Pessoa Construction Co. v. National Labor Relations Board ( 2013 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 11-1688
    PESSOA CONSTRUCTION COMPANY,
    Petitioner,
    v.
    NATIONAL LABOR RELATIONS BOARD,
    Respondent.
    No. 11-1776
    NATIONAL LABOR RELATIONS BOARD,
    Petitioner,
    v.
    PESSOA CONSTRUCTION COMPANY,
    Respondent.
    On Petition for Review and Cross-application for Enforcement of
    an Order of the National Labor Relations Board. (5-CA-34547; 5-
    CA-34761; 5-CA-35083)
    Argued:   December 4, 2012                  Decided:   January 25, 2013
    Before TRAXLER, Chief Judge, and WILKINSON and DUNCAN, Circuit
    Judges.
    Petition for review denied; cross-application    for   enforcement
    granted by unpublished per curiam opinion.
    ARGUED: Michael E. Avakian, Washington, D.C., for Pessoa
    Construction Company.   David A. Seid, NATIONAL LABOR RELATIONS
    BOARD, Washington, D.C., for the Board.      ON BRIEF: Lafe E.
    Solomon, Acting General Counsel, Celeste J. Mattina, Deputy
    General Counsel, John H. Ferguson, Associate General Counsel,
    Linda Dreeben, Deputy Associate General Counsel, Ruth E.
    Burdick, Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD,
    Washington, D.C., for the Board.
    Unpublished opinions are not binding precedent in this circuit.
    2
    PER CURIAM:
    Petitioner           Pessoa       Construction                   Company            (“Company”)
    discharged William Membrino shortly after his participation in a
    union meeting. The union filed charges with respondent National
    Labor    Relations          Board    (“NLRB”)         challenging,                 inter    alia,    the
    Company’s alleged surveillance of Membrino’s union activities,
    its     unilateral          modification          of        the         terms        of    Membrino’s
    employment,           and    its     decision          to      terminate              Membrino.       An
    administrative          law    judge        found       that           the     Company’s         actions
    violated the National Labor Relations Act (“NLRA”), 
    29 U.S.C. §§ 151-169
    , and subsequently ordered Membrino reinstated with back
    pay.    A   three-member            panel    of       the     NLRB           affirmed      the    ALJ’s
    decision     in       all     aspects       relevant          to        this       appeal.    Because
    substantial evidence supports the NLRB’s decision, we deny the
    Company’s        petition      for    review          and    grant           the    Board’s      cross-
    petition for enforcement.
    I.
    Pessoa      Construction         Company          is        a     highway          construction
    contractor based in Fairmont Heights, Maryland, with multiple
    job sites throughout the region. In early 2008, the Laborers’
    International Union of North America began efforts to organize
    the    Company’s        employees,      and        the      union            was    certified       that
    summer.     At    a    union    meeting       on       September             30,    2008,    employee
    3
    William Membrino asked whether the Company was obligated to pay
    him and other employees more for travel time to and from job
    sites. He also asked whether the Company’s owner, Julio Pessoa,
    was correct when he stated that the Company could not provide
    Membrino with a raise because of the union. The following day,
    Pessoa    asked    Michael     Moltz,        another    Company     employee     who
    participated in the meeting, whether Membrino was in attendance.
    Moltz indicated that Membrino was in fact present.
    Two weeks after the union meeting, Membrino met with Pessoa
    to request an increase in compensation. During the conversation,
    Pessoa indicated that he was aware that “somebody” at the union
    meeting had raised the issue of compensation for travel time and
    stated that the Company could not afford to pay employees for
    such    time.    Four   days   later,      Membrino     and   another     employee,
    Nicholas Cappetta, were notified that they would no longer be
    able to drive their Company trucks to and from their job sites
    because    each    truck   was     to   remain     parked     overnight    at    its
    respective site. No other employee received such a notice.
    On October 23, 2008, a hydraulic excavator in use on one of
    the Company’s job sites collided with Membrino’s dump truck and
    caused significant damage. Shortly afterward, Membrino contacted
    his    foremen    and   notified    them     of   the   accident.    One    of   the
    foremen, Keith Reeder, advised Membrino and the excavator driver
    that they each needed to complete an accident report detailing
    4
    the circumstances of the collision. Neither of the foremen told
    Membrino that he needed to speak directly to Pessoa regarding
    the   accident.       Membrino       drafted       a    statement       describing       what
    happened and drew a diagram to complement his written account.
    Reeder   faxed       the    statement    to       the    Company’s      offices     several
    hours later.
    Membrino returned to the yard at the end of the workday and
    followed up with the Company dispatcher, Juan Infante, regarding
    whether a drug test was necessary in light of the accident. The
    dispatcher advised Membrino that he did not need to complete a
    drug screening, and Membrino subsequently left work for the day.
