Challenge Mfg. Co. v. Nat'l Labor Relations Bd.
| Decision Date | 09 June 2020 |
| Docket Number | Case No. 19-2140,Case No. 19-2160 |
| Parties | CHALLENGE MANUFACTURING COMPANY, LLC, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner. |
| Court | U.S. Court of Appeals — Sixth Circuit |
COLE, Chief Judge. Challenge Manufacturing Company, LLC ("Challenge" or "the Company") petitions for review of an order of the National Labor Relations Board finding violations of the National Labor Relations Act ("NLRA" or "Act"). The General Counsel for the Board cross-applies for enforcement. Because the Board did not contravene any of its rules and its findings are supported by substantial evidence, we deny the petition for review and grant the cross-application for enforcement.
Challenge is a manufacturer and supplier of automobile parts. It operates eight manufacturing plants in the United States, including one in Holland, Michigan. In 2008, Challenge hired Michael Kiliszewski as a maintenance mechanic at the Holland plant.
Historically, employees at Challenge's manufacturing facilities were not unionized. In 2013 and again in 2015, employees at the Holland plant engaged in union campaigns, but the campaigns failed after Challenge actively opposed them. Kiliszewski initiated both campaigns by contacting the United Auto Workers ("UAW" or "Union"). Kiliszewski also played an especially visible role in the 2015 campaign: he wore UAW paraphernalia at work, talked to hundreds of employees about the Union, helped schedule union-organizing meetings, and was one of the first to sign a letter to management expressing a desire to be represented by the UAW.
In 2016, Challenge decided to take a friendlier stance toward unionization, and on May 1, 2016, it signed a "neutrality agreement" with the UAW. Under the terms of the neutrality agreement, Challenge agreed to provide the Union with a list of employees at any plant in the United States upon request, give plant access to Union organizers upon request, and recognize the Union at any plant where a majority of the employees had signed authorization cards. In turn, the Union agreed that while a collective bargaining agreement was being ratified at a previously organized facility, it would not commence campaigns at other Challenge facilities. Even so, individual employees at all times retained the right to engage in union-organizing activities.
In April 2017, while Challenge and the UAW were in the process of ratifying a bargaining agreement at Challenge's facility in Pontiac, Michigan, Kiliszewski began another effort to secure UAW representation at the Holland plant. Kiliszewski's efforts included soliciting signatures on union authorization cards, holding off-site meetings, wearing UAW paraphernalia at work, and discussing the UAW with other employees. At some point, a maintenance supervisor at the Holland plant informed company management—including the vice-president of human resources, Mike Tomko, and human resources manager DarleneCompeau—that Kiliszewski and Carl Leadingham, another supervisor, were involved in union-organizing activities at the facility. Tomko and Compeau called Leadingham into a meeting on April 25, asked him to identify other employees who were engaging in union-organizing activities, and suspended him for five work days. Shortly after being suspended, Leadingham called Kiliszewski and warned him to "watch his back because supervisors or managers were watching him and others to see their union activity." (J.A. 154.)
About two weeks later, on the evening of May 5, 2017, Kiliszewski arrived at around 10:00 p.m. for his regular work shift, which began at 10:30 p.m. He officially punched in at 10:17 p.m. According to Challenge's policy, however, workers are not allowed on the production floor and are not paid until their shifts have started. Thus, when Norma Sanchez, a production supervisor on the shift prior to Kiliszewski's, approached Kiliszewski several times between 10:00 and 10:30 p.m. and asked him to fix a malfunctioning machine, he communicated to Sanchez that his shift had not yet started and told her to find a mechanic who was being paid at the time.
The last of the exchanges between Kiliszewski and Sanchez became particularly heated. There is conflicting testimony with regard to what exactly happened, but the administrative law judge ("ALJ") determined that Sanchez pointed a finger at Kiliszewski and another mechanic with whom Kiliszewski was conversing, James Eric Mathews, and yelled at them to fix the malfunctioning machine "right now." (J.A. 5.) When the two mechanics repeated that they were not yet on the clock, Sanchez yelled, "You'll do as I say, when I say." (Id.) Kiliszewski then admittedly yelled at Sanchez to "go see your f—king 2nd shift maintenance crew" and to get either "the hell" or "the f—k" out of his face. (Id.) When Sanchez threatened to go find Kiliszewski's supervisor, Kiliszewski encouraged her to do so. According to Sanchez, as shewas walking away, Kiliszewski said, "F—k you, b—h." (Id.) Kiliszewski denies making this last statement. The ALJ declined to credit Sanchez's allegation, finding that "the record does not establish that Kiliszewski used the term 'b—h,' or, in fact, made any statement to Sanchez as she was walking away." (Id.)
