National Labor Relations Board v. Arkema, Inc. , 710 F.3d 308 ( 2013 )

Case: 11-60877 Document: 00512159477 Page: 1 Date Filed: 02/28/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 28, 2013
No. 11-60877
Lyle W. Cayce
Clerk
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
versus
ARKEMA, INCORPORATED,
Respondent.
Application for Enforcement of an Order
of the National Labor Relations Board
Before DAVIS, JONES, and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge.
The National Labor Relations Board (“NLRB” or “Board”) applies for
enforcement of its order upholding a decision of an administrative law judge
(“ALJ”) invalidating a decertification election based on findings that Arkema,
Incorporated (“Arkema”), violated the National Labor Relations Act (“NLRA” or
the “Act”), before an election, by disciplining an employee for alleged harassment
and sending an anti-harassment policy to employees. The Board also found
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Arkema in violation because it ceased to recognize the union after the election
but before an official certification of the results. Finally, the Board determined
that Arkema’s post-election actions against another employee violated the
NLRA. After reviewing the record and consulting the applicable law, we deny
the application for enforcement.
I.
Arkema operates a chemical-manufacturing plant in Houston, where the
facts occurred. The production and maintenance employees were union employ-
ees represented by the United Steelworkers of America. The most recent
collective-bargaining agreement governed thirty-five employees at the Houston
facility and was set to expire on October 10, 2008. Beginning in April 2008,
bargaining-unit employees began a campaign to decertify the union. A decertifi-
cation petition was filed in July, and a secret-ballot decertification election was
held on August 11 and 12. By a count of 18–17, the bargaining-unit employees
voted to decertify.
A.
Mark Saltibus was a utility and step-up chief operator. His position
required him to fill in for absent employees, including sometimes serving as the
highest-ranking official at the plant. About July 2008, he approached Susan
Russell, a relatively new employee, and engaged her in a conversation concern-
ing the upcoming decertification election, informing her that the union needed
her support and that without it, relationships would change at the plant.
Russell, who sometimes needed the assistance of physically strong male
co-workers to perform certain aspects of her job, was upset by the exchange.
Fearing for her safety and job, she promptly reported the incident to Terry Free-
man, the plant’s site manager. According to Russell’s incident statement, Salti-
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bus specifically threatened that male union employees would not come to Rus-
sell’s aid in an emergency if she did not support the union in the election.
The following day, Saltibus was summoned to the management office to
offer his version of the conversation to Freeman, regional human-resources man-
ager Wendy Dupuy, and operations superintendent Dennis Van Wye. Saltibus
admitted his intended message was that Russell would no longer receive help
“carrying her load” from union employees. Saltibus insisted, however, that if
Russell was in any kind of danger, he would assist her and that he made no
mention of her sex in the conversation.
Freeman then handed Saltibus a “written reminder” for “Violation of Com-
pany Harassment Policy” stating that Arkema had “completed its investigation
into [his] alleged inappropriate behavior.” The violations alleged were “making
intimidating and threatening remarks toward a coworker and creating an offen-
sive working environment” and “threatening [Russell’s] job if she continued to
pursue her non-union status.” The letter also made reference to a separate occa-
sion on which Saltibus allegedly had “made threatening and inappropriate
remarks to a laboratory employee concerning her wishes to not join the Union.”
The written warning concluded by advising Saltibus to reflect on the incidents
and warned that failure to comply with Arkema’s anti-harassment policy might
result in termination.
B.
On July 23, plant manager Wendal Turley sent an email to bargaining
unit employees with two attachments—an NLRB publication about union elec-
tions and a memo drafted by Turley. The memo informed employees of their
rights:
• NO HARASSMENTSS You have the right to not be harassed,
intimidated or threatened in any waySSphysically or verballySSby
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anyone, including the union, for refusing to support a strike or
certification.
• NO THREAT OF JOB LOSSSS The union cannot threaten that
you will lose your position by not supporting them in a vote.
• NO PUNISHMENTSS The union cannot seek suspension, dis-
charge or other punishment of an employee for not being a member
of the union, even if the employee has paid an initiation fee and
ongoing dues.
• NO REFUSAL TO GRIEVESS The union cannot refuse to pro-
cess a grievance because an employee has criticized union officials
or because an employee is not a member of the union.
The email urged employees to report any harassment, intimidation, or threats
immediately to management or the NLRB’s Houston office. Turley concluded
with his personal opinion that a union was not needed at the Houston plant.
C.
At the conclusion of the election, Turley notified employees that “the collec-
tive bargaining agreement no longer exists at this facility.” Management sent
an email to employees approximately one week after the election, seeking input
regarding changes to the employee leave and accident policies. By September,
Arkema had removed the union’s bulletin boards and ceased collecting union
dues. In about October, the company unilaterally gave a wage increase.
D.
