Valmont Industries v. NLRB ( 2001 )

REVISED, April 6, 2001
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60439
VALMONT INDUSTRIES, INC.,
Petitioner-Cross-Respondent,
VERSUS
NATIONAL LABOR RELATIONS BOARD,
Respondent-Cross-Petitioner.
Petition for Review and Cross-Petition for Enforcement
of an Order of the National Labor Relations Board
March 12, 2001
Before WIENER and STEWART, Circuit Judge and ROSENTHAL, District
Judge.*
ROSENTHAL, District Judge:
Valmont Industries, Inc. petitions for review of the National
Labor Relations Board’s Decision and Order finding unfair labor
practices. The Board cross-petitions for enforcement of its Order.
The Board’s Order affirmed the decision of an administrative law
judge that Valmont violated sections 8(a)(1) and (a)(3) of the
*
District Judge for the Southern District of Texas,
sitting by designation.
National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (a)(3), by
giving two employees written warnings motivated by antiunion
animus; discharging one of those employees and issuing a written
warning to another for asking a coworker if he had signed a union
card, in violation of the company’s no-solicitation policy; and
orally warning a fourth employee for distributing union literature,
also in violation of the no-solicitation policy.1 One member of
the Board dissented in part, finding insufficient evidence that the
first two warnings were motivated by antiunion animus and
concluding that because the discharged employee had violated a
valid no-solicitation rule, he was properly fired.
This court has carefully reviewed the record as a whole. See
Asarco, Inc. v. NLRB, 86 F.3d 1401 (5th Cir. 1996). Based on the
facts disclosed in the record, and on the deferential review the
law requires this court to apply, this court grants enforcement as
to part of the Board’s Order and denies it in part. Specifically,
we conclude that the record provides substantial evidence that
Valmont violated sections 8(a)(3) and (a)(1) by issuing a written
warning to the employee who asked her coworker if he had signed a
union card and violated section 8(a)(1) by issuing an oral warning
to the employee who distributed leaflets. We also conclude that
substantial evidence supports the finding that Valmont violated
1
The ALJ also considered a charge that Valmont engaged in
impermissible surveillance on August 20, 1997. After the hearing,
General Counsel for the NLRB conceded that the case for
surveillance was not made. The ALJ dismissed that charge.
2
section 8(a)(1) by firing the employee for violating the no-
solicitation rule. We grant enforcement of the Board’s Order with
respect to these findings. However, we do not find that
substantial evidence supports the finding that Valmont violated
sections 8(a)(3) and (a)(1) by issuing the first two written
warnings. Nor do we find substantial evidence to support the
finding that the firing or the oral warning violated section
8(a)(3). We deny enforcement of the Board’s Order with respect to
these findings and remand to the Board to modify its Order in
conformity with this opinion.
I. Background
Petitioner, Valmont Industries, Inc., manufactures steel poles
at a plant in Brenham, Texas. The United Steelworkers of America,
AFL-CIO, CLC (the “Union”) supervised an unsuccessful
organizational campaign among Valmont’s employees, ultimately
losing an NLRB-conducted election in September 1996.
After this campaign, and in part because of it, Valmont
instituted a no-solicitation rule. That rule provided:
Distribution of literature during the working
time of any employee involved is prohibited.
Working time does not include breaks or meal
times. Distribution of literature is also
prohibited in working areas.
Solicitation by employees on their working
time or on the working time of any employee
solicited is prohibited.
3
The parties agree that the no-solicitation policy is facially
valid.
In late July 1997, the union began a second effort to organize
Valmont’s employees. The disciplinary actions at issue in this
suit issued shortly after the start of this second organizational
campaign.
A. Valmont’s Warning of Lewis and Sharp
On Monday, July 28, 1997, Michael Sharp, an employee in the
shipping department, took a malfunctioning machine to the plant’s
maintenance shop for repair. The maintenance shop is at the end of
a building that also contains the large pole and small pole
manufacturing departments. Sharp went first to the maintenance
shop, then to the large pole department, where Edgar Lewis worked.
Sharp found Lewis and they had a brief conversation. It is
undisputed that Sharp’s ordinary work duties would not take him to
Lewis’s department or work station.
Sharp later explained that when he discovered he did not have
a pen needed to complete a maintenance request form, he went to
find his friend Lewis to borrow one. Lewis walked to his nearby
locker to find a pen. Sharp testified that he filled out the
maintenance request form, entering the time as “8 a.m.,” and
including the date and his signature, and went back to the
maintenance shop. Lewis and Sharp both testified that their
conversation lasted less than two minutes and consisted of Sharp
4
asking for, receiving, and returning a pen to complete the
maintenance form.
Foreman Sam Gregg and leadman Billy Dotson observed the
conversation between Lewis and Sharp. In their later testimony
before the ALJ, both denied having seen Lewis hand Sharp a pen or
any other item. Dotson and Gregg testified that the conversation
between Lewis and Sharp lasted between three and five minutes. As
they watched the conversation, Gregg commented to Dotson “[a]bout
what [they] were seeing . . . about [Lewis] and [] Sharp’s being
together.” Gregg privately speculated that the two were talking
about the union. Valmont management and supervisors knew that
Lewis, and, to a lesser extent, Sharp, had been active in the 1996
organizational campaign. Neither Gregg nor Dotson was able to hear
what Lewis and Sharp said.
Later that day, Gregg reported to Allen Abney, the
manufacturing manager, that he had seen Lewis and Sharp talk for “a
few minutes” and that they stopped talking when they noticed Gregg
and Dotson watching. Gregg did not mention his speculation that
Lewis and Sharp were talking about union activities.
The second union organizational campaign began on Thursday,
July 31, three days after Lewis and Sharp had their brief
conversation. The campaign began with the union’s distribution of
cards to members of an in-plant organizing committee, including
Edgar Lewis. The committee members were to obtain signatures on
the cards and return them to union officials. Lewis took part in
5
visiting employees at their homes in early August to talk to them
about the organizational campaign. There is no evidence in the
record that Valmont management knew of these visits. The record
discloses that union supporters began distributing leaflets in the
plant beginning on approximately August 10 and that leafleting at
the plant entrance began on August 19.
On August 1, Lewis received a final written “corrective
action” for “wasting company time.” The written warning, read by
Abney in a meeting attended by Gregg, Dotson, and the human
resources manager, Roger Bower, identified the date of violation as
the week of July 28 and described the violation as follows:
Edgar Lewis has been observed numerous times
wasting company time by not returning from
break on time, talking to other employees at
his work station during working time, leaving
his assigning [sic] work station and
distracting other employees while they are
working. We counseled with Edgar on 11-27-96
regarding this unexceptable [sic] behavior.
This behavior is a violation of company policy
which states that “intentional waste of time,
loitering, or leaving an assigned work area
during work hours without authorization”, is
not permitted. It is important that Edgar
understands [sic] that waste of company time
will not be tolerated and any other violation
of company policy will result in further
corrective action up to and including
termination from employment. This is a final
notice.
Lewis asked why he was receiving a final written warning when he
had received no written warning in the previous six months.
Valmont’s written progressive discipline policy provides for
discussion, a documented verbal reprimand, a written reprimand,
6
final notice, then termination. Abney responded that the
discipline was for a repetition of the conduct that had led to the
final written warning Lewis received in November 1996. Lewis
pointed out that under Valmont’s policy, the six-month probation
period after a final warning had elapsed two months earlier. Lewis
asked how he could be accused of “loafing” when his production
level was higher than that of the majority of employees in similar
positions. Abney did not respond, other than by stating that Lewis
had been seen leaving his work station to talk to other employees
and talking to employees who visited his work station.
