PB&S Chemical Inc v. NLRB ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PB&S CHEMICAL, INCORPORATED,
Petitioner,
v. No. 96-1971
NATIONAL LABOR RELATIONS BOARD,
Respondent.
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v. No. 96-2065
PB&S CHEMICAL, INCORPORATED,
Respondent.
On Petition for Review and Cross-application
for Enforcement of an Order
of the National Labor Relations Board.
(6-CA-27107, 6-CA-27265)
Argued: April 9, 1997
Decided: August 26, 1997
Before HAMILTON and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Petition denied and enforcement granted by unpublished opinion.
Senior Judge Phillips wrote the opinion, in which Judge Hamilton and
Judge Motz joined.
_________________________________________________________________
COUNSEL
ARGUED: C. Laurence Woods, III, WESTFALL, TALBOTT &
WOODS, Louisville, Kentucky, for Petitioner. Sharon I. Block,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Respondent. ON BRIEF: Matthew R. Westfall, WESTFALL, TAL-
BOTT & WOODS, Louisville, Kentucky, for Petitioner. Frederick L.
Feinstein, General Counsel, Linda Sher, Associate General Counsel,
Aileen A. Armstrong, Deputy Associate General Counsel, Linda
Dreeben, Supervisory Attorney, NATIONAL LABOR RELATIONS
BOARD, Washington, D.C., for Respondent.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PHILLIPS, Senior Circuit Judge:
PB&S Chemical Company, Inc. (PB&S) has petitioned for review
of a decision by the National Labor Relations Board (NLRB or
"Board") finding it in violation of the National Labor Relations Act
(NLRA) for terminating two employees for refusing to cross another
company's employees' picket line. The NLRB has cross-petitioned
for enforcement of a final Board order issued against PB&S. We find
no error in the Board's decision and therefore deny the petition for
review and grant enforcement of the Board's order.
I
PB&S is a chemicals distribution concern, purchasing bulk chemi-
cals, repackaging and selling them to various customers including
large industrial enterprises. With headquarters in Henderson, Ken-
tucky, PB&S operates branches in Pennsylvania and West Virginia,
including Proctor, West Virginia, where Charles Beaver and Kenneth
Seagrave were employed as truck drivers. Beaver had been working
2
for PB&S since 1982; Seagrave was hired in 1986. Beaver and Sea-
grave were supervised in Proctor by Charles Duncan, who was the
branch manager, and Ed Ankrom, who was the plant manager and
dispatcher and reported to Duncan. PB&S's employees were not rep-
resented by any labor organization for collective bargaining purposes.
In November 1994, PB&S drivers began making deliveries to a
Union Camp Company facility in Dover, Ohio. On December 8,
1994, Beaver witnessed an altercation between two Union Camp
employees while he was delivering chemicals to the Dover plant. The
two employees were evidently arguing about a labor-related issue,
with one supporting the labor position and the other defending the
management position. A pro-union employee approached Beaver and
asked for his name and address so that he might serve as a witness.
Beaver refused to cooperate. One of the "union people" then gave
Beaver his name, address and phone number to contact him, but Bea-
ver threw the information away. That month, Beaver and Seagrave
learned that a strike was imminent at the Union Camp facility. They
spoke with Duncan and told him they did not want to cross any picket
lines established by Union Camp employees. Seagrave told Duncan
that he "did not feel it was right that [he] be put in a position with the
employees at Union Camp, but [he] had nothing directly involved
with them and that [his] personal safety was involved in it." Beaver
had emphasized to Duncan several times in relation to the imminent
Union Camp strike, that "[he] felt that they were dangerous, that [his]
life could be harmed and that . . . [he] didn't believe in messing with
another man's job." Beaver had previously refused to cross another
picket line and had not been disciplined then, and Seagrave testified
that Duncan had told the employees that they would not have to cross
Union Camp's line in the event of a strike. Duncan testified that he
warned them that PB&S's policy was to continue to make deliveries
unless there was "a real threat of violence."
The events of December 19 serve as the origins for this dispute.
