Alton H. Piester, LLC v. N.L.R.B.

Decision Date15 January 2010
Docket NumberNo. 09-1255.,No. 09-1148.,09-1148.,09-1255.
PartiesALTON H. PIESTER, LLC, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. National Labor Relations Board, Petitioner, v. Alton H. Piester, LLC, Respondent.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Charles F. Thompson, Jr., Malone, Thompson & Summers, LLC, Columbia, South Carolina, for Alton H. Piester, LLC. Milakshmi V. Rajapakse, National Labor Relations Board, Washington, D.C., for the Board. ON BRIEF: Michael D. Malone, Columbia, South Carolina, for Alton H. Piester, LLC. Meredith L. Jason, Supervisory Attorney, Ronald Meisburg, General Counsel, John E. Higgins, Jr., Deputy General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, National Labor Relations Board, Washington, D.C., for the Board.

Before TRAXLER, Chief Judge, and DUNCAN and AGEE, Circuit Judges.

Petition for review denied; cross-application for enforcement granted by published opinion. Chief Judge TRAXLER wrote the majority opinion, in which Judge DUNCAN joined. Judge AGEE wrote a separate opinion concurring in part and dissenting in part.

OPINION

TRAXLER, Chief Judge:

Alton H. Piester, LLC ("the Company") petitions this court for review of a decision of the National Labor Relations Board ("the Board") finding that the Company violated § 8(a)(1) of the National Labor Relations Act ("the Act"), see. 29 U.S.C.A. § 158(a)(1) (West 1998). The Board cross-applies for enforcement of its order. For the reasons stated below, we deny the Company's petition for review and grant the Board's cross-application for enforcement.

I.

Section 7 of the National Labor Relations Act ("the Act") guarantees employees not only the "right to self-organization, to form, join, or assist labor organizations, [and] to bargain collectively," but also the right "to engage in other concerted activities for the purpose of ... mutual aid or protection." 29 U.S.C.A. § 157 (West 1998). Section 8(a)(1) implements these guarantees 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 section 157." 29 U.S.C.A. § 158(a)(1).

The complaint in this case alleged that the Company violated § 8(a)(1) on January 13, 2007, by impliedly threatening to discharge its employees if they continued to engage in protected, concerted activity, and on April 2, 2007, by impliedly threatening to discharge—and then actually discharging—employee Darrell Chapman for engaging in protected, concerted activity. An administrative law judge dismissed the allegations, and the General Counsel filed exceptions to each of the dismissals.

The Board, acting through a two-member quorum,1 found the following facts:

[The Company] is a trucking company. On January, 13, 2007, the [Company's] owner, Alton Piester, announced a proposed change to its billing and bookkeeping practices regarding fuel surcharges ("the fuel surcharge change"). The change would decrease the drivers' net pay. Though many drivers protested, Piester told them that his mind was made up and that the change would proceed regardless of their objections. Piester told the objecting drivers that if they didn't like it, they could "clean out their truck and move to another job."

"Clean out your truck" has a special meaning for the [Company] and its drivers. A driver will typically leave personal items in a truck if he expects to use it again. Therefore, a supervisor's statement to a driver to "clean out your truck," conveys the message that the driver will no longer be operating that truck, i.e., that he is discharged.

After the January 13 meeting, and up to the time of Chapman's discharge, employees frequently complained among themselves about the fuel surcharge change. Employees also complained directly to Piester and the [Company's] secretaries, although only Chapman continued to complain to the [Company] after January. On several occasions, however, owner-operator Adger McAlister informed Piester that the drivers continued to complain among themselves about the unfairness of the fuel surcharge change.

On April 2, Chapman spoke with Derrick, the [Company's] secretary, who also had various accounting duties. Chapman repeated the complaint he (and others) had voiced about the fuel surcharge change, and asked that the surcharge change be reflected on his paycheck stub. During this conversation, Chapman spoke loudly, then went into Piester's adjoining office to further discuss his concerns. Derrick followed Chapman into the office.

