. Many employees claim they were first
    notified of the impending bonus at that meeting.         Caterpillar argues that it explained to
    employees in both March and July 2013 that the award was forthcoming upon a successful
    submission for the company’s “Chairman’s Safety Award.”
    The second alleged instance of an improper announcement of an employee benefit came
    at the same September 18 meeting, when Caterpillar announced to employees for the first time
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    that it would be constructing covered smoking shelters in the outdoor break areas used by
    employees that smoked. Since at least 2011, employees had consistently complained about the
    designated smoking areas in use at the time, which were uncovered and difficult to reach in bad
    weather. The smoking shelters were ultimately constructed in March 2014.
    The representation election was held on September 27, and a majority of employees
    voted against unionization. In October, the UAW filed its objections to the election, alleging
    interrogation, the impression of surveillance, and the improper announcement of benefits.
    On November 14, while the UAW’s objections were pending, Caterpillar held an
    employee meeting to announce the construction of a guard shack. At the meeting, employee
    Michael Craft asked what the shack was for. General Manager Purcell responded that the shack
    was “for guards,” eliciting laughter from the other employees present. Purcell’s dismissive
    response upset Craft, who relayed the incident to two coworkers the next day at work.
    According to supervisor Jason Brown, who overheard the remarks, Craft told them:
    You guys (union supporters) just gained another supporter, I’m
    sick of the way they treat us in here, He (Brian Purcell) thinks he
    can treat us like he treated the thugs he managed in Denver, I’m
    not putting up with it anymore, I’m sick of it, that motherfucker is
    going down now, the gloves are fucking off now . . . .
    Brown asked Craft why he was upset. According to Brown,
    [Craft] stated that he felt embarrassed and made out to look foolish
    [by Purcell]. [Craft] continued to say that he was for the union
    now due to the way Brian Purcell is treating the associates like
    they were thugs. . . . Mike said that he never meant he wanted to
    do physical harm to Brian Purcell he just meant that he wanted
    Brian to be held accountable for his actions towards Mike Craft.
    Brown reported the incident to Assistant Value Stream Manager John Gruet, who then reported it
    to Purcell and Human Resources Manager Jason Murphy. Gruet also told them: “I don’t believe
    Mike is a violent person but he is upset. I don’t believe Mike intended physical harm . . . .”
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    Nonetheless, Murphy decided to suspend Craft, and Purcell later reported the incident to police
    and terminated Craft’s employment. Craft filed an objection with the Board, arguing that he had
    been terminated in violation of the Act. His complaint was consolidated with the UAW’s
    pending election objections.
    On August 4, 2014, an Administrative Law Judge (“the Judge”) issued a decision finding
    that Ewry and Butcher had violated the Act by interrogating employees about union sympathies
    “during the critical period between the filing of the representation petition and the election,” and
    that Purcell had violated the Act by announcing the safety bonus and smoking shelters during the
    critical period. The Judge also found that Michael Craft was discharged in violation of the Act
    because his outburst had amounted to protected activity and was not sufficient to forfeit the Act’s
    protection. The Judge ordered Caterpillar to: reinstate Craft with back pay; cease and desist from
    unfair labor practices; and post and distribute a notice advising employees of their rights,
    acknowledging its violations, and listing the remedial measures it was taking. The Judge also
    ordered that the election results be set aside and a new election held.
    On appeal, the Board affirmed the order of the Judge, except to the extent that it also
    found that Ewry violated the Act by creating the impression of surveillance and modified the
    ordered remedies to reflect the finding of surveillance.
    Caterpillar now petitions for review of the Board’s decision and order, arguing that the
    Board’s order should not be enforced because Caterpillar did not violate the Act through
    interrogation, the creation of the impression of surveillance, the improper announcement of
    benefits, or the dismissal of Craft.2 The Board cross-applies for full enforcement of its order.
    2
    Among its positions, Caterpillar argues that we should review and overturn the Board’s
    order setting aside the representation election and ordering a new one. It is a well-settled rule,
    however, that such an order is not “final” and thus is not subject to our appellate review. U.S.
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    II. Discussion
    “Our review of the Board’s decision is quite limited.” Torbitt & Castleman, Inc. v.
    NLRB, 
    123 F.3d 899
    , 905 (6th Cir. 1997). We defer to the Board’s factual determinations if they
    are supported by substantial evidence on the record as a whole. 
    29 U.S.C. §§ 160
    (e), (f);
    Universal Camera Corp. v. NLRB, 
    340 U.S. 474
    , 477, 488 (1951). “Substantial evidence means
    such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
    Dupont Dow Elastomers, L.L.C. v. NLRB, 
    296 F.3d 495
    , 500 (6th Cir. 2002) (citation and
    internal quotation marks omitted). Our review of fact-finding is even more deferential for
    credibility determinations: “We will overturn those determinations only if they overstep the
    bounds of reason,” Kusan Mfg. Co. v. NLRB, 
    749 F.2d 362
    , 366 (6th Cir. 1984) (citation and
    internal quotation marks omitted), or “unless they are inherently unreasonable or self-
    contradictory,” Tel Data Corp. v. NLRB, 
    90 F.3d 1195
    , 1199 (6th Cir. 1996) (citation and
    internal quotation marks omitted). The Board’s application of law to the facts is also reviwed for
    substantial evidence, NLRB v. Mead Corp., 
    73 F.3d 74
    , 78 (6th Cir. 1996), and its “[c]onclusions
    of law are subject to a de novo review, although [we] will uphold the Board’s reasonable
    interpretation of the [National Labor Relations Act] where Congress has not spoken to the
    contrary on the same issue.” Dupont Dow Elastomers, 
    296 F.3d at 500
     (citation omitted).
    Elec. Motors v. NLRB, 
    722 F.2d 315
    , 320 (6th Cir. 1983) (per curiam) (citing Am. Fed’n of
    Labor v. NLRB, 
    308 U.S. 401
     (1940); NLRB v. Int’l Bhd. of Elec. Workers, 
    308 U.S. 413
     (1940))
    (additional citations omitted). Moreover, Caterpillar conceded the mootness of this claim in a
    letter to our Court announcing that the second election had been conducted and a majority of
    employees again voted against representation. See Bingham v. Nat’l Credit Union Admin. Bd.,
    
