Cooper Tire & Rubber Co. v. Nat'l Labor Relations Bd.

• Decision Date: 08 August 2017
• Docket Number: No. 16-2944,No. 16-2721,16-2721
• Citation: 866 F.3d 885
• Parties: COOPER TIRE & RUBBER COMPANY, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL-CIO, CLC, Intervenor Chamber of Commerce of the United States; Equal Employment Advisory Council; National Association of Manufacturers ; National Federation of Independent Business Small Business Legal Center, Amici on Behalf of Petitioner Cooper Tire & Rubber Company, Respondent v. National Labor Relations Board, Petitioner United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL-CIO, CLC, Intervenor Chamber of Commerce of the United States; Equal Employment Advisory Council; National Association of Manufacturers ; National Federation of Independent Business Small Business Legal Center, Amici on Behalf of Respondent
• Court: U.S. Court of Appeals — Eighth Circuit

866 F.3d 885

COOPER TIRE & RUBBER COMPANY, Petitioner

v.NATIONAL LABOR RELATIONS BOARD, Respondent

United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL-CIO, CLC, Intervenor

Chamber of Commerce of the United States; Equal Employment Advisory Council; National Association of Manufacturers ; National Federation of Independent Business Small Business Legal Center, Amici on Behalf of Petitioner

Cooper Tire & Rubber Company, Respondent

v.National Labor Relations Board, Petitioner

United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL-CIO, CLC, Intervenor

Chamber of Commerce of the United States; Equal Employment Advisory Council; National Association of Manufacturers ; National Federation of Independent Business Small Business Legal Center, Amici on Behalf of Respondent

No. 16-2721

No. 16-2944

United States Court of Appeals, Eighth Circuit.

Submitted: March 7, 2017

Filed: August 8, 2017

Rehearing and Rehearing En Banc Denied November 16, 2017

Morris Lloyd Hawk, Nancy A. Noall, WESTON & HURD, Cleveland, OH, for Cooper Tire & Rubber Company, Petitioner in 16-2721.

Allen Binstock, Kelly Freeman, NATIONAL LABOR RELATIONS BOARD, Cleveland, OH, Julie Brock Broido, Supervisory Attorney, Valerie L. Collins, Linda Dreeben, Deputy Associate General Counsel, NATIONAL LABOR RELATIONS BOARD, Washington, DC, for National Labor Relations Board, Respondent in 16-2721.

Daniel M. Kovalik, Nathan Kilbert, Assistant General Counsel, UNITED STEELWORKERS OF AMERICA, Pittsburgh, PA, for United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL-CIO, CLC, Intervenor in 16-2721.

Warren Postman, Kathryn L. Comerford Todd, U.S. CHAMBER OF COMMERCE, Washington, DC, for Chamber of Commerce of the United States, Amicus on Behalf of Petitioner in 16-2721.

Rae T. Vann, NORRIS & TYSSE, Washington, DC, for Equal Employment Advisory Council, Amicus on Behalf of Petitioner in 16-2721.

Maurice Baskin, LITTLER & MENDELSON, Washington, DC, Brendan Joseph Fitzgerald, LITTLER & MENDELSON, Columbus, OH, Patrick N. Forrest, Leland P. Frost, Linda E. Kelly, NATIONAL ASSOCIATION OF MANUFACTURERS, Washington, DC, for National Association of Manufacturers, Amicus on Behalf of Petitioner in 16-2721.

Karen R. Harned, Elizabeth Milito, NATIONAL FEDERATION OF INDEPENDENT BUSINESS SMALL BUSINESS LEGAL CENTER, Washington, DC, for National Federation of Independent Business Small Business Legal Center, Amicus on Behalf of Petitioner in 16-2721.

Morris Lloyd Hawk, Nancy A. Noall, WESTON & HURD, Cleveland, OH, for Cooper Tire & Rubber Company, Respondent in 16-2944.

Allen Binstock, Kelly Freeman, NATIONAL LABOR RELATIONS BOARD, Cleveland, OH, Julie Brock Broido, Supervisory Attorney, Valerie L. Collins, Linda Dreeben, Deputy Associate General Counsel, NATIONAL LABOR RELATIONS BOARD, Washington, DC, Ronald K. Hooks, NATIONAL LABOR RELATIONS BOARD, Memphis, TN, for National Labor Relations Board, Petitioner in 16-2944.

Daniel M. Kovalik, Nathan Kilbert, Assistant General Counsel, UNITED STEELWORKERS OF AMERICA, Pittsburgh, PA, for United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL-CIO, CLC, Intervenor in 16-2944.

Warren Postman, Kathryn L. Comerford Todd, U.S. CHAMBER OF COMMERCE, Washington, DC, for Chamber of Commerce of the United States, Amicus on Behalf of Respondent in 16-2944.

Rae T. Vann, NORRIS & TYSSE, Washington, DC, for Equal Employment Advisory Council, Amicus on Behalf of Respondent in 16-2944.

Maurice Baskin, LITTLER & MENDELSON, Washington, DC, Brendan Joseph Fitzgerald, LITTLER & MENDELSON, Columbus, OH, Patrick N. Forrest, Leland P. Frost, Linda E. Kelly, NATIONAL ASSOCIATION OF MANUFACTURERS, Washington, DC, for National Association of Manufacturers, Amicus on Behalf of Respondent in 16-2944.

Karen R. Harned, Elizabeth Milito, NATIONAL FEDERATION OF INDEPENDENT BUSINESS SMALL BUSINESS LEGAL CENTER, Washington, DC, for National Federation of Independent Business Small Business Legal Center, Amicus on Behalf of Respondent in 16-2944.

