N.L.R.B. v. Delta Gas., Inc., A Subsidiary of Louisiana Energy and Development Corp.

• Decision Date: 23 March 1988
• Docket Number: No. 87-4473,87-4473
• Citation: 840 F.2d 309
• Parties: 127 L.R.R.M. (BNA) 3085, 108 Lab.Cas. P 10,379 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DELTA GAS, INC., A SUBSIDIARY OF LOUISIANA ENERGY AND DEVELOPMENT CORPORATION, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 309

840 F.2d 309

127 L.R.R.M. (BNA) 3085, 108 Lab.Cas. P 10,379

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DELTA GAS, INC., A SUBSIDIARY OF LOUISIANA ENERGY AND DEVELOPMENT CORPORATION, Respondent.

No. 87-4473.

United States Court of Appeals, Fifth Circuit.

March 23, 1988.

William Baudler, Aileen Armstrong, Deputy Associate General Counsel, N.L.R.B., Susan Williams, Atty., Harriet Lipkin, Washington, D.C., for petitioner.

Frederick S. Kullman, Sidney F. Lewis, New Orleans, La., for respondent.

Application for Enforcement of an Order of the National Labor Relations Board.

Before CLARK, Chief Judge, REAVLEY, Circuit Judge, and HUNTER, ^* District Judge.

EDWIN F. HUNTER, Jr., District Judge:

The National Labor Relations Board (the "Board") petitions for enforcement of its order, 283 NLRB No. 62, which found that Delta Gas, Inc. engaged in unfair labor practices in violation of the National Labor Relations Act. Delta Gas cross-petitions this Court to review and set aside the Board's order.

Delta Gas is engaged in the transportation and distribution of natural gas and maintains a facility at Homeplace, Louisiana. In June 1985, twelve Delta employees at the Homeplace facility, including Mervin Riley and J.C. Ragas, filed a Fair Labor Standards Act (FLSA), 29 U.S.C. Sec. 201 et seq., suit alleging that Delta withheld earned overtime pay. During the summer of 1985, the Oil, Chemical & Atomic Workers International Union and its local began a campaign to organize Delta's Homeplace facility. Riley and Ragas signed union authorization cards and attended union meetings. Ragas allowed the union to hold meetings in his garage. In September 1985, the Board conducted an unfair labor practice hearing involving Delta. At this hearing, Riley, Ragas, and Delta supervisor August Mackey testified that Delta vice-president Ed Daigle had threatened to close the Homeplace facility rather than let the union organize.

In October, 1985, the General Counsel filed an unfair labor practice complaint alleging that Delta management unlawfully: threatened employees Mackey and Ragas that they had been denied a pay increase, and would be denied future pay increases, because of their union or protected activities; denied wage increases to Ragas, Riley and supervisory employee Mackey, because of union or protected activities; and discharged Riley in retaliation for his union activities.

The Board found that: Mackey and Ragas were threatened because of their participation in protected activities in violation of Section 8(a)(1) of the Act, 29 U.S.C. Sec. 158(a)(1); Ragas and Riley were denied wage increases and Riley's employment was terminated in retaliation for their protected activities in violation of Section 8(a)(1), (3), and (4), 29 U.S.C. Sec. 158(a)(1), (3), and (4); and, supervisory employee Mackey was denied a wage increase because he testified at the previous unfair labor practice hearing in violation of Section 8(a)(4). The Board ordered that the employees be made whole for their loss of earnings and that Riley be reinstated.

Delta Gas cross-petitions this Court to review and set aside the Board's order. Delta contends that the Board's order is not supported by the record. This Court's authority to review a Board order is narrowly limited. The Board's findings must be sustained if they are supported by substantial evidence on the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488-91, 71 S.Ct. 456, 465-66, 95 L.Ed. 456 (1951). A court may not displace the "Board's choice between two fairly conflicting views [of the evidence], even though the court would justifiably have made a different choice had the matter been before it de novo." 340 U.S. at 488, 71 S.Ct. at 465.

Section 8(a)(1) Violations

Section 7 of the Act, 29 U.S.C. Sec. 157, declares that "[e]mployees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively ... and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." Section 8(a)(1) states that it is unfair labor practice to interfere with, restrain or coerce employees from the free exercise of their Section 7 rights. An unlawful threat is established under Section 8(a)(1), if under the totality of the circumstances, an employee could reasonably conclude that the employer is threatening economic reprisals if the employee supports the union. NLRB v. Brookwood Furniture, Division of U.S. Industries, 701 F.2d 452, 459 (5th Cir.1983). Section 8(a)(1) is also violated where an employer threatens retaliation if an employee testifies at a Board hearing. See NLRB v. Trailways, Inc., 729 F.2d 1013, 1023 (5th Cir.1984).