    Later    that    evening,       Membrino’s             supervisor     called      to     tell
    Membrino that he had been terminated. Membrino followed up by
    contacting Pessoa directly. When pressed for a reason for the
    termination, Pessoa stated that Membrino’s “head is not on [sic]
    the company no more,” as evidenced by the fact that Membrino
    first    allowed      the     accident      to         occur    and     then    failed     to
    personally report it to Pessoa. J.A. 22.
    Based     on    the    foregoing      facts,       the    union     filed    multiple
    unfair labor practice charges with the NLRB. The NLRB General
    Counsel (“General Counsel”) then issued a complaint alleging,
    inter alia, that (1) the Company violated 
    29 U.S.C. § 158
    (a)(1)
    by creating the impression that Membrino’s union activities were
    under    surveillance;         (2)    the     Company          violated    
    29 U.S.C. § 5
    158(a)(1)         and       (a)(3)      by     responding         to     Membrino’s         union
    participation by preventing him from driving his company vehicle
    to   work       and    eventually       terminating        him;    and    (3)       the   Company
    violated        
    29 U.S.C. § 158
    (a)(1)      and    (a)(5)       by    modifying     its
    vehicle-use policy without bargaining with the union beforehand.
    Following a hearing, an administrative law judge found that
    the Company had engaged in the alleged unfair labor practices.
    With respect to the surveillance claim, the ALJ concluded that
    the Company violated 
    29 U.S.C. § 158
    (a)(1) when Julio Pessoa
    created “an impression of surveillance” by indicating that the
    Company     was        “closely      monitoring      the    extent       of    an    employee’s
    union     involvement.”          J.A.       17-18.   The    ALJ    further       found      that,
    based      on     Pessoa’s        statements,        the    timing        of    the       adverse
    employment            actions,       and     comparator      evidence,          the       Company
    discriminated against Membrino’s union activities in violation
    of 
    29 U.S.C. § 158
    (a)(1) and (a)(3) by changing his working
    conditions and subsequently terminating him. Finally, the ALJ
    concluded that the Company’s unilateral change to its vehicle-
    use policy was unlawful because, when employees are represented
    by   a    union,       
    29 U.S.C. § 158
    (a)(5)      requires      an    employer      to
    bargain with the union before changing employment terms, and the
    Company failed to undertake such bargaining here.
    The ALJ ordered the Company to reinstate Membrino with back
    pay, make both Membrino and Cappetta whole for any losses that
    6
    resulted from the unilateral change to their employment terms,
    and post a notice of union members’ rights on Company job sites.
    A three-member panel of the NLRB reviewed the ALJ’s ruling and
    affirmed on all issues relevant to this appeal. The Company now
    petitions for review of the NLRB order, and the Board cross-
    petitions for enforcement of that order.
    II.
    The   NLRB    determined    that    the    Company      committed   multiple
    violations of the NLRA, and the decision below is entitled to
    deference      in   this   court.   The       NLRB’s   factual       findings    and
    application of law to facts are binding “if they are supported
    by substantial evidence on the record as a whole.” WXGI, Inc. v.
    NLRB, 
    243 F.3d 833
    , 840 (4th Cir. 2001) (citing 
    29 U.S.C. § 160
    (e), (f); Sam’s Club v. NLRB, 
    173 F.3d 233
    , 239 (4th Cir.
    1999)). This court may not “displace the Board’s choice between
    two   fairly    conflicting      views,       even   though    the    court     would
    justifiably have made a different choice had the matter been
    before it de novo.” Universal Camera Corp. v. NLRB, 
    340 U.S. 474
    , 488 (1951). And, although we review legal conclusions de
    novo, we must defer to the NLRB’s interpretation of the NLRA “if
    it is reasonably defensible.” Indus. TurnAround Corp. v. NLRB,
    
    115 F.3d 248
    , 251 (4th Cir. 1997). For the reasons that follow,
    we conclude that the NLRB’s order must be enforced.
    7
    A.
    Pursuant   to     
    29 U.S.C. § 158
    (a)(1),        an   employer       may    not
    “interfere with, restrain, or coerce employees in the exercise
    of” their union rights. In determining whether an employer has
    violated this provision, we look to “whether, under all of the
    circumstances,    the        employer’s      conduct     may     reasonably        tend    to
    coerce or intimidate employees.” NLRB v. Air Contact Transp.,
    Inc., 
    403 F.3d 206
    , 212 (4th Cir. 2005) (quoting Medeco Sec.
    Locks, Inc. v. NLRB, 
    142 F.3d 733
    , 745 (4th Cir. 1998) (internal
    quotation   marks      omitted)).      Substantial         evidence           supports    the
    NLRB’s determination that the Company -- acting through owner
    Julio Pessoa -- engaged in such conduct.
