Big Ridge, Inc. v. Nat'l Labor Relations Bd.

• Decision Date: 18 December 2015
• Docket Number: 15–1103.,Nos. 15–1046,s. 15–1046
• Citation: 808 F.3d 705
• Parties: BIG RIDGE, INC., Petitioner–Cross–Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent–Cross–Petitioner.
• Court: U.S. Court of Appeals — Seventh Circuit

808 F.3d 705

BIG RIDGE, INC., Petitioner–Cross–Respondent,

v.NATIONAL LABOR RELATIONS BOARD, Respondent–Cross–Petitioner.

Nos. 15–1046

15–1103.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 5, 2015.

Decided Dec. 18, 2015.

Kimberlee Dewitt, Attorney, Gregory B. Robertson, Attorney, Hunton & Williams LLP, Richmond, VA, for Petitioner–Cross–Respondent.

Linda Dreeben, Attorney, Jill A. Griffin, Attorney, Nicole Lancia, Attorney, National Labor Relations Board, Washington, DC, for Respondent–Cross–Petitioner.

Before FLAUM, MANION, and ROVNER, Circuit Judges.

FLAUM, Circuit Judge.

In 2012, the National Labor Relations Board ("the Board") found that Big Ridge, Inc. violated the National Labor Relations Act, 29 U.S.C. § 158 ("the Act"). Big Ridge threatened employees with mine closure and job loss based on their support of the union and discharged employee Wade Waller because of his union support. Big Ridge petitioned this Court for review, and the appeal turned on the Board's authority to issue its order. We vacated the Board's order, finding that the Board lacked a quorum because three of the Board's five members were improperly appointed under the Recess Appointments Clause of the Constitution. In 2014, a validly constituted Board considered the case anew and again found that Big Ridge violated the Act. Big Ridge filed a petition for review, arguing that the Board lacked jurisdiction to issue the 2014 order and that even if the Board did have jurisdiction, the Board erred in holding that Big Ridge violated the Act by discharging Waller. The Board filed a cross-application to enforce its order. We deny Big Ridge's petition for review and grant the Board's cross-application for enforcement of its order.

I. Background

A. The United Mineworkers of America Election

Big Ridge, Inc. operated the Willow Lake coal mine in Equality, Illinois. In March 2011, the United Mineworkers of America ("UMWA") began organizing at Willow Lake to represent the production and maintenance employees. Willow Lake had previously been unionized, but the old union disclaimed interest in the bargaining unit in 2011. UMWA petitioned the National Labor Relations Board for an election, and in response, Big Ridge began an antiunion campaign. Big Ridge supervisors threatened employees with mine closure and job loss if they chose union representation and promised benefits if they opposed UMWA. An election was held on May 19 and 20, 2011, and UMWA was successful.

Big Ridge objected to the election results, alleging that UMWA "intimidated, restrained, and/or coerced eligible employees, rendering their free choice impossible." In support of these allegations, Big Ridge cited two alleged threats by Wade Waller, a miner at Willow Lake and an ardent union supporter, as well as alleged threats by other employees.

B. Waller's Behavior

Waller worked at Willow Lake for more than seven years prior to his discharge. As a ram car driver, he transported coal underground in a heavy ram car and dumped the coal onto a feeder, where a conveyer would lift the coal to the surface of the mine for processing. Waller openly supported UMWA, wearing union paraphernalia and singing about his dislike of "scabs" (a derogatory term for persons who oppose unions).

Ronald Koerner worked as a feeder-watcher. His responsibilities included directing ram car traffic to ensure miner safety and monitoring the feeder to prevent a coal overload. Feeder-watchers used helmet lights, radios, and horns to "flag," or communicate with, ram car drivers. The feeder-watcher position was created in compliance with an order from the Mine Safety and Health Administration after a miner had been run over and killed by a ram car at Willow Lake in 2010.

On May 20, 2011, the second day of the UMWA election, Waller and Koerner had a disagreement over one of Koerner's signals. Waller had parked his ram car at the feeder and was dumping coal when Koerner flagged Waller, indicating that he should stop dumping coal onto the feeder. Waller ignored the signal, saying that "he wouldn't stop for nothing." Koerner allegedly felt threatened by Waller's behavior, fearing that Waller would run him over with the ram car. Koerner reported the incident to Shift Leader Eric Davis, who reported the incident to Mine Manager Scott Lawrence. The next day, Lawrence reassigned Koerner to a different position.