Early that morning, Seagrave left Proctor to deliver chemicals to the
Union Camp facility. When he got within four blocks of the Dover
plant, at approximately 7:00 AM, a Union Camp employee called
Seagrave on his CB to tell him that a picket line had been set up and
to ask him not to cross it. Seagrave pulled into a nearby restaurant and
called Ankrom, telling him the strike was under way and that he
3
would not cross the picket line. Ankrom asked him to remain in
Dover. When Duncan arrived at work soon thereafter, he called Union
Camp and was informed that trucks were entering and leaving freely.
A Union Camp official also called Seagrave to tell him that trucks
were entering and leaving the facility without incident, despite the
presence of the pickets. Seagrave steadfastly refused to make the
delivery, and called Duncan. Duncan told him that the Union Camp
officials would guarantee protection as he made his delivery, but Sea-
grave stated that he would not cross the picket line. In his subsequent
testimony Seagrave identified two reasons that he gave to Duncan that
day. First, while he might be protected while making the delivery,
"there was always the possibility of . . . going down the road ten or
fifteen miles and then a rock throw (sic) my windshield." JA 41. Also,
Seagrave explained that he would not make the delivery because "it
put [him] in a bad position with the employees up there." JA 41A.
Seagrave returned to Proctor without making the delivery.
That same morning, Beaver was preparing to make a trip from
Proctor to another PB&S facility in Nitro, West Virginia. Ankrom
told Beaver of Seagrave's refusal to cross the Union Camp picket
line, and Beaver responded that he thought that Duncan had declared
that he would tell the drivers of impending strikes at Union Camp
before they made their deliveries so as to avoid crossing the picket
lines. While Beaver was present, Ankrom also spoke to Duncan, who
said that he had spoken with PB&S's president and vice president and
that they had told Duncan that the deliveries must be made to Union
Camp, "or else." Duncan then turned to Beaver and asked whether he
knew where Union Camp's main gate was. Beaver responded that he
did, and Duncan stated, "So that's where you will be going in at." JA
47. Beaver said nothing at this time, but later testified that he under-
stood Duncan's comment, in light of Beaver's previous refusals to
cross picket lines and conversations concerning Union Camp specifi-
cally, to be an ultimatum. Shortly after that brief discussion, Beaver
asked Ankrom whether he should clean his truck out that day or wait
until the next day to be fired. Ankrom did not respond, so Beaver
removed his belongings from his truck, turned in his keys and
demanded of Duncan that he be paid the money he had deposited in
his pension fund, observing that his relationship with PB&S had been
in effect terminated.
4
When Seagrave returned to Proctor, he removed his belongings
from his truck and saw Duncan and Ankrom. Duncan's and Sea-
grave's accounts of that meeting varied widely. Duncan testified that
Seagrave was very angry, cursing Duncan and expressing fear of per-
sonal injury if he crossed the picket line. Seagrave testified that he
simply declared that he would not cross the picket line because it put
him "in a bad position with employees" and demanded to know
whether he was fired. Both agree that Duncan did terminate Seagrave,
though Duncan asserted it was because of his lack of cooperation in
resolving the situation and for his lack of respect in cursing him. Sea-
grave testified that Duncan fired him simply for failing to make the
delivery. Duncan's termination report form, completed that day, sup-
ports Seagrave's version in that it states that he was terminated for
"refus[ing] to make a delivery to a customer." JA 136.
Though Beaver had left the Proctor plant on the morning of
December 19, Ankrom called and asked him to return to discuss the
matter with Duncan. The three met that afternoon, and again the testi-
monial accounts of what then occurred vary. Duncan testified that he
asked Beaver to come back but that he would have to deliver chemi-
cals to Union Camp, stating that it would be safe for him to do so.
