Blue Circle Cement Co., Inc. v. N.L.R.B.

• Citation: 41 F.3d 203
• Decision Date: 14 December 1994
• Docket Number: No. 93-4961,93-4961
• Parties: 148 L.R.R.M. (BNA) 2001, 63 USLW 2431, 129 Lab.Cas. P 11,248 BLUE CIRCLE CEMENT COMPANY, INC., Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 203

41 F.3d 203

148 L.R.R.M. (BNA) 2001, 63 USLW 2431,

129 Lab.Cas. P 11,248

BLUE CIRCLE CEMENT COMPANY, INC., Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.

No. 93-4961.

United States Court of Appeals Fifth Circuit.

Dec. 14, 1994.

John W. Powers, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, for petitioner-cross-respondent.

Deborah E. Shrager, Aileen Armstrong, Deputy Assoc. General Counsel, Linda J. Dreeben, NLRB, Washington, DC, for respondent-cross-petitioner.

Joseph G. Norton, Dist. Dir., NLRB, New Orleans, LA, for other interested parties.

Mary Elizabeth Metz, Michael J. Stapp, Kansas City, KS, for intervenor Boilermakers Union.

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

Before WISDOM and JONES, Circuit Judges, and FITZWATER, ^* District Judge.

FITZWATER, District Judge:

We are asked to set aside a decision of the National Labor Relations Board ordering relief for an employee found to have been suspended and discharged in violation of Sec. 8(a)(1) of the National Labor Relations Act (the "Act"), 29 U.S.C. Sec. 158(a)(1). See Blue Circle Cement Co., 311 N.L.R.B. 623, 624-25 (1993). The Board, supported by the employee's union and its local as intervenors, cross-applies for enforcement of the order. The principal question presented is whether there is substantial evidence to support the Board's determination that the employee was engaged in protected concerted activity within the meaning of Sec. 7 of the Act, 29 U.S.C. Sec. 157. Applying, as we must, a deferential standard of review, we find no basis to disturb the Board's decision. We therefore deny the petition for review and enforce the Board order.

I

Petitioner Blue Circle Cement Company, Inc. ("Blue Circle") suspended and then discharged Stephen Saunders ("Saunders") from employment at its Tulsa, Oklahoma plant after the operations manager discovered Saunders using a company photocopier to duplicate an article on "sham recycling" produced by the environmental organization Greenpeace. See Blue Circle Cement Co., 311 N.L.R.B. at 623 n. 6 & 623-24. The incident occurred at a time when Blue Circle was attempting to obtain regulatory approval to burn hazardous waste to fuel its Tulsa plant cement kiln. Id. at 623, 627-28.

Saunders was a member of the United Cement, Lime, Gypsum & Allied Workers Division, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO ("Boilermakers International") and its Local D421 ("Local D421"). He was also Local D421's environmental officer and was a founder and member of Earth Concerns of Oklahoma ("ECO"), a volunteer, nonprofit environmental organization. Id. at 623. "Saunders was concerned that heavy metals in hazardous waste would be released to the atmosphere by the burning of hazardous waste in Blue Circle's kiln." Id. at 631 (footnote omitted). The Greenpeace article that Saunders was discharged for duplicating addressed the topic of toxicological properties of heavy metals. Id. at 623, 631.

Blue Circle terminated Saunders on the ground that he had used company equipment and materials, on paid time, to work against the company's legitimate business interests. Id. at 624. Boilermakers International and Local D421 filed an unfair labor practice charge with the Board, contending Blue Circle had disciplined Saunders for engaging in concerted protected activities, in violation of Sec. 8(a)(1). ¹ Id. at 627. A three-member panel of the Board--with one member dissenting--adopted the ALJ's recommendation, finding that Saunders' use of the photocopier was protected concerted activity, rather than personal conduct.

Blue Circle challenges the Board order on the basis of two overarching premises. It contends, first, that it did not commit an unfair labor practice by suspending and terminating an employee who used the company's photocopier, on company time, to duplicate anti-company materials for distribution to non-employees who opposed Blue Circle's waste fuel recycling proposal. Blue Circle argues, second, that the remedy of reinstatement and backpay ordered by the Board is inappropriate in the case of an employee found to have given false testimony before the Board.

