Asarco, Inc. v. N.L.R.B.
| Decision Date | 10 July 1996 |
| Docket Number | No. 95-60203,95-60203 |
| Citation | 86 F.3d 1401 |
| Parties | 152 L.R.R.M. (BNA) 2776, 132 Lab.Cas. P 11,612 ASARCO, INC., Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert L. Thompson, Mark David Halverson, Elarbee, Thompson & Trapnell, Atlanta, GA, for Asarco, Inc.
Aileen A. Armstrong, Deputy Associate General Counsel, Peter David Winkler, David Allen Seid, National Labor Relations Board, Washington, DC, Michael Dunn, Director, National Labor Relations Board, Fort Worth, TX, for N.L.R.B.
Petition for Review & Cross-Petition for Enforcement of an Order of the National Labor Relations Board.
Before REYNALDO G. GARZA, WIENER and STEWART Circuit Judges.
This case involves a petition for review of and a cross-application for enforcement of an order of the National Labor Relations Board regarding the dismissal and subsequent treatment of a labor union president. Asarco Incorporated seeks review of the ruling of the National Labor Relations Board, which found that Asarco violated sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act by discharging Jerry Halford. The Board also found that Asarco violated sections 8(a)(1) and 8(a)(5) of the Act by refusing to provide witnesses' names and telephone numbers as requested by the Union to process Halford's grievance and by refusing to deal with Halford as the Union's representative after his discharge. We grant review of the Board's rulings. Our review of the record has revealed insufficient evidence to support all of the Board's decisions. Accordingly, enforcement of the Board's order is denied in part, modified, and as modified is granted in part.
Asarco operates a copper refinery Jerry Halford, the president of United Steelworkers of America, Local 5613 since 1985 ("the Union"), was employed as a chargeman 1 in the refined casting area at the Amarillo refinery. Halford's duties as president established him as the chief representative of the Union in dealing with management. Before serving as president, Halford was the grievance representative of the Material Handling Department for 1977 and 1978. He also served as the chairman of the grievance committee from 1980 to 1984. As chair of the union's grievance committee, Halford processed 1500 grievances and 300 workers' compensation claims. Halford continued participating in the grievance process after he became president. About 130 grievances awaited arbitration in 1993.
in Amarillo, Texas. Most of the 590 employees belong to a collective bargaining unit, which has been the predominant certified bargaining representative since May 1976. Unions are active at several other Asarco plants in the country. The company has shared a peaceful relationship with the various unions and has no history of violating the National Labor Relations Act ("NLRA")
On May 11, 1993, Halford met with Dave Woodbury, Asarco's vice president of human resources, to complain about the backlog of grievances. Halford blamed the backlog on Mike Owsley, a new Asarco supervisor. Halford arranged to send Woodbury information regarding the problem; however, Woodbury did not guarantee changes. Though Stu Bryant, an Asarco manager, was present during the conversation and possibly overheard Halford's complaints, Owsley was not aware of Halford's complaint to Woodbury.
The very next day, during a down time in the refinery, Halford threw a clear plastic sandwich bag filled with about four ounces of water from his charge floor. The bag hit Mike Sanchez on the head, knocking off his hard hat and face mask. Supervisor Gene Thompson, who witnessed Sanchez walking in a "dazed" manner, sent Sanchez to the nurse's office where he was treated for minor head and neck pain.
For at least twenty years, horseplay was commonplace in the plant, and employees were not disciplined for incidents of horseplay. Some of these pranks involved throwing objects down on other employees; others even involved throwing water bags from the charge floor, as Halford had done. Horseplay went undisciplined even though a previous union grievance representative, Lowell Farmer, asked several supervisors to take corrective action regarding the horseplay before someone got hurt. 2
When questioned about the horseplay at issue in this case, Halford admitted that he threw the object which struck Sanchez. However, he described the incident as an "accident." Halford claimed he was attempting to toss the bag into the trash dumpster below the charge floor but missed and mistakenly hit Sanchez. Stu Bryant suspended Halford for a safety violation and suspected horseplay pending further investigation.