Beaver refused, according to Duncan because he could not "risk being
hurt." JA 76. Beaver claims he reminded Duncan of his recent prob-
lems with the union at the Union Camp facility and that he had previ-
ously refused to cross a picket line the year before and had not been
disciplined. According to Beaver, Duncan responded that Beaver
should have been fired for that. JA 52. Beaver then asked what had
happened to Seagrave, and Duncan informed him that he had been
discharged. Beaver then stated that he considered himself terminated,
and Duncan retorted that Beaver instead had quit. Duncan's termina-
tion report stated that Beaver turned in his keys because he refused
to make the delivery to Union Camp and cross the picket line. JA 135.
In the wake of these incidents, the NLRB charged PB&S with
improperly terminating Beaver and Seagrave for engaging in activity
protected under § 7 of the National Labor Relations Act (NLRA), 29
U.S.C. § 157 (1994). Beaver, Seagrave, Duncan, and Ankrom testi-
fied at the ensuing hearing before an Administrative Law Judge
(ALJ). The ALJ expressly found more credible Seagrave's and Bea-
ver's accounts of the events than Duncan's. JA 16, 19. On this basis,
5
the ALJ then found that Seagrave and Beaver were terminated
because of their refusal to cross the Union Camp picket line. On the
assumption that, per the Board's position, such refusals are protected
activity under § 7 without regard to the refuser's motivation, the ALJ
concluded that PB&S had violated §§ 8(a)(3) and (1) of the NLRA,
29 U.S.C. §§ 158(a)(3) and (1) (1994), by terminating them for their
refusals. But, noting that some courts, including this court, consider
that motivation is relevant to whether a particular refusal is protected,
the ALJ as a measure of prudence addressed the evidence of motiva-
tion "in the event of review." JA 22. Doing so, the ALJ found that
"one of [their] concerns . . . was, clearly, their fear of being badly
injured" and that they indicated to PB&S management that this was
their "primary reason for refusing." But, the ALJ further found that
"both [employees] also wanted to avoid giving the appearance to
strikers of siding with management against the strikers" and "also
communicated this to . . . management, albeit less clearly." Id.The NLRB, reviewing the ALJ's decision, essentially agreed with
the ALJ's critical findings of dual motivation, but reformulated them
to find "that both drivers were equally concerned with remaining neu-
tral in the labor dispute and with their personal safety." JA 6. In sup-
port, the Board cited testimony in which both Beaver and Seagrave
stated that they told Duncan they did not want to be involved in the
Union Camp employees' dispute with management as indicating that
fear alone was not their reason. JA 5-6. On this basis, the NLRB con-
cluded that Beaver and Seagrave were engaged in protected activity
within the meaning of § 7 of the NLRA. In so holding, the Board
expressly distinguished on its facts this case from NLRB v. Union
Carbide Corp., 440 F.2d 54 (4th Cir. 1971), in which this court had
held that an employee who refused to cross a picket line solely
because of fear for personal safety did not engage in protected activity
as defined by § 7.
These cross-petitions for review and enforcement followed.
II
On the issues joined in the petition and cross-petition, our decision
turns on the proper interpretation and application of our decision in
Union Carbide. In that case, we held that an employee's motivation
6
for refusing to cross a picket line can determine whether it is "pro-
tected activity" under § 7.1 Specifically, we held that if fear alone is
the motivation, a refusal is not protected activity, id. at 56; that to be
protected, the refusal must have been done "as a matter of principle"
in support of other employees. Id. at 55.
Invoking these holdings, PB&S contends (1) that there was not
substantial evidence to support the Board's finding that the refusals
were motivated by anything but the employees' conceded fear of
physical injury, and (2) that, in any event, the other "equal" reason
found--a desire "to remain neutral"--is not one "of principle," hence
does not meet Union Carbide's test of protected activity.
We take these in turn.
A.
There is substantial evidence of the record that the employees had
and repeatedly identified "twin concerns of personal safety and nonin-
volvement" in explaining to Duncan why they refused to cross the
Union Camp picket line. JA 5. Seagrave testified that he had told
Duncan that crossing the line "put me in a bad position with the
employees and . . . I shouldn't be involved with what was going on
over there. That was between Union Camp and their employees." JA
_________________________________________________________________
1 The NLRB argues that the Supreme Court implicitly overruled that
aspect of our Union Carbide decision in NLRB v. J. Weingarten, Inc.,
420 U.S. 251 (1975). There, in the context of determining whether an
employee "reasonably believes an investigation will result in disciplinary
action," the Court reaffirmed that "it would`reject any rule that requires
a probe of an employee's subjective motivations as involving an endless
and unreliable inquiry.'" 420 U.S. at 257 and 257 n.5 (quoting NLRB v.