In the wake of the decertification election, on August 19, union group pres-
ident and plant instrumentation and electrical “lead man” Fred Shepherd was
summoned to a meeting with site manager Freeman and plant manager Turley.
Freeman informed Shepherd that the purpose of the meeting was to investigate
three complaints management had received concerning Shepherd: (1) that on
July 26, he was allegedly “throwing things” around the shop; (2) that he had
threatened an employee by stating that the employee was either with him or
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against him; and (3) that on or about July 28, he had told an employee not to
explain something to another employee, because that employee was non-union.
Shepherd denied the first two allegations and offered his version of the
events surrounding the third. Before leaving the meeting, Turley and Freeman
reminded Shepherd of the need for him, as a “lead man,” to refrain from being
confrontational or creating a hostile work environment. Shepherd left without
any disciplinary action’s being taken.
On September 4, Shepherd met with Freeman to discuss Arkema’s recogni-
tion of the union, the union’s use of plant bulletin boards, and the processing of
union grievances. The following day, Shepherd sent Freeman an email to con-
firm their discussion. Later the same day, Freeman approached Shepherd,
handed him an envelope containing a document entitled “Written Confirma-
tion—Alleged Violation of Company Anti-Harassment Policy,” and asked him to
reflect on his responsibilities.
The letter described the three incidents that had been discussed with
Shepherd and stated that Arkema had “completed its investigation into your
alleged inappropriate behavior towards your coworkers.” The letter noted the
discrepancies in Shepherd’s explanation and that the allegations remained
uncorroborated. It warned that if Arkema received verified reports of future
misconduct, it “could lead to further disciplinary action up to and including ter-
mination.” The letter was put into Shepherd’s personnel file.
II.
On August 19, the union filed an objection to the election and its initial
charge of an unfair labor practice; it filed additional charges on August 29. The
cases were consolidated.
The ALJ found that Arkema had violated Section 8(a)(1) of the NLRA by
issuing the July 22 written warning to Saltibus and by sending the July 23
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memo to unit employees. The ALJ further found that those pre-election viola-
tions had the effect of invalidating the decertification election, rendering Arke-
ma’s subsequent de-recognition of the union and unilateral actions likewise in
violation of Section 8(a)(1) and (5). Finally, the ALJ found that Arkema had vio-
lated Section 8(a)(1) and (3) by disciplining Shepherd. The ALJ issued a cease-
and-desist order directing Arkema to discontinue interference with union activi-
ties, to cease Arkema’s unilateral actions, to resume recognition of the union,
and to post remedial notices. The decertification election was to be set aside and
a new election ordered.
Arkema appealed to the NLRB, which affirmed and adopted the ALJ’s rul-
ings, findings, and conclusions of law. The Board modified the ALJ’s order by
requiring that, in addition to physical posting of remedial notices, Arkema must
post such notices electronically.
III.
We consider the factual findings of the NLRB to be “conclusive” if “sup-
ported by substantial evidence on the record considered as a whole.” 29 U.S.C.
§ 160(e); see El Paso Elec. Co. v. NLRB, 681 F.3d 651, 656–57 (5th Cir. 2012).
“Substantial evidence is that which is relevant and sufficient for a reasonable
mind to accept as adequate to support a conclusion. It is more than a mere scin-
tilla, and less than a preponderance.” Id. at 656 (quoting Spellman v. Shalala,
1 F.3d 357, 360 (5th Cir. 1993)). “We may not reweigh the evidence, try the case
de novo, or substitute our judgment for that of the Board, ‘even if the evidence
preponderates against the [Board’s] decision.’” Id. (quoting Brown v. Apfel, 192
F.3d 492, 496 (5th Cir. 1999)). Nor do we displace any reasonable witness-credi-
bility determinations made by the ALJ. See Valmont Indus., Inc. v. NLRB, 244
F.3d 454, 463–64 (5th Cir. 2001). Although we accord Board findings a measure
of deference, our review is “more than a mere rubber stamp of the decision.”
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Asarco, Inc. v. NLRB, 86 F.3d 1401, 1406 (5th Cir. 1996). “Because the [c]ourt
is not left merely to accept the Board’s conclusions, the [c]ourt must be able to
‘conscientiously conclude that the evidence supporting the Board’s determination
is substantial.’”1 We review the Board’s legal conclusions de novo. El Paso Elec.,
681 F.3d at 656.
IV.
The NLRB adopted the ALJ’s finding that by issuing the written reminder
to Saltibus after his confrontation of Russell and by sending the anti-harassment
email to employees, Arkema had violated NLRA Section 8(a)(1), which states
that “[i]t shall be an unfair labor practice for an employer . . . to interfere with,
restrain, or coerce employees in the exercise of rights guaranteed in [NLRA § 7].”
29 U.S.C. § 158(a)(1). Section 7 grants employees “the right to self-organization,
to form, join, or assist labor organizations.” Id. § 157.
