Billy Exum v. NLRB , 546 F.3d 719 ( 2008 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0395p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Petitioner, -
BILLY EXUM,
-
-
-
No. 07-2070
v.
,
>
NATIONAL LABOR RELATIONS BOARD, -
Respondent. -
N
On Petition for Review of an Order
of the National Labor Relations Board.
No. 26-CA-20287.
Argued: July 30, 2008
Decided and Filed: November 7, 2008
Before: GIBBONS and McKEAGUE, Circuit Judges; ADAMS, District Judge.*
_________________
COUNSEL
ARGUED: Bryce W. Ashby, DONATI LAW FIRM, Memphis, Tennessee, for Petitioner. Gregory
P. Lauro, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent.
ON BRIEF: Bryce W. Ashby, William B. Ryan, DONATI LAW FIRM, Memphis, Tennessee, for
Petitioner. Gregory P. Lauro, Julie B. Broido, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for Respondent.
_________________
OPINION
_________________
ADAMS, District Judge. Petitioner Billy Exum (“Petitioner”) appeals the National Labor
Relations Board’s (“Board”) decision reversing the decision of the Administrative Law Judge
(“ALJ”) and dismissing Petitioner’s complaint. Petitioner had brought a complaint against his
employer, Fineberg Packing Company, Inc. (“Employer”), alleging that it had discharged Petitioner
and thirty-one other striking employees in violation of Section 8(a)(1) of the National Labor
Relations Act (29 U.S.C. § 158(a)(1)) (“Act”). The ALJ found that Employer had condoned the
strike in which the employees had engaged and that it therefore wrongly discharged the employees.
Employer appealed the ALJ’s decision to the Board, which held that the facts did not support a
*
The Honorable John R. Adams, United States District Judge for the Northern District of Ohio, sitting by
designation.
1
No. 07-2070 Exum v. National Labor Relations Board Page 2
finding of condonation and that Employer had not acted in violation of the Act. Petitioner now
appeals the Board’s decision and challenges its finding on the issue of condonation.
I. Factual and Procedural History
Employer is a corporation in Memphis, Tennessee, that is in the business of slaughtering and
butchering livestock and processing the meat after slaughter. Employer admitted and the ALJ found
that Employer was one “engaged in commerce within the meaning of Section 2(2), (6) and (7) of
the Act and that the United Food and Commercial Workers, Local No. 515 AFL-CIO (Union) is a
labor organization within the meaning of Section 2(5) of the Act.”
The United Food and Commercial Workers Union has represented Employer’s production
and maintenance employees for over forty years. The Collective Bargaining Agreement (“CBA”)
provided that the employees were guaranteed a thirty-five hour workweek. The CBA further
provided that “there shall be no strikes, lockouts, slowdowns or legal proceedings without first using
all possible means of settlement as provided in this Agreement of any controversy which might
arise.”
In 2001, Employer encountered increased costs of production and began to entertain the idea
of cutting the employees’ workweek back to ten to fifteen hours per week. Richard Freudenberg
(“Freudenberg”), a Plant Manager at Employer’s facility and an employee for over forty years, met
with Union Representative John Canada (“Canada”) in January 2001 and presented Employer’s plan
of a temporary three-month suspension of the thirty-five hour workweek in favor of a ten- to fifteen-
hour workweek. The only alternative to this proposal was a layoff, which was impracticable for
Employer who required at least twenty-one workers per species of livestock1 in order to complete
the slaughtering process, and a layoff would cause Employer to be unable to maintain that number
of employees. Canada agreed to the proposal of the reduced workweek and agreed that the reduction
in hours would begin February 15, 2001. Freudenberg testified that he had an “open-door policy”
and that any employee who was dissatisfied was free to talk to him at any time, but that no
employees came to him to discuss this workweek reduction, nor did anyone file a grievance as
required by the CBA.
Petitioner testified before the ALJ that the employees became dissatisfied upon hearing
rumors of the reduced workweek plan but were unsuccessful in their attempts to contact their Union
Representative. Petitioner said that some employees believed they should have been laid off rather
than have their work hours reduced.
A. February 14, 2001
On February 14, 2001, the day before the reduced workweek was to go into effect, some of
the employees began to discuss the possibility of talking with Freudenberg about the situation. A
large number of employees left their work stations and proceeded to the front of the plant.
According to Petitioner, the employees wanted to talk to Freudenberg about why this change was
being made without Employer’s first having sought the consent of the employees.
