Mohave Electric Cooperative v. Nat'l Labor Bd., 98-1522

• Decision Date: 28 March 2000
• Docket Number: No. 98-1522,98-1522
• Citation: 206 F.3d 1183
• Parties: (D.C. Cir. 2000) Mohave Electric Cooperative, Inc.,Petitioner v. National Labor Relations Board, Respondent
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1183

206 F.3d 1183 (D.C. Cir. 2000)

Mohave Electric Cooperative, Inc.,Petitioner v. National Labor Relations Board, Respondent

No. 98-1522

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 14, 1999

Decided March 28, 2000

[Copyrighted Material Omitted]

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board

Thomas J. Kennedy argued the cause for petitioner. With him on the briefs were Gregg J. Tucek, William P. Allen, and Neil I. Levy.

Preston L. Pugh, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and David Habenstreit, Supervisory Attorney. John D. Burgoyne, Deputy Associate General Counsel, entered an appearance.

Before: Ginsburg, Henderson, and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge:

Mohave Electric Cooperative, Inc. petitions for review of a decision and order of the National Labor Relations Board (NLRB), which concluded that the company unlawfully discharged employee Richard Michaels for protected concerted activity in violation of section 8(a)(1) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1). The NLRB cross-petitions for enforcement of its order. We deny the petition for review and grant the cross-petition for enforcement.

I

Mohave is an electric utility operating out of Bullhead City, Arizona. It has approximately seventy employees, roughly twenty of whom are represented by the International Brotherhood of Electrical Workers, Local 769, AFL-CIO ("the Union"). The bargaining unit consists of linemen, mechanics, warehousemen, and between eight and twelve meter readers. The latter are responsible not only for reading electric meters, but also for meter installation, meter connection and disconnection, and other related duties. Gene Quinn supervises Mohave's meter department and reports to Tom Longtin, the operations manager.

Consistent with the terms of its collective bargaining agreement (CBA), Mohave uses several subcontractors to supplement its work force. One subcontractor, Guard Force, has provided Mohave with additional meter readers since 1993.Guard Force employees wear uniforms like those of Mohave meter readers, and they work out of the same room on Mohave's premises. Although they have their own on-site supervisor, David Drabek, he reports to Mohave's Gene Quinn. See Mojave Elec. Coop., 327 N.L.R.B. No. 7, 1998 WL 777462, at *4 (Oct. 30, 1998); Tr. at 74.¹ Hence, all meter readers--whether employed directly by Mohave or by a subcontractor--come within the scope of Quinn's supervisory responsibility.

Richard Michaels worked as a meter reader for Mohave from August 1991 until his termination on June 3, 1996. He was one of two union stewards at the Mohave facility and served on a number of the Union's committees. His work history was generally uneventful until May 1996.

The parties dispute the details of the events that began that month and that ultimately culminated in Michaels' discharge. The Administrative Law Judge (ALJ) who heard the case found that on the morning of May 8, Michaels called Drabek, the Guard Force supervisor, to complain that a Guard Force employee had insisted that Michaels trade meter-reading routes for the day. Following that conversation, Drabek reported to Mohave that Michaels had been rude to him. Michaels denied the allegation, and his supervisor, Quinn, ended the matter by finding that Michaels "had acted properly." Mojave Elec., 1998 WL 777462, at *5.

Later that same month, Michaels learned from a friend that someone wearing a Mohave uniform had been stopped at a local grocery store for shoplifting. Pursuant to company policy, Michaels reported this to Quinn, who in turn advised Longtin, Mohave's operations manager, and Jay Nady, the owner of Guard Force. According to Nady and Longtin, the story that reached them was that Michaels had reported that the person wearing the Mohave uniform was a Guard Force employee, who had been handcuffed and driven away by the police. The actual facts were somewhat less dramatic: there had been no police arrest; the store's own security force had stopped the Guard Force employee, who claimed to have "forgotten" to pay for an item he took from the store. Nady and Longtin concluded that Michaels had exaggerated the story in order to discredit Guard Force. At the hearing before the ALJ, however, Michaels testified that he had merely reported what he had heard--that someone wearing a Mohave uniform had been stopped for shoplifting--and nothing more. Based on the demeanor of the witnesses, the ALJ found Michaels' testimony substantially more credible than that of Nady and Longtin. He therefore credited Michaels' testimony and concluded that if there had been any exaggeration, it had been by Mohave's supervisors rather than Michaels.