A.
An employer violates Section 8(a)(1) if it disciplines an employee because
of his union activity. Valmont, 244 F.3d at 463. We look to the framework
established in NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23 (1964), to deter-
mine whether a Section 8(a)(1) violation occurred in this context. “At all times,
the burden of proving discrimination is that of the [NLRB] General Counsel.”
NLRB v. Plastic Applicators, Inc., 369 F.2d 495, 498 (5th Cir. 1966).
The employer bears the initial burden to show that it had a good-faith
belief that the employee was engaged in misconduct. Burnup & Sims, 379 U.S.
at 23 n.3. The burden then shifts to the General Counsel, who must prove that
the employee was engaged in a protected activity, the employer knew it was pro-
1
Brown & Root, Inc. v. NLRB, 333 F.3d 628, 633 (5th Cir. 2003) (quoting NLRB v.
Mini-Togs, Inc., 980 F.2d 1027, 1032 (5th Cir. 1993)).
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tected, the employer’s actions were based on alleged misconduct occurring in the
course of the protected activity, and the employee was not guilty of misconduct.
Id. at 23.
We must defer to the Board’s factual finding unless it is not supported by
substantial evidence.2 We first address the Board’s finding that Arkema did not
have an honest belief that misconduct had occurred.
The Board credited Salitbus’s account of the incident—that although he
asserted that “the relationship’s going to change” and he would no longer “carry
her load,” his remarks were not directed at Russell’s sex. Based on his state-
ment, the Board determined that Arkema could not have a good-faith belief of
misconduct, because “he did nothing that could conceivably be considered to have
created an offensive working environment.” Arkema, Inc., 357 NLRB No. 103(Oct. 31, 2011). The Board also found that Arkema’s procedures were suspect:
that Arkema rushed the process by preparing the written statement for Saltibus
before meeting with him and including an event from nine months earlier with-
out allowing Saltibus to discuss it.
Even without disturbing the ALJ’s credibility determination, Valmont, 244
F.3d at 463, that Saltibus did not direct his confrontation at Russell’s sex, there
is not substantial evidence that Arkema lacked a good-faith belief that Saltibus
had threatened Russell. Saltibus admitted that he told Russell “if the Union
goes away, there’s no support . . . the relationships going to change” and that he
meant to convey that he would no longer help carry her load or help her with
physical aspects of her job. After a careful review of the record, we conclude that
the only reasonable inference that can be drawn from the evidence is stated
succinctly by the dissenting memberas follows:
In light of the undisputed facts and sequence of events, [Arkema]
2
See Lord & Taylor v. NLRB, 703 F.2d 163, 169 (5th Cir. 1983) (“We cannot say that
a decision which ignores a portion of the record is supported by substantial evidence.”).
8
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plainly possessed an honest, good-faith belief that Saltibus, as Rus-
sell reported, threatened to retaliate against her because of her
exercise of Section 7 rights by withholding assistance that could jeo-
pardize both Russell’s continued employment and her physical
safety within the plant.
Arkema, 357 NLRB, at *8 (Member Hayes, dissenting).
The burden then shifts to the General Counsel to prove that Saltibus was
engaged in protected activity; that Arkema was aware of it; that the alleged mis-
conduct occurred in the course of it; and finally that Saltibus was not guilty of
misconduct. Burnup & Sims, 379 U.S. at 23. Even assuming Arkema had an
honest belief, the Board found that Saltibus did not commit any misconduct,
because the written notice did not expressly mention sex-based harassment, and
Saltibus denied directing his threats at Russell’s sex. The Board further con-
cluded that because the company had failed to allege that Saltibus’s actions vio-
lated another of the specifically mentioned classes in the anti-harassment policy
SSsuch as race, color, or religionSSSaltibus cannot be guilty of misconduct. Once
the General Counsel shows that no misconduct occurred, the violation stands
despite the employer’s good faith. Id.“We have held that ‘flagrant conduct of an employee, even though occur-
ring in the course of [protected] activity, may justify disciplinary action by the
employer.’”3 Even if the incident began as protected activity, Saltibus escalated
the encounter, thus losing the protection of the Act.
Harassment and intimidation are not protected union activities; offensive,
hostile language and threats are not protected even if under the guise of union
activity.4 “In the simplest terms, it is preposterous that employees are incapable
3
Allied Aviation Fueling of Dall. LP, 490 F.3d at 379 (5th Cir. 2007) (quoting Boaz
Spinning Co. v. NLRB, 395 F.2d 512, 514 (5th Cir. 1968)).
4
Adtranz ABB Daimler-Benz Transp., N.A., Inc. v. NLRB, 253 F.3d 19, 26 (D.C. Cir.
(continued...)
