Brown & Root, Inc. v. N.L.R.B.
| Decision Date | 24 June 2003 |
| Docket Number | No. 01-60635.,01-60635. |
| Citation | 333 F.3d 628 |
| Parties | BROWN & ROOT, INC., Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Howard S. Linzy (argued), Robert Peter Lombardi, The Kullman Firm, New Orleans, LA, for Brown & Root, Inc.
Aileen A. Armstrong, Deputy Associate General Counsel, Frederick Lee Cornnell, David A. Fleischer, National Labor Relations Board, Washington, DC, Rodney D. Johnson, National Labor Relations Board, New Orleans, LA, for N.L.R.B.
Petition for Review and to Set Aside an Order of the National Labor Relations Board and Cross Application for Enforcement.
Before JOLLY, DUHÉ, and DENNIS, Circuit Judges.
In this appeal we are concerned with whether Brown & Root, Inc. ("Brown & Root") became liable under the National Labor Relations Act, as a successor employer, to the former employees of Brown-Eagle Contractors ("Brown-Eagle") at Ciba Specialty Chemical Corporation's facility in McIntosh, Alabama ("Ciba"). After it bested Brown-Eagle for the contract, Brown & Root met with the Brown-Eagle employees and announced that, upon application, they would be considered for employment with other applicants. As one might expect, this news was not well received by the Brown-Eagle employees. They became upset and began to ask about the future of their union. Brown & Root, which already had some 200 employees in another operation at the facility, stated in unambiguous terms that it was non-union and would remain non-union. When Brown & Root completed its application and hiring process, about twenty-five percent of the Brown-Eagle employees who had applied had been hired. The National Labor Relations Board was not favorably impressed. The Board found that Brown & Root had coerced Brown-Eagle employees when it stated its position vis a vis the union; discriminated against all former Brown-Eagle employees whom it failed to hire; refused to recognize and bargain with the union; and unilaterally set initial terms and conditions of employment. The Board entered what can be fairly characterized as a sweeping order. It ordered Brown & Root to: reinstate with back pay some 48 former Brown-Eagle employees;1 recognize and bargain with the union without an election; and adopt retroactively the terms and conditions that had been in place under Brown-Eagle until new terms and conditions were negotiated or a bargaining impasse was reached.
In sum, after reviewing the entire record, the decisions of the Board and the ALJ, and the briefs of the parties, we hold that the employer speech at issue with regard to its non-union position — the only basis for a finding of an independent violation of Section 8(a)(1) against Brown & Root — is protected under Section 8(c) of the Act and consequently did not constitute coercive speech in violation of Section 8(a)(1).
Without this alleged Section 8(a)(1) violation as a predicate upon which the Board's finding of motive was largely built, substantial evidence does not support the remainder of the Board's findings that Brown & Root violated Sections 8(a)(3) and (5) of the Act. We therefore conclude that the Board erred in finding that Brown & Root had unlawfully denied employment to any Brown-Eagle employees, and consequently, in ordering reinstatement with back pay for all 48 former Brown-Eagle employees who were not hired by Brown & Root. It follows that the Board erred in finding that Brown & Root had successorship obligations to the union and, consequently, in ordering Brown & Root to recognize and bargain with the Union and to restore retroactively the terms of employment that existed when Brown & Root assumed the packaging and materials handling operations. We therefore deny enforcement of the Board's order.
In 1998, Brown & Root was awarded a subcontract for packaging and materials handling work at Ciba. This work had previously been done by Brown-Eagle.2 At the time Brown-Eagle lost its contract with Ciba, its 68 rank and file employees were represented by the United Food and Commercial Workers Union, Local 1657, AFL-CIO ("the Union"). Brown & Root, however, was no new-comer at the McIntosh facility; it had performed construction and maintenance services for Ciba continuously since the plant had been constructed in 1953. It employed over 200 workers. They had never been represented by a union.
