Charter Commc'ns, Inc. v. Nat'l Labor Relations Bd.
| Decision Date | 25 September 2019 |
| Docket Number | Nos. 18-1778/1895,s. 18-1778/1895 |
| Parties | CHARTER COMMUNICATIONS, INC., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Jonathan French created pro-union flyers and asked a union organizer to distribute them at his workplace, Charter Communications, Inc. (Charter or the Company). Three months later, Charter fired French and two of his colleagues, James DeBeau and Raymond Schoof. In the intervening period, all three employees were temporarily reassigned to more isolated regions, and Charter supervisors watched French closely, warned him that the Company was aware of his undisclosed pro-union activities, and threatened him with discharge.
The National Labor Relations Board (NLRB or the Board) concluded that Charter repeatedly violated the National Labor Relations Act (NLRA or the Act) during that three-month period. The Board also found that French was discriminatorily discharged because of his union activity and that DeBeau and Schoof were discriminatorily discharged because of their perceived union activity. Charter petitions for review of these decisions. The General Counsel for the Board, on behalf of French, DeBeau, and Schoof, cross-petitions for enforcement. Because substantial evidence supported the Board's decisions, we DENY the petition for review and GRANT the cross-petition for enforcement.
The parties dispute what happened in the summer and fall of 2014. The record created by the administrative law judge (ALJ) and adopted by the Board establishes the following.
Until October 2014, French worked as an auditor at Charter, a company providing television, internet, and telephone services. As an auditor, his job was to visit addresses of Charter subscribers and confirm they received only those services for which they paid. French and a few Charter technicians (who install equipment and resolve service problems) decided that unionization might help them all receive better pay. So, in the spring of 2014, French reached out to a local chapter of the International Brotherhood of Electrical Workers (IBEW).
After speaking to an IBEW organizer, French and his wife created a set of pro-union flyers; one of his wife's coworkers distributed the flyers at a Charter office in Bay City, Michigan. That first round of flyers failed to generate responses, in part because Charter supervisors removed the flyers from unattended vehicles. French then suggested that the union handbill (that is, personally distribute flyers) outside his Charter office in Saginaw.
From approximately 8 to 9:30 a.m. on July 15, 2014, as the technicians were arriving for their weekly meeting at the Saginaw office, the union organizer and his team passed out the handbills French had made. Two supervisors heard the technicians talking and went outside. One of those supervisors, Shawn Felker, oversaw the region's auditors, including French, DeBeau, and Schoof. Felker called his boss, T.J. Teenier, manager of all the auditors and technicians in Michigan, who immediately drove to Saginaw from his office 15 to 20 minutes away in Bay City. Teenier also called his boss, Regional Director Greg Culver. According to Teenier, Culver instructed him "to pay attention to who's taking the flyers" and "to take notes if possible."
Meanwhile, the two supervisors observed the handbilling. When an auditor on Felker's team drove into the lot and spoke briefly to the organizers, Felker walked directly to the auditor's vehicle and asked if he had taken a flyer. He had not. The two supervisors remained outside, watching. When Teenier arrived, he reiterated the instructions to "take notes" and see "who is paying attention and who seemed to be generally interested." Though neither supervisor took written notes, Teenier testified that one passed on a couple names. That supervisor denied he had done so.
The union activity prompted a series of management conference calls. During a call no more than a day after the handbilling, a regional vice president directed Teenier "to meet with Jon French because his name had c[o]me up as being a possible instigator for the union activity." Company notes from the call state that French "is trouble" and end with a note: "TJ – talk to Jonathan French."
Pursuant to that direction, Teenier visited French in the field the day after the handbilling. He invited French into his car and, in his words, "tr[ied] to figure out if [French] was involved with the union." Teenier testified that he told French that he was being looked at closely by members of upper management and that if he was involved with the union, it will bring a lot of unwanted attention onto himself and to the team. Teenier urged that if there was anything French needed to discuss, he should bring it to Teenier's attention. French could not recall the conversation verbatim, but explained that he felt uncomfortable because Teenier was asking if French "knew of anyone that did anything with union stuff" or could give names of any employees. Notes from the next day's conference call indicate that Teenier told French and a pro-union technician French had been in contact with that both their names were brought up.