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of organizing a union or exercising their other statutory rights under the NLRA
without resort to abusive or threatening language.” Id. “[U]nion supporters are
not at liberty to intimidate or coerce other employees. When employees resort
to that kind of activity, they take a position outside the protection of the statute
and accept the risk of discharge upon grounds aside from the exercise of the legal
rights which the Act protects.” Paramont Min. Corp. v. NLRB, 631 F.2d 346, 348
(4th Cir. 1980).
There is of course some grey area—the actions “must be so flagrant or
egregious as to warrant the removal of the Act’s protection,”5 and “the Act allows
employees to engage in persistent union solicitation even when it annoys or dis-
turbs the employees who are being solicited.” Ryder Truck Rental Inc., 341
NLRB 761, 761 (2004), enforced, 401 F.3d 815 (7th Cir. 2005). The Board has
found some threats of termination protected under the NLRA.6 Those decisions,
however, turned on the Board’s finding that the speaker was not in a position to
enforce the threats but that instead, the employees were merely debating “the
pros and cons of union representation.” Liberty Nursing Homes, 245 NLRB at
1202; see also Tri-County Mfg., 335 NLRB at 219. “[T]he Act does not license
employers to take adverse action against such employees for inconsequential and
trivial forms of misconduct.” Liberty Nursing Homes, 245 NLRB at 1202–03.
4
(...continued)
2001); see also Mobil Exploration & Producing U.S., Inc. v. NLRB, 200 F.3d 230, 238 (5th Cir.
1999) (citing NLRB v. City Disposal Sys. Inc., 465 U.S. 822, 837 (1984)) (“The fact that an
activity is concerted . . . does not mean that an employee can engage in it with impunity. An
employee may engage in concerted activity in such an abusive manner that he loses the protec-
tion of Section 7.”).
5
Tri-County Mfg. & Assembly, Inc., 335 NLRB 210, 219 (2001), enforced, 76 F. App’x 1
(6th Cir. 2003) (quoting Traverse City Osteopathic Hosp., 260 NLRB 1061 (1982), enforced, 711
F.2d 1059 (6th Cir. 1983)).
6
See, e.g., Tri-County Mfg., 335 NLRB at 219; Liberty Nursing Homes, Inc., 245 NLRB
1194, 1202 (1979).
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In Contempora Fabrics, Inc. v. United Food & Commercial Workers Union,
344 NLRB 851 (2005), a union employee, Lambert, had told a female employee
that she “had better not vote no for this union.” Id. at 852. She immediately
reported the incident to management, stating that Lambert’s comment made her
feel “upset and afraid.” Id. The Board found that the employer’s subsequent dis-
cipline of Lambert was lawful, because the comment, as “an implicit warning
that unpleasant consequences would flow from a ‘no’ vote,” lost the Act’s protec-
tion. Id.Similarly, the Fourth Circuit in Paramont, 631 F.2d at 349, drew the line
where the conduct “is intended to threaten or intimidate” rather than merely to
persuade. There, the union employee had reached into another employee’s car
and touched the employee on the head, asking whether he was going to support
the union. After the non-union employee refused to get involved, the union
employee made vulgar remarks, although the extent of his threat was disputed.
Id. at 347. Because the employee’s actions were successfully designed to
intimidate, the court found his activity unprotected, regardless of whether the
employee was “engaged in concerted activity.” Id. at 349–50. The court denied
enforcement of the Section 8(a)(1) violation, holding that the company was justi-
fied in discharging the employee. Id. at 350.
Saltibus’s conduct exceeded persuasion—he sought to threaten and intimi-
date Russell. His own testimony verifies that he intended to communicate to her
that he would withdraw the help on which she depended to do her job. His state-
ment also strongly implied that he was referring to union employees and not
merely his own assistance.
Moreover, Saltibus’s threat was eminently credible. Though he was ada-
mant that he would be careful to withdraw help only in his capacity as operator
and not as step-up chief, that does not change the important fact that he was in
a position to enforce the threat. The undisputed testimony establishes that Rus-
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sell needed assistance from others to perform physical aspects of her job; a
threat to withdraw that assistance, gratuitous or not, would impair her ability
to perform her job and could cause her to lose it.
Saltibus’s threats do not fall under the protection of the Act and are sub-
ject to employer-discipline. In summary, there is not substantial evidence to
support the Board’s finding that Arekma violated Section 8(a)(1).
B.
The Board found that Arkema violated Section 8(a)(1) when Turley sent
the email about the company’s harassment policies to plant employees. Whether
an employer’s warning to employees violates Section 8(a)(1) is governed by
Lutheran Heritage Village-Livonia, 343 NLRB 646, 647 (2004). See River’s Bend
Health & Rehab. Serv., 350 NLRB 184, 186–87 (2007). First, we determine
whether the employer’s warning explicitly restricts protected union activities.