Gissel Packing Co., 395 U.S. 575, 608 (1969)). Though other circuits
since have held that an employee's motivation not to cross a picket line
is irrelevant to the refusal's status as "protected activity" see NLRB v.
Mike Yurosek & Son, Inc., 53 F.3d 261, 266 (9th Cir. 1995); Dreis &
Krump Mfg. Co., Inc. v. NLRB, 544 F.2d 320, 328 n.10 (7th Cir. 1976),
we do not believe that Weingarten's rejection of motivational inquiry in
the quite different context there involved so clearly undercuts Union
Carbide's continued authority on that point in this circuit that we must
consider it overruled to that extent.
7
35. On the morning of December 19, when Seagrave told Duncan he
would not cross the line after Duncan told him it was safe to do so,
Seagrave said that he still "didn't feel right about it." JA 38. After
Duncan tried to convince Seagrave that it was safe to make the deliv-
ery once Seagrave had returned to Proctor, Seagrave maintained that
he would not cross the line not only because he thought it was unsafe
but because it "put [him] in a bad position with the employees up
there." JA 41A. Similarly, Beaver had made clear that he would not
cross another picket line in 1993, without mentioning his personal
safety, and had told Duncan several times before the Union Camp epi-
sode that he would not cross picket lines because"[he] didn't believe
in messing with another man's job." JA 55. Admittedly, Beaver also
had told Duncan about the December 8 incident at Union Camp and
that he was concerned about retaliatory acts by union members there,
and that he believed crossing picket lines to be dangerous. JA 54-55.
Nevertheless, the record is replete with evidence that supports the
Board's determination that both Beaver and Seagrave were substan-
tially motivated by a desire to remain neutral in the Union Camp
strike in their resolution not to cross the picket line.
Our conclusion on this point is not swayed by PB&S's contention
that we must review this dual motive finding of the Board with "spe-
cial scrutiny" because it conflicts with the ALJ's opinion. See
Weather Shield Mfg., Inc. v. NLRB, 890 F.2d 52, 57 (7th Cir. 1989).
Universal Camera long ago made clear that "the `substantial evi-
dence' standard is not modified in any way when the Board and its
examiner disagree." Universal Camera Corp. v. NLRB, 340 U.S. 474,
496 (1951). Courts properly have recognized that Board decisions
might be viewed with more suspicion when they ignore the credibility
determinations of ALJs who, unlike the Board, are able to observe
witnesses. Universal Camera, 340 U.S. at 496-97; Blackburn v.
Martin, 982 F.2d 125, 128 (4th Cir. 1992); Weather Shield, 890 F.2d
at 57. Here, however, the Board explicitly adopted the ALJ's credibil-
ity determinations as to the critical historical facts, and simply drew
a slightly different inference than did the ALJ as to the nature of the
dual motivation which both agreed drove the employees' conduct.
B.
PB&S's alternative contention is that even if the Board's finding
that an equal reason for the employees' conduct was a desire to "re-
8
main neutral" in the Union Camp labor dispute is upheld, that reason
does not suffice under Union Carbide to make their refusal to cross
the picket line protected activity. Union Carbide, says PB&S, requires
that to be protected activity, such a refusal must be motivated by a
principled purpose to give aid to the striking picketers, and "remain-
ing neutral" is not action "in principle."
The NLRB has two responses. First, that this contention, not hav-
ing been raised before the Board, may not be raised for the first time
in this court on a petition for review. Second, that, on the merits, it
fails; an employee's refusal to cross other workers' picket line out of
a desire to remain neutral is necessarily action"on principle" since it
necessarily benefits the picketers over management.