The investigation, conducted by supervisors Bill McLean and Stu Bryant, revealed other objects that Halford had thrown from the charge floor. Don Warren explained that he had seen Halford hit Frank Leal with a water bag a month before the Sanchez incident. Rachel San Miguel said that Halford had hit her with a one inch stone that left a mark on her neck and shoulder. Further, employees Wayland, Huddleston, and Leal, indicated that Halford had thrown objects in the past.
The investigation findings were reported to unit manager Mike Owsley. Halford asked Owsley to conduct an independent investigation before making a decision because Halford believed that Owsley could be more objective than the other managers. On May 18, Owsley interviewed the employees again. Their stories corroborated the information given previously. Additionally, Owsley visited the charge floor and casting floor. Owsley concluded that Halford's story was not possible.
Owsley also reviewed a summary of Halford's disciplinary record, which revealed that several previous disciplinary actions had been taken against Halford. In fact, just two months before the water bag incident Halford was suspended for two days for dereliction of duty and unsatisfactory work performance because he was not keeping the furnace full. Though charges were filed with the NLRB for some of the disciplinary actions, Owsley was unaware of this fact when making his decision regarding the water bag incident.
After reviewing the water bag incident and Halford's disciplinary record, he decided to discharge Halford and instructed McLean to draft a discharge letter. Despite his decision, Owsley allowed Halford to relate to him Halford's side of the story. On May 20, Halford described to Owsley the same "accident" story. Owsley asked had Halford done anything similar in the past; Halford replied that he had not. After the meeting, Owsley notified Halford by letter of his decision to discharge him effective May 13. The letter based Halford's discharge on several violations of Asarco's rules:
The bases for your termination include violation of both Plant Safety Rules and General Rules of Conduct related to unsafe acts, dishonesty and unsatisfactory work performance. Each of these offenses is a separate and distinct basis for your termination.
After the May 20 termination, Asarco officials altered their treatment of Halford because he was no longer an employee of the company. For example, Asarco informed Halford that he was not permitted in the plant because he was not an employee. Consequently, a previously scheduled meeting took place without Halford on May 27. Halford also was barred from attending an Occupational Safety and Health Act ("OSHA") inspection on June 14.
The Union immediately reacted to Halford's suspension. On June 2, 1993, the Union filed an unfair labor practice charge with the NLRB, alleging violations of sections On July 9, 1993, the Regional Director for the 16th Region filed a complaint with the NLRB based on the Union's charge and amended charge. Additionally, the complaint alleged that on May 25, 1993, the Union requested by letter that the Company furnish the names and telephone numbers of all witnesses who would be involved in the grievance filed on behalf of Halford and that Asarco has failed and refused to furnish the information. Further, the complaint alleged that Asarco has failed and refused to bargain with Jerry Halford, the Union's agent. Asarco answered the charge admitting in part and denying in part the allegations.
8(a)(1), (3), and (4) of the NLRA. On June 18, 1993, the Union amended its charge to allege a violation of section 8(a)(5)
After a three day hearing, the administrative law judge ("ALJ") issued his decision and recommended order. The ALJ found that Asarco violated sections 8(a)(1) and (3) by discharging Halford, that it had violated section 8(a)(5) by refusing to bargain with the Union's agent, Halford, and that Asarco violated section 8(a)(5) by failing and refusing to provide the Union with the requested information. The ALJ further found that Asarco did not violate section 8(a)(4).
Asarco filed an exception to the ALJ's findings. However, a divided three member panel of the NLRB filed a Decision and Order (reported at 316 N.L.R.B. No. 111) adopting the ALJ's recommendations. The dissenting panel member noted that he would not have found that it was proven by a preponderance of the evidence that Halford was discharged for unlawful reasons. The NLRB ordered Asarco to offer Halford immediate and full reinstatement to his former job or an equivalent one and to provide Halford with back pay. Asarco now petitions the Fifth Circuit for review of this order, and the Board cross-petitions for enforcement of its order.
This Court's review of the NLRB's decision is more than a mere rubber stamp of the decision; however, a certain degree of deference is accorded. See Huck Mfg. Co. v. NLRB, 693 F.2d 1176, 1181 (5th Cir.1982). The NLRB's factual findings are reviewed under a substantial evidence standard. Id. The court will sustain the NLRB's decision if it is supported by substantial evidence in the record. Under the substantial evidence...
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