Id. at 186. If there is no explicit restriction, “the violation is dependent upon a
showing of one of the following: (1) employees would reasonably construe the lan-
guage to prohibit Section 7 activity; (2) the rule was promulgated in response to
union activity; or (3) the rule has been applied to restrict the exercise of Sec-
tion 7 rights.” Id. It is undisputed that the email did not explicitly restrict pro-
tected conduct, so the relevant inquiry is whether it falls within one of the three
enumerated Lutheran Heritage factual situations.
The Board relied primarily on the first prong to say that the email violated
the NLRA, finding that employees would reasonably construe the language to
prohibit protected activity. It must be reasonable for employees to interpret the
email to prohibit Section 7 activities, however; it is not enough that it merely
could possibly be read that way. Lutheran Heritage, 343 NLRB at 647. The
Board determined it would be reasonable to construe the email as prohibiting
“persistent union solicitation” because it banned “any” harassment; it invited
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complaints if employees felt harassed; and it was disseminated in what the
Board found was a context of unfair labor practices.
The text of the email however, cannot be reasonably read to prohibit pro-
tected union activity. First, we have already addressed that it was not sent in
the context of unfair labor practices. Nor does the request that employees should
alert management if they “feel” harassed transform a policy into prohibiting
Section 7 activity; it is unclear what kind of objective requirement the Board
would prefer for an employee to voice his concern.
Finally, despite the Board’s fixation with the word “any,” the prohibition
of harassment “in any way” cannot be reasonably interpreted to include pro-
tected activity. Unions do not have broad protection to commit harassment—
intimidation and coercion are not protected activities. Paramont, 631 F.2d at
348. This case is distinguishable from situations in which the warnings prohib-
ited behavior more benign than harassment, such as encouraging employees to
sign union cards.7 As the board noted in Lutheran Heritage, 343 NLRB at 648,
“[w]e see no justification for concluding that employees will interpret the rule
unreasonably to prohibit conduct that does not rise to the level of harassment,
or to presume that [Arkema] will unreasonably apply it in that manner.” In fact,
the Board has held, where there is evidence of actual harassment, “that an
employer may lawfully assure employees that it will not allow them to be threat-
ened by anyone and that it may ask them to report such threats.” River Bend,
350 NLRB at 186.
Neither does the second prong of Lutheran Heritage offer an alternative
7
See, e.g., W.F. Hall Printing Co., 250 NLRB 803, 804 (1980). In addition, Turley’s per-
sonal opinionSSthat a union was not necessary—is not sufficient to transform the communica-
tion into an NLRA violation. Turley “did not indicate that [Arkema] would refuse to deal with
the Union or that it would refuse to give employees more than they received without union
representation.” Park N Fly, Inc., 349 NLRB 132, 134 (2007).
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path to find the email in violation.8 The Board concluded that the email was in
response to union activity, because it referenced union activity and was sent
before the election. The policy however, applied to all employees, even if harass-
ment by union employees was expressly included: “You have the right to not be
harassed, intimidated, or threatened in any way—physically or verbally—by
anyone, including the union.” The warning went so far as to let employees know
they could contact the NLRB if they felt harassed—presumably by anti-union
employees—and included an NLRB pamphlet describing employee rights. Unlike
the situation in Ryder Truck, the memo did not focus on reporting only those
employees advocating for the union.9 Though the email was distributed before
the election, it followed on the heels of Saltibus’s harassment, which we have
already determined is not protected conduct. See River Bend, 350 NLRB at 187.
C.
“Where unfair labor practices that violate section 8(a)(1) of the Act occur
prior to an election, the Board has discretion to set aside the election on the basis
of the employer’s pre-election conduct.” Selkirk Metalbestos, N. Am., Eljer Mfg.,
Inc. v. NLRB, 116 F.3d 782, 787 (5th Cir. 1997). The opposing party bears the
burden to show “facts sufficient to invalidate the election.” NLRB v. Hood Furni-
ture Mfg. Co., 941 F.2d 325, 328 (5th Cir. 1991). “Moreover, an election may be
set aside only if the objectionable activity, when considered as a whole, either
tended to or did influence the outcome of the election.” NLRB v. Claxton Mfg.
Co., 613 F.2d 1364, 1366, clarified, 618 F.2d 396 (5th Cir. 1980).
8
Reliance on the third prong is also futile; the General Counsel attempts to rest on an
incident that occurred before the warning’s existence to show it was applied differently to anti-
union employees.
9
See Ryder Truck, 341 NLRB at 761; see also E. Maine Med. Ctr., 277 NLRB 1374, 1375
(1985) (finding a Section 8(a)(1) violation where an employer told employees to let manage-
ment know if anyone pressures them into signing a union card).
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To determine that the election should be set aside, the Board relied on its
finding of Section 8(a)(1) violations in the Turley email and the Saltibus notice.
