Pessoa Construction Co. v. National Labor Relations Board

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1688
PESSOA CONSTRUCTION COMPANY,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
No. 11-1776
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
PESSOA CONSTRUCTION COMPANY,
Respondent.
On Petition for Review and Cross-application for Enforcement of
an Order of the National Labor Relations Board. (5-CA-34547; 5-
CA-34761; 5-CA-35083)
Argued: December 4, 2012 Decided: January 25, 2013
Before TRAXLER, Chief Judge, and WILKINSON and DUNCAN, Circuit
Judges.
Petition for review denied; cross-application for enforcement
granted by unpublished per curiam opinion.
ARGUED: Michael E. Avakian, Washington, D.C., for Pessoa
Construction Company. David A. Seid, NATIONAL LABOR RELATIONS
BOARD, Washington, D.C., for the Board. ON BRIEF: Lafe E.
Solomon, Acting General Counsel, Celeste J. Mattina, Deputy
General Counsel, John H. Ferguson, Associate General Counsel,
Linda Dreeben, Deputy Associate General Counsel, Ruth E.
Burdick, Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for the Board.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Petitioner Pessoa Construction Company (“Company”)
discharged William Membrino shortly after his participation in a
union meeting. The union filed charges with respondent National
Labor Relations Board (“NLRB”) challenging, inter alia, the
Company’s alleged surveillance of Membrino’s union activities,
its unilateral modification of the terms of Membrino’s
employment, and its decision to terminate Membrino. An
administrative law judge found that the Company’s actions
violated the National Labor Relations Act (“NLRA”), 29 U.S.C. §§
151-169, and subsequently ordered Membrino reinstated with back
pay. A three-member panel of the NLRB affirmed the ALJ’s
decision in all aspects relevant to this appeal. Because
substantial evidence supports the NLRB’s decision, we deny the
Company’s petition for review and grant the Board’s cross-
petition for enforcement.
I.
Pessoa Construction Company is a highway construction
contractor based in Fairmont Heights, Maryland, with multiple
job sites throughout the region. In early 2008, the Laborers’
International Union of North America began efforts to organize
the Company’s employees, and the union was certified that
summer. At a union meeting on September 30, 2008, employee
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William Membrino asked whether the Company was obligated to pay
him and other employees more for travel time to and from job
sites. He also asked whether the Company’s owner, Julio Pessoa,
was correct when he stated that the Company could not provide
Membrino with a raise because of the union. The following day,
Pessoa asked Michael Moltz, another Company employee who
participated in the meeting, whether Membrino was in attendance.
Moltz indicated that Membrino was in fact present.
Two weeks after the union meeting, Membrino met with Pessoa
to request an increase in compensation. During the conversation,
Pessoa indicated that he was aware that “somebody” at the union
meeting had raised the issue of compensation for travel time and
stated that the Company could not afford to pay employees for
such time. Four days later, Membrino and another employee,
Nicholas Cappetta, were notified that they would no longer be
able to drive their Company trucks to and from their job sites
because each truck was to remain parked overnight at its
respective site. No other employee received such a notice.
On October 23, 2008, a hydraulic excavator in use on one of
the Company’s job sites collided with Membrino’s dump truck and
caused significant damage. Shortly afterward, Membrino contacted
his foremen and notified them of the accident. One of the
foremen, Keith Reeder, advised Membrino and the excavator driver
that they each needed to complete an accident report detailing
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the circumstances of the collision. Neither of the foremen told
Membrino that he needed to speak directly to Pessoa regarding
the accident. Membrino drafted a statement describing what
happened and drew a diagram to complement his written account.
Reeder faxed the statement to the Company’s offices several
hours later.
Membrino returned to the yard at the end of the workday and
followed up with the Company dispatcher, Juan Infante, regarding
whether a drug test was necessary in light of the accident. The
dispatcher advised Membrino that he did not need to complete a
drug screening, and Membrino subsequently left work for the day.
Later that evening, Membrino’s supervisor called to tell
Membrino that he had been terminated. Membrino followed up by
contacting Pessoa directly. When pressed for a reason for the
termination, Pessoa stated that Membrino’s “head is not on [sic]
the company no more,” as evidenced by the fact that Membrino
first allowed the accident to occur and then failed to
personally report it to Pessoa. J.A. 22.