Three hours after the exchange, around 1:00 a.m. on May 6, Sanchez sent an email to various management personnel at the Holland plant relaying her version of the events. Kiliszewski's direct supervisor, Larry Boyer, who was copied on Sanchez's email, provided Kiliszewski with a copy of the email and told him to avoid Sanchez.
On the morning of May 9, after finishing his shift, Kiliszewski was called into a meeting with Compeau and Jeff Glover, a maintenance manager, to discuss the incident with Sanchez. Compeau asked Keith O'Brien, vice-president of operations and the highest ranking person at the Holland facility, to join the meeting after Kiliszewski refused to look at or speak directly to her. During the meeting, Kiliszewski shared written notes that he had prepared on a copy of Sanchez's email and proceeded to respond largely based on those notes. He admitted to swearing by referring to the "f—king" second-shift maintenance crew, but denied saying "f—k you, b—h," as Sanchez was walking away. Overall, Kiliszewski took the position that, by issuing "demand[s]" of him and Mathews before their shift had even started, Sanchez was the "aggressor" and was "out of line." (J.A. 564-65.) Kiliszewski also expressed the view that Challenge was targeting him because of his union-organizing activity.
Following the May 9 meeting, Compeau proceeded to investigate further by interviewing and gathering statements from other employees who were in the vicinity at the time of the incident. As the ALJ found, "[t]he results of Compeau's investigatory interviews are notable for the extent to which those interviewed indicated that Sanchez was the aggressor in theconfrontation." (J.A. 7.) For example, Liliana Guajardo, who was talking with Sanchez right before Sanchez approached Kiliszewski and Mathews, stated, "I heard Norma [Sanchez] yell at Mike [Kiliszewski] and Eric [Mathews]," and, "I just feel that Norma was aggressive in the way she came up to them." (J.A. 737, 738.) Another employee, Gerald DeCheney, stated that Sanchez "went off" on Kiliszewski. (J.A. 727.) Mathews, who was with Kiliszewski, recalled that Sanchez "kept coming at [Kiliszewski]" and was "not letting him walk away." (J.A. 722.) None of the employees whom Compeau interviewed heard Kiliszewski say "f—k you, b—h," to Sanchez.
Compeau also received a written account from—but did not personally interview—David Napier, a welder who corroborated Sanchez's claim that Kiliszewski said "f—k you, b—h." Based on the record and testimony from other witnesses to the incident, however, the ALJ declined to credit Napier's account. The ALJ moreover concluded that "Compeau did not have a reasonable basis for concluding" that Kiliszewski had made the statement to Sanchez, because "not a single one" of the witnesses whom Compeau interviewed corroborated Sanchez's allegation and Sanchez herself, who was walking away, did not actually see who uttered the statement. (J.A. 8.)
Challenge's employee handbook provides that "extremely serious" misconduct, including "unlawful harassment and discrimination," "will typically lead to termination of employment." (J.A. 655, 669.) But for misconduct that includes "refusing to follow clear instructions of a supervisor" and "[d]irecting abusive or profane language toward a fellow Team Member, supervisor or manager," employees are subject to "progressive discipline." (J.A. 670.) Under this system of progressive discipline, a "verbal written warning" is the appropriate discipline for a first offense, with termination usually imposed only after a fourth offense. (Id.) The recordprovides many examples of incidents involving insubordination or use of profane language where the Company imposed disciplinary measures well short of discharge.
On May 12, 2017, Challenge immediately terminated Kiliszewski's employment. O'Brien, who gave the final approval for the termination, later testified that the decision was based on Compeau's recommendation that Kiliszewski be discharged and O'Brien's view that Sanchez was believable.
Kiliszewski filed charges with the Board alleging discriminatory discharge and interference with his rights to engage in protected union activity. After a two-day hearing, the ALJ upheld the charges. The ALJ concluded that Leadingham's warning to Kiliszewski to "watch his back" was unlawfully threatening and created the impression that Kiliszewski's protected union activities were under surveillance. The ALJ also concluded that animus...
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