August Mackey and J.C. Ragas testified that on November 1, 1985, Delta supervisor Lawrence Williams told them they did not receive a raise because of their participation in the union and because they had sued Delta for back wages. Williams denied making such a statement. The ALJ credited the testimony of Mackey and Ragas.

Mackey and Ragas also testified that on March 4, 1986, Delta vice-president Ed Daigle told Mackey and Ragas they could not be given a raise because they had filed an unfair labor practice charge against Delta. Daigle denied making this statement, and testified that he merely told Mackey and Ragas that the question of a raise was already tied up in an unfair labor practice proceeding. The ALJ credited the testimony of Mackey and Ragas. The Board found that Williams' statement of November 1 and Daigle's statement of March 4 were violations of Section 8(a)(1).

Delta contends that the testimony of Daigle and Williams should be credited, rather than the testimony of Mackey and Ragas. Delta argues that because Mackey and Ragas testified similarly this indicates that their testimony was collusive.

It is well settled that the credibility determinations of the ALJ are " 'entitled to affirmance unless [they are] inherently unreasonable or self-contradictory.' " NLRB v. National Fixtures, Inc., 574 F.2d 1305, 1306 (5th Cir.1978) (citation omitted). This Court defers to the ALJ's credibility determination that the similarity between Mackey's and Ragas' testimony is corroborative rather than collusive. Crediting Mackey's and Ragas' accounts of the November 1 and March 4 statements, a reasonable person could conclude that they had been threatened with economic reprisals for their support of the union and for taking part in the unfair labor practice proceeding.

Section 8(a)(3) & (4) Violations

Section 8(a)(3) prohibits an employer from retaliating against an employee for engaging in union or other protected activities. See NLRB v. Associated Milk Producers, Inc., 711 F.2d 627, 629-30 (5th Cir.1983). To prove a Section 8(a)(3) violation, the evidence must support a reasonable inference that the employer's adverse action was motivated by anti-union animus. See Brookwood Furniture, 701 F.2d at 464. Section 8(a)(4) prohibits an employer from retaliating against an employee for giving testimony at Board proceedings. NLRB v. Scrivener, 405 U.S. 117, 124-25, 92 S.Ct. 798, 802-03, 31 L.Ed.2d 79 (1972). Section 8(a)(4) also protects supervisors from retaliation by employers for giving testimony in Board proceedings. NLRB v. Dal-Tex Optical Co., 310 F.2d 58, 62 (5th Cir.1962). Where an employee's protected activity is shown to be a motivating factor in the employer's decision to take adverse action against the employee, that adverse action constitutes an unfair labor practice, unless the employer affirmatively demonstrates that the adverse action would have taken place notwithstanding the employee's protected activity. NLRB v. Transportation Management Corp., 462 U.S. 393, 401-03, 103 S.Ct. 2469, 2474-75, 76 L.Ed.2d 667 (1983) (approving Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083, 1089 (1980), enf'd on other grounds, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982)).

The Board found that Delta violated Section 8(a)(3) and (4) by denying Mackey, Ragas, and Mervin Riley wage increases because of their union activities and/or because they gave testimony in a prior unfair labor practice hearing. The Board's finding is supported by substantial evidence.

The ALJ found and the record shows that Mackey, Ragas, and Riley were involved in protected activities. All three men wore union buttons, testified against Delta in a prior unfair labor practice hearing, and were plaintiffs in the FLSA overtime suit against Delta. Riley was instrumental in organizing the overtime suit. Riley and Ragas were named plaintiffs in the FLSA suit. Ragas allowed the union to hold meetings at his house. Ragas and Mackey spoke in favor of the union at company meetings. The evidence is largely undisputed that the Company was actively hostile towards the union's organization efforts.

Delta argues that Mackey, Ragas and Riley were denied raises because they received poor ratings on their performance review by Ed Daigle. However, the record shows that Daigle spent little time at the Homeplace facility where Mackey, Ragas and Riley were employed. He did not have an opportunity to routinely observe their work. The Delta Homeplace facility supervisor, Lawrence Williams was not consulted and did not participate in the employee evaluations though Williams had been consulted on previous evaluations. Daigle testified that he was generally...