    927 F.2d 282
    , 285 (6th Cir. 1991) (affirming dismissal of claims that petitioners’ concede were
    moot).
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    A. Unfair Labor Practices
    The National Labor Relations Act guarantees to employees “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.” 
    29 U.S.C. § 157
    . “It shall be an
    unfair labor practice for an employer . . . to interfere with, restrain, or coerce employees in the
    exercise of [these] rights . . . .” 
    Id.
     §§ 158(a), (a)(1). An unfair labor practice “occurs when
    substantial evidence demonstrates that the employer’s [actions], considered from the employees’
    point of view, had a reasonable tendency to coerce.”         Dayton Newspapers, Inc. v. NLRB,
    
    402 F.3d 651
    , 659 (6th Cir. 2005) (citation omitted). A finding of “actual coercion” is not
    required. 
    Id.
     (citation omitted). “In making [an unfair labor practices] determination, the Board
    considers the total context in which the challenged conduct occurs and is justified in viewing the
    issue from the standpoint of its impact upon the employees.” NLRB v. Okun Bros. Shoe Store,
    
    825 F.2d 102
    , 105 (6th Cir. 1987).
    1. Interrogation
    Coercive interrogation of employees about union activities constitutes an unfair labor
    practice in violation of 
    29 U.S.C. § 158
    (a)(1). NLRB v. E.I. DuPont De Nemours, 
    750 F.2d 524
    ,
    527 (6th Cir. 1984) (citations omitted). “[T]he basic test for evaluating the legality of an
    interrogation is ‘whether under all of the circumstances the interrogation reasonably tends to
    restrain, coerce, or interfere with rights guaranteed by the Act.’” Dayton Typographic Serv., Inc.
    v. NLRB, 
    778 F.2d 1188
    , 1194 (6th Cir. 1985) (quoting Rossmore House, 
    269 N.L.R.B. 1176
    ,
    1177 (1984)). “When assessing the coercive tendency of an interrogation, the [Board] looks at,
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    among other things, the background, the nature of the information sought, the questioner’s
    identity, and the place and method of interrogation.” 
    Id.
     (citation omitted).
    a. The Interrogation of John Sponsler
    The Judge concluded that Ewry’s questioning of Sponsler was an attempt to assess
    Sponsler’s position on unionization in order to report it to Caterpillar corporate labor relations
    official Ron Hassinger, and that such questioning was coercive because it closely followed a
    management-organized anti-union meeting for employees.             The Board agreed with this
    conclusion.
    Substantial evidence supports the Board’s conclusion that Sponsler’s questioning of Ewry
    amounted to coercive interrogation in violation of the Act. This conclusion is supported by: the
    background of the exchange, in that an anti-union meeting had been held the day before and
    Sponsler’s union support was private; the nature of the information sought, in that Ewry clearly
    sought Sponsler’s position on the union; the questioner’s identity, in that Ewry was Sponsler’s
    supervisor; and the place and method of interrogation, in that Ewry approached Sponsler on the
    work floor while Sponsler was alone, a situation in which he might have felt more vulnerable
    than if he had been surrounded by his peers. The Board reasonably concluded that this encounter
    had a reasonable tendency to coerce. See Allegheny Ludlum Corp. v. NLRB, 
    104 F.3d 1354
    ,
    1359 (D.C. Cir. 1997) (quoting Struksnes Constr. Co., 
    165 N.L.R.B. 1062
    , 1062 (1967)) (“[A]ny
    attempt by an employer to ascertain employee views and sympathies regarding unionism
    generally tends to cause fear of reprisal in the mind of the employee if he replies in favor of
    unionism and, therefore, tends to impinge on his [National Labor Relations Act] rights.”)
    (internal quotation marks omitted).
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    b. The Interrogation of Marquis Applin
    The Judge also concluded that Butcher’s questioning of Applin was an attempt to assess
    Applin’s position on unionization in order to report it to Hassinger, and that such questioning