In the hearing before the ALJ, Abney testified that Gregg’s
oral report that Lewis and Sharp had talked for a few minutes on
July 28 formed the basis for the final written corrective action
issued to Lewis on August 1, 1997. Abney testified that during the
August 1 meeting, Lewis admitted to his July 28 conversation with
Sharp. Lewis disputed this testimony, asserting that neither
Sharp’s name nor a specific conversation was mentioned during the
August 1 meeting. The written corrective action form does not
refer to a conversation with Sharp. The ALJ credited Lewis’s
version of the meeting and found that Abney did not refer to Sharp
or the July 28 conversation at Lewis’s workstation in explaining
why Lewis had received the final written warning.
Abney testified that he and Bower decided to give Lewis a
written final warning on August 1, 1997, because Abney had orally
counseled Lewis about “disrupting employees while they [were]
7
working and soliciting” in April or May 1997. The ALJ noted that
the written corrective action form did not mention oral warnings
issued to Lewis in April or May 1997 and found that Abney and Bower
did not refer to prior oral counseling when they gave Lewis the
form in the August 1 meeting. Lewis testified that he had received
no discipline since the November 27, 1996 written warning. The ALJ
accepted Lewis’s version as credible. However, the ALJ’s treatment
of the testimony relating to the prior oral counseling is
inconsistent, as explained more fully below.
On August 5, 1997, Sharp also received a warning in the form
of a written corrective action. The warning accused Sharp of
“loafing” by leaving his assigned workstation. Sharp asked Bower
for the name of his accuser; Bower did not respond. Sharp told
Bower that he thought that the source was Dotson, who Sharp
remembered seeing when he went to borrow Lewis’s pen to fill out
the maintenance request form. Sharp explained the reason he had
gone to Lewis’s workstation and told Bower to check with Sharp’s
leadman and to pull the maintenance request form itself for
corroboration. Bower proceeded to issue Sharp the written warning.
Later that day, Bower reviewed the maintenance request form
that Sharp had completed on July 28. Bower noted the time Sharp
wrote on the form, 8:00 a.m. The following day, August 6, Abney
asked Gregg to provide a written statement of his observations of
the July 28 exchange between Sharp and Lewis. Gregg did so. He
testified that Abney also asked Dotson to provide a written
8
statement on August 6. Dotson testified inconsistently that he had
already prepared a written statement on his own initiative on the
date of the incident, July 28. The ALJ found that Dotson’s
testimony that he had prepared his statement on the day he saw
Lewis and Sharp talking was not credible.
In their written statements, both Dotson and Gregg placed the
time of the conversation they observed at 8:15 a.m., after Sharp
had filled in the maintenance form. However, in their testimony
before the ALJ, neither Gregg nor Dotson could recall the time of
the conversation between Lewis and Sharp. Gregg and Dotson both
testified that they did not look at their watches or a clock and
had no way to determine the time or length of the conversation they
reported. Their testimony was inconsistent with their written
statements, which did state the time and length of the conversation
they had witnessed. Both their testimony and written statements
varied from Lewis’s and Sharp’s consistent accounts that they
talked for less than two minutes, before Sharp submitted the
maintenance request form at 8:00 a.m., and about finding a pen to
complete that form. The ALJ found Gregg and Dotson to lack
credibility and gave “no weight” to the time recorded in Dotson’s
and Gregg’s written statements.
The ALJ credited Lewis’s and Sharp’s account of their July 28
conversation, finding that they talked for one to two minutes about
Sharp’s need for a pen to complete the maintenance request form, a
work-related topic. It is undisputed that engaging in a work-
9
related conversation on working time is not a valid basis for
discipline at Valmont.
B. Valmont’s Discharge of Lewis and Warning of Fontenot
On August 19, 1997, shortly after the distribution of union
literature at the plant had begun, Valmont suspended Lewis’s
employment and issued a warning to another employee, Laura
Fontenot. A few days after Lewis’s suspension, Valmont terminated
his employment. Lewis was suspended, then fired, and Fontenot was
warned, for violating Valmont’s rule against solicitation on
“working time.” Valmont alleged that Lewis and Fontenot had each
asked Lonny Hutchison, a leadman, if he had signed a union card.
Many of the facts leading to the discipline were vigorously
disputed before the ALJ. The ALJ credited Lewis’s and Fontenot’s
accounts and rejected the contradictory testimony Hutchison
provided.
In their testimony before the ALJ, Lewis and Hutchison
disputed where their conversation took place, when it took place,
and whether Hutchison was working when he and Lewis talked. Lewis
testified that on August 12, 1997, he began his break at 1:30 p.m.,
when a signal sounded the start of the shift-wide break for the day
shift workers. As Lewis left the restroom, he ran into Hutchison
in an aisle between production areas, as Hutchison was leaving the
break room.
10
Lewis had previously given Hutchison a union card, at
Hutchison’s request. When Lewis encountered Hutchison, Lewis said,
“I guess you decided not to sign a card.” Hutchison replied that
he had not yet made up his mind. Lewis asked Hutchison to let him
know when Hutchison did decide; Hutchison said he would. The two
men walked off in opposite directions. Lewis testified that
because the shift-wide break had begun, he could ask about the
union card without violating the rule against soliciting during
working time.
In one of two written statements Hutchison provided to Abney,
Hutchison stated that Lewis had stopped him as Hutchison reached
the press in the small pole department and asked him if he had
signed a union card. In his first written statement, Hutchison
wrote, “To my knowledge, this took place after break, but I am not
certain.” In a second written statement, Hutchison stated that his
conversation with Lewis occurred at approximately 1:35 p.m., which
was during the official shift-wide break. In his second statement,
Hutchison stated that Lewis had stopped him after Hutchison left
the break room in the area of the small pole press.
In his testimony before the ALJ, Hutchison contradicted his
already inconsistent written statements. He admitted that his
conversation with Lewis occurred during the regularly scheduled
shift-wide break, as Lewis had described. He also admitted that
the conversation occurred in the aisle near the restroom, as Lewis
had stated.
11
Hutchison did consistently maintain that he was not on break
himself when he and Lewis had their brief exchange. Hutchison,
ordinarily a day-shift worker, was working an extended evening
shift, beginning at 1:00 p.m. and continuing to 11:00 p.m. Under
Valmont policy, an employee’s first break occurs two hours into a
shift. On that date, Hutchison’s first break was not until 3:00
p.m.; he did not join the day-shift break period at 1:30 p.m.
However, at 1:30 p.m., Hutchison had gone to the break room to look
for another employee, who was on break. Hutchison had just walked
out of the break room when he encountered Lewis in the aisle.
On August 12, Hutchison also talked to Laura Fontenot, a saw
operator. The discussion began with Fontenot questioning Hutchison
about disposing of some scrap metal, then proceeded to an exchange
about signing a union card. Fontenot and Hutchison gave different
accounts of their discussion about the union card in their
testimony before the ALJ.
Hutchison asserted that Fontenot told him that she had used
the scrap metal as a pretext for coming to Hutchison’s work area
for the specific purpose of asking him to sign a union card.
