Bowling Transportation, Inc. v. N.L.R.B.

• Decision Date: 08 December 2003
• Docket Number: No. 01-2386.,No. 01-2588.,01-2386.,01-2588.
• Citation: 352 F.3d 274
• Parties: BOWLING TRANSPORTATION, INC., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
• Court: U.S. Court of Appeals — Sixth Circuit

352 F.3d 274

BOWLING TRANSPORTATION, INC., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.

No. 01-2386.

No. 01-2588.

United States Court of Appeals, Sixth Circuit.

Argued: June 20, 2003.

Decided and Filed: December 8, 2003. Petition for Rehearing Denied En Banc: March 15, 2004. Pursuant to Sixth Circuit Rule 206.

COPYRIGHT MATERIAL OMITTED

ARGUED:

Konrad Kuczak, Dayton, OH, for Petitioner.

Christopher W. Young, NATIONAL LABOR RELATIONS BOARD, APPELLATE COURT BRANCH, Washington, DC, for Respondent.

ON BRIEF:

Konrad Kuczak, Dayton, Ohio, for Petitioner. Christopher W. Young, Aileen A. Armstrong, Frederick C. Havard, NATIONAL LABOR RELATIONS BOARD, APPELLATE COURT BRANCH, Washington, D.C., for Respondent.

Before: BOGGS, Chief Judge; GILMAN, Circuit Judge; DOWD, District Judge.^*

OPINION

DOWD, District Judge.

The above-captioned appeal revolves around Petitioner/Cross-Respondent's statements to and discharge of three of its employees in 1999. The Administrative Law Judge ruled against the Petitioner/Cross-Respondent. A three-member panel of the National Labor Relations Board affirmed with only slight modifications to the ALJ's order. Petitioner/Cross-Respondent seeks an entry from this Court vacating the Board's decision; Respondent/Cross-Petitioner seeks an entry from this Court enforcing the Board's decision.

This Court has jurisdiction pursuant to 29 U.S.C. § 160(e), (f) (1984).¹ For the reasons stated herein, we AFFIRM.

I. Background

This case presents an unusual set of facts in that the three employees for whom the Respondent/Cross-Petitioner General Counsel of the National Labor Relations Board ("General Counsel") brought this action did not actually intend to form a union. Nevertheless, the General Counsel brought this action against the Petitioner/Cross-Respondent Bowling Transportation, Inc. ("Bowling"), for violating Bowling's employees' right to engage in protected concerted activity². On the surface, it appears that two of Bowling's employees, Richard Ashby and Kenneth Hanks, were merely complaining about a safety incentive program. Jeffrey Horton, the third employee at issue, was simply bringing to the attention of Bowling management what may be considered no more than a simple grievance about work rules. These employees' conduct may not immediately strike the casual observer as unionizing or any other kind of protected activity. Moreover, given the fact that Bowling faced losing its only customer if it did not terminate the three employees, it hardly appears illegal that Bowling did, in fact, terminate the three employees. Despite these appearances, however, the facts brought to light in this section, the standard of review in the following section, infra Part II, and the analysis, infra Part III, show that Bowling violated the National Labor Relations Act ("NLRA"), requiring an affirmance of the decision by the Board.

A. Facts

Bowling, whose office and place of business is in Owensboro, Kentucky, provides transportation services for steel producers. One such producer is AK Steel Company ("AK Steel"), who was Bowling's only customer in 1999.³ AK Steel maintained several plants in a number of states, supplying steel to the "Big Three" automobile manufacturers. AK Steel contracted out some of its operations to other firms. Bowling provided transportation, or carrier, services, which involved hauling steel coils within and between AK Steel's four or five facilities, and offsite to AK Steel's customers.

Among Bowling's key players in this litigation are: Bill Bowling, president and chief executive officer; Paul Brewer, safety and maintenance supervisor; and Lawrence Martin, terminal manager for Bowling at AK Steel's Rockport, Kentucky⁴, facility. Bowling's treatment of three former employees, Richard Ashby, Kenneth Hanks, and Jeffrey Horton, who all worked at the Rockport AK Steel site, is what prompted the General Counsel to file this action. Ashby and Hanks worked as "supertruck" drivers, operating heavy duty and "tow motor" vehicles. Both Ashby and Hanks performed their work on AK Steel property. Horton also operated tow motor vehicles and drove trucks principally on AK Steel property. Bowling discharged these three employees in December 1999.

