Sca Tissue North America LLC v. N.L.R.B.

• Citation: 371 F.3d 983
• Decision Date: 15 June 2004
• Docket Number: No. 03-2912.,No. 03-2508.,03-2508.,03-2912.
• Parties: SCA TISSUE NORTH AMERICA LLC, Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 983

371 F.3d 983

SCA TISSUE NORTH AMERICA LLC, Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.

No. 03-2508.

No. 03-2912.

United States Court of Appeals, Seventh Circuit.

Argued January 20, 2004.

Decided June 15, 2004.

COPYRIGHT MATERIAL OMITTED

Kathy L. Nusslock (argued), Robert J. Simandl, Davis & Kuelthau, Milwaukee, WI, for Petitioner.

Philip E. Bloedorn, Milwaukee, WI, Aileen Armstrong, Usha Dheenan (argued), Office of the General Counsel, Washington, DC, for Respondent.

Before CUDAHY, KANNE, and EVANS, Circuit Judges.

KANNE, Circuit Judge.

SCA Tissue North America LLC fired union supporter Frederick Sandoval on September 24, 2001. The company claimed the termination stemmed from Sandoval's violation of SCA's "Code of Conduct" policy when, on two consecutive mornings, he left work three hours early without management's permission. The National Labor Relations Board ("NLRB" or "Board") disagreed, finding that SCA acted out of anti-union animus in violation of §§ 158(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. §§ 151 et seq. ("NLRA" or "Act"). It ordered Sandoval reinstated and made whole for lost earnings and benefits, required that his employment record be expunged of any reference to the discharge, and directed SCA to post a notice to its employees that it will respect their rights under the Act. SCA petitioned this court for review of the Board's order, and the Board cross-petitioned for enforcement of its decision. Because the Board's determination is supported by substantial evidence, we deny SCA's petition for review and enforce the Board's order.

I. Background

SCA manufactures paper products for commercial use. Sandoval began his employment with SCA in 1995, soon after it opened its Bellemont, Arizona plant.¹ He started as a machine operator and was eventually moved to a maintenance mechanic position in May of 2000, which he held until his termination in September of 2001. As a maintenance mechanic, he repaired machines and performed preventative maintenance on SCA's equipment. His personnel file reflected some performance problems early in his career with SCA, but the last documented occurrence happened in January of 1999, over two-and-a-half years prior to his termination and before he obtained the maintenance mechanic position. None of the prior issues appeared to have resulted in formal discipline, and Sandoval was considered a good employee. At all times relevant here, Dave Stievo, the maintenance manager, was Sandoval's immediate supervisor.

In September of 2000, the Paper, Allied-Industrial, Chemical, and Energy Workers International Union ("PACE" or "union") initiated an organizing drive at SCA's Bellemont location. Sandoval strongly supported unionization and furthered the effort by passing out fliers and union authorization cards to fellow workers, attending organizational meetings, and discussing the merits of unionization with co-workers. Upon receiving notification that the union had enough support to hold a representation election, the company launched a vigorous counter campaign in an attempt to defeat PACE. SCA succeeded. The employees voted against union representation eighty-two to twenty-two in the election held December 1 and 2, 2000.

Sandoval was disappointed by the defeat, but understood that, according to the applicable labor law, another election could be held after one year. In the interim, he continued to vocally support unionization and press his fellow employees not to make the same mistake in the next election.

SCA operates around the clock, seven days a week. Maintenance employees, like Sandoval, typically work twelve-hour shifts, either 6:00 a.m. to 6:00 p.m. ("days") or 6:00 p.m. to 6:00 a.m. ("nights"). Sandoval worked days. In the fall of 2001, the company planned to put a member of the night-shift maintenance crew on a special day-shift assignment for about six weeks. To cover the twenty shifts left vacant by the temporary reassignment, Stievo determined that four day-shift workers, including Sandoval, would take five night shifts apiece. Although Sandoval was supposed to work 6:00 p.m. to 6:00 a.m. when he covered the night shift, he had already registered for a special electrical course promoted by the company. To accommodate his night class, which ran from approximately 6:00 p.m. to 8:45 p.m., Stievo agreed that Sandoval could work 9:00 p.m. to 9:00 a.m.