Hutchison accused Fontenot of asking him to pretend that she was
authorized to be in his work area. In his first written statement,
Hutchison stated that the conversation occurred on August 15, at
2:45 p.m., which would have been before the horn sounded to signal
ten minutes left on the shift. In a second written statement,
Hutchison dated the conversation as taking place on August 12. In
12
the written statements, Hutchison stated that when Fontenot asked
Hutchison if he had signed a union card, Hutchison said that he
would not. Fontenot asked why he had not signed a card; Hutchison
responded that Valmont did not need a union. Fontenot told
Hutchison that he could sign a union card and still vote against
the union in the election.
Fontenot disputed Hutchison’s account. Fontenot consistently
told her management and the ALJ that on August 11, Fontenot’s
leadman instructed Fontenot to ask Hutchison to take care of some
scrap metal. On August 12, after the horn sounded signaling ten
minutes remaining in the shift, Fontenot confirmed with her leadman
that he wanted her to have Hutchison take care of the scrap metal.
Fontenot then went to the small pole department to talk to
Hutchison. They talked about the scrap metal as they walked toward
the aisle in the small pole department. Hutchison agreed to handle
the scrap metal. At the aisle, Fontenot asked Hutchison if he had
signed a union card. When Hutchison said he had not, Fontenot
said, “great,” and continued toward the timeclock area to clock
out.
A few days later, Hutchison reported his conversations with
Lewis and Fontenot to Abney, complaining about disruption to
himself and other employees. Based on Hutchison’s report, Abney
decided to discipline both Lewis and Fontenot for violating
Valmont’s no-solicitation policy.
13
On August 19, Lewis met with Gregg, his foreman, as well as
Abney and Bower. Bower told Lewis that he had been seen leaving
his work station to solicit for the union between 1:30 p.m. and
2:00 p.m. on August 12. Lewis denied the accusation. Bower told
Lewis that he was on indefinite layoff pending investigation.
Lewis asked who had seen him soliciting, but received no response.
On August 22, Lewis was called to the plant, where he met with
Abney and Bower. Bower read from a written corrective action form,
stating that on August 12, at around 1:30 p.m., Lewis had entered
the small pole production area and engaged in a nonwork-related
conversation with another employee while that employee was on
working time. Lewis again denied the accusation. Lewis asked the
source; Abney declined to provide it, stating that he had to
protect the identity of the person. Lewis pointed out that 1:30
p.m., the time stated in the corrective action, was in fact break
time. Abney responded that even if Lewis was on break, he had been
in a work area at the time of the conversation. Abney’s response
reflected his misunderstanding of the no-solicitation policy as
prohibiting oral solicitation outside the break room, restrooms, or
lunch room, at any time. It is undisputed that the no-solicitation
policy did not impose such a broad prohibition.
On August 19, Bower and Abney issued Fontenot a written
corrective action form, stating that Fontenot had left her work
station and solicited an employee during working hours and in a
working area, and had misrepresented where she was going and why.
14
Fontenot explained that her leadman had assigned her the task of
talking to Hutchison about the scrap metal. She denied that she had
solicited anyone, insisting that she had merely asked Hutchison
whether he had signed the union card at the end of their work-
related conversation. Fontenot also pointed out that she did not
even go to Hutchison’s work area until after the ten-minute horn
sounded. Fontenot gave consistent testimony before the ALJ.
The ALJ credited the testimony Lewis and Fontenot provided and
found Hutchison to lack credibility. The ALJ specifically found
that Lewis and Hutchison had their brief exchange in the aisle,
near the restroom, while Lewis was on break, just after Hutchison
had exited the break room. The ALJ concluded that although
Hutchison may not have regarded himself as on break, he was not
working. Instead, he was “wandering around the plant looking for
a coworker who was on break.” The credited evidence led the ALJ to
conclude that Lewis did not violate the no-solicitation rule,
because that rule permits oral solicitation on nonworking time,
even in a work area. The ALJ emphasized that Valmont supervisors
consistently misunderstood the rule to prohibit solicitation in
working areas, even on nonworking time.
As to Fontenot, the ALJ noted the discrepancy between
Hutchison’s various statements regarding the date of his
conversation with Fontenot. The ALJ also rejected Hutchison’s
contention that Fontenot had contrived a pretext for coming to his
work area. The ALJ found that Fontenot only asked Hutchison if he
15
had signed a union card and neither asked him to sign a card nor
told him that he could sign a union card and later vote against the
union. Based on the credited testimony, the ALJ found that Fontenot
did not misrepresent her purpose or engage in solicitation.
C. The Warning of Niemeyer
Grady Niemeyer worked the night shift at Valmont. At 7:00
a.m. on August 19, 1997, when the night shift ended, Niemeyer went
outside the building and began distributing union leaflets to
employees as they left. After all the employees appeared to have
left, Niemeyer reentered the building to retrieve an item he had
forgotten. When he went back into the building, Niemeyer saw
another employee standing inside the entryway, in an area where the
timeclock, a bulletin board, and a vending machine were located.
Niemeyer handed the employee a leaflet. That employee had already
begun his shift.
Foreman Sam Forman observed the incident from his seat at a
desk in the entryway, near the timeclock. Forman told Niemeyer
that he had violated the no-solicitation rule prohibition against
distributing literature in work areas. Forman said that “anywhere
inside the building [wa]s a work area.” Niemeyer responded that he
did not know that he was doing anything wrong and would only
distribute literature outside the building in the future.
On August 22, 1997, Niemeyer received an oral corrective
action for distributing literature in a work area. Niemeyer
16
challenges whether the entry area was a work area for the purpose
of the no-solicitation rule.
II. THE NLRA AND THE STANDARD OF REVIEW
Section 7 of the National Labor Relations Act guarantees an
employee the right to engage in “concerted activities for the
purpose of collective bargaining or other mutual aid or
protection.” 29 U.S.C. § 157. Section 8(a)(1) protects the
employee’s right to engage in concerted activities by making it an
unfair labor practice for an employer “to interfere with, restrain,
or coerce employees in the exercise of the rights guaranteed in [§
7].” Section 8(a)(3) provides that “[i]t shall be an unfair labor
practice for an employer . . . by discrimination in regard to hire
or tenure of employment or any term or condition of employment to
encourage or discourage membership in any labor organization.” 29
U.S.C. §§ 158(a)(1) and (3).
An employer violates sections 8(a)(1) and 8(a)(3) by
disciplining or discharging an employee because of his union
activity. See NLRB v. Adco Electric, Inc., 6 F.3d 1110 (5th Cir.
1993); Huck Mfg. Co. v. NLRB, 693 F.2d 1176, 1183 (5th Cir. 1982).
However, an employer’s action that violates section 8(a)(1) does
not necessarily violate section 8(a)(3). A section 8(a)(1)
violation does not require a showing of antiunion animus; a section
8(a)(3) violation does. Compare Mobil Exploration & Producing
U.S., Inc. v. NLRB, 200 F.3d 230, 237 (5th Cir. 1999) (employer’s
17
conduct, rather than motive, is controlling in determination of
section 8(a)(1) violation) with Asarco, 86 F.3d at 1408 (finding
of antiunion animus necessary to finding of section 8(a)(3)
violation).
Under section 8(a)(3), “[t]he NLRB must establish a prima
facie case by proving that union animus was a motivating factor in
the employer’s decision to [discipline] the employee.” Asarco v.