    While meeting with Membrino, Pessoa indicated that he knew
    both that Membrino was involved in the union meeting two weeks
    earlier    and   that    Membrino      had       asked    about      compensation         for
    travel time at that meeting. It is well settled that a single
    conversation can violate § 158(a)(1) if the employer’s statement
    contains    “sufficiently         specific         information           to    convey     the
    impression that the employer or its agents has conducted union
    surveillance.” NLRB v. Grand Canyon Mining Co., 
    116 F.3d 1039
    ,
    1046 (4th Cir. 1997). Here, Pessoa’s statement suggested that
    the   Company    was    tracking       not       only    which      of    its    employees
    participated     in      union     meetings         but     also         what     opinions
    participants expressed in those meetings. Under our standard of
    8
    review,      the      statement      is    sufficient         to     support        the   NLRB’s
    finding      that     the      Company    violated       
    29 U.S.C. § 158
    (a)(1)      by
    creating an impression of union surveillance.
    B.
    The record also substantiates the NLRB’s conclusion that
    the    Company      acted       unlawfully       when    it    (1)      implemented       a   new
    policy preventing Membrino from driving a company vehicle to his
    jobsite      and    (2)     discharged       Membrino.         Pursuant        to    
    29 U.S.C. § 158
    (a)(3),       an      employer     is       prohibited         from    engaging       in
    “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.”           In   Wright       Line,    
    251 N.L.R.B. 1083
     (1980), the NLRB established a two-step framework
    for analyzing cases in which an employee alleges discrimination
    and an employer responds by citing legitimate business purposes
    for the challenged decision. TNT Logistics of N. Am., Inc. v.
    NLRB, 
    413 F.3d 402
    , 406 (4th Cir. 2005). To begin, “the NLRB
    General Counsel must prove by a preponderance of the evidence
    that anti-union animus was a substantial or motivating factor in
    the    discharge”         or     other     adverse       employment        action.        Dorsey
    Trailers, Inc. v. NLRB, 
    233 F.3d 831
    , 839 (4th Cir. 2000). After
    the General Counsel establishes its prima facie case, the burden
    shifts to the employer to prove “that the discharge would have
    occurred even in the absence of the protected activity.” USF Red
    9
    Star, Inc. v. NLRB, 
    230 F.3d 102
    , 106 (4th Cir. 2000). If “the
    employer’s stated lawful reasons are non-existent or pretextual,
    the defense fails.” 
    Id.
     Here, the NLRB properly engaged in the
    Wright       Line    analysis,   and    substantial       evidence       supports     its
    conclusion that the challenged adverse employment actions were
    motivated       by     anti-union      animus    rather     than     by    legitimate
    business justifications.
    1.
    The Company failed to rebut the General Counsel’s prima
    facie case that the Company limited Membrino’s use of Company
    vehicles because of his union activities. To establish a prima
    facie case, the General Counsel must, as it did here, establish
    “(1) the existence of protected activity; (2) employer knowledge
    of    that    activity;    (3)   adverse       employment    action       suffered     by
    alleged discriminatees; and (4) a link, or nexus, between the
    employees’          protected    activity       and   the    adverse       employment
    action.” Wal-Mart         Stores,      Inc.,    352   N.L.R.B.     No.    103,   at    *5
    (2008). Membrino’s attendance and participation at the September
    30,    2008,    union     meeting   constitutes       protected      activity,        see
    Local 100 of United Ass’n of Journeymen & Apprentices v. Borden,
    
    373 U.S. 690
    , 695 (1963), and there is no dispute that Pessoa
    was aware of the activity. The change to the vehicle-use policy
    was an adverse employment action because it required Membrino to
    secure his own transportation to and from his job site, which
    10
    was 35-40 miles from his home. And, finally, “the timing of the
    change, Pessoa’s comments to Membrino . . ., and the unexplained
    failure to make the same change in the working conditions of
    other   drivers”       were   sufficient          to   establish       a    nexus    between
    Membrino’s protected union activity and the change in policy.
    J.A. 19.
    The   Company     argues       that    the      rising        cost    of   fuel     and
    changing     project     requirements         led      to   the      decision     to     leave
    Company      vehicles    parked        at     job      sites      overnight.        However,
    substantial evidence supports the NRLB’s determination that the
    Company’s justifications were pretextual and that its actions
    were    thus    unlawful.       Several       other      truck       drivers      were     not
    required to report for work at their job sites, and the policy
    was scrapped in short order even though work at Membrino’s site
    --   35-40     miles   from    the    Company’s        main     construction        yard    --
    continued       well    after        his     termination.            This    evidence       is
    sufficient      to     support       the     NLRB’s     decision        to    reject       the
    Company’s claimed justifications for the policy change.
    2.