Sandoval began his first night shift (which started the evening of September 18, 2001 and concluded the morning of September 19, 2001) at 9:00 p.m. after attending class. Around 4:00 a.m., he approached the night supervisor, team leader Laura Bliss, and told her that he was tired, felt "unsafe" to work in that condition,² and asked to go home. Bliss did not give him permission to leave, instead directing him to wait in the lunchroom for Stievo to arrive for work. Sandoval waited, periodically checking for Stievo, but by 6:00 a.m. he had not yet arrived and Bliss had left for the day. A member of the day-shift maintenance crew, Mike Moberly, who reported for work at 6:00 a.m., caught sight of Sandoval. Moberly commented that Sandoval looked tired and told him to go home, since the floor would be covered now that the day shift was starting (this is a paraphrase, as Moberly spoke to Sandoval in far more colorful terms). Considering he had "coverage" and that Stievo still had not arrived, Sandoval clocked out and left. As he was driving out, Stievo drove in. Sandoval waved, and Stievo waved back. Stievo, who didn't recall seeing Sandoval leave, testified that he did not realize Sandoval clocked out early the morning of September 19, 2001 and did not miss him on the floor.

Sandoval reported for his next shift (beginning the evening of September 19 and concluding the morning of September 20) after class at 9:00 p.m. as scheduled. After arriving, he was approached by fellow maintenance employee Dan Harbottle. Although Harbottle usually worked 9:00 a.m. to 9:00 p.m., he informed Sandoval that he would come in at 6:00 a.m. if Sandoval wanted to leave early. Sandoval agreed. He again clocked out at 6:00 a.m. when the day shift reported and before Stievo arrived. He did not seek Bliss's or any other supervisor's permission to leave. As Sandoval was leaving, he spoke with the regularly scheduled day-shift worker, Dave Hetzler. Hetzler warned Sandoval that he could get in trouble for leaving early without permission, but Sandoval replied that he was too tired to stay, that he could afford an "occurrence" under the company's attendance policy as he had no prior attendance issues, and that there was plenty of coverage since Hetzler and Harbottle were both on the floor.

That morning, September 20, 2001, another maintenance employee informed Stievo that Sandoval left work early that day and the day before. Stievo investigated by interviewing Moberly and Hetzler and by checking the time clock and gate log entries. He did not contact Sandoval. After confirming that Sandoval did leave early on September 19 and 20 and after discussing the issue with the company's on-site human resources generalist, Beth Moser, and with general manager Graverson, Stievo decided that Sandoval's actions constituted a terminable offense under SCA's "Code of Conduct" policy, as opposed to an attendance issue. Under the "Code of Conduct" policy, progressive discipline, although the norm, could be bypassed if an offense was serious enough. In contrast, offenses falling under SCA's separate attendance policy were always subject to progressive discipline.

Stievo and Moser met with Sandoval on September 24, 2001 after he reported to work on his regular day shift. Stievo told Sandoval that he was terminating him for job abandonment because he left work early two days in a row without permission. Sandoval protested that he did not abandon his job, that he had coverage both days, and that he had spoken to Bliss the first day about needing to leave and why. Since Stievo had not interviewed Bliss, he decided to reserve judgment on the termination until after he spoke with her. He sent Sandoval home and told him he would call him with his decision after he contacted Bliss. Stievo then reached Bliss at home and asked her if she had given Sandoval permission to leave, which she denied. She did confirm, though, that Sandoval approached her about being tired and needing to go home. According to Stievo, he now believed Sandoval lied about receiving permission from Bliss.³ Stievo felt the termination for job abandonment was warranted, and he telephoned Sandoval with the news.

Sandoval later arranged to return to the plant to retrieve his personal effects. As he was walking through the plant, escorted by Stievo, he removed his jacket to reveal his T-shirt, which was bright red with the words "Work Union" printed on the back in five-inch white letters. Stievo demanded that Sandoval put his jacket back on, which Sandoval ignored. After Sandoval reached his toolbox to collect his property, Stievo made a comment about Sandoval's "attitude."

On October 30, 2001, PACE filed an unfair labor practice charge against SCA as a result of Sandoval's termination. Based on the charge, the Board issued a complaint against SCA on December 26, 2001. The case was heard by an administrative law judge ("ALJ"), who found against the company on August 22, 2002. SCA filed exceptions to the ALJ's decision, and the Board affirmed the ALJ's determinations (with minor changes, which will be discussed as necessary below) and adopted his recommended order on April 30, 2003. This appeal followed.

II. Analysis

Our review of an NLRB decision is circumscribed: we apply the substantial evidence test to the Board's factual findings and review its legal conclusions for a reasonable basis in law. Sears, Roebuck & Co. v. NLRB, 349 F.3d 493, 502 (7th Cir.2003). Substantial evidence is "such relevant evidence as a...