Before BENTON, BEAM, and MURPHY, Circuit Judges.

BENTON, Circuit Judge.

Cooper Tire & Rubber Company fired Anthony Runion for his conduct on the picket line. The union filed a grievance alleging Cooper violated the collective bargaining agreement by discharging Runion. The arbitrator upheld the discharge. The Administrative Law Judge reversed, holding that the firing violated the National Labor Relations Act, 29 U.S.C. § 151 et seq. The National Labor Relations Board upheld the ALJ. Having jurisdiction under 29 U.S.C. § 160(e) and (f), this court denies Cooper's petition for review and enforces the Board's order.

I.

Cooper employs about 1,000 workers at a tire-manufacturing plant in Findley, Ohio. Cooper locked out union employees after negotiations failed to renew the collective bargaining agreement. During the lockout, union workers picketed outside Cooper's plant. Cooper continued operating with replacement workers. These workers crossed the picket line arriving and leaving the facility, mostly in Cooper's vans. Many replacement workers were African-American.

Anthony Runion, a locked-out employee, participated in the picket line. While picketing on the evening of January 7, 2012, he yelled, "Hey, did you bring enough KFC for everybody?" and "Hey anybody smell that? I smell fried chicken and watermelon." The comments were directed at a van carrying replacement workers that had just crossed the picket line. While yelling, Runion's hands were in his pockets; he made no overt physical movements or gestures. There is no evidence the replacement workers heard Runion's statements (though dozens in the crowd did).

In February, Cooper began recalling locked-out employees. It did not recall Runion. It discharged him for his statements during the January 7 picket. The union filed a grievance alleging Cooper violated the CBA by discharging Runion. The arbitrator found "just cause" under the CBA to fire Runion. The union then submitted the case to an ALJ, who concluded that Cooper violated the Act. The Board upheld the ALJ and ordered Runion reinstated with back pay. Cooper petitions for review.

II.

Section 7 of the Act guarantees employees the right to "assist labor organizations ... and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. § 157. Section 7 gives locked-out employees the right to picket. See Am. Ship Bldg. Co. v. NLRB , 380 U.S. 300, 310 n.10, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965). Section 8(a) prohibits an employer from interfering with, restraining, coercing, or discriminating against employees in the exercise of their Section 7 rights. § 158(a)(1)-(3).

"One of the necessary conditions of picketing is a confrontation in some form between union members and employees." Chicago Typographical Union No. 16, 151 NLRB 1666, 1668 (1965), citing NLRB v. United Furniture Workers of Am. , 337 F.2d 936, 940 (2d Cir. 1964). "Impulsive behavior on the picket line is to be expected especially when directed against nonstriking employees or strike breakers." Allied Indus. Workers No. 289 v. NLRB, 476 F.2d 868, 879 (D.C. Cir. 1973) (internal citation omitted). This court analyzes picket-line conduct under the Clear Pine Mouldings test: a firing for picket-line misconduct is an unfair labor practice unless the alleged misconduct "may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act." NMC Finishing v. NLRB, 101 F.3d 528, 531 (8th Cir. 1996), citing Clear Pine Mouldings, Inc. , 268 NLRB 1044, 1046 (1984), enf'd , 765 F.2d 148 (9th Cir. 1985). The test is objective. Id.

The Board has authority to order "reinstatement of employees with or without back pay, as will effectuate the policies" of the Act. 29 U.S.C. § 160(c). This court will "enforce the Board's order if it has correctly applied the law and its factual findings are supported by substantial evidence on the record as a whole, even if we might have reached a different decision had the matter been before us de novo." NLRB v. RELCO Locomotives, Inc., 734 F.3d 764, 779-80 (8th Cir. 2013) (internal citation omitted). This court "generally defer[s] to the Board's discretion in ordering a reinstatement." NMC Finishing, 101 F.3d at 532 (internal citation omitted). See generally Lechmere, Inc. v. NLRB , 502 U.S. 527, 537, 112 S.Ct. 841, 117 L.Ed.2d 79 (1992) ("[T]he NLRB is entitled to judicial deference when it interprets an ambiguous provision of a statute that it administers."). This court "must deny enforcement if the Board's determination is illogical or arbitrary." Earle Indus., Inc. v. NLRB, 75 F.3d 400, 405 (8th Cir. 1996).

III.

Cooper argues this court should not defer to the Board. It contends the Board should have analyzed Runion's discharge not under Clear Pine Mouldings , but under Wright Line , 251 NLRB 1083 (1980), enf'd , 662 F.2d 899 (1st Cir. 1981). Wright Line applies "when an employer has discharged (or disciplined) an employee for a reason assertedly unconnected to protected activity." Shamrock Foods Co. v. NLRB, 346 F.3d 1130, 1135 (D.C. Cir. 2003) (emphasis in original). See RELCO Locomotives , 734 F.3d at 780 ("The Wright Line analysis is only necessary if the employer's stated rationale for termination is not activity protected by the NLRA."). See also Consol. Commc'ns., Inc. v. NLRB , 837 F.3d 1, 12 n.3 (D.C. Cir. 2016) (explaining Wright Line "has no application to striker misconduct cases"). In Wright Line , the employer claimed the employee was terminated for inaccurate recordkeeping. Wright Line, 662 F.2d at 900. Here, Cooper does not allege that Runion was fired for any reason "unconnected" to participation in the picket line. This court applies Clear Pine Mouldings to evaluate a...