These dual propositions are supported by the underlying contentions that the Board's General Counsel did not prove that Saunders was engaged in protected activity within the scope of Sec. 7 of the Act; the ALJ and Board reached an erroneous result by failing to focus on the purpose of Saunders' photocopying activity; the Board improperly held disloyal actions to be protected; and the order of reinstatement and backpay should be vacated because Saunders lied under oath at the administrative hearing. The Board cross-applies for enforcement of its order.

II

Blue Circle first contends the General Counsel did not sustain his burden of proving by a preponderance of the evidence that Saunders was engaged in a protected concerted activity, within the meaning of Sec. 7, when he was photocopying the Greenpeace article. The company argues that the ALJ's findings demonstrate this failure of proof because the ALJ determined inter alia that it was "entirely possible that, as Saunders copied the pages, his focus was on ECO concerns," Blue Circle Cement Co., 311 N.L.R.B. at 633, and "that Saunders was making the copies to provide to persons who had no direct connection with Blue Circle," id. at 636, and the Board recognized that Saunders intended the materials for ECO and not for officers of Local D421, id. at 624. The company argues there is no evidence that Saunders was engaged in activity for anyone other than himself and ECO when he was using the photocopier, and the General Counsel could not have proved that Saunders was exercising Sec. 7 rights.

Blue Circle also posits that the union had adopted a bargaining position that supported the company's waste fuel proposal; therefore, Saunders' conduct can properly be viewed as an effort to supplant the union's position as exclusive bargaining representative, and thus unprotected by the Act.

A

We consider initially Blue Circle's assertion that the General Counsel did not meet his burden of proof.

Section 7 of the 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. Sec. 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 [Sec. 7]." 29 U.S.C. Sec. 158(a)(1). To establish a violation of Sec. 8(a)(1) in a discharge case, the General Counsel must prove that the discharged employee was engaged in protected activity. NLRB v. Brookshire Grocery Co., 919 F.2d 359, 363 (5th Cir.1990).

We review Blue Circle's evidentiary challenge to the Board's decision to "determine whether the underlying findings of fact are supported by substantial evidence on the record considered as a whole." NLRB v. Motorola, Inc., 991 F.2d 278, 282 (5th Cir.1993) (citing 29 U.S.C. Sec. 160(e); NLRB v. Powell Elec. Mfg. Co., 906 F.2d 1007, 1011 (5th Cir.1990); Standard Fittings Co. v. NLRB, 845 F.2d 1311, 1314 (5th Cir.1988)). 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, 845 F.2d at 1314. We are bound by the credibility choices of the ALJ unless the choice is unreasonable or contradicts other findings of fact, or the credibility choice is based on an inadequate reason or no reason at all. See Motorola, 991 F.2d at 282. We will "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." Id. at 283 (quoting Cooper Tire & Rubber Co. v. NLRB, 957 F.2d 1245, 1255 (5th Cir.1992)).

The ALJ was unable to determine from the evidence either Saunders' purpose for making the photocopies, or precisely to whom Saunders intended to give the copied pages. Blue Circle Cement Co., 311 N.L.R.B. at 633. The ALJ expressly rejected, as not credible, Saunders' testimony that he was duplicating the article to give it to Local D421's other officers. Id. at 635-36. The ALJ found "that Saunders was making the copies to provide to persons who had no direct connection with Blue Circle." Id. at 636. Based on other evidence, which we discuss below, the ALJ made the following findings: (1) the photocopies were part of a publication aimed at preventing cement companies from burning hazardous waste as fuel in their kilns; (2) all of Saunders' relevant activities concerning cement companies' use of hazardous waste "were aimed specifically at preventing Blue Circle from burning hazardous waste;" (3) Local D421 opposed Blue Circle's plan, and its opposition stemmed at least in part from a concern about the effect of emissions on the health of company employees; (4) Saunders believed Blue Circle's use of hazardous waste as a fuel would be harmful to his health and to the health of his co-workers and nearby residents; (5) Local D421 appointed Saunders as its environmental officer; and (6) the union deliberately sought to enlist the support of nearby residents and the public to fight the company's plan. Id. at 633.

On the basis of the record evidence, the ALJ concluded the photocopying activity was protected concerted conduct. His reasoning followed two routes. First, the ALJ held that "no matter to whom Saunders intended to give the copies, Saunders surely made the copies to further his opposition to Blue Circle's plan to burn hazardous waste." Id. at 633. His use of the company photocopier "was...