NLRB, 86 F.3d 1401, 1408 (5th Cir. 1996). “Generally, an employer
violates § 8(a)(3) only if its actions are motivated by anti-union
animus.” Goldtex Inc. v. NLRB, 14 F.3d 1008, 1011 (4th Cir. 1994).
“Unwise and even unfair decisions to discharge employees do not
constitute unfair labor practices unless they are carried out with
the intent of discouraging participation in union activities.
Accordingly, determining whether the employer’s actions were
motivated by anti-union animus is necessarily the crucial first
step in a § 8(a)(3) case.” Id.; see also Carleton College v. NLRB,
230 F.3d 1075 (8th Cir. 2000); USF Red Star, Inc. v. NLRB, 230 F.3d
102 (4th Cir. 2000).
A reviewing court will uphold the Board’s decision if it is
reasonable and supported by substantial evidence on the record
considered as a whole. See Mobil Exploration, 200 F.3d at 237;
NLRB v. Thermon Heat Tracing Serv., Inc., 143 F.3d 181, 185 (5th
Cir. 1998). Substantial evidence is “such relevant evidence that
a reasonable mind would accept to support a conclusion.” Universal
Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); see also Thermon
18
Heat, 143 F.3d at 185. Under the substantial evidence standard of
review, “the ALJ’s decision must be upheld if a reasonable person
could have found what the ALJ found, even if the appellate court
might have reached a different conclusion had the matter been
presented to it in the first instance.” Standard Fittings Co. v.
NLRB, 845 F.2d 1311, 1314 (5th Cir. 1988). The standard of review
of the Board’s findings of fact and application of the law is
deferential, as both parties recognize. “Recognizing the Board’s
expertise in labor law, [the court] will defer to plausible
inferences it draws from the evidence, even if we might reach a
contrary result were we deciding the case de novo.” Thermon Heat,
143 F.3d at 185.
This court is bound by the credibility choices of the ALJ,
unless: (1) the choice is unreasonable; (2) the choice contradicts
other findings of fact; (3) the choice is based on inadequate
reasons or no reasons; or (4) the ALJ failed to justify the choice.
See Asarco, 86 F.3d at 1406. Absent extraordinary circumstances,
a reviewing court does not substitute its view of credibility for
that of the ALJ or weigh the credibility of one witness against
another and search for contradictory inferences. Id.; see also USF
Red Star, 230 F.3d at 107; Albertson’s, Inc. v. NLRB, 161 F.3d
1231, 1236 (10th Cir. 1998). This court will also “defer to
plausible inferences [the ALJ] drew from the evidence, even though
we might reach a contrary result were we deciding this case de
novo.” Blue Circle Cement Co., Inc. v. NLRB, 41 F.3d 203, 206 (5th
19
Cir. 1994) (internal quotation omitted). The Board’s conclusions
of law are also entitled to deference if they have a reasonable
basis in the law and are not inconsistent with the Act. See NLRB
v. Yeshiva Univ., 444 U.S. 672, 691 (1980).
In this case, the NLRB adopted the ALJ’s findings that Valmont
violated the Act by issuing written corrective actions to Lewis and
Sharp based on their prior support for the union and Valmont’s
belief that they were talking about the union during work time; by
discharging Lewis for soliciting Hutchison; by issuing a written
corrective action to Fontenot for asking Hutchison if he had signed
a union card; and by issuing an oral corrective action to Niemeyer
for distributing union literature in a nonworking area. The ALJ and
the Board found a section 8(a)(3) violation and a derivative, but
not an independent, section 8(a)(1) violation, in Valmont’s
warnings to Lewis and Sharp. The ALJ and the Board found a
violation of both section 8(a)(1) and section 8(a)(3) as to the
firing of Lewis and the warnings issued to Fontenot, Lewis, Sharp
and Niemeyer.
III. Discussion
A. The Written Warnings Issued to Lewis and Sharp
The ALJ based his finding that the written warnings to Lewis
and Sharp violated section 8(a)(3) and, derivatively, section
8(a)(1), on circumstantial evidence that Valmont disciplined Lewis
and Sharp because of their known previous support for the union and
20
the belief that they were talking about the union on July 28. The
ALJ specifically relied on three categories of circumstantial
evidence: 1) evidence showing that Valmont gave inconsistent
reasons for issuing the warning to Lewis; 2) evidence showing that
Valmont failed to conduct a meaningful investigation before issuing
the warnings; and 3) evidence that the warnings were more severe
discipline than Valmont had issued to other employees for conduct
similar to the alleged offenses. The issue is whether substantial
evidence from the record as a whole supports the finding that
Valmont was motivated by antiunion animus.
In analyzing the alleged section 8(a)(3) violation, the ALJ
applied the burden-shifting analysis set out in Wright Line, 251
N.L.R.B. 1083 (1980), enf’d. 662 F.2d 899 (1st Cir. 1981). The
General Counsel of the NLRB must prove, by a preponderance of the
evidence, that antiunion animus was a substantial factor in the
employer’s decision to discipline the employee.2 See Thermon Heat,
143 F.3d at 186; Asarco, 86 F.3d at 1408; NLRB v. Mini-Togs, Inc.,
2
Several courts have suggested that the term “prima facie
case” is inappropriate in this context. We agree. The term “prima
facie case” is more often used for the allocation of burdens of
proof in Title VII cases. However, the General Counsel’s burden is
not the same as that of the plaintiff in a Title VII case. The
General Counsel must do more than simply support an inference that
protected conduct is a motivating factor in the employer’s
decision. The General Counsel’s burden is to persuade the Board
that the employer acted out of antiunion animus. “Because of the
continuing confusion surrounding the nature of the General
Counsel’s burden, we agree with those courts who have suggested
that the Board no longer use the term ‘prima facie case,’ in the
Wright Line context.” NLRB v. CWI of Maryland, Inc., 127 F.3d 319,
330 n.7 (4th Cir. 1997)(collecting cases).
21
980 F.3d 1027, 1032–33 (5th Cir. 1993). Once the General Counsel
makes the required showing, the burden shifts to the employer to
prove by a preponderance of the evidence that it would have
discharged or disciplined the employee even if the employee had not
engaged in union activity. See Thermon Heat, 143 F.3d at 186;
Asarco, 86 F.3d at 1408. Put another way, if the General Counsel
proves that antiunion animus was a “motivating factor” in an
employer’s decision to discharge or discipline an employee, the
burden shifts to the employer to prove that the employee would have
been disciplined in any event, for a valid reason.
“Overt direct evidence of an unlawful motive is not a
prerequisite to a finding that disciplinary action resulted
therefrom.” See NLRB v. Esco Elevators, Inc., 736 F.2d 295, 300
(5th Cir. 1984). Circumstantial evidence of discriminatory animus
may be sufficient. See id. Courts have found a variety of factors
to be probative of antiunion animus in employee discipline cases,
including: the timing of the employer’s action in relationship to
union activity, see Adco, 6 F.3d 1110; Jet Star, Inc. v. NLRB, 209
F.3d 671, 676-77 (7th Cir. 2000); Cumberland Farms, Inc. v. NLRB,
984 F.2d 556, 560 (1st Cir. 1993); the presence of other unfair
labor practices, see NLRB v. Advance Transportation Co., 976 F.2d
569; the failure to investigate the conduct alleged as the basis
for the discipline, see Esco Elevators, 736 F.2d at 299 n.5;
disparate treatment of the disciplined employee or discipline that
deviates from the employer’s past disciplinary practice, see
22
Marshall Durbin Poultry Co. v. NLRB, 39 F.3d 1312, 1321 (5th Cir.