    was coercive because it closely followed the mandatory anti-union meeting for employees. The
    Board agreed with this conclusion.
    Substantial evidence supports the Board’s conclusion that Butcher’s questioning of
    Applin amounted to coercive interrogation in violation of the Act. This conclusion is supported
    by evidence similar to the evidence supporting the conclusion that Sponsler was coercively
    interrogated:   an anti-union meeting had been held the day before; Butcher clearly sought
    Applin’s position on the union; Butcher was Applin’s supervisor; and Butcher approached
    Applin on the work floor while Applin was alone, a potentially vulnerable setting. See Allegheny
    Ludlum Corp., 
    104 F.3d at 1359
    ; supra Part II.A.1.a.
    2. Surveillance
    Creating the impression that employees’ union activities are under surveillance
    constitutes an unfair labor practice in violation of 
    29 U.S.C. § 158
    (a)(1), see NLRB v.
    Homemaker Shops, Inc., 
    724 F.2d 535
    , 538, 550 (6th Cir. 1984), because “employees should be
    free to participate in union organizing campaigns without the fear that members of management
    are peering over their shoulders, taking note of who is involved in union activities, and in what
    particular ways.”    Flexsteel Indus., 
    311 N.L.R.B. 257
    , 257 (1993).       A finding of actual
    surveillance is not required; “the test for determining whether an employer has created an
    impression of surveillance is whether the employee would reasonably assume from the statement
    that their union activities had been placed under surveillance.” 
    Id.
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    The Board found that Erwy created the impression of surveillance when, during his
    discussion of union activities with Sponsler, he said “that upper management already knew
    everyone that . . . [was] involved.” This finding is supported by substantial evidence. Sponsler
    testified that he had attended an off-site union meeting the day before, that he had not publicly
    indicated support for the union, and that Ewry did not disclose his source of information. The
    Judge credited Sponsler’s testimony, and Caterpillar makes no argument that that credibility
    determination overstepped the bounds of reasons or was inherently unreasonable or self-
    contradictory.
    Thus, Ewry indicated to Sponsler that management was aware of protected labor
    activities without revealing his source, thereby creating an impression that protected activity had
    been improperly surveilled. See Sam’s Club, 
    342 N.L.R.B. 620
    , 620-21 (2004) (“[Manager]
    Roberts’ telling [employee] Peto that he ‘heard Peto was circulating a petition about wages’
    leads reasonably to the conclusion that the [employer] had been monitoring Peto’s activities.
    Peto did not circulate the petition openly, and Roberts never revealed how he came by the
    information.”).
    3. Impressible Promising of Benefits
    The promise or conferral of a benefit to employees in the run-up to a union election will
    typically amount to coercion, and thereby an unfair labor practice in violation of the Act. See
    NLRB v. Bailey Co., 
    180 F.2d 278
    , 279 (6th Cir. 1950) (“[T]hrough the promises of . . .
    economic benefits . . . , the respondent was demonstrating to its employees that resort to self-
    organization was plainly unnecessary. This constituted interference with the exercise by the
    employees of their right of self-organization and collective bargaining through representatives of
    their own choosing.”). “[T]he critical inquiry is whether the benefits were granted for the
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    purpose of influencing the employees’ vote in the election and were of a type reasonably
    calculated to have that effect.” United Airlines Servs. Corp., 
    290 N.L.R.B. 954
    , 954 (1988)
    (citing NLRB v. Exchange Parts Co., 
    375 U.S. 405
     (1964)). “[U]nless the company can present a
    legitimate business reason for the timing of its guarantee,” such “a promise [of benefits] will be