Similarly to this court’s finding in Selkirk, 116 F.3d at 787, the “reliance on
these instances as support for ordering a new election was unreasonable because
they did not constitute unfair labor practices in violation of section 8(a)(1) of the
Act.” Instead, we recognize the “strong presumption that ballots cast under spe-
cific NLRB procedural safeguards reflect the true desires of the employees,”
Hood Furniture, 941 F.2d at 328, and we deny enforcement of the order setting
aside the election and requiring a new one.10 See Selkirk, 116 F.3d at 787.
V.
The Board held that Arkema violated Sections 8(a)(1) and (5) by withdraw-
ing recognition of the union, making unilateral changes to employment terms,
and engaging in direct dealing with employees before the decertification results
had been certified. Section 8(a)(5) makes it an unfair labor practice for an
employer “to refuse to bargain collectively with the representativ[e] of [its]
employees,” 29 U.S.C. § 158(a)(5); it is violated if a company disregards the bar-
gaining representative by acting unilaterally or dealing directly with employees,
10
The General Counsel argues that the decision to set aside the decertification election
is not a final order and thus is not reviewable. The Board suggests that we could review that
order only if the union wins the rerun and Arkema then refuses to bargain. We acknowledge
that our review of NLRB decisions is limited and that Board orders of certification for repre-
sentation elections are generally not directly reviewable. Boire v. Greyhound Corp., 376 U.S.
473, 476 (1964). “Such decisions, rather, are normally reviewable only where the dispute con-
cerning the correctness of the certification eventuates in a finding by the Board that an unfair
labor practice has been committed as, for example, where an employer refuses to bargain with
a certified representative on the ground that the election was held in an inappropriate bar-
gaining unit.” Id. at 477. We review the Board’s determination here, where the dispute over
the election has resulted in a finding by the NLRB that unfair labor practices have been com-
mitted, and Arkema refuses to bargain with the Union relying on the results of the election.
See Selkirk, 116 F.3d 782 (denying the enforcement of the Board’s decision to set aside the
decertification election after holding that the Board erred in finding Section 8(a)(1) violations).
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see El Paso Elec., 681 F.3d at 657. “Section 8(a)(1) violations are derivative of
violations of § 8(a)(5). A violation of § 8(a)(1) occurs when an employer takes
adverse action against specific employees in connection with terms and condi-
tions of their employment that are subject to collective bargaining.” Id. (citing
29 U.S.C. § 158(a)(1), (5)). The ALJ, relying on W.A. Krueger, 299 NLRB 914(1990), found that even if Section 8(a)(1) was not violated before the election,
Arkema nonetheless violated Section 8(a)(5) by proceeding, before the election
results were certified, as though no union existed at its Houston facility.
We review the Board’s conclusions of law de novo. Strand Theatre of
Shreveport Corp. v. NLRB, 493 F.3d 515, 518 (5th Cir. 2007). An employer does
not automatically violate the NLRA, but merely proceeds at its own risk, when
engaging in unilateral activities before a decertification election’s results are for-
mally validated. Dow Chem. Co. v. NLRB, 660 F.2d 637, 654 (Former 5th Cir.
Nov. 1981).11 Because we find no grounds for invalidating the decertification
election, Arkema’s reliance on the election results before their formal validation
did not violate Section 8(a)(5).12
VI.
The Board found that Arkema’s discipline of Shepherd violated Section
11
The General Counsel urges that Dow Chemical is no longer good law, because it was
decided when the standard for withdrawal of recognition was “good faith grounds for doubting
the union’s continued majority status.” Dow Chem., 660 F.2d at 657. The current standard
requires “a showing that the union has, in fact, lost the support of the majority of the employ-
ees in the bargaining unit.” Levitz Furniture Co. of the Pac., Inc., 333 NLRB 717, 725 (2001).
This change in standard however, does not suggest that this court’s rule, allowing companies
to rely on decertification elections at their own risk before certification, is no longer proper.
A valid election would demonstrate an actual loss of majority support. We remain bound by
this circuit’s precedent.
12
This circuit’s rule, as laid out in Dow Chemical, 660 F.2d at 654, is contrary to the
precedent relied on by the Board in W.A. Krueger and Presbyterian Hospital, 241 NLRB 996,
998 (1979), that an employer violates Section 8(a)(5) if it withdraws recognition after a decerti-
fication election but before the results are certified.
16
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8(a)(1) and (3). Section 8(a)(3) prohibits discriminating in regard to the terms
of an employee’s hiring, tenure, or terms of employment on the basis of his mem-
bership in a union. 29 U.S.C. § 158(a)(3). Section “8(a)(3) allegations that turn
on employer motivation are analyzed under Wright Line.”13 To prove Section
8(a)(1) and (3) violations under Wright Line, the General Counsel must show, by
a preponderance of the evidence, that the employee was engaging in protected
activity, that the employer had knowledge of the activity,14 that adverse action
was taken against the employee, and that the activity was a motivating factor
in the decision to discipline the employee. United Rentals, 350 NLRB at 951;
Bridgestone Firestone S.C., 350 NLRB 526, 529 (2007). If the General Counsel
can make such a showing, the burden shifts to the employer to demonstrate that
the action would have taken place regardless of any animus. Bridgestone Fire-
stone S.C., 350 NLRB at 529.