Based on the foregoing facts, the union filed multiple
unfair labor practice charges with the NLRB. The NLRB General
Counsel (“General Counsel”) then issued a complaint alleging,
inter alia, that (1) the Company violated 29 U.S.C. § 158(a)(1)
by creating the impression that Membrino’s union activities were
under surveillance; (2) the Company violated 29 U.S.C. §
5158(a)(1) and (a)(3) by responding to Membrino’s union
participation by preventing him from driving his company vehicle
to work and eventually terminating him; and (3) the Company
violated 29 U.S.C. § 158(a)(1) and (a)(5) by modifying its
vehicle-use policy without bargaining with the union beforehand.
Following a hearing, an administrative law judge found that
the Company had engaged in the alleged unfair labor practices.
With respect to the surveillance claim, the ALJ concluded that
the Company violated 29 U.S.C. § 158(a)(1) when Julio Pessoa
created “an impression of surveillance” by indicating that the
Company was “closely monitoring the extent of an employee’s
union involvement.” J.A. 17-18. The ALJ further found that,
based on Pessoa’s statements, the timing of the adverse
employment actions, and comparator evidence, the Company
discriminated against Membrino’s union activities in violation
of 29 U.S.C. § 158(a)(1) and (a)(3) by changing his working
conditions and subsequently terminating him. Finally, the ALJ
concluded that the Company’s unilateral change to its vehicle-
use policy was unlawful because, when employees are represented
by a union, 29 U.S.C. § 158(a)(5) requires an employer to
bargain with the union before changing employment terms, and the
Company failed to undertake such bargaining here.
The ALJ ordered the Company to reinstate Membrino with back
pay, make both Membrino and Cappetta whole for any losses that
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resulted from the unilateral change to their employment terms,
and post a notice of union members’ rights on Company job sites.
A three-member panel of the NLRB reviewed the ALJ’s ruling and
affirmed on all issues relevant to this appeal. The Company now
petitions for review of the NLRB order, and the Board cross-
petitions for enforcement of that order.
II.
The NLRB determined that the Company committed multiple
violations of the NLRA, and the decision below is entitled to
deference in this court. The NLRB’s factual findings and
application of law to facts are binding “if they are supported
by substantial evidence on the record as a whole.” WXGI, Inc. v.
NLRB, 243 F.3d 833, 840 (4th Cir. 2001) (citing 29 U.S.C. §
160(e), (f); Sam’s Club v. NLRB, 173 F.3d 233, 239 (4th Cir.
1999)). This court may not “displace the Board’s choice between
two fairly conflicting views, even though the court would
justifiably have made a different choice had the matter been
before it de novo.” Universal Camera Corp. v. NLRB, 340 U.S.
474, 488 (1951). And, although we review legal conclusions de
novo, we must defer to the NLRB’s interpretation of the NLRA “if
it is reasonably defensible.” Indus. TurnAround Corp. v. NLRB,
115 F.3d 248, 251 (4th Cir. 1997). For the reasons that follow,
we conclude that the NLRB’s order must be enforced.
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A.
Pursuant to 29 U.S.C. § 158(a)(1), an employer may not
“interfere with, restrain, or coerce employees in the exercise
of” their union rights. In determining whether an employer has
violated this provision, we look to “whether, under all of the
circumstances, the employer’s conduct may reasonably tend to
coerce or intimidate employees.” NLRB v. Air Contact Transp.,
Inc., 403 F.3d 206, 212 (4th Cir. 2005) (quoting Medeco Sec.
Locks, Inc. v. NLRB, 142 F.3d 733, 745 (4th Cir. 1998) (internal
quotation marks omitted)). Substantial evidence supports the
NLRB’s determination that the Company -- acting through owner
Julio Pessoa -- engaged in such conduct.