David Green, a safety and sanitation inspector for Employer, contacted Freudenberg on his
cell phone to tell him that the employees had said that they were on strike and “had walked out and
they refused to go back to work until they had talked with [Freudenberg].” He had heard Petitioner
walk onto the “kill floor,” where several animals had already been slaughtered that morning, and
yell to his fellow employees “[L]et’s go.” According to Green, “[E]veryone walked out. As
everyone was walking out, anybody that was left exited the building also.” Green reported this to
1
During the period immediately prior to the strike, Employer was slaughtering both hogs and cattle.
No. 07-2070 Exum v. National Labor Relations Board Page 3
Freudenberg, who arrived at the plant between 7:30 a.m. and 7:45 a.m., twenty to twenty-five
minutes after Green’s call.
The employees gathered in front of the plant and insisted upon speaking to Freudenberg as
a group. According to Petitioner, some of the employees were shouting to Freudenberg. He told
them that they needed to return to work and that he could only speak with them individually, not as
a group. Petitioner came to Freudenberg’s truck where Freudenberg told him to get the employees
back to work, but Petitioner refused and insisted that they simply wanted to talk to him. The parties
are, for the most part, in agreement on the facts to this point.
The factual disputes arise regarding what happened next. Freudenberg testified that
Petitioner told him the employees were on strike because of the new workweek, and showed him
a piece of paper with names on it, which he said was intended to be an employee vote to make
Petitioner the new shop steward. Freudenberg knew that he could not negotiate with Petitioner, who
was not recognized by the Union, and he had no intention of explaining to the assembled employees
what agreement had been reached with the Union, which he considered to be the Union’s
responsibility.
Rather than discuss the issue with them, Freudenberg told the employees they had fifteen
minutes to return to work or they would need to leave the property. If they chose not to return to
work and to leave the premises, Employer would consider them as having voluntarily quit and
abandoned their jobs. According to Freudenberg, some employees asked if they were being fired,
and he told them that they were not but reiterated that they needed to return to their work stations
or leave the premises. He went so far as to say that he had pleaded with them to return to work
because there was a certain amount of time within which the slaughtered livestock had to be
processed before the meat was rendered unfit for human consumption. Freudenberg said that some
employees did return to work at that point, but others did not. Among the latter was a twenty-year
employee named Melvin Guy whom Freudenberg said he warned about losing his job if he left.
Freudenberg expressly denied that he had told anyone–either individually or as part of a group–to
return to the plant the next day.
According to Petitioner and the other striking employees, Freudenberg said that they were
not being fired, but that they should put up their things in their lockers and return the next day.
Petitioner testified that he went into the dressing room to remove his work clothes and put them in
his locker, and on his way out he dropped his pen. When he stopped to pick it up, he said that
Freudenberg told him to take it with him because he might need it to fill out job applications.
Petitioner said he questioned Freudenberg about whether he was being fired, and Freudenberg
responded that he was not and that he should return the next day. Freudenberg concurs that he made
a comment about Petitioner’s taking the pen with him to fill out job applications but says he never
told Petitioner he was to return the next day.
The employees that testified they were told to return the next day said they believed
Freudenberg meant they should return the next day to resume work. However, none of them stated
that they believed they were simply being given the rest of the day off, nor could they explain why
they would have received a day off.
Ultimately, Freudenberg ordered the employees who did not return to work to exit the
premises, which they did by congregating just off the premises to await the arrival of Canada, the
Union Representative. They said that, as they left the premises, the gates were closed behind them.
Freudenberg insisted that the gates were closed but were not locked because Employer never locked
the gates while the plant was operational, partly because customers and suppliers would need access
to the premises. While the employees waited for Canada, Kathy Furlong, a one-year employee of
Employer, called the news station and the mayor’s office to inform them of the strike, though she
No. 07-2070 Exum v. National Labor Relations Board Page 4
also testified that she thought she would be returning to the plant the next day. Canada eventually
arrived and drove up to the plant to speak with Freudenberg, passing the employees without saying
anything more than hello out the window of his vehicle. After he had met with Freudenberg for
approximately half an hour, he left the premises, stopping briefly to tell the striking employees that
they should attend a Union meeting the next day at 3:00 p.m. According to Canada, none of the
striking employees told him that they believed they would be returning to work the next day.
B. February 15, 2001
Freudenberg testified that he left David Green in charge of the gate the morning after the
strike. Green confirmed this testimony. Green said that he arrived for work at 4:00 a.m. on the
morning of February 15, 2001, and that he used his magnetic keycard to gain access to the premises
because the gates were locked, which was always the case between 2:00 a.m. and 5:30 a.m. Both
men testified that Freudenberg had told Green to watch for vandalism of the property and to call
Freudenberg if he saw anything of the sort. According to Green, he had no instructions to deny
anyone access to the premises before the gates were officially opened. Freudenberg testified that
he had no knowledge of any employees who arrived for work and either could not or did not enter
the property.