We agree with the NLRB that PB&S is precluded from raising this
issue for the first time on their petition for review in this court. Sec-
tion 10(e) of the NLRA, which defines the jurisdiction of courts of
appeals in review of Board decisions, provides:
No 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)(1994).
This provision acts as a jurisdictional limitation on our review
powers that can only be avoided by the showing of extraordinary cir-
cumstances for the procedural default. Woelke & Romero Framing,
Inc. v. NLRB, 456 U.S. 645, 666 (1982); see also NLRB v. Daniel
Constr. Co., 731 F.2d 191, 198 (4th Cir. 1984). PB&S claims excuse
here because, it contends, the finding of "remaining neutral" as a
motivation only occurred in the Board's decision, so that PB&S had
no fair opportunity to urge its objection to this as a legal ground,
either before the Board or earlier in the adjudicatory process. We
reject this on two grounds. Most directly, because it was possible,
even if this finding did first appear in the Board's decision, for objec-
tion to have been made by a motion for reconsideration by the Board.
See International Ladies' Garment Workers' Union v. Quality Mfg.
Co., 420 U.S. 276, 281 n.3 (1975). Secondarily, because we doubt, in
9
any event, the accuracy of the suggestion that, for purposes of evok-
ing a legal objection, this finding of an added motive to that of fear
only first appeared in the Board's decision. Though the ALJ had
noted his understanding that under the NLRB's legal position the
question of motivation--any motivation--was irrelevant to whether
a refusal to cross a picket line was protected activity, he nevertheless
had made express findings of the motivation he attributed to these
employees. It was--though in language that did not employ the "re-
main neutral" term used by the Board--essentially the same dual
motivation. To repeat, as the ALJ put it: "One of[their] concerns . . .
was, clearly . . . their fear of being badly injured" but, he added, "both
. . . also wanted to avoid giving the appearance to strikers of siding
with management against the strikers." JA 22. Before the Board,
PB&S did not contend that this additional motive was not one which,
under Union Carbide, could not properly be considered one "of prin-
ciple," but only that there was not substantial evidence to support it,
there being only supportable evidence of fear. The Board's finding
essentially simply transmuted, though concededly with more preci-
sion, the ALJ's finding of a motive of desiring to"avoid giving the
appearance . . . of siding with management" into one of wanting to
"remain neutral."
We agree with the NLRB that under § 10(e), PB&S's failure at any
point in the agency adjudicatory process to raise this purely legal
issue, precludes our consideration of it.2
_________________________________________________________________
2 In view of this disposition, we need not address the NLRB's alterna-
tive contention that, within Union Carbide (assuming its continued vital-
ity) acting out of a desire to "remain neutral" in other workers' labor
disputes with management, is indeed action "on principle." Though we
do not consider it an inflexible rule, we are generally wary of resting
decision on alternative procedural default and merits grounds. We
believe it appropriate, however, to observe that were the defaulted objec-
tion here one of error so manifest that positive injustice would result
from failing to consider it, we might well be disposed to excuse the
default as, for that reason, one involving "extraordinary circumstances"
under § 10(e). It suffices here to say that the Board's "remain-neutral"
holding is surely not of that nature. The maintenance of employee neu-
trality as to other issues in labor disputes has been found in those other
contexts to be "protected activity" under§ 7. See NLRB v. Harrison Steel
10
III
We therefore deny PB&S's petition for review and grant enforce-
ment of the Board's order.
SO ORDERED
_________________________________________________________________
Castings Co., 728 F.2d 831, 835 n.6 (7th Cir. 1984) (holding that a dis-
charge "designed to coerce employees into taking either a pro-union or
anti-union stand" violated the NLRA); Texaco, Inc. v. NLRB, 700 F.2d
1039, 1043 (5th Cir. 1983) (observing that "[t]he NLRA clearly gives
workers the right to express an opinion or to remain silent regarding
strikes and other valid union activity"). We can reserve for another day
when it is properly presented, the "remain-neutral-as-act-of-principle"
issue sought belatedly to be raised by PB&S.
11