On July 17, two days after the handbilling, Teenier's boss, Culver, took French for an unscheduled ride-along (or ride-out). Culver testified that it was his practice as a new manager to go on ride-alongs two to three times a month, whenever time allowed, joining auditors and technicians in the field for a few hours or a day. But no one had done a ride-along with French before (or after) that day, and both Felker and Teenier considered it unusual for a regional director like Culver to go on an unscheduled, one-on-one ride-out. French suggested to Culver that he was there "because of the mutiny ... a couple of days ago." Culver demurred but, according to French, eventually steered the conversation to the topic of employee complaints. French testified that he refused to tell Culver any names but was willing to discuss a concern among the technicians about how they were being evaluated. This evaluation process was not personally relevant to an auditor like French. The next day, Culver emailed senior management officials that French "talked about things he had no reason to be involved with."
The management conference calls continued. In late July, the same vice president who prompted Teenier's meeting with French instructed Teenier to isolate the employees and keep them away from other technicians and other audiences. Teenier reassigned all four auditors on French's team (including DeBeau and Schoof) to rural areas on the outskirts of Saginaw. The move made their work harder, more isolated, and more distant from their homes. And although the auditors sometimes worked in these outlying areas, DeBeau found his transfer odd because he had just finished auditing one area he was sent to. When he brought up the oddity, Teenier told DeBeau that the transfer was to keep the field auditors separated so that they wouldn't talk about the union activity. In the meantime, Charter scheduled several weeks of mandatory union avoidance meetings.
By August, most of the transferred auditors had returned to work in Saginaw. According to two Charter officials, the union worries were dying down, with union-related calls ending in early August. Teenier disagreed, maintaining that though calls became less frequent, they continued through September and perhaps October.
In early September, Teenier belatedly complied with an order Culver had given him several months before to even out the size of his supervisors' teams. Felker, who supervised French, DeBeau, and Schoof, had a larger team than the supervisor covering the region immediately to the north, Rob Lothian. When Teenier explained the transfer, Felker suggested that Teenier move French, in addition to DeBeau and Schoof, so that the union spotlight was off of Felker's team. Teenier agreed. When the switch was announced, Felker heard Lothian mumble, you're giving me "the problem child" and "the guy that caused all th[e] union problems." Teenier disagreed, saying Lothian was pleased to have three of the best guys in the state on his team.
The record reveals that Lothian, who did not testify, had reason to be both pleased and concerned. French, DeBeau, and Schoof all had outstanding productivity statistics and no history of discipline. But Teenier had been displeased with Lothian's recent performance and indicated his hope that the extra responsibility might encourage Lothian to retire.
Just over two weeks after the transfer, on September 19, Lothian went to Charter's human resources department and spoke to Stephanie Peters. After discussing an unrelated matter, Lothian listed an array of complaints about Teenier, Felker, and his three new auditors. Based on the report that Peters later generated summarizing the conversation, Lothian was concerned that Teenier had "built his own little world," populated with close friends and operated without regard to normal company policy.1 Lothian claimed that Teenier pulled those friends to work on special projects, which caused those employees to have bad productivity statistics—statistics that would now reflect poorly on Lothian.
Lothian told Peters that he had heard from Felker about one special project DeBeau and Schoof had worked on a week before. Lothian alleged that Felker had a photo of DeBeau, Schoof, and Teenier laying sod at Schoof's home on company time (Lothian did not explain to Peters how he knew when the photo was taken, though the ALJ noted that "[c]ellphones generally show the time and date a picture was taken."). Lothian also said that DeBeau and Schoof fixed plumbing at one of Teenier's rental homes during work hours. In a follow-up conversation a week later, Lothian complained...
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