The striking employees gave unclear testimony about the events of the morning after the
strike. Most said that they arrived for work that morning to find that the gates were “locked.”
Others said that they were certain they could not get through the gates, either because Green had told
them he was not permitted to let them through or because the gate did not open for them when they
pulled 2up. However, none of the employees exited their vehicles to look at the gate or to talk to
Green. Some said that they saw those manning the gates opening them for and closing them behind
those employees who had returned to their work stations the day before. Kathy Furlong testified that
she did not attempt to go to the gate on foot because it was raining, but she “knew” Employer would
not let her enter. None of these employees attempted to contact Freudenberg by phone to ask why
they had been denied access on February 15 when he had supposedly told them on February 14 to
return to work the next day.
It appears that a meeting was held at the Union hall on February 15, 2001, in the afternoon.
There was no testimony about what happened at that meeting.
C. Succeeding days
The striking employees returned to the plant to pick up their paychecks on February 16,
2001. Freudenberg told them to clean out their lockers and return to Employer all equipment that
belonged to it. The employees who returned to pick up their paychecks did not talk to Freudenberg
about their allegation that they had not been permitted to return to work on February 15, nor did they
question him about the separation notices they received that indicated that they had voluntarily quit
and abandoned their jobs. The Union has never been asked by any of the employees to file a
grievance on their behalf.
Petitioner filed his Complaint with the Board on June 29, 2001. A trial was conducted by
an ALJ from June 17-19, 2002, after which the ALJ found in favor of Petitioner, holding that
Employer had condoned the strike and had therefore improperly discharged the striking employees,
who were engaged in protected concerted activities. The matter was transferred to the Board on
October 4, 2002. Upon appeal by Employer, a three-member panel of the Board reviewed and
2
Petitioner testified, in contrast with all of the other striking employees, that no one was manning the gate.
Katie Brooks gave somewhat elusive testimony about how she did try to “do the lock,” but it was entirely unclear what
she meant by that.
No. 07-2070 Exum v. National Labor Relations Board Page 5
rejected the ALJ’s ruling in a 2-1 decision. The Board relied upon the record before the ALJ,
holding that Petitioner had not attempted to argue that the activities of the striking workers were
protected, thereby implicitly conceding the point, and had further failed to demonstrate that
Employer had condoned those activities. Petitioner timely filed an appeal to this court.
II. Jurisdiction
Under 29 U.S.C. § 160(f), this court has jurisdiction of a party’s petition for review of a final
Board decision. Section 10(e) of the Act provides that “[n]o objection that has not been urged
before the Board, its member, agent, or agency, shall be considered by the court, unless the failure
or neglect to urge such objection shall be excused because of extraordinary circumstances.” 29
U.S.C. § 160(e). Respondent had originally challenged this court’s jurisdiction, but has since
withdrawn that challenge. The court finds that it does have jurisdiction of this appeal.
III. Standard of Review
We review the Board’s findings of fact to determine if those findings are supported by
“substantial evidence” in the record, considered as a whole. Allied Mechanical Servs., Inc. v. NLRB,
113 F.3d 623, 626 (6th Cir. 1997) (citing 29 U.S.C. § 160(e)); W.F. Bolin Co. v. NLRB, 70 F.3d 863,
870 (6th Cir. 1995). “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).
This court has held that
[e]vidence is considered substantial if it is adequate, in a reasonable mind, to uphold
the decision. Although this Court should consider the evidence contrary to the
Board’s conclusions, it may not conduct a de novo review of the record. When there
is a conflict in the testimony, it is the Board’s function to resolve questions of fact
and credibility, and thus this court ordinarily will not disturb credibility evaluations
by an ALJ who observed the witnesses’ demeanor. The Board’s application of the
law to particular facts is also reviewed under the substantial evidence standard.
However, if the Board errs in determining the proper legal standard, the appellate
court may refuse enforcement on the grounds that the order has no reasonable basis
in law.
Vencare Ancillary Servs., Inc., v. NLRB, 352 F.3d 318, 321-22 (6th Cir. 2003) (internal citations
omitted). “The Board’s choice between two equally plausible and reasonable inferences from the
facts cannot be overturned on appellate review, even though a contrary decision may have been
reached through de novo review of the case.” N.L.R.B. v. Davis & Burton Contractors, Inc., 725
F.2d 684, 1983 U.S. App. LEXIS 12243, at *4 (6th Cir. Dec. 19, 1983) (unpublished table decision)
(citing NLRB v. United Ins. Co. of Am., 390 U.S. 254, 260 (1968)).