1994); the implausibility of the employer’s explanation of its
action, see id.; Union-Tribune Publishing Co. v. NLRB, 1 F.3d 486
(7th Cir. 1993); inconsistencies between the employer’s proffered
reason for the discipline and other actions of that employer, NLRB
v. General Fabrications Corp., 222 F.3d 218, 226 (6th Cir. 2000);
and the seriousness of the alleged violation, see Presbyterian/St.
Luke’s Medical Center v. NLRB, 723 F.2d 1468, 1478 (10th Cir.
1983).
This case presented no direct evidence of antiunion animus.
There is no history of antiunion statements or a background of
ongoing union hostility. The strongest form of circumstantial
evidence, proximity in time between union activity and employee
discipline, is missing. The union election ended in September
1996, ten months earlier. The ALJ noted the absence of evidence
that on August 1, the date of Lewis’s discipline, or on August 5,
the date of Sharp’s discipline, Valmont knew that the union had
begun a second organizational effort in which Lewis and Sharp were
involved.
The ALJ noted that the timing of the warnings in relation to
the beginning of the union’s second campaign was “suspicious.”
However, the ALJ did not rely on this proximity in time as any
evidence of antiunion discrimination. The record supports this
approach. The record evidence showed that the first in-plant
evidence of a new union organizational effort appeared on
23
approximately August 10, several days after Valmont issued the
warnings. There is no other evidence that Valmont knew of the
second organizational effort before then.
Noting the lack of evidence that Valmont knew of the
resumption of union activity on August 1, the ALJ relied on the
evidence that in April or May 1997, months after the 1996 election
had ended, Abney had orally counseled Lewis against soliciting his
coworkers, to prove that Valmont management believed that Lewis and
Sharp were talking about the union on July 28. However, the ALJ
rejected this same evidence when Valmont offered it to show a good
faith belief that Lewis was continuing to talk to other employees
on nonwork subjects, ignoring recent warnings to stop such conduct.
This inconsistent treatment diminishes the deference to which the
ALJ’s finding is entitled. See Asarco, 86 F.3d at 1406.
An ALJ may not rest its entire decision that antiunion animus
motivated an employee’s discipline on a finding that the employer
gave a pretextual reason for its action. See, e.g., Union-Tribune
Publishing Co., 1 F.3d 486; Goldtex, Inc., 14 F.3d at 1011
(evidence of pretext does not “enter the picture until some
evidence of a discriminatory discharge has been brought forward.”).
Discrediting the employer’s stated reason for disciplinary action
can lead a factfinder to “infer that there is another motive [and
that] the motive is one that the employer desires to conceal—an
unlawful motive—at least where, as in this case, the surrounding
facts tend to reinforce that inference.” Shattuck Denn Mining
24
Corp. (Iron King Branch) v. NLRB, 362 F.2d 466, 470 (9th Cir.
1966); see also Jet Star, 209 F.3d at 678; Laro Maintenance Corp.
v. NLRB, 56 F.3d 224, 230 (D.C. Cir. 1995). However, “[a] finding
of pretext, standing alone, does not support a conclusion that
[discipline] was improperly motivated,” absent other evidence of
animus. Union-Tribune Publishing Co., 1 F.3d at 491. In this case,
the ALJ gave inconsistent treatment to the evidence that
contributed to the finding of pretext. This first category of
evidence, even under deferential review, is not sufficient to
support a finding of antiunion animus.
The ALJ and Board also relied on evidence that Valmont did
not investigate whether Lewis and Sharp might have been talking
about a work-related matter – which would not have violated any
rule - until after issuing the warnings. The dissenting panel
member found the absence of a meaningful investigation irrelevant
because “the Act does not compel an employer to have a ‘meaningful
investigation’ of suspected misconduct.” The cases hold that
absence of a meaningful investigation into allegedly impermissible
conduct before imposing discipline is an accepted form of
circumstantial evidence of antiunion animus. See Esco Elevators,
736 F.2d at 299 n.5 (“A one-sided investigation into employee
misconduct supplies significant evidence that disciplinary action
was triggered by an unlawful motive.”); NLRB v. Big Three Indus.,
Inc., 497 F.2d 43, 50 (5th Cir. 1974) (holding that it was of “some
relevance” that the employee was not “afforded a reasonable
25
opportunity to explain the full circumstances of what occurred”).
In this case, the credited evidence showed that Valmont gave Lewis
no chance to explain and Valmont did not try to verify Sharp’s
explanation until after issuing the warnings.
Valmont argues that it reasonably relied on Gregg’s and
Dotson’s statements in concluding that Sharp and Lewis had not
talked about work-related matters. Valmont points to Dotson’s
testimony that he prepared his written statement on his own, on
July 28, and gave it to his supervisor on the same day. However,
the ALJ found that the credited evidence established that Dotson
did not prepare his written statement until asked to do so on
August 6, 1997. There is substantial evidence to support the ALJ’s
choice to discredit Dotson’s testimony that he prepared and
submitted a written statement on the day of the incident, rather
than a week later, and this court defers to that credibility
choice. See Asarco, 86 F.3d at 1406; Advance Transportation, 979
F.2d at 572.
Valmont also asserts that the ALJ and the Board inconsistently
discounted Dotson’s and Gregg’s estimate of the time and length of
the conversation they observed, while crediting Lewis’s and Sharp’s
testimony on the same subjects. This argument ignores the fact
that Dotson and Gregg both testified that they did not look at a
clock or watch, had no basis for estimating the time, and could not
explain how they were able to submit written statements that gave
a definite time for the conversation between Lewis and Sharp. By
26
contrast, Sharp consistently testified that he knew precisely what
time he talked with Lewis, because he looked at his watch to record
the time, as required on the maintenance request form. The ALJ
found that Gregg’s and Dotson’s statements as to the time and
length of the conversation they witnessed were unreliable and
conflicted with their testimony. There is sufficient evidence to
support the ALJ’s choice to believe Lewis and Sharp over Dotson and
Gregg. See Asarco, 86 F.3d at 1406; Advance Transportation, 979
F.2d at 573 (“The law is clear: Where there are two materially
conflicting versions of the same incident, an ALJ’s credibility
determinations are entitled to deference.”).
Valmont’s contention that the ALJ erred in finding that
Valmont failed to conduct a meaningful investigation before issuing
the warnings depends on a rejection of the ALJ’s credibility
judgments. The court must defer to these judgments. This second
category of circumstantial evidence does give some support to the
Board’s finding that Valmont issued the warnings because of
antiunion animus.
Valmont argues in its brief that the undisputed fact that
Sharp had no reason to be in Lewis’s work area or to talk with
Lewis on work matters in the course of their regular duties made it
reasonable for Valmont to believe that Lewis and Sharp were not
talking about work. The ALJ found that even if Valmont reasonably,
but mistakenly, believed that Lewis and Sharp were having a
personal conversation, the discipline it imposed was more severe
27
than that imposed on other employees engaged in similar conduct.
Valmont challenges the ALJ’s and Board’s findings that the
discipline was disparate.
The ALJ examined Valmont’s records and found “no evidence that
any employee has ever been warned for loafing when engaging in a
work related conversation.” That is correct, but it does not apply
if Valmont did reasonably believe that Lewis and Sharp were not
talking about a work-related subject.