    presumed impermissibly influential.” DynCorp, Inc. v. NLRB, 233 F. App’x 419, 430 (6th Cir.
    2007) (citing Bailey Co., 
    180 F.2d at 279
    ).
    a. The $400 Safety Bonus
    The Judge found that there “was no reason for Brian Purcell to announce [in September]
    the fact that employees would be receiving the bonus in December other than to influence them
    in voting in the representation election” and that “the announcement was motivated by
    [Caterpillar’s] desire to discourage unit employees from voting for union representation,”
    because there was “no credible evidence that a firm decision had been made to pay employees
    the $400 bonus prior to the filing of the representation petition on August 16.” Thus, the Judge
    found that the announcement of the safety bonus was an impermissible benefit amounting to an
    unfair labor practice in violation of 
    29 U.S.C. § 158
    (a)(1).      The Board agreed with these
    findings.
    Caterpillar continues to argue that the bonus was first announced in March or July of
    2013, when it would not have influenced an impending representation election. But the Judge
    credited the testimony of twelve employees who recalled no such announcements, and found that
    even if Caterpillar’s witnesses were credited, their testimony would indicate at most that
    Caterpillar announced in March or July that it might apply for the bonus, without conclusively
    indicated if or when an application would be made. The Board agreed with these findings.
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    The Board’s findings are supported by substantial evidence. We agree that “a reasonable
    mind might accept as adequate [the evidence] support[ing]” the Board’s conclusion that even if
    Caterpillar’s witnesses are credited regarding the purported March and July announcements,
    these announcements indicated at most that Caterpillar might apply for the safety bonus. Dupont
    Dow Elastomers, 
    296 F.3d at 500
     (citation and internal quotation marks omitted). For instance,
    Value Stream Manager Sara Pahlas testified that then-General Manager Jeff Slocum presented to
    employees at the March meeting the proposal for the safety bonus, reading from a PowerPoint
    presentation. The PowerPoint presentation that was purportedly displayed to employees at the
    meeting says conditionally that a bonus will be paid out to employees “IF AND ONLY IF we are
    positioned to submit a viable safety program for consideration in the annual ‘Chairman’s Safety
    Award’ Process.”       Likewise, Safety Manager Rivera testified that, at the July meeting, he
    “covered the two projects that [he] thought we would be submitting, or we thought we would be
    submitting for that award.” Assuming these announcements were in fact made — which the
    testimony of the twelve employees draws into doubt — adequate evidence suggests they were
    conditional at best.
    Thus, the Board and the Judge reasonably determined that employees were told for the
    first time, nine days before the election, that they would be receiving a bonus of $400. The
    Board and the Judge could have reasonably concluded that the bonus was “granted for the
    purpose of influencing the employees’ vote in the election and [was] reasonably calculated to
    have that effect.” United Airlines Servs. Corp., 290 N.L.R.B. at 954. And even if the bonus was
    warranted for business reasons (like safety), Caterpillar cannot provide a “legitimate business
    reason for the timing of its guarantee” in order to rebut the presumption that the announcement of
    the bonus was impermissibly coervice.       DynCorp, 233 F. App’x at 430 (emphasis added).
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    Indeed, the timing of the announcement reinforces the presumption that it was intended to
    coerce. Although the bonus was to be awarded on the basis of warehouse safety through the end
    of September 2013, the application was prepared in August, submitted on September 13, and
    announced of September 18 — just nine days before the election. Thus, substantial evidence