In an instance in which the Board disagrees with the ALJ, the United States Supreme Court
has said that it is “not require[d] that the [ALJ’s] findings be given more weight than in reason and
in the light of judicial experience they deserve. The ‘substantial evidence’ standard is not modified
in any way when the Board and [the ALJ] disagree.” Universal Camera Corp. v. NLRB, 340 U.S.
474, 496 (1951).
IV. Analysis
The Fifth Circuit has held that “[w]here . . . strike misconduct is clearly shown, condonation
may not be lightly presumed from mere silence or equivocal statements, but must clearly appear
from some positive act by an employer indicating forgiveness and an intention of treating the guilty
employees as if their misconduct had not occurred.” NLRB v. Marshall Car Wheel & Foundry Co.,
218 F.2d 409, 414 (5th Cir. 1955). This court adopted the Fifth Circuit’s test for condonation in
No. 07-2070 Exum v. National Labor Relations Board Page 6
Plasti-Line, Inc., v. N.L.R.B., 278 F.2d 482, 486-87 (6th Cir. 1960). It is clear from the case law that
there must be a showing of misconduct on the part of the striking employees in order for the doctrine
of condonation to apply.
Petitioner has asked this court to hold only that the Board erred in finding that Employer had
not condoned the employees’ strike. However, the Board rendered a decision as to two issues, as
follows:
[W]e find that the General Counsel established neither that the employee work
stoppage constituted protected activity, nor that the Respondent condoned the
employee work stoppage. The doctrine of condonation rests upon the preliminary
finding that the activities of the employees were unprotected, and the court finds that
Petitioner has conceded the point. The court would briefly note that the employees
were operating under a CBA that they violated when they began a strike without
attempting to discuss the situation with Employer who, according to the testimony
of both Freudenberg and the striking employees, had no notice that the employees
were dissatisfied or intended to strike. Therefore, with no argument from Petitioner,
the court affirms the Board’s finding that the strike was unprotected and proceeds to
the issue of condonation.
As this Circuit has held in adopting the Fifth Circuit’s reasoning regarding the doctrine of
condonation, both elements of condonation, namely “forgiveness and the resumption of the former
relationship between the strikers and [the employer],” must be shown by means of unequivocal,
positive actions by the employer. Plasti-Line, 278 F.2d at 487; Marshall Car Wheel, 218 F.2d at
414. The case law in this circuit makes it clear that the employer’s action expressing forgiveness
cannot be vague or equivocal.
After he received a paycheck that was not honored by his bank, the petitioner in Davis &
Burton set up a one-man picket line in front of his employer’s facility, which was a violation of the
union’s CBA with the employer. Davis & Burton, 1983 U.S. App. LEXIS 12243 at *2. The
employer addressed the petitioner’s concerns and continued to employ him for several weeks, at
which time the petitioner and all of the other employees on his job site were laid off because the
term of employment had come to an end. Id. at *2-*3. Later, when more work was available, all
but two of those employees were recalled. Id. at *3. Petitioner learned that he was not recalled
because he was known as a troublemaker based upon the picketing incident, and he filed a complaint
with the Board. Id. Both the ALJ and the Board found that the employer had condoned the
petitioner’s actions by continuing to employ him and had then wrongfully refused to re-hire him.
Upon appeal by the employer, the Sixth Circuit stated the standard of review and concluded
that there was not substantial evidence in the record to support a finding of condonation. Id at *4-6.
It held that only one element of condonation had been satisfied, namely the resumption of the
employment relationship, but that, in continuing the petitioner’s employment, the employer was
simply waiting until the end of the petitioner’s contract to discharge him. Id. at *5-6. The court held
that the employer’s silence in retaining the petitioner until the term was completed did not constitute
an unequivocal act of forgiveness, and its delay in taking disciplinary action against the petitioner
did not indicate a desire to continue his employment indefinitely. Id. at *6-8.
The court similarly found that the employer had not condoned the employees’ unprotected
activities in Plasti-Line. In contravention of their CBA, the petitioners in Plasti-Line left their work
stations and clocked out at the start of their “wildcat strike.” Plasti-Line, 278 F.2d at 484-85. The
foreman told them they must return to work immediately if they did not wish to be terminated. Id.
at 485. At that point, some returned to the plant to talk with other employees, but they did not clock
back in or report to their supervisors. Id. The employees were terminated that afternoon by means
No. 07-2070 Exum v. National Labor Relations Board Page 7
of letters issued to them by the employer. Id. When some of the terminated employees returned to
the plant for work on the next working day, the foreman told them they would have to leave, which
they did. Id. None of the employees protested further, but they proceeded to file a complaint before
the Board. Id.