The evidence showed that before August 1, 1997, Valmont
disciplined other employees for “loafing” or distracting others by
engaging in nonwork-related conversations. In one case, the
employee received a verbal warning for distracting other employees
by having nonwork-related conversations, and then committed three
subsequent similar infractions before receiving a written
corrective action. The evidence shows that at least two other
employees received warnings for loafing prior to August 1997. One
employee received a written warning, as his first discipline, for
loafing and insubordination; one employee received a verbal warning
for loafing and low quality work. Two employees received warnings
for loafing shortly after August 1997. In one case, the offending
employee was observed not working at various times during a day,
including ten minutes spent at a picnic table. This employee
received a verbal counsel that included the warning that any other
offense of this nature could result in his termination. In the
other case, the employee had stated that he was “killing time” when
28
his leadman observed him not working and asked him what he was
doing. This employee received a final written notice.
The ALJ relied heavily on a finding of disparate discipline to
show antiunion animus. However, the ALJ’s analysis is again
inconsistent. The ALJ credited the evidence that Abney had orally
counseled Lewis in April or May 1997 for soliciting other
employees, for the purpose of showing that Valmont believed that
Lewis and Sharp were again talking about union activities on July
28. However, the ALJ rejected this evidence for the purpose of
showing that Valmont issued Lewis the final warning on August 1
because he was continuing misconduct for which he had been recently
warned. If this evidence of 1997 oral counseling is credited, then
the August 1 discipline was for repeated recent misconduct and is
not disparate from other discipline disclosed in the record. If
the evidence is not credited, then the disparate discipline
evidence is stronger, but the evidence of antiunion animus as a
motivating factor is diminished.
The ALJ also relied on evidence that Valmont’s plant manager
and human resources manager had incorrectly applied the no-
solicitation rule to prohibit soliciting in any work area, even on
nonworking time. However, there is no evidence in the record that
Valmont applied this approach to union soliciting but not to other
forms of soliciting. This evidence might support an independent
section 8(a)(1) violation, but not a section 8(a)(3) violation.
29
The Board cites cases to support the ALJ’s reliance on
circumstantial evidence to find antiunion animus. These cases
present much stronger evidence of antiunion animus than is present
in this record. Most of the cases involved very close timing
between union activities and the employee discipline, a background
of ongoing union hostility, or explicitly antiunion comments.
These factors are conspicuously absent in this case. See, e.g.,
Adco, 6 F.3d at 1113, 1116-17 (observing that “Adco is adamantly
anti-union” and noting that the employer admittedly fired one
employee for soliciting, “an unlawful reason under the Act”); Esco
Elevators, 736 F.2d at 299 n. 5 (record also disclosed explicitly
antiunion statements, which, combined with the absence of
investigation into the occurrence used to justify discharging the
union president, supplied significant evidence of an unlawful
motive); Big Three Indus., 497 F.2d at 51 (failure to investigate
an incident which led to an employee’s discharge, combined with the
fact that at the time of the employee’s discharge, the company was
in the midst of vigorously contested union negotiations, supported
Board’s finding of unfair labor practice).
Other recent decisions relying on circumstantial evidence of
discriminatory motive also involve a context of ongoing union
hostility not present in this record. For example, in Dorsey
Trailers, Inc. v. NLRB, 2000 WL 1769450 (4th Cir. Dec. 1, 2000) (no
page references available), a company facing an imminent strike had
moved its plant operations to a different state. The company had
30
refused to bargain with the union, a supervisor had made repeated
threats that the company would close the plant if the employees
voted to strike, the company refused to reinstate union members
immediately after their unconditional offer to return to work, the
company created the impression of surveillance, and the company
unilaterally instituted a new attendance policy in violation of the
collective bargaining agreement.3 Similarly, in General
Fabrications Corp., 222 F.3d at 226, the court inferred antiunion
animus from the facts that the employee’s supervisor gave false
testimony, the company undertook no meaningful investigation into
the employee’s work record, the employee was not warned or
previously disciplined for the offense for which he was terminated,
and the company’s general manager had previously made antiunion
remarks. Id.
Valmont had no history of violations of the Act. The union
election had occurred in September 1996. The ALJ did not rely on,
and the evidence did not establish, temporal proximity between the
union’s resumption of activity in late July 1997 and Valmont’s
issuance of the warnings to Lewis and Sharp. One of the strongest
forms of circumstantial evidence – the link of timing – is missing.
In summary, there is some credited circumstantial evidence
that might suggest an improper motive behind the warnings issued to
3
The Fourth Circuit ultimately concluded that Dorsey
Trailers met its burden of showing that it would have relocated for
economic reasons even in the absence of antiunion animus and did
not violate section 8(a)(3) by moving the plant.
31
Lewis and Sharp, particularly the evidence as to how Valmont
handled the investigation. However, absent evidence of a
connection between the resumption of union activity and the
warnings, the evidence of antiunion animus as a motivating factor
is simply not substantial. The evidence of Valmont’s antiunion
animus does not approach the nature or quantity of evidence in
other cases finding a section 8(a)(3) violation. This court denies
enforcement of the Board’s Order as to the warnings issued to Lewis
and Sharp.
B. The Discharge of Lewis and the Warning of Fontenot
Valmont discharged Lewis and warned Fontenot for violating the
company’s no-solicitation rule, which provides that “[s]olicitation
by employees on their working time or on the working time of any
employee solicited is prohibited . . . .” The parties dispute the
application of the rule to this case, but do not dispute the
validity of the rule itself. It is “well-settled that it is within
the province of an employer to promulgate and enforce a rule
prohibiting [] solicitation during working hours.” Cooper Tire &
Rubber Co. v. NLRB, 957 F.2d 1245, 1249 (5th Cir. 1992). Absent
proof of special circumstances, however, “[i]t is not within the
province of the employer . . . to promulgate and enforce a rule
prohibiting [] solicitation by an employee outside of working
hours, although on company property.” Id.
32
An employer must permit solicitation during meals, breaks, and
other nonworking time, even if the employee remains “clocked in”
during such times. Cooper Tire, 957 F.2d at 1249 n.7. “[T]ime
outside working hours, whether before or after work, or during
luncheon or rest periods, is an employee’s time to use as he wishes
without unreasonable restraint . . . .” Id. In Cooper Tire, this
court held that an employer had to permit solicitation “during any
break times or in any break areas, including the . . . pathways to
the main break room, when both the solicitor and solicitee are on
break time, whether formal or scheduled, and are in a break area.”
Id. at 1251 n.11. A no-solicitation rule that prohibits
solicitation on the company’s premises during “paid working hours”
is invalid because it could apply to bar solicitation en route to
and from the timeclock, in the break room and in the rest rooms.
Id. at 1248-50. On its face, the Valmont rule validly prohibited
solicitation during the working time of the employees soliciting or
being solicited.
The ALJ found that Valmont discharged Lewis based on
Hutchison’s report that Lewis had solicited him to sign a union
card on Hutchison’s working time and in a working area. The ALJ
credited Lewis’s testimony that his exchange with Hutchison about
signing a union card occurred in a non-production area of the plant
during the regularly scheduled break period. The ALJ found that
Hutchison had lied about where the conversation took place and
testified inconsistently about when it occurred. Based on the
33
credited evidence, the ALJ concluded that Valmont had discharged
Lewis for misconduct that he did not commit, while he was engaged
in protected activity, a violation of section 8(a)(1).