    supports the conclusion that the bonus was impermissibly secured “right before an election and
    sprung on the employees in a manner calculated to influence the employees’ choice.” NLRB v.
    Arrow Elastic Corp., 
    573 F.2d 702
    , 706 (1st Cir. 1978); see also St. Francis Fed’n of Nurses &
    Health Profs. v. NLRB, 
    729 F.2d 844
    , 850 (D.C. Cir. 1984) (“Thus the timing of the
    announcement of a [benefit] may violate section [158(a)(1)], even though the employer’s initial
    decision to [provide the benefit] was perfectly legitimate.”)
    b. The Smoking Shelters
    The Judge found that the promised smoking shelters amounted to a benefit, and that the
    timing of their announcement was “designed to convince the employees that their demands
    would be met through direct dealing with [Caterpillar] and that union representation could in no
    way be advantageous to them.” The Judge thus found that the announcement of smoking
    shelters amounted to an unfair labor practice in violation of the Act. The Board agreed with the
    Judge’s conclusions.
    Substantial evidence supports the Board’s conclusion that the announcement of smoking
    shelters amounted to an unfair labor practice in violation of 
    29 U.S.C. § 158
    (a)(1). The shelters
    were a solution to a problem that Caterpillar employees had complained of for a long time, and
    the shelters were announced for the first time shortly before the election. That the shelters were
    purportedly a response to safety concerns about uncovered smoking areas does not necessarily
    mean that there was a “legitimate business reason for the timing” of their announcement.
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    DynCorp., 233 F. App’x at 430; see St. Francis Fed’n of Nurses & Health Profs., 
    729 F.2d at 850
    .
    The timing here indicates that neither safety nor any other legitimate purpose was the
    primary reason for the announcement that shelters would be constructed, and that in fact the
    announcement was “for the purpose of influencing the employees’ vote in the election and [was]
    of a type reasonably calculated to have that effect.” United Airlines Servs. Corp., 290 N.L.R.B.
    at 954. Specifically, employees had complained for years about the exposed outdoor smoking
    areas, but no action was taken to address the issue until the shelters were announced nine days
    before the election. Further undercutting the purported safety rationale is the fact that the
    shelters were not in fact constructed until March of 2014, forcing employees to endure another
    winter in the exposed smoking areas. The Board’s conclusion that the announcement of the
    shelters amounted to an unfair labor practice is therefore supported by substantial evidence.
    B. The Discharge of Michael Craft
    The Act prohibits “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), (a)(3). But an employee who engages in “opprobrious conduct” can
    forfeit these protections.   Atlantic Steel Co., 
    245 N.L.R.B. 814
    , 816 (1979).         “It is well
    established that ‘although employees are permitted some leeway for impulsive behavior when
    engaged in concerted [organizing] activity, this leeway is balanced against an employer’s right to
    maintain order and respect.’” DaimlerChrysler Corp., 
    344 N.L.R.B. 1324
    , 1329 (2005) (quoting
    Piper Realty, 
    313 N.L.R.B. 1289
    , 1290 (1994)). “Where an employee engages in indefensible or
    abusive misconduct during otherwise protected activity, the employee forfeits the Act’s
    protection. Whether the Act’s protection is lost depends on a balancing of four factors: (1) the
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    place of the discussion between the employee and the employer; (2) the subject matter of the
    discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any
    way, provoked by an employer’s unfair labor practice.”              
    Id.
     (citing Atlantic Steel Co.,
    245 N.L.R.B. at 814) (additional citation omitted). Although the Board’s findings of fact and
    application of law to fact are otherwise reviewed for substantial evidence, see Universal Camera,
    
