Lhoist N. Am. of Ala. v. Nat'l Labor Relations Bd.
| Docket Number | 21-11791 |
| Decision Date | 21 July 2023 |
| Parties | LHOIST NORTH AMERICA OF ALABAMA, LLC, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner, UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL & SERVICE WORKERS LOCAL UNION 563 ("THE UNION"), Intervenor. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
DO NOT PUBLISH
Petition for Review of a Decision of the National Labor Relations Board Agency No. 10-CA-221731
Before JORDAN and ROSENBAUM, Circuit Judges, and SCHLESINGER [*] District Judge.
This review involves a long-term, reliable employee-until the employee's union activities caught the ire of the company. The company targeted the employee until an excuse could be found to discipline and ultimately terminate his employment. This opportunity arrived the day the employee participated in a union phone call on company time.
Desilynn "Floyd" Avery, while on break, participated by phone call, as the acting union president, in another employee's termination hearing. Although the call lasted at least 25 minutes longer than Avery's break, he did not clock out for the extra time, or later report he had overstayed his break. Avery's employment was terminated. The question is whether the firing was appropriate. Following oral argument and a review of the record, we affirm the conclusion it was not.
Lhoist North America of Alabama, LLC ("the Company") operates two quarries and three lime manufacturing plants in Alabama that employ over 200 employees. At its Montevallo plant, in Calera, Alabama, it receives raw materials to produce lime and lime products and employs around 50 hourly employees, including Avery.
Since 1987, United Steel, Paper, and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 563 ("the Union") has represented a bargaining unit of production and maintenance employees at the Company's plants. In the fall of 2016 the parties began negotiations for a new collective-bargaining agreement to succeed the one due to expire in December. Senior Human Resources Manager Emily Berkes characterized the negotiations as "contentious" because the Company proposed changes to the agreement.
Following an impasse in bargaining, in October 2017, the Company unilaterally implemented new terms and conditions of employment. In 2017 and early 2018, the Union filed many charges with the National Labor Relations Board ("the Board"), some of which involved the unilateral implementation.
Avery joined the Company in 1991. He was its sole slurry operator at the Montevallo plant; a job that entailed mixing hydrated lime and water, sampling it, and loading the finished product onto a truck. Slurry is usually mixed once or twice each week and the process takes around 4-6 hours.
Avery typically worked Monday through Friday on the day shift, from 6:00 a.m. until 2:30 p.m. Like other employees in the plant, he clocked in when arriving at work and clocked out if leaving the facility. His lunch was a non-paid 30-minute break automatically deducted from his pay. For a regular 8-hour shift, employees received a 15-minute paid break. Like other employees, and under the employee handbook, Avery did not clock out for lunch or any break unless he left the plant. His usual 15-minute morning break began around 9:00 a.m. and lasted until 9:15 a.m. The supervisors, whose offices are next to the break room, would normally take their breaks alongside the employees.
Besides his slurry operator obligations, Avery performed other duties outside of his job's requirements. Production Manager Grant McCallum characterized Avery as someone who "would typically help out . . . in other areas of the plant." Avery's help included regularly filling and driving a water truck used to spray the plant down to limit dust; a task not part of his job description. Avery also sometimes loaded bags with product and helped stack them in the bagging shed.
During the relevant time, Stacey Barry was the Company's Senior Human Resources Director while Emily Berkes was the Senior Human Resources Manager. Terry Beam was Avery's direct supervisor and he reported to Production Manager Grant McCallum. Barry characterized Avery as an employee who "always worked" and was unaware of any complaints about his work performance. McCallum was unaware of any complaints about Avery's work the day of his discharge.
Avery was a member of the Union for his entire employment, serving as Union Steward and then as vice-president since 2010. Avery was the acting president for part of 2018. In his role as vice-president, Avery attended all arbitrations. He also participated in the most recent, and prior, collective-bargaining negotiations. Avery was a vocal opponent of the implemented terms, according to Berkes. McCallum also considered Avery a strong employee advocate who often challenged management.
During work time, Avery, and Union president Jon Wilson received phone calls from Barry and Berkes to discuss union matters. Wilson and Avery were not given notice and did not notify their supervisor about the calls or have their time docked. The Company also called Avery and Wilson to represent employees in meetings on the "spur of the moment" without prior notification and without providing notice to their supervisors. Before his discharge, Avery was never disciplined for taking a cell phone call at work.
On January 5, 2017, Avery received his first discipline; a final written warning for a no call, no show on January 3. The warning suggested a second no call, no show "may result in termination." The incident stemmed from Avery's confusion about his work schedule following a vacation. The Company issued the final warning despite the highest ranking official at the plant, Plant Manager Craig Gordinier, recommending the Company withhold Avery's pay for the New Year's holiday and charge him with one occurrence. Under the Company's attendance policy, a single occurrence does not result in any discipline.
The Company's attendance policy and its employee handbook address disciplinary action for a no call, no show differently. The attendance policy states:
Not reporting to work or not calling to report the absence properly is considered No Call/No Show. The first instance of a no call/no show will result in a Final Written Warning. The second offense may result in termination of employment without additional interventions. Consistent with the Labor Agreement, Section 12.11(i), an employee who is absent from work without notification to the Company for 2 consecutive work days without excuse satisfactory to the Company will lose their Seniority Rights.
While the handbook provides,
The Company also has General Conduct and Safety Rules every employee must follow. These rules established a "Policy for Disciplinary Action" that provided,
More than a year later, Avery once again found the ire of the Company, but this time for his union activity. On January 22 2018, Avery attended an offsite arbitration hearing in his capacity as union vice-president and acting president. Barry and Berkes were present at the arbitration, as the Company's representatives, and neither commented on Avery's presence. Nor did Beam contact Avery about his absence from the plant.
Avery did not notify Beam, his supervisor, that he was attending the arbitration and had never done so before. From his experience, the Company representatives advised Avery's supervisor he would attend the arbitration.
The next day, January 23, Avery's supervisor directed him to see Grant McCallum, the production manager. McCallum questioned Avery about his absence from work the previous day. At McCallum's request, Avery provided a handwritten statement explaining why he did not provide advance notice for the arbitration.
In this statement, Avery explained,
On January 26, Avery was called to another meeting about the arbitration, but this time Avery was joined by Barry, Berkes, McCallum, and a union steward. Barry explained the "higher-ups" wanted Avery discharged, but he did not. So McCallum presented Avery with a last chance agreement. Avery objected, asserting he had never provided notice to a supervisor before attending an arbitration. But Barry read Section 16.3 of the unilaterally implemented collective-bargaining agreement, which required union officials to give the Company a week's advance notice if they needed unpaid union leave to attend "third step grievance meetings, arbitration hearings, and labor negotiations" and "union conventions or meetings."[1]
Based on Barry's warning, a failure to sign the last-chance agreement would be considered a voluntarily resignation, so Avery signed. The agreement included a one-day suspension and required Avery to notify his supervisor of an absence at least one hour before the scheduled start time. It also stated that Section 16.3 of the implemented terms and conditions of employment required Avery "to...
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