Frazier Indus. Co. v. Nat'l Labor Bd., 99-1297

• Decision Date: 09 June 2000
• Docket Number: No. 99-1297,99-1297
• Citation: 213 F.3d 750,341 U.S.App. D.C. 393
• Parties: (D.C. Cir. 2000) Frazier Industrial Company, Inc., Petitioner v. National Labor Relations Board, Respondent
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 750

213 F.3d 750 (D.C. Cir. 2000)

Frazier Industrial Company, Inc., Petitioner v. National Labor Relations Board, Respondent

No. 99-1297

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 11, 2000

Decided June 9, 2000

[Copyrighted Material Omitted]

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board

Robert Leinwand argued the cause for petitioner. With him on the briefs were Michael Hoffman and Robert G. Hulteng.

Anne Marie Lofaso, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were Leonard R. Page, General Counsel, Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and David S. Habenstreit, Supervisory Attorney.

Before: Edwards, Chief Judge, Henderson and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Dissenting opinion filed by Circuit Judge Henderson.

Rogers, Circuit Judge:

Frazier Industrial Company appeals the National Labor Relations Board's decision that the company violated S 8(a)(1) and (3) of the National Labor Relations Act. See 29 U.S.C. S 158(a)(1), (3) (1994). The company contends that the Board's conclusion that it violated S 8(a)(1) and (3) by discharging John Ramirez for engaging in union activity was unsupported by substantial evidence, and that his reinstatement with backpay was an abuse of discretion and inconsistent with the after-acquired evidence rule.We deny the petition and remand the case for enforcement of the Board's order.

I.

Frazier Industrial Company manufactures steel storage systems for warehouses. The company has manufacturing facilities at locations throughout the United States, and the instant case involves its plant in Pocatello, Idaho, which began operating in March 1996. During the plant's startup phase, Dennis Haga, the plant manager, hired nine welders and nine other employees to perform fabrication, maintenance, painting, and other duties.

One of the welders, John Ramirez, applied for the position at the request of the International Association of Sheet Metal Workers Association, Local 60 ("the union").¹ Ramirez, a member of the union, was asked to assist in organizing the company's work force. Ramirez started working for the company on March 7, 1996. Beginning in April, he solicited employees to attend organizational meetings and to sign union authorization cards. According to Ramirez, he spoke with more than half of the plant's work force about the union, and spoke with at least one person about unionization daily or every other day before his discharge. We review his activities in light of the company's contention that Ramirez was harassing employees and, thus, his activities were not protected by the Act, and that even if Ramirez's conduct were protected, the company would have terminated Ramirez even in the absence of protected conduct.

In late May 1996, Ramirez approached Mike Jennings, another welder, and asked him to sign an authorization card while on break. Jennings did not sign the card but told Ramirez that he would take the card home and discuss it with his wife. Ramirez followed up with Jennings several times during May 1996. Jennings never brought the card back to Ramirez, nor did he tell Ramirez that he was uninterested in joining a union. Jennings did speak with Clint Moosman, a supervisor, and asked him whether he "was aware of what was going on" in regard to Ramirez's attempts to interest Jennings in the union. Moosman told Jennings that "Ramirez could solicit ... before work, during breaks, and after work, but not on company time." At around the same time, an employee remarked to a group of other employees in the plant lunchroom during a break that they should start a union. Moosman overheard the remark, and angrily told the employees, "Well if I hear of anyone going union ... they'll be down the road."

Marty Hrabik, another supervisor, received two complaints from employees about Ramirez's union activities in May and June of 1996. Hrabik and Moosman met with Haga, the plant manager, in early June 1996. Haga told them to warn their employees "that they could do whatever they wanted to on their own time, but on company time they need not [ ] talk about the union or bother[ ] anybody about it." Following that meeting, Moos-man spoke with the welders at their work stations and explained that there had been complaints about some employees "harassing" others to join a union. Moos-man warned each welder, including Ramirez, that what they did on their own time was their business, but that they could not "harass" employees about the union during "company time."² Moos-man then delivered the same message to a group of employees, also including Ramirez, in the lunchroom during a break. During the meeting, Moos-man told the employees that "he wanted to know about it if some one was talking to [them] about the union on company time."