    340 U.S. at 477, 488
    ; Mead Corp., 
    73 F.3d at 78
    , the Board’s determination of whether an
    employee has forfeited the protections of the Act is conclusive “unless it is illogical, arbitrary, or
    unreasonable,” NLRB v. Honda of Am. Mfg., Inc., 73 F. App’x 810, 813 (6th Cir. 2003) (citing
    NLRB v. Hartmann Luggage Co., 
    453 F.2d 178
    , 183-84 (6th Cir. 1971)) (additional citations
    omitted).
    Here, the Judge determined that Craft was involved in protected activity during his
    outburst by telling his coworkers that he was a union supporter because of what he interpreted as
    his employer’s disrespectful treatment of employees. The Board agreed with this conclusion.
    The Judge also assessed the outburst according to the Atlantic Steel factors, and determined that
    Craft had not forfeited the Act’s protections. Specifically, he concluded that:
    [T]he place of the discussion, on the warehouse floor cuts both
    ways. Craft disrupted work for a very brief period of time. On the
    other hand, the seriousness of his misconduct is somewhat lessened
    by the fact that Brian Purcell was not present when he made his
    remarks. . . . Moreover, Craft’s statement was not accompanied by
    any threatening physical gestures . . . which also weighs in favor of
    a finding that he did not lose the Act’s protection. [T]he subject of
    the discussion: Craft’s newly discovered support for the Union
    cuts in favor of a finding that he did not lose the protection of the
    Act. [The nature of the outburst] is the most important. Without
    the first sentence, Craft’s statements are certainly a threat which
    would lose him the protection of the Act. However, the M-fer
    going down, the gloves are off has to be placed in context. The
    statement makes no sense if one interprets it as I am going to kill
    or assault Brian Purcell and then support the Union . . . .
    [Provocation:] Purcell certainly did not provoke Craft by
    - 15 -
    Case Nos. 15-1433, 15-1611
    Caterpillar Logistics, Inc. v. NLRB
    committing any unfair labor practice. . . . However, I conclude that
    this is an insufficient reason to deny Craft the protection of the Act
    in view of the other factors.
    Thus, the Judge found that Craft had been “discriminatorily discharged” for engaging in behavior
    protected by the Act, and ordered his reinstatement. The Board also agreed with the conclusion
    that Craft had not forfeited the Act’s protections and was entitled to reinstatement.
    Because Craft’s outburst to his colleagues was an expression of union support and a
    complaint about perceived working conditions, the Board’s determination that it amounted to
    protected activity under the Act is supported by substantial evidence. See 
    29 U.S.C. § 157
    (“Employees shall have the right to self-organization, to form, join, or assist labor organizations,
    . . . and to engage in other concerted activities for the purpose of collective bargaining or other
    mutual aid or protection . . . .”).
    Moreover, we find nothing “illogical, arbitrary, or unreasonable” about the Board’s
    application of the Atlantic Steel factors and determination that Craft did not forfeit the Act’s
    protections. Craft’s outburst was plainly an expression of union support and a complaint about
    perceived working conditions, and while it may well have been crudely stated, it can reasonably
    be viewed in context as metaphorical speech rather than threatening speech. See Kiewit Power
    Constructors Co. v. NLRB, 
    652 F.3d 22
    , 28 (D.C. Cir. 2011) (“Once we acknowledge that the
    employees were speaking in metaphor, the [Board’s] interpretation is not unreasonable. It is not
    at all uncommon to speak of verbal sparring, knock-down arguments, shots below the belt,
    taking the gloves off, or to use other pugilistic argot without meaning actual fisticuffs. What
    these words stand for, of course, is a matter of context.”).
    As such, we uphold the Board’s determination that Craft was improperly dismissed for
    engaging in expression protected by the Act, and that Caterpillar must reinstate him.
    - 16 -
    Case Nos. 15-1433, 15-1611
    Caterpillar Logistics, Inc. v. NLRB
    III. Conclusion
    For the foregoing reasons, Caterpillar’s petition for review is DENIED, and the Board’s
    cross-application for full enforcement of its order is GRANTED.
    - 17 -
    