While meeting with Membrino, Pessoa indicated that he knew
both that Membrino was involved in the union meeting two weeks
earlier and that Membrino had asked about compensation for
travel time at that meeting. It is well settled that a single
conversation can violate § 158(a)(1) if the employer’s statement
contains “sufficiently specific information to convey the
impression that the employer or its agents has conducted union
surveillance.” NLRB v. Grand Canyon Mining Co., 116 F.3d 1039,
1046 (4th Cir. 1997). Here, Pessoa’s statement suggested that
the Company was tracking not only which of its employees
participated in union meetings but also what opinions
participants expressed in those meetings. Under our standard of
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review, the statement is sufficient to support the NLRB’s
finding that the Company violated 29 U.S.C. § 158(a)(1) by
creating an impression of union surveillance.
B.
The record also substantiates the NLRB’s conclusion that
the Company acted unlawfully when it (1) implemented a new
policy preventing Membrino from driving a company vehicle to his
jobsite and (2) discharged Membrino. Pursuant to 29 U.S.C.
§ 158(a)(3), an employer is prohibited from engaging in
“discrimination in regard to hire or tenure of employment or any
term or condition of employment to encourage or discourage
membership in any labor organization.” In Wright Line, 251
N.L.R.B. 1083 (1980), the NLRB established a two-step framework
for analyzing cases in which an employee alleges discrimination
and an employer responds by citing legitimate business purposes
for the challenged decision. TNT Logistics of N. Am., Inc. v.
NLRB, 413 F.3d 402, 406 (4th Cir. 2005). To begin, “the NLRB
General Counsel must prove by a preponderance of the evidence
that anti-union animus was a substantial or motivating factor in
the discharge” or other adverse employment action. Dorsey
Trailers, Inc. v. NLRB, 233 F.3d 831, 839 (4th Cir. 2000). After
the General Counsel establishes its prima facie case, the burden
shifts to the employer to prove “that the discharge would have
occurred even in the absence of the protected activity.” USF Red
9
Star, Inc. v. NLRB, 230 F.3d 102, 106 (4th Cir. 2000). If “the
employer’s stated lawful reasons are non-existent or pretextual,
the defense fails.” Id. Here, the NLRB properly engaged in the
Wright Line analysis, and substantial evidence supports its
conclusion that the challenged adverse employment actions were
motivated by anti-union animus rather than by legitimate
business justifications.
1.
The Company failed to rebut the General Counsel’s prima
facie case that the Company limited Membrino’s use of Company
vehicles because of his union activities. To establish a prima
facie case, the General Counsel must, as it did here, establish
“(1) the existence of protected activity; (2) employer knowledge
of that activity; (3) adverse employment action suffered by
alleged discriminatees; and (4) a link, or nexus, between the
employees’ protected activity and the adverse employment
action.” Wal-Mart Stores, Inc., 352 N.L.R.B. No. 103, at *5
(2008). Membrino’s attendance and participation at the September
30, 2008, union meeting constitutes protected activity, see
Local 100 of United Ass’n of Journeymen & Apprentices v. Borden,
373 U.S. 690, 695 (1963), and there is no dispute that Pessoa
was aware of the activity. The change to the vehicle-use policy
was an adverse employment action because it required Membrino to
secure his own transportation to and from his job site, which
10
was 35-40 miles from his home. And, finally, “the timing of the
change, Pessoa’s comments to Membrino . . ., and the unexplained
failure to make the same change in the working conditions of
other drivers” were sufficient to establish a nexus between
Membrino’s protected union activity and the change in policy.
J.A. 19.
The Company argues that the rising cost of fuel and
changing project requirements led to the decision to leave
Company vehicles parked at job sites overnight. However,
substantial evidence supports the NRLB’s determination that the
Company’s justifications were pretextual and that its actions
were thus unlawful. Several other truck drivers were not
required to report for work at their job sites, and the policy
was scrapped in short order even though work at Membrino’s site
-- 35-40 miles from the Company’s main construction yard --
continued well after his termination. This evidence is
sufficient to support the NLRB’s decision to reject the
Company’s claimed justifications for the policy change.
2.