Under the newly awarded contract with Ciba, Brown & Root was scheduled to assume the packaging and material handling operations on June 10, 1998. On May 26 and 27, Brown & Root's project manager Bill Outlaw and project superintendent Gordon Sloat held three shift meetings with Brown-Eagle employees. Outlaw told them that their employment with Brown-Eagle would be terminated, but that they could apply with Brown & Root. At two of these meetings, the atmosphere became heated after Bill Outlaw's answers to a variety of employment-related questions, all raised from the floor by the employees. Some questions related to the future of the Union. Although the record is not uniform concerning the precise responses given by Outlaw to questions about the continuation of union representation, there is no question but that Outlaw indicated that Brown & Root was non-union and would remain that way. The employees were neither happy nor content with what they heard.
Nevertheless, beginning May 29, 66 of some 68 Brown-Eagle employees applied for jobs with Brown & Root. However, consistent with its position that it was a new employer, and with its obligations to the U.S. Office of Federal Contract Compliance Programs, on May 28 Brown & Root posted an ad for applicants in a local newspaper. Brown & Root accepted applications from walk-in applicants, referrals from the state job service, and from current and former Brown & Root employees. Brown & Root accepted some 367 applications, including those from former Brown-Eagle employees.
Brown & Root's written hiring policy established a system of preferential consideration among the applicants: first, current Brown & Root employees, second, former employees, third, applicants referred by a Brown & Root employee or supervisor, and fourth, others. This policy was not a guarantee of employment and does not appear to have been uniformly followed.
Between May 29 and June 10, Brown & Root processed the 367 applications. Applicants were given a written test in arithmetic, followed by a "structured" interview consisting of questions and answers, and finally an interview with either Outlaw or Sloat. In order to progress to the structured interview, most applicants had to achieve a passing score on the written test. However, Brown-Eagle applicants progressed to the structured interview regardless of test score, in apparent recognition of the skills they likely possessed as Brown-Eagle employees performing similar duties.
By June 10, after processing all applications, Brown & Root had hired 77 unit employees, of which 17 were former Brown-Eagle employees. Of the 14 unit supervisors Brown & Root hired, 11 were formerly employed by Brown-Eagle.
On charges filed by the Union, the Board's General Counsel issued a complaint alleging that Brown & Root had violated Sections 8(a)(1), (3), and (5) of the Act; that is, the Complaint alleged that Brown & Root threatened employees, refused to hire employees formerly employed by Brown-Eagle, and failed to recognize and bargain with the Union. The Complaint further alleged that Brown & Root violated the Act by unilaterally changing the terms and conditions of employment. After a hearing, the Administrative Law Judge ("ALJ") dismissed the allegations of the Complaint with respect to three of the alleged discriminatees. He further found that Brown & Root had not violated the Act by establishing initial terms of employment. However, the ALJ concluded that Brown & Root had violated the Act by refusing to hire 48 former Brown-Eagle employees, and by refusing to recognize and bargain with the Union.
The Board was not altogether satisfied with the ALJ's decision. Although the Board adopted the ALJ's findings, it clarified his opinion, to make explicit the additional finding of a distinct Section 8(a)(1) violation for the statements made by Outlaw at the employee meeting. Furthermore, the Board reversed the ALJ's finding that Brown & Root was free to set its initial terms and conditions of employment; instead, relying on its finding that Brown & Root had attempted to avoid its successorship obligations by refusing to hire, it found that Brown & Root had illegally refused to bargain and imposed its own terms and conditions of employment.
In its remedial order, the Board was not shy. It ordered Brown & Root to hire all 48 former Brown-Eagle employees with back pay, to recognize the Union, without an election, as exclusive bargaining representative for the packaging and material handling employees, and to adopt retroactively the terms and conditions of employment that existed at the time of the transfer of operations. Brown & Root filed this petition for review of the decision and order. The National Labor Relations Board cross-applied for enforcement of its order.
When the Court of Appeals reviews the Board's findings, it must determine whether, on the record as a whole, those findings are supported by substantial evidence. 29 U.S.C. § 160(e). Substantial evidence is "such relevant evidence as a reasonable mind would accept to support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Because the Court is not left merely to accept the Board's conclusions, the Court must be able to "conscientiously conclude that the evidence supporting the Board's determination is substantial." NLRB v. Mini-Togs, Inc., 980 F.2d 1027, 1032 (5th Cir. 1993); see also NLRB v. Brookshire Grocery Co., 837 F.2d 1336, 1340 (5th Cir. 1988). This court...
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