Document Info

Docket Number: 15-1611

Citation Numbers: 835 F.3d 536

Filed Date: 7/19/2016

Precedential Status: Non-Precedential

Modified Date: 1/12/2023

Authorities (21)

National Labor Relations Board v. Arrow Elastic Corporation , 573 F.2d 702 ( 1978 )

National Labor Relations Board v. Bailey Co. (East Side ... , 180 F.2d 278 ( 1950 )

National Labor Relations Board v. E.I. Dupont De Nemours , 750 F.2d 524 ( 1984 )

U.S. Electrical Motors, a Division of Emerson Electric Co. ... , 722 F.2d 315 ( 1983 )

Dayton Typographic Service, Inc. v. National Labor ... , 778 F.2d 1188 ( 1985 )

Torbitt & Castleman, Inc., Petitioner/cross-Respondent v. ... , 123 F.3d 899 ( 1997 )

dupont-dow-elastomers-llc-petitionercross-respondent-v-national , 296 F.3d 495 ( 2002 )

National Labor Relations Board v. Okun Brothers Shoe Store, ... , 825 F.2d 102 ( 1987 )

Kusan Manufacturing Company, a Division of Kusan, Inc. v. ... , 749 F.2d 362 ( 1984 )

National Labor Relations Board v. The Mead Corporation D/B/... , 73 F.3d 74 ( 1996 )

National Labor Relations Board v. Homemaker Shops, Inc. , 724 F.2d 535 ( 1984 )

Tel Data Corporation v. National Labor Relations Board , 90 F.3d 1195 ( 1996 )

National Labor Relations Board v. Hartmann Luggage Company , 453 F.2d 178 ( 1971 )

dayton-newspapers-inc-dba-cox-publishing-of-ohio , 402 F.3d 651 ( 2005 )

American Federation of Labor v. National Labor Relations ... , 60 S. Ct. 300 ( 1940 )

Allegheny Ludlum Corporation v. National Labor Relations ... , 104 F.3d 1354 ( 1997 )

National Labor Relations Board v. International Brotherhood ... , 60 S. Ct. 306 ( 1940 )

Kiewit Power Constructors Co. v. National Labor Relations ... , 652 F.3d 22 ( 2011 )

st-francis-federation-of-nurses-and-health-professionals-affiliated-with , 729 F.2d 844 ( 1984 )

Universal Camera Corp. v. National Labor Relations Board , 71 S. Ct. 456 ( 1951 )

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