On May 21, angry about the alleged exaggeration, Nady went to Mohave's facility "to confront and straighten out Michaels." Id. at *6 (internal quotation omitted). Unable to find him, Nady instead located Stuart Douglas, another Mohave meter reader whom Nady had often seen with Michaels. Although the parties dispute the details of the encounter, it appears that Nady asked Douglas about Michaels' whereabouts and that there was a brief physical confrontation between them.²

The next day, when Michaels returned to work, Douglas told him that he had been physically and verbally assaulted by Nady, and that Nady had been "looking for" Michaels when this occurred. Michaels promptly told his supervisor that he felt threatened, and he asked the company for protection. Quinn told him to "give it a couple of days" and took no further action, although later Longtin did advise Nady that Mohave "reserved to itself any issues of supervision or discipline of its employees." Id. at *7. Concerned about their physical safety, Michaels and Douglas met with their coworkers and discussed their options. They described Nady's alleged assault on Douglas and stated that they were considering turning to the courts for protection. Michaels gave uncontradicted testimony that the other employees agreed with and supported such action. See Tr. at 189-90.

On May 23, in Bullhead City municipal court, Michaels and Douglas filed petitions for injunctions against harassment, citing their need for protection from "verbal and mental abuse and possibly physical violence" by Nady and Drabek.App. at 139-43. The petitions requested that Nady and

Drabek have no contact with Douglas and Michaels, and that they be enjoined to stay away from the petitioners' homes and place of employment.

On May 29, Nady received copies of the petitions and immediately contacted Longtin. He told Longtin that, if the injunctions were granted, neither he nor Drabek would be allowed on Mohave property. This, he said, would prevent them from performing their duties as subcontractors. Thereafter, Longtin decided to terminate Michaels. According to Longtin's testimony, he did so because Michaels had filed the petition, exaggerated the shoplifting incident, spoken rudely to Drabek in the telephone conversation of May 8, and called Guard Force employees "scabs." Mojave Elec., 1998 WL 777462, at *8. Longtin conceded, however, that when he told Michaels that he was being terminated, he told him "of no other reason besides his having filed the petition." Id. On July 22, the municipal court denied both Michaels' and Douglas' petitions.

The ALJ concluded that the filing of the petitions was protected conduct under the NLRA, and rejected Mohave's contention that the filing was rendered unprotected because it constituted "disloyalty." Applying the familiar Wright Line test,³ the ALJ found that a prima facie violation of section 8(a)(1) had been established because Mohave "admittedly fired [Michaels], at least in part, because of his having filed the petition," id. at *11, and because Mohave did not show that it would have fired Michaels in the absence of that protected conduct, see id. at *9-11. The NLRB affirmed.⁴ Thereafter, Mohave petitioned this court for review, and the Board cross-petitioned for enforcement.

II

As we have noted many times before, our role in reviewing an NLRB decision is limited. See, e.g., Pioneer Hotel, Inc. v. NLRB, 182 F.3d 939, 942 (D.C. Cir. 1999); Time Warner Cable v. NLRB, 160 F.3d 1, 3 (D.C. Cir. 1998). "We must uphold the judgment of the Board unless, upon reviewing the record as a whole, we conclude that the Board's findings are not supported by substantial evidence, or that the Board acted arbitrarily or otherwise erred in applying established law to the facts of the case." International Union of Elec., Elec., Salaried, Mach. & Furniture Workers v. NLRB, 41 F.3d 1532, 1536 (D.C. Cir. 1994) (internal quotations and citation omitted). We are also required to give "substantial deference to the inferences drawn by the NLRB from the facts." Time Warner Cable, 160 F.3d at 3. Moreover, absent exceptional circumstances, we must accept the agency's determinations regarding the credibility of witnesses. See Elastic Shop Nut Div. v. NLRB, 921 F.2d 1275, 1281 (D.C. Cir. 1990) (stating that "the Court must uphold Board-approved credibility determinations of an ALJ unless they are 'hopelessly incredible' or 'self-contradictory' ").

Mohave seeks to overturn the Board's finding that it committed an unfair labor practice on two principal grounds.First, it contends that Michaels' conduct in filing the injunction petition was unprotected because it was "disloyal." Second, it contends that Michaels' activity was unprotected because it was inconsistent with the collective bargaining agreement. In addition, Mohave argues that even if it did discharge Michaels for protected activity, the remedy should be limited because the company...