The events that the General Counsel alleges led to Ashby's and Hanks's discharges occurred shortly before their respective terminations, when AK Steel offered its contractors, including Bowling, a per-employee bonus of up to one dollar for each injury-free hour worked. The objective of this bonus was to improve safety at AK Steel sites, thereby (presumably) avoiding liability exposure. AK Steel "strongly encouraged" its contractors to pass the bonus on to their employees. (J.A. at 417.) Bowling instead paid only fifty cents of each bonus dollar to its employees,⁵ some of whom felt entitled to the full amount. Ashby was one such employee. He discussed this matter with his co-workers at the AK Steel plant, including Hanks, who shared his discontent with Bowling keeping half of the bonus. Ashby also voiced his concerns to Brewer.

On December 9, 1999, Ashby decided to take his concerns to AK Steel. On his way to see Brian K. Rydberg, AK Steel's manager of transportation and materials in the Rockport, Kentucky, facility, Ashby encountered Hanks and told him that he was off to give Rydberg "some hell." Hanks tagged along. Upon their arrival at Rydberg's office, they asked to speak to him and Rydberg invited the two Bowling employees into his office. There, Ashby expressed his dissatisfaction with Bowling's handling of the safety bonus. After about a ten to fifteen minute discussion, Rydberg indicated that Bowling's handling of the bonus was not his concern and referred them to Glen Easterling, another AK Steel employee. Hanks and Ashby exited Rydberg's office.

Subsequently, Rydberg contacted Martin to tell him about his encounter with Ashby and Hanks. Rydberg explained that AK Steel management should not be the one entertaining complaints about such matters. Rydberg instructed Martin to remove Ashby and Hanks from the premises. In response, Bowling issued a notice to its employees, prohibiting them from contacting any AK Steel employee without prior permission and warning that failure to comply with the prohibition would result in discipline or termination.

Bowling also decided to terminate Ashby and Hanks. On December 19, 1999, Martin and a security guard escorted Ashby, and later Hanks, off the AK Steel site. Martin accused Ashby of attempting to unionize based on the earlier discussion with Rydberg. Ashby denied the accusation, to which Martin responded that an investigation would be initiated. Thereafter, Martin advised Ashby to draft a letter explaining why he was talking to Rydberg. Ashby followed the advice and put together the following typewritten statement:

Approximately one week ago[,] I went to Bryon [sic] Rydberg[']s office and Kenny Hanks followed me. Once in [Brian's] office[,] I ask[ed] him if he knew anthing [sic] about the safty [sic] bonus[.] He said he did not[.] I went on to tell him that I ... heard that we where [sic] getting one dollar an hour and that Bowling was taking fifty cents of it for boots, hard hats, and glasses. I then told him I was informed that our boots where [sic] to last one year and showed him the soles of my boots and [sic] told wim [sic] I had only been working for Bowling for approximatly [sic] four and a half months. He then informed me that he knew nothing about any of it. He then said that these problems where [sic] between Bowling and me, and that he or A.K.Steel [sic] had an thing [sic] to do with it. At that time[,] me and Kenny left [Brian's] office.

Me and Kenny where [sic] in Byron's office for approximatly [sic] five to ten minutes. If I caused any problems[,] I apologize but I was trying to get an answer, but at no time was me or Kenny thinking about[,] let alone trymng [sic][,] toform [sic] a union.

(Ashby Letter to Martin (J.A. at 409).)

Hanks also put together a statement:

On or around the 8th or 9th of December[,] I took a load to door 722[.][W]hen I got there[,] Richard [Ashby] was walking towards Brian[']s office. I asked what he was doing, Richard said he was going to give Brian some hell. Not knowing what he was going to ask, I went to the office with him. Richard asked Brian if he had a moment. Brian said yes come on in. Richard and I went in and sat down.

Richard asked who was in charge of the safty [sic] program.

Brian said Glenn Easterling and then asked[,] ["]Why?["] Richard then told him about our safty [sic][b]onus.

(Hanks Statement (J.A. at 414).)

Although some evidence in the record suggests that Martin made some attempt to keep Ashby and Hanks on the payroll, his efforts were fruitless. Apparently, AK Steel was adamant about keeping the two employees off its premises, and threatened to kick Bowling off the site if they remained. Further, they were not otherwise employable by Bowling because any other job would involve working at an AK Steel site. As such, in late December 1999, Bowling fired both Ashby and Hanks. Their termination notices indicated that they were "[un]able to function on AK Steel property." (Bowling Termination Notices for Ashby and Hanks (J.A. at 412, 415).)

Horton, the third employee for whom this enforcement action was brought, was dissatisfied with some of Bowling's work rules. Horton vocalized his dissatisfaction to co-workers and put together a list of those rules that troubled him. He showed the list to other employees and proposed to show the list to Bill Bowling at the 1999 Christmas party. Horton did as he said he would, presented the list to Bill Bowling, and discussed the matter in Bill Bowling's office. The next day, Horton was suspended, which prompted him to call Bill Bowling. Bill Bowling confirmed to Horton his knowledge of the suspension and expressed a concern that the employees were...