It is undisputed that at the time Lewis solicited Hutchinson,
the day shift was on break. Hutchison normally worked the day
shift. On August 12, Hutchison worked during part of the day
shift. However, Hutchison was working overtime and did not join
the day shift break. When Lewis encountered Hutchison, Hutchison
had just left the break room, was not at his regular work station,
and was not actively performing production duties.
The ALJ found that although Hutchison did not regard himself
as on break, he was “not working; he was wandering around the plant
looking for a coworker who was on break.” Although Hutchison was
not on break, “there was certainly no way that Lewis, or anyone
else, could have been aware of that fact.” The unusual and narrow
question these facts present is whether an employee who is
solicited during a shift-wide break period, just after exiting a
break room, who is clocked in and not on an official break, but who
is not performing the usual duties of his job, and who appears to
be on break, is “on working time” for the purpose of a no-
solicitation rule.
Valmont argues that it should be able to discharge Lewis for
soliciting Hutchison because Hutchison was not, in fact, on break.
Valmont claims that the soliciting employee, not the employer,
should bear the risk that the employee being solicited is not on
34
break, even if he appears to be. This court’s holding in Cooper
Tire addressed a similar argument. In Cooper Tire, 957 F.2d at
1250, the Fifth Circuit recognized the difficulty in terms such as
“working time” and “work areas,” but rejected the employer’s
argument that these difficulties justified a blanket prohibition on
all soliciting except in the break room itself. The court held
that the employer had to permit solicitation “during any break
times or in any break areas, including the . . . pathways to the
main break room, when both the solicitor and solicitee are on break
time, whether formal or scheduled, and are in a break area.” Id. at
1251 n.11. In so holding, the court specifically rejected the
employer’s argument that “it should not be required to take the
risk that a non-working employee will disrupt the production of
employees who are continuing to work, since some employees will be
working while other employees are on their breaks . . . .” Id. at
1250. The court held that such a risk was properly on the
employer, unless it could show special circumstances that justified
a broader prohibition.
This case presents narrow and unusual facts. The soliciting
employee was on an official break. The solicited employee was not
on the official break, but was not performing the usual duties of
his job and gave every outward appearance of being on break
himself. The Board found that Lewis did not violate the no-
solicitation rule by soliciting Hutchison because Hutchison was not
on working time for the purpose of that rule. That finding is
35
supported by substantial evidence in the record and is a reasonable
application of the law, to which this court must give deference.
The ALJ and Board concluded that Valmont’s firing of Lewis for
conduct prohibited by the no-solicitation rule violated section
8(a)(3) of the NLRA. However, the analysis the ALJ and Board used
is a section 8(a)(1) analysis, not a section 8(a)(3) analysis.
“Over and again the Board has ruled that section 8(a)(1) is
violated if an employee is discharged for misconduct arising out of
a protected activity, despite the employer’s good faith, when it is
shown that the misconduct never occurred.” Ideal Dyeing &
Finishing Co., 300 N.L.R.B. 303, 319 (1990). The ALJ and Board
found that while Valmont’s no-solicitation rule was valid, Lewis
did not in fact violate the rule because Lewis was on break and
Hutchison was not working when the solicitation occurred. The
presence of Valmont’s good faith belief that Lewis violated the no-
solicitation rule is irrelevant to this section 8 (a)(1) violation.
The absence of such a belief is, however, necessary to a section
8(a)(3) violation.
The ALJ made no specific findings or analysis of the factors
that might show antiunion animus, necessary to a section 8(a)(3)
violation. The Board went beyond the findings of the ALJ,
“infer[ring] that [Valmont’s] discharge of Lewis was motivated by
its hostility to what it believed were his pro-Union sentiments.”
There is no dispute that Lewis talked to Hutchison to further the
union. However, neither the ALJ nor the Board provided reasons for
36
concluding that hostility to the union motivated Valmont’s decision
to discharge Lewis, as required under section 8(a)(3).
Specifically, neither addressed Valmont’s assertion that it had a
reasonable, if incorrect, basis for believing that Lewis violated
the no-solicitation rule by soliciting another employee who was not
on break.
This court affirms the Board’s finding that Valmont violated
section 8(a)(1) by suspending, then discharging, Lewis for
violating the no-solicitation rule; this court does not uphold the
Board’s finding that this conduct also violated section 8(a)(3).
As to Fontenot, the ALJ found that Valmont violated sections
8(a)(1) and 8(a)(3) by issuing Fontenot a warning for violating the
no-solicitation rule. The ALJ disbelieved Hutchison’s testimony
about the incident and adopted Fontenot’s version of the events.
Fontenot testified that she visited Hutchison to ask him about the
scrap metal and, at the end of that discussion, as they walked
toward the timeclock, asked Hutchison whether he had signed a union
card. Specifically, the ALJ stated: “I do not credit any of
Hutchison’s varying accounts of his conversation with Fontenot.
His demeanor was not impressive. . . . I do not credit his
attribution of an ulterior motive to Fontenot.” The ALJ found that
Fontenot’s question did not constitute solicitation, but was merely
a question of another employee, similar to asking whether the
employee had brought a specific item for lunch and receiving a
brief answer. The ALJ found that “[r]espondent’s warning of
37
Fontenot for allegedly engaging in solicitation when, in fact, she
had only asked a question of a fellow employee, violated Section
8(a)(3) of the Act.”
The ALJ found that Fontenot did not solicit Hutchison, while
assuming that Lewis did. Lewis testified that his conversation
with Hutchison consisted of the following:
Lonny, I guess you’re not going–I guess you
decided not to sign a card. He said I hadn’t
made my mind on which way I’m going. I said
let me know when you do. He said ok.
(Hearing Transcript, p. 277).
Fontenot testified as follows as to her conversation with
Hutchison:
I asked him, well, did you sign a Union card?
. . .He said no.... I said great. . . .
(Hearing Transcript, p. 182). Characterizing Lewis’s question as
solicitation and Fontenot’s as “merely a question” emphasizes the
very slight differences between the two exchanges and points to the
undefined nature of “solicitation.”
The ALJ did not examine whether Fontenot’s question, if not
solicitation, was nonetheless protected activity under section 7.
If not, there is no independent violation of section 8(a)(1). See
Mobil Exploration, 200 F.3d 230. The ALJ held that Fontenot’s
question was not solicitation but applied section 8(a)(1) as if the
protected activity of solicitation occurred. Neither the ALJ nor
the Board analyzed whether, apart from section 8(a)(1), Valmont
violated section 8(a)(3) by issuing the warning to Fontenot. The
38
section 8(a)(3) question requires an analysis of whether, when
Valmont warned Fontenot for soliciting while she and another
coworker were still working, it had a reasonable, if incorrect,
belief that Fontenot had violated the no-solicitation rule. The
ALJ applied an incorrect legal analysis for determining whether
Valmont violated sections 8(a)(1) and (a)(3) by warning Fontenot.
This court analyzes the record as a whole, applying the correct
legal standard, to determine whether Valmont nonetheless violated
sections 8(a)(1) and (a)(3) by warning Fontenot. See CWI of
Maryland, 127 F.3d at 332.