A.
The parties contest the threshold matter of whether the August 19 meet-
ing and September 5 letter were adverse employment actions. We do not disturb
the Board’s finding that the September 5 letter was a disciplinary action. There
is substantial evidence to support that finding, given that warnings are consid-
ered part of the disciplinary process if they “lay ‘a foundation for future disciplin-
ary action.’” Promedica Health Sys., Inc., 343 NLRB 1351, 1351 (2004) (quoting
Trover Clinic, 280 NLRB 6, 16 (1986)). The letter was placed into Shepherd’s
personnel file and explicitly stated that verified future reports could lead to
13
United Rentals, Inc., 350 NLRB 951, 951 (2007) (citing Wright Line, 251 NLRB 1083(1980)), enforced on other grounds, 662 F.2d 899 (1st Cir. 1981), approved in NLRB v. Transp.
Mgmt. Corp., 462 U.S. 393 (1983).
14
It is undisputed that Shepherd was involved in protected union activity and that
Arkema was aware of his role.
17
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“further” disciplinary action. We do not need to consider whether the August 19
meeting with Shepherd was a disciplinary action.
B.
The fact that Arkema disciplined a union official is not the end of the
inquiry. Under Wright Line, 251 NLRB at 1089, for an adverse employment
action to violate the Act, the General Counsel is required to show, by a prepon-
derance of the evidence, that anti-union animus was a motivating factor in the
discipline. Requiring the General Counsel to carry the burden is important to
avoid “immuniz[ing] union activists against legitimate discipline for genuine
offenses, and [depriving] employers of the freedom to apply their own rules uni-
formly to all their employees.” Wright Line, 662 F.2d at 902. As we now explain,
there was not substantial evidence to support a finding either that Arkema dem-
onstrated anti-union animus or that such animus was the motivating factor in
providing Shepherd a written confirmation of the meeting.
1.
The ALJ found that Arkema’s animus toward the union was established
by the unfair labor practices—the Saltibus incident, the Turley email, and the
de-recognition of the union before the election was certified. Next, the ALJ
found that Arkema’s actions against Shepherd were motivated by its anti-union
bias “[b]ecause of the timing of the discipline, as well as the totality of circum-
stances surrounding [Arkema’s] discipline of Shepherd.” Concluding that the
burden had been met, the ALJ found that Arkema had failed to prove that it
would have taken the same action regardless of Shepherd’s role with the union.
Specifically, the ALJ found it curious that, although, after its August 19 meeting
with Shepherd, management concluded no discipline was warranted, it nonethe-
less issued the September 5 disciplinary letter despite the fact that no further
18
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No. 11-60877
investigation had been conducted. Considering all of this, the ALJ arrived at the
“obvious conclusion . . . that the letter was a response to Shepherd’s attempts to
continue to represent the Union in the face of [Arkema’s] eagerness to be done
with the Union at the Houston plant.”
2.
To establish animus, the ALJ primarily relied on the other findings of vio-
lation and the timing of the action against Shepherd. The Saltibus incident, the
Turley email, and Arkema’s rejection of the union after the election cannot
establish animus, however, because they were not violations of the NLRA; nor
is a general animus sufficient—the General Counsel must prove that animus
was a motivating factor in the decision to provide Shepherd with a “written
reminder.” Substantial evidence to support a finding of animus-motivated disci-
pline would have to rest solely on the timing of events: that management met
with and issued a written confirmation to Shepherd in the midst of his campaign
to overturn the decertification election and that the letter was issued roughly
two weeks after the meeting.
Circumstantial evidence may be sufficient for a prima facie showing of
animus-based motivation. Valmont, 244 F.3d at 465. Timing, among other fac-
tors, can provide evidence of a relationship between the adverse employment
action and union activity. Tellepsen Pipeline Servs. Co. v. NLRB, 320 F.3d 554,
565 (5th Cir. 2003). Other factors considered when assessing motive include
the presence of other unfair labor practices, the failure to investi-
gate the conduct alleged as the basis for discipline, disparate treat-
ment of the disciplined employee or discipline that deviates from the
employer’s past disciplinary practice, the implausibility of the
employer’s explanation of its action, inconsistencies between the
employer’s proffered reason for the discipline and other actions of
that employer, and the seriousness of the alleged violation.
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Id. (citing Valmont, 244 F.3d at 456). “Mere suspicions of unlawful motivation
are insufficient to establish violations of the NLRA.” Asarco, 86 F.3d at 1408(internal quotations omitted).