Chapman reiterated to Piester the same complaint and request he made to Derrick, at which point Derrick interjected that if Chapman was unhappy working there, he "should clean out" his truck. Chapman protested that Derrick did not have authority to discharge him. Chapman became louder, got up from his chair, and stepped toward Derrick. Piester then told [Chapman] to clean out his truck, which, as Piester acknowledged at the hearing, meant that Chapman was discharged.

Piester testified that Chapman's shouting on April 2 was the latest in a series of misconduct, and was the "last straw" in deciding to discharge him. However, Piester did not mention any prior misconduct to Chapman, and the only reason listed for Chapman's discharge on the form filed with the South Carolina Employment Security Commission was "Disorderly Conduct in office, 4-02-7." On that form, Piester directly linked Chapman's April 2 conduct to the January 13 meeting by stating that "meet 1st part of Jan 07 that fuel surcharge would be taken out due to customer didn't want share."

J.A. 234-35 (footnotes omitted).

Regarding Piester's January 13 statement that the drivers could clean out their trucks if they did not like the surcharge change, the Board noted that the ALJ had found that the drivers were engaged in protected, concerted activity that day when they protested the change and that the Company had not excepted to this finding. The Board also determined that Piester's statement constituted an implied threat to discharge the employees for their protected, concerted activity, and, that even if it meant only that the drivers were free to leave if they did not like the new system, it was still unlawfully coercive.

As for Derrick's April 2 suggestion to Chapman that he should clean out his truck if he was unhappy, the Board noted that the ALJ had found that Derrick was acting as the Company's agent when she made the statement and that the Company did not except to that finding. The Board found that the remark, like Piester's similar January 13 statement, constituted an implied threat of discharge. The Board also determined that Derrick's remark was directed at Chapman's April 2 protected activity, for reasons that the Board discussed in detail in its analysis of the Company's discharge of Chapman. The Board found, therefore, that the statement was unlawfully coercive.

Regarding the discharge itself, the Board found that "Chapman's conduct on April 2[ ] amounted to a continuation of the earlier concerted employee complaints about the adverse change to the fuel surcharge." J.A. 237. The Board cited testimony from secretary Sherry Marntin, Piester, and Derrick in support of its finding and found that Piester, from his conversations with owner-operator McAllister, knew that the employees continued to oppose the surcharge change. The Board was not swayed by the fact that Chapman was the only driver who requested that the surcharge be shown on his pay stub. It noted that other drivers had requested that the surcharge calculation be included on worksheets showing how their pay was calculated and that Chapman's "unique" request was made in the context of his general reiteration of the shared complaint that the policy was unfair. The Board also found that Piester himself viewed Chapman's April 2 conduct as an extension of the January 13 concerted activity, as evidenced by the fact that Derrick's statement was almost identical to Piester's January 13 response and the fact that Piester linked the January 13 and April 2 events in the explanation he gave for Chapman's discharge on the South Carolina Employment Security Commission form. The Board further found that Chapman's protected conduct was a motivating or substantial factor for his discharge and that the Company had not proven that it would have discharged Chapman absent the protected, concerted activity.

Finally, the Board found that Chapman did not forfeit the Act's protection by speaking loudly to Derrick and taking a step in her direction. Applying the test set out in Atlantic Steel Co., 245 N.L.R.B. 814, 816 (1979), the Board found that all four factors favored a conclusion that Chapman did not lose the protection of the Act: The incident took place in an office where no unit employee witnessed it, the subject of the discussion related to protected activity, the nature of the outburst was relatively mild and brief, and the outburst was provoked by Derrick's unlawful statement. The Board thus concluded that the Company's discharge of Chapman constituted a § 8(a)(1) violation. On that basis, the Board ordered the Company to offer Chapman full reinstatement or the substantial equivalent, as well as backpay.

II.

The Company first argues that the Board erred in finding that Piester's statement at the January 13 meeting constituted a § 8(a)(1) violation. Although the Company does not dispute that its employees were engaged in protected, concerted action at the meeting by protesting the surcharge change, it contends that Piester's statement was merely intended to convey that he had made up his mind regarding the surcharge change and that any further complaints by the drivers would be fruitless.2 The Company further argues that was the meaning Piester intended and that no evidence showed that anyone at the meeting interpreted it otherwise.

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