The Board found that the employer in Plasti-Line had condoned the employees’ strike, but
this court reversed that ruling for lack of any unequivocal action on the employer’s part that would
have demonstrated forgiveness:
We recognize the power of the Board to draw reasonable inferences from evidential
facts but a thorough study of the record fails to reveal substantial evidence of any
kind or degree to support a finding that petitioners condoned the actions of the
strikers herein. There is no evidence whatever of a positive act by the petitioners to
indicate either a forgiveness of the strikers or an intention to resume their former
relationship with them.
Id. at 487. The court concluded that the Board must have “misapprehended and grossly misapplied”
the substantial evidence standard. Id.
In the instant case, the ALJ first discredited the testimony of Freudenberg because he was
sarcastic and argumentative in his testimony and then found credible the employees’ testimony that
Freudenberg had told them to return to work the next day. With minimal analysis, the ALJ found
that such a comment indicated a forgiveness of the employees’ strike and an intention to continue
the employment relationship. The ALJ particularly noted testimony from Robert Alston, one of the
striking employees, who said that he believed Freudenberg when he said they should come back the
next day. Alston said he never would have left because he had been there thirty-five years and had
undergone a hip replacement, which would make it difficult for him to find new employment.
In reviewing the ALJ’s decision, the Board first noted that there were two separate work
stoppages in this case. The first was when the employees en masse walked away from their jobs and
stood outside the plant. The second was when the employees were given an opportunity to return
to work with no repercussions. While neither was a protected strike, the first was clearly forgiven
by Employer if the employees returned to their stations, and all employees who did so remained
employed. Petitioner and the other employees who continued the strike and chose not to return to
their stations initiated a second work stoppage that was not condoned, and for which they were
terminated.
The Board noted its precedent that an employee who claims that an employer condoned his
activities must present clear and convincing evidence of that condonation in order to succeed in his
claims. 349 N.L.R.B. 29, 2007 NLRB LEXIS 35, at 3-4 (January 31, 2007) (quoting United Parcel
Serv., 301 N.L.R.B. 1142, 1143 (1991)). The Board found that Petitioner had failed to support his
claim of condonation with clear and convincing evidence. Instead, it found that if it were assumed
that Freudenberg told the employees to return the next day, such a statement was ambiguous at best.
However, the Board recited in reverse order the facts surrounding Petitioner’s dropping of
his pen, a fact upon which Petitioner focuses in his brief to this court. Petitioner had testified before
the ALJ that when he dropped his pen, Freudenberg told him he should keep hold of the pen because
he would need it to fill out job applications. Petitioner said he then directly asked Freudenberg
whether he was fired, and Freudenberg said he was not, and he should return the next day. The
Board stated that Petitioner’s question and Freudenberg’s assurance that he was not fired came
before Petitioner’s dropping the pen and Freudenberg’s cautioning him to keep it for job
applications.
No. 07-2070 Exum v. National Labor Relations Board Page 8
If Petitioner’s ordering of events is assumed, Freudenberg may have negated the implication
that Petitioner was terminated by subsequently assuring Petitioner that he was not being fired.
However, when the attempt to explain several otherwise inexplicable inconsistencies requires this
type of parsing, which still does not explain why the employer and the striking employees continued
to behave as if the employees had been terminated, we must conclude that Petitioner has not met his
burden of demonstrating by clear and convincing evidence that Employer condoned the strike.
There is substantial evidence in the record to support the Board’s finding that Employer did
not condone the employees’ strike. The employees’ behavior does not support a claim of
condonation. Not only did the employees not tell Canada on the day of the strike that they intended
to return to work the next day, but they also did not discuss with Freudenberg the determination on
their separation notices that they had voluntarily quit and abandoned their jobs. Furthermore, if
Freudenberg told the employees to return to work the next day, such a comment when taken in the
context of his other statements was entirely ambiguous. Because the employer’s actions in forgiving
an unprotected strike must be unequivocal, and a petitioner must demonstrate by clear and
convincing evidence that such forgiveness occurred, the court finds that Petitioner has failed to
satisfy his burden.
V. Conclusion
There is substantial evidence in the record to support the Board’s determination. Petitioner
failed to demonstrate that Employer condoned the unprotected activity of the striking employees and
wrongfully terminated those employees in violation of § 8(a)(1) of the Act. The court affirms the
Board’s decision.