First, a two-week gap between the employee meeting and the issuance of
the confirmation letter, though perhaps evidence of corporate disorganization,
is not substantial evidence of animus-based discipline. Delayed action can be
suspect if the employer knew of the purported rationale for a substantial amount
of time and then acted only “on the heels of heavy union activity.”15 Two weeks
is hardly comparable to the decade-long delay in Healthcare Employees, 463 F.3d
at 921, especially considering that the Houston plant was closed twice between
the August 19 meeting and the delivery of the September 5 letter.
We are left to determine whether a note in the personnel file, coinciding
with the employee’s efforts to overturn the decertification, is substantial evi-
dence to support a finding that, by a preponderance of the evidence, Arkema was
motivated by anti-union animus in its discipline of Shepherd. The General
Counsel relies on Healthcare Employees, in which the timing of the employer’s
decision to outsource a department two weeks before the representation election
was found to be a “stunningly obvious” “inference of anti-union animus.” See
Healthcare Employees, 463 F.3d at 920 (quoting NLRB v. Rubin, 424 F.2d 748,
750 (2d Cir. 1970)). There the Ninth Circuit noted that “[c]ourts have consis-
tently treated an employer’s adverse employment action occurring between the
filing of a petition for a representation election with the Board and the ensuing
election as raising a powerful inference of anti-union animus.” Id.Significantly, the outsourcing in Healthcare Employees disenfranchised
25% of the employees eligible to voteSSan overwhelming majority of whom were
pro-union. Id. The timing in the instant case was not so suspect—the meeting
15
See Reno Hilton Resorts v. NLRB, 196 F.3d 1275, 1283 (D.C. Cir. 1999); see also
Healthcare Employees Union v. NLRB, 463 F.3d 909, 921 (9th Cir. 2006).
20
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and resulting confirmation letter did not come about between the filing of the
decertification petition and the election, nor could they have affected the result
of the election.16
The General Counsel also cites NLRB v. McClain of Ga., Inc., 138 F.3d
1418 (11th Cir. 1998). Similarly to Healthcare Employees, the company in
McClain laid off nineteen of fifty employees nine days after a petition for certifi-
cation was filed. Id. at 1423. In addition to suspect timing, the CEO had been
overheard making hostile statements toward the union immediately before the
layoffs: “I’m getting rid of the people in the shop. I’m going to show them who
is boss around here. I’m going to show them who they’re [f------ with].” Id.Arkema does not come close to expressing the kind of anti-union hostility
demonstrated in McClain. Again, the issuance of Shepherd’s letter after the
election, without more, does not rise to the same level as a mass layoff before an
election.
This is not to say that timing cannot be sufficient evidence if it is not dur-
ing the “critical period” before an election. In a case relied on by the ALJ, the
court in W.F. Bolin Co. v. NLRB, 70 F.3d 863 (6th Cir. 1995), reviewed the situa-
tion of a subcontractor who hired union painters for a project, laid off the two
painters who had been complaining about violations of their bargained-for
rights, and then claimed the job no longer needed as many painters. The court
found substantial evidence of animus-motivated layoffs, considering that the
company “expressed hostility towards the painters’ complaints regarding its
compliance with the [collective bargaining agreement] . . . [the company] had
knowledge of [the laid-off painters’] roles in voicing those complaints[;]” that the
16
Two of the incidents that culminated in the August 19 meeting actually occurred at
the end of July, during the “critical period” between the petition and the election. It is notable
that Arkema waited until after the election, when there were three reported incidents, to
conduct a formal meeting and issue a written confirmation.
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painters “were treated differently from those employees who took a less active
role in complaining,” and that the company’s hiring of another painter two weeks
before the layoffs suggested the given reason of scaled-back needs was mere pre-
text. Id. at 871. After addressing all of those factors, the court noted the prox-
imity in time between the layoffs and the painters’ complaints. Id. at 872.
Though these other courts found other circumstantial evidence of animus-
based action, the Board, the ALJ, and the General Counsel fail to suggest, nor
can we find, any further circumstantial evidence of anti-union animus motivat-
ing Arkema’s discipline of Shepherd. The record does not demonstrate, for
example, that Arkema failed to investigate the claims, that its explanation was
implausible, or that its treatment of Shepherd was inconsistent. See Tellepsen,
320 F.3d at 565. Although the presence of unfair labor practices can be a factor,
id., we have already rejected the Board’s other findings of violations.
The timing aloneSSof the investigation’s and issued letter’s coinciding with
Shepherd’s union activitiesSSis not substantial evidence that Arkema was moti-
vated by anti-union animus. It would swallow the burden and the entire pur-
pose of the Wright Line analysis, 662 F.2d at 902, if a meeting and disciplinary
letter, without any further evidence of anti-union animus, could never occur
simultaneously with union activity.
The application for enforcement is DENIED.17
17
Because we deny enforcement of the Board’s findings of violations, we do not need
to address the modified remedial order involving electronic postings.
22