    The   Company    also     failed       to    rebut      the    General     Counsel’s
    prima facie case that Membrino was discharged because of his
    protected union activities. As discussed above, the Company was
    aware of Membrino’s participation in the union meeting. The NLRB
    found that the requisite nexus between union participation and
    11
    Membrino’s discharge was demonstrated by Pessoa’s inquiry with
    another employee regarding Membrino’s union activities, Pessoa’s
    statements to Membrino, and the timing of the discharge relative
    to the foregoing two incidents.
    The Company argues that it fired Membrino for legitimate,
    nondiscriminatory reasons, to wit, because he caused significant
    damage    to    his   Company      vehicle        and    because      he    failed      to
    personally     report    the     damage   to      Pessoa.      Relying     on    (1)    the
    Company’s      disparate      treatment     of    Membrino      relative        to   other
    employees who accidentally damaged Company equipment and (2) its
    termination of Membrino based on a policy which, “assuming it
    existed, was never communicated to him,” the NLRB concluded that
    the Company’s proffered justifications were pretextual and thus
    that Membrino’s discharge was unlawful. J.A. 22.
    The record provides adequate justification for the NLRB’s
    finding   of    disparate       treatment.       Two    Company      employees,        Juan
    Carlos    Martinez      and     Purcell   Smith,        each    caused      significant
    accidental      damage     to     Company        equipment      in    the       2007-2009
    timeframe, neither was terminated, and both were required only
    to reimburse the Company for the damage in order to maintain
    their employment. In the case of Martinez, he “neither wrote an
    accident report nor went to see Julio Pessoa the same day,” yet
    he was not terminated. J.A. 39.
    12
    The record also substantiates the NLRB’s finding that the
    Company      did    not       have     a   policy   requiring       those       involved      in
    Company vehicle accidents to personally report to Pessoa. The
    Company employee handbook states: “In the case of a vehicular
    accident, all information should be reported immediately to your
    supervisor and the office.” J.A. 161. There is no mention of
    reporting          to        Pessoa.       Moreover,      the       Company’s          general
    superintendent testified that there were no additional accident-
    reporting procedures beyond the handbook requirement that those
    involved     report          the   incident    to   their     supervisor         and   file    a
    written report with Pessoa’s office.
    Because there is substantial evidence to undermine both of
    the Company’s proffered justifications for terminating Membrino
    --   that    he    damaged         Company    equipment       and   that    he    failed      to
    personally report the damage to Pessoa -- we agree with the
    NLRB’s      finding         that    Membrino’s      discharge       was    the    result      of
    unlawful animus against his protected union activities.
    C.
    Finally,             substantial       evidence        supports       the       NLRB’s
    conclusion that the Company violated 
    29 U.S.C. § 158
    (a)(5) when
    it unilaterally changed its vehicle-use policy without offering
    the union an opportunity to bargain over the modification. The
    NLRA    imposes         a    duty    on    employers     to     engage     in     collective
    bargaining with organized labor regarding “rates of pay, wages,
    13
    hours   of   employment,    or   other      conditions   of   employment.”   
    29 U.S.C. §§ 158
    (a)(5), 159(a). “Unilateral action by an employer
    without prior discussion with the union does amount to a refusal
    to negotiate” and constitutes a violation of § 158(a)(5). NLRB
    v. Katz, 
    369 U.S. 736
    , 747 (1962).
    As an initial matter, the Company argues that the change in
    its vehicle-use policy is “outside the scope” of the provision
    because it involves a decision about where and how the Company’s
    property     is   stored.    Petr’s    Br.    at   66.   However,   the     NLRB
    explicitly found that the change in vehicle-use policy “was a
    sufficiently significant change in the terms and conditions of
    Membrino and Cappetta’s employment to put the new policy into
    the category of a mandatory subject of bargaining.” J.A. 19.
    This interpretation of the statutory phrase “other conditions of
    employment”       is   at   least     “reasonably    defensible,”     and     we
    therefore defer to the NLRB’s conclusion that the change falls
    within the coverage of § 158(a)(5). See Sure-Tan, Inc. v. NLRB,
    
    467 U.S. 883
    , 891 (1984); Indus. TurnAround, 
    115 F.3d at 251
    .
    It is undisputed that the Company never provided the union
    with notice of the proposed change, much less an opportunity to
    bargain over it. We agree with the NLRB’s determination that the
    Company violated 
    29 U.S.C. § 158
    (a)(5) when it required Membrino
    and Cappetta to report to work at their job sites rather than at
    the Company’s construction yard.
    14
    III.
    For the foregoing reasons, this court grants enforcement of
    the NLRB’s order and denies the Company’s petition for review. *
    PETITION FOR REVIEW DENIED;
    CROSS-APPLICATION FOR ENFORCEMENT GRANTED
    *
    The order may need to be modified to reflect the union’s
    alleged decertification following the operative facts of this
    case. We leave any such modification to the discretion of the
    NLRB.
    15