In contrast to the firing of Lewis, the record provides
substantial credited circumstantial evidence that Valmont acted
with antiunion animus in issuing Fontenot the written warning. The
ALJ found that Hutchison’s attribution of “ulterior motives” to
Fontenot and his description of the conversation wholly lacked
credibility. The record discloses that Fontenot’s leadman
supported her consistent explanation of her work-related reason for
talking to Hutchison. Hutchison himself acknowledged that the
scrap metal was his responsibility. The credited evidence was that
Fontenot asked one question, which underscores the severity of the
discipline imposed. The record shows that Valmont management
received inconsistent and unsupported information from Hutchison
about his encounter with Fontenot. The record also shows that
Valmont management knew that Hutchison vehemently opposed the
union. In issuing a written warning to a first time offender, with
39
no prior oral counseling or warning, Valmont departed from its own
progressive discipline policy. See Marshall Durbin Poultry Co., 39
F.3d at 1312 (departure from past disciplinary practice can be
evidence of antiunion animus).
This court must defer to the ALJ’s credibility findings.
Although the ALJ applied an incorrect legal standard, substantial
evidence supports the ALJ’s finding that Valmont violated section
8(a)(3) by issuing Fontenot a written warning, and therefore
violated section 8(a)(1). The Board’s Order with respect to
Valmont’s written warning of Fontenot is enforced.
C. The Warning of Niemeyer
The ALJ found a section 8(a)(1) and 8(a)(3) violation in the
oral counseling issued to Niemeyer because the plant entrance in
which he distributed union literature was not a work area. “An
employer may lawfully prohibit his employees from distributing
literature concerning their working conditions in work areas or
during work time.” NLRB v. Transcon Lines, Inc., 599 F.2d 719, 721
(5th Cir. 1979); see also Eastex, Inc. v. NLRB, 437 U.S. 556,
570–71 (1978); Republic Aviation Corp. v. NLRB, 324 U.S. 793,
798–99 (1945). The employer, however, may not “extend[] this
prohibition to non-working areas during non-work time . . . unless
the employer shows that a ban is necessary to maintain plant
discipline or production.” Transcon Lines, 599 F.2d at 721;
Republic Aviation, 324 U.S. at 798–99.
40
Valmont argues that the entranceway area near the timeclock,
in which Forman witnessed Niemeyer distributing leaflets, was a
“work area” under the no-solicitation rule. The issue is whether
substantial evidence supports the ALJ’s conclusion that the
timeclock area was not a “work area.”
The record shows that the entrance to the building at issue
opens into an area 15 feet long and 8 feet wide. The timeclock and
a bulletin board were mounted on the wall to the right of the
entrance; a desk, with a computer, were positioned on the same side
as the timeclock and bulletin board; and a vending machine with
drinks was on the opposite wall. Forman was seated at the desk
when he observed Niemeyer handing out the leaflets, but was not
actively working.
Valmont contends that the area is a work area because of the
presence of the desk and computer, which foremen occasionally used.
The ALJ found that Valmont used the area for both work and nonwork
activities but failed to convey clearly to employees whether it
was, or was not, a working area. Resolving the ambiguity in favor
of Niemeyer, the ALJ found a violation of section 8(a)(3) in the
discipline imposed on Niemeyer for distributing literature on
nonworking time, in a nonworking area.
As early as 1971, the NLRB noted that “it is well recognized
that the timeclock area usually is not part of the work area of a
plant.” Midwest Tool and Engineering Co., 192 N.L.R.B. 1104, 1107
(1971). In that case, the Board affirmed the ALJ’s finding that
41
the area in front of and around a timeclock was not a work area,
noting that employees often congregate around a timeclock; bulletin
boards are often kept near timeclocks; and work is generally not
performed around timeclocks. Id. In Thermo Electric Co., 222
N.L.R.B. 358 (1976), by contrast, the Board upheld the application
of a facially valid no-solicitation rule to prevent distribution in
front of a timeclock which was “in a work area.”
The decisions recognize that entrance areas to plants, where
timeclocks, vending machines, and bulletin boards are located, are
often mixed use areas. Courts generally require a particularized
showing for an employer to apply a no-solicitation rule in such an
area. In Transcon Lines, 599 F.2d at 721, this court found that
a “drivers’ room” at a trucking company’s terminal, which contained
a bulletin board, a timeclock, and coffee, soft drink and candy
vending machines was a mixed use area. Id. at 719. The court
concluded that although some work did take place in the drivers’
room, it was a mixed use area for the purpose of the no-
solicitation rule. The ban on distributing literature in that area
was presumptively invalid absent a showing that it was “necessary
to maintain plant discipline or production.” Id. at 721.
Similarly, in United Parcel Service, 1998 WL 915578 (N.L.R.B.
1998), the Board concluded that the company violated the Act by
enforcing its no-distribution rule in a check-in area. The ALJ
concluded that the check-in area was a nonwork area, or, at most,
a mixed use area, making the employer’s application of its no-
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distribution rule to that area presumptively invalid. The Board
found that the application of the no-distribution rule was unlawful
absent a showing that “the distribution resulted in any disruption
of production or discipline.” Id. at *2.
This court finds that substantial evidence in the record
supports the ALJ’s finding that the Valmont entranceway in question
was a mixed use area. The presence of the timeclock, bulletin
board, and vending machine in the building entranceway, with the
foremen’s desk, are all consistent with a mixed use
characterization. Valmont bears the burden of making a
particularized showing that application of its no-distribution rule
to that area is valid. See, e.g., UPS v. NLRB, 228 F.3d 772 (6th
Cir. 2000). Valmont has not made the required showing. By
applying its no-solicitation policy to Niemeyer’s conduct without
such a particularized showing, Valmont violated section 8(a)(1) of
the Act.
The ALJ did not apply a section 8(a)(3) analysis to Niemeyer’s
case. The ALJ does not cite, and the record does not contain,
substantial evidence that Valmont was motivated by antiunion animus
when it gave Niemeyer the oral warning. There is no evidence that
Valmont treated the distribution of union literature differently
than it did the distribution of other literature. See National By-
Products, Inc. v. NLRB, 931 F.2d 445 (7th Cir. 1991) (showing of
discriminatory application of no-solicitation rule provides
evidence of section 8(a)(3) violation). Nor is there any evidence
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on the record that an oral warning was disparate punishment or
inconsistent with Valmont’s progressive discipline. The ALJ’s
conclusory finding that Valmont violated section 8(a)(3) by
erroneously applying its valid no-solicitation rule to Niemeyer is
not supported by substantial evidence.
This court affirms the NLRB’s conclusion that Valmont violated
section 8(a)(1) when it orally warned Niemeyer for distributing
union literature in the entranceway near the time clock. This
court does not find substantial support in the record for a finding
of a section 8(a)(3) violation.
IV. CONCLUSION
Substantial evidence supports the Board’s finding that Valmont
violated section 8(a)(1) by suspending and discharging Lewis and by
warning Niemeyer. Substantial evidence also supports the Board’s
conclusion that Valmont violated sections 8(a)(1) and 8(a)(3) by
warning Fontenot. The Board’s conclusion that Valmont violated
sections 8(a)(1) and 8(a)(3) by warning Lewis and Sharp and
violated section 8(a)(3) by warning Niemeyer are not supported by
substantial evidence on the record as a whole. This court grants
in part and denies in part Valmont’s petition, as set forth above.
Accordingly, enforcement of the Board’s Order is granted in part
and denied in part. On remand, the Order shall be modified to
conform with this decision.
ENFORCEMENT GRANTED IN PART, DENIED IN PART, AND REMANDED.
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