The Company also failed to rebut the General Counsel’s
prima facie case that Membrino was discharged because of his
protected union activities. As discussed above, the Company was
aware of Membrino’s participation in the union meeting. The NLRB
found that the requisite nexus between union participation and
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Membrino’s discharge was demonstrated by Pessoa’s inquiry with
another employee regarding Membrino’s union activities, Pessoa’s
statements to Membrino, and the timing of the discharge relative
to the foregoing two incidents.
The Company argues that it fired Membrino for legitimate,
nondiscriminatory reasons, to wit, because he caused significant
damage to his Company vehicle and because he failed to
personally report the damage to Pessoa. Relying on (1) the
Company’s disparate treatment of Membrino relative to other
employees who accidentally damaged Company equipment and (2) its
termination of Membrino based on a policy which, “assuming it
existed, was never communicated to him,” the NLRB concluded that
the Company’s proffered justifications were pretextual and thus
that Membrino’s discharge was unlawful. J.A. 22.
The record provides adequate justification for the NLRB’s
finding of disparate treatment. Two Company employees, Juan
Carlos Martinez and Purcell Smith, each caused significant
accidental damage to Company equipment in the 2007-2009
timeframe, neither was terminated, and both were required only
to reimburse the Company for the damage in order to maintain
their employment. In the case of Martinez, he “neither wrote an
accident report nor went to see Julio Pessoa the same day,” yet
he was not terminated. J.A. 39.
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The record also substantiates the NLRB’s finding that the
Company did not have a policy requiring those involved in
Company vehicle accidents to personally report to Pessoa. The
Company employee handbook states: “In the case of a vehicular
accident, all information should be reported immediately to your
supervisor and the office.” J.A. 161. There is no mention of
reporting to Pessoa. Moreover, the Company’s general
superintendent testified that there were no additional accident-
reporting procedures beyond the handbook requirement that those
involved report the incident to their supervisor and file a
written report with Pessoa’s office.
Because there is substantial evidence to undermine both of
the Company’s proffered justifications for terminating Membrino
-- that he damaged Company equipment and that he failed to
personally report the damage to Pessoa -- we agree with the
NLRB’s finding that Membrino’s discharge was the result of
unlawful animus against his protected union activities.
C.
Finally, substantial evidence supports the NLRB’s
conclusion that the Company violated 29 U.S.C. § 158(a)(5) when
it unilaterally changed its vehicle-use policy without offering
the union an opportunity to bargain over the modification. The
NLRA imposes a duty on employers to engage in collective
bargaining with organized labor regarding “rates of pay, wages,
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hours of employment, or other conditions of employment.” 29
U.S.C. §§ 158(a)(5), 159(a). “Unilateral action by an employer
without prior discussion with the union does amount to a refusal
to negotiate” and constitutes a violation of § 158(a)(5). NLRB
v. Katz, 369 U.S. 736, 747 (1962).
As an initial matter, the Company argues that the change in
its vehicle-use policy is “outside the scope” of the provision
because it involves a decision about where and how the Company’s
property is stored. Petr’s Br. at 66. However, the NLRB
explicitly found that the change in vehicle-use policy “was a
sufficiently significant change in the terms and conditions of
Membrino and Cappetta’s employment to put the new policy into
the category of a mandatory subject of bargaining.” J.A. 19.
This interpretation of the statutory phrase “other conditions of
employment” is at least “reasonably defensible,” and we
therefore defer to the NLRB’s conclusion that the change falls
within the coverage of § 158(a)(5). See Sure-Tan, Inc. v. NLRB,
467 U.S. 883, 891 (1984); Indus. TurnAround, 115 F.3d at 251.
It is undisputed that the Company never provided the union
with notice of the proposed change, much less an opportunity to
bargain over it. We agree with the NLRB’s determination that the
Company violated 29 U.S.C. § 158(a)(5) when it required Membrino
and Cappetta to report to work at their job sites rather than at
the Company’s construction yard.
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III.
For the foregoing reasons, this court grants enforcement of
the NLRB’s order and denies the Company’s petition for review. *
PETITION FOR REVIEW DENIED;
CROSS-APPLICATION FOR ENFORCEMENT GRANTED
*
The order may need to be modified to reflect the union’s
alleged decertification following the operative facts of this
case. We leave any such modification to the discretion of the
NLRB.
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