Waller also had a dispute with employee Issac Craig after UMWA won the election. Craig posted on Facebook that he was displeased with the election results. Waller confronted Craig about the Facebook post and threatened to "beat [Craig's] ass." Mine Manager Lawrence spoke to Craig about Waller and later spoke with Waller about his behavior. Waller admitted to threatening Craig but denied threatening to run anyone over with a ram car. Lawrence told Waller to leave Craig alone, and he also agreed to let Waller work additional shifts.

Big Ridge has a history of tolerating verbal threats and physical confrontations. Employees used profanity and vulgar language daily, and Big Ridge never prohibited this type of behavior or discharged employees for such conduct absent significant physical contact. For example, in 2010, an employee admitted to threatening to shoot a coworker but was never disciplined. In 2011, another employee told a coworker he would "beat [his] guts out." A Section Foreman witnessed this incident, but no disciplinary action was taken. Additionally, even when employees and supervisors engaged in physical confrontations, Big Ridge either did not discipline them or merely issued three-day suspensions. For example, in 2011, Big Ridge suspended two employees for grabbing and shoving coworkers.

C. Waller's Discharge

On May 21, 2011 in preparation for filing election objections challenging UMWA's victory, Big Ridge began collecting employee and supervisor statements about alleged election-related misconduct. During this time period, Senior Human Resources Manager Robert Gossman also collected written statements about recent incidents involving Waller. The statements described Waller's confrontations with Koerner and Craig as well as an incident in which Waller allegedly went into the bathhouse and yelled, "fuck all you fucking scabs!" An employee also gave a statement saying that Waller threatened him two weeks before the election by saying, "you better vote UMWA or a scab like you won't work here," but the administrative law judge ("ALJ") found that Big Ridge failed to establish by a preponderance of the evidence that this threat occurred.

Gossman discussed his findings with Thomas Benner, Vice President of Underground Operations in the Midwest. Benner authorized Gossman to discharge Waller, instructing him to first offer Waller an opportunity to deny or explain the allegations.

Prior to meeting with Waller, Gossman drafted a termination letter. On May 27, one week after the election, Gossman interviewed Waller. Waller denied threatening Koerner, yelling "fuck all you scabs" in the bathhouse, and telling an employee "you better vote UMWA or a scab like you won't work here anymore." Gossman then terminated Waller's employment with Big Ridge. Prior to his discharge, Waller had not been disciplined for any infraction during his seven years of employment with the company.

D. Procedural Background

On May 26, 2011 Big Ridge filed objections to the election results, seeking a rerun election. Shortly thereafter, UMWA filed unfair labor practice charges against Big Ridge. In response, the Board issued a complaint alleging numerous violations of §§ 8(a)(1) and 8(a)(3) of the Act. The Board consolidated the cases and directed a hearing.

After a hearing, the ALJ issued a decision and recommended order. The ALJ determined that Big Ridge's election objections should be overruled and that UMWA should be certified as Big Ridge employees' exclusive bargaining representative. The judge further found that Big Ridge violated § 8(a)(1) by threatening employees with mine closure, job loss, and other unspecified reprisals because of their union support and by promising benefits to employees for opposing UMWA. The judge also found that Big Ridge violated §§ 8(a)(1) and 8(a)(3) by discharging Waller because of his union support. The Board agreed and issued an order ("the 2012 Decision and Order") affirming the ALJ's decision and adopting his recommended order.

Following the 2012 Decision and Order, Big Ridge petitioned for review and the Board cross-applied to this Court for enforcement of the order. Big Ridge challenged the Board's authority to issue the order, arguing that the Board lacked a quorum because three of the Board's five members were improperly appointed under the Recess Appointments Clause of the Constitution. On June 26, 2014, the Supreme Court issued its decision in N.L.R.B. v. Noel Canning, which held that three recess appointments to the Board were invalid under the Recess Appointments Clause. ––– U.S. ––––, 134 S.Ct. 2550, 2578, 189 L.Ed.2d 538 (2014). Based on this decision, we issued an order on July 2, 2014 granting the petition for review, vacating the Board's order, and denying the cross-application of the Board for enforcement of its order. We later denied the Board's motion to remand.

In October 2014, the Board considered the case anew with a validly constituted Board. Two months later, the Board issued another decision and order ("the 2014 Decision and Order"), which incorporated by reference the 2012 Decision and Order. The Board first found that it could consider the case anew after this Court denied enforcement because "[t]he clear import of the court's denial of enforcement, along with the Supreme Court's Noel Canning decision, is that no validly constituted Board has ruled on [the merits of the case]." The Board then considered the case de novo and adopted the ALJ's recommended order, finding that Big Ridge violated §§ 8(a)(1) and 8(a)(3). The 2014 Decision and Order requires Big Ridge to cease and desist from unfair...