In early June 1996, the union sponsored several meetings. The day after one meeting, Moos-man remarked to Robert Rodriguez, an employee who had attended the meeting, that he had heard a rumor about a "little bitch session" where employees talked about "stuff" that they did not like about the shop. Moosman told Rodriguez that he "was disappointed" in him. Rodriguez told Moosman that he and others had discussed whether or not they wanted to continue working at the shop with Haga, Hrabik, and Moosman being "the way they were." Following that remark, Moosman took out his knife, opened it, handed it to Rodriguez handle first and said, "[W]ell don't cut your own throat." Later that day, Moosman asked Rodriguez for the names of the employees who were at the union meeting. When Rodriguez did not disclose the names other than his own, Moosman told him, "If you continue to cut your own throat I'm not going to be able to do anything for you."

Hrabik discussed the union with some employees as well. Employee Allen Wilcox had promised Hrabik that he would come to Hrabik's house one evening to help build a fence, but Wilcox missed his appointment for personal reasons and to attend a union meeting. The next day, Hrabik asked Wilcox how the meeting was. When Wilcox asked if Hrabik referred to his personal meeting, Hrabik replied, "[N]o you know what meeting." Hrabik had another discussion about unionizing when Wilcox was at his house with Rodriguez to work on the fence as he had promised. While working, Hrabik was asked what he thought about the union organizing, and Hrabik told them that the company did not "have any stock here in Pocatello" and that "Frazier isn't going to allow this, the union to spread to the other companies, they'll just close this plant up and they'll move on." Hrabik added that if his job were threatened he would "start cutting throats," and that if he were fired, they were "going down" with him. Shortly afterwards, Hrabik asked Wilcox why certain employees wanted a union, and upon hearing that perhaps employees wanted better pay or better benefits, Hrabik said that before the company "went union they would either hire non-union or shut the plant down."

Also in June 1996, employees Todd Chandler and James Frasure complained to Hrabik that Ramirez was "harassing" them about attending union meetings. Ramirez spoke to Chandler five or six times over several days about an upcoming union meeting, and Chandler neither expressed an interest in attending a union nor told Ramirez that he was not interested. Similarly, Frasure was approached several times by Ramirez, including four or five approaches on company time on one particular day, each time to urge Frasure to attend a union meeting. Ramirez's remarks to Frasure were brief and on each occasion Frasure said that he would think about it, never telling Ramirez that he was uninterested.However, when Frasure talked to Hrabik about Ramirez, he said that Ramirez's persistence about the union meetings was "really pissing [him] off." Hrabik told Moosman about these conversations, and both met with Haga, who said that "harassing" employees on company time "had to stop." Later that day, Moosman told the employees, including Ramirez, that "there had been complaints about people being harassed on company time that needed to stop."

Around the same time, Ramirez followed up on his earlier discussions with Jennings about unionizing and invited him to meet with a union organizer. Jennings responded that he would think about it. Later that day, Ramirez talked to Jennings, who at the time was working with employee Tom Neilsen³. Ramirez testified that this conversation lasted about twenty minutes, while Jennings stated that they spoke for about forty-five minutes. Several days later, Ramirez, after the end of his workday, saw Jennings reporting for work and spoke with Jennings for about ninety seconds in an effort to persuade Jennings to meet with a union organizer. Jennings agreed to make an appointment, and then Ramirez, noticing that Haga was watching them, ended the conversation. After Ramirez left, Haga asked Jennings if Ramirez was bothering him, and Jennings replied that "[Ramirez] was bothering [him] about the damn union stuff and won't leave [him] alone." Later that day, Haga asked Moosman to tell Ramirez to report to Haga's office the next morning.

When Ramirez met with Haga in his office the next day, Haga asked Ramirez, "[W]hat am I going to do with you, John?" Haga told him that people were complaining about him "bothering them all the time" and that it was "affecting ... productivity." Ramirez denied that he was bothering anyone. When Haga repeated, "[W]hat am I going to do with you," Ramirez replied, "[W]ell you're the plant manager you do whatever you have to do." Haga, who testified that Ramirez had "a really bad attitude about it," offered him the opportunity to quit, but Ramirez refused and Haga discharged him. Later that morning, Hrabik...