N.L.R.B. v. Thermon Heat Tracing Services, Inc.

• Decision Date: 03 June 1998
• Docket Number: No. 97-60114,97-60114
• Citation: 143 F.3d 181
• Parties: 158 L.R.R.M. (BNA) 2474, 135 Lab.Cas. P 10,174, 18 O.S.H. Cas. (BNA) 1483 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. THERMON HEAT TRACING SERVICES, INC., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 181

143 F.3d 181

158 L.R.R.M. (BNA) 2474, 135 Lab.Cas. P 10,174,

18 O.S.H. Cas. (BNA) 1483

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. THERMON HEAT TRACING SERVICES, INC., Respondent.

No. 97-60114.

United States Court of Appeals,

Fifth Circuit.

June 3, 1998.

Aileen A. Armstrong, Deputy Assoc. General Counsel, Frederick C. Havard, Ana Luisa Avendano, N.L.R.B., Washington, DC, Michael Dunn, Director, N.L.R.B., Fort Worth, TX, for Petitioner.

Judith Batson Sadler, Charles Edward Sykes, Bruckner & Sykes, Houston, TX, for Respondent.

On Application for Enforcement of an Order of the National Labor Relations Board.

Before EMILIO M. GARZA, STEWART and DENNIS, Circuit Judges.

CARL E. STEWART, Circuit Judge:

This case is before us on the application of the National Labor Relations Board ("NLRB") for the enforcement of an order issued against Thermon Heat Tracing Services, Inc. ("Thermon"). ¹ The NLRB held that Thermon engaged in an unfair labor practice by using the guise of workplace safety to thwart union activity at one of its job sites. The NLRB found that the safety rule itself did not violate the National Labor Relations Act ("the Act"), ² but that the discriminatory manner in which it was enforced against union members was in violation of the Act. For the following reasons we enforce the NLRB's order.

BACKGROUND

In 1993, Brown and Root Braun ("Brown and Root") was selected as the general contractor for the expansion of Texaco's gasoline additive plant in Port Neches, Texas. Respondent Thermon, an electrical contractor, was chosen as one of Brown and Root's subcontractors. Thermon, which was responsible for installing the electrical heat tracing system, employed about 100 of the approximately 3000 workers at the Texaco site. ³ Thermon's employees at the facility were represented by Local 479 of the International Brotherhood of Electrical Workers ("Local 479").

On March 2, 1995, Local 479 initiated a recognitional strike among Thermon's craft employees. Fifty-two (52) of the 57 craft employees went on strike for recognition.

On March 10, while the strike was in progress, Brown and Root issued a directive to all of its subcontractors at the Texaco project, which stated:

With the impending opening of B and C Streets in the East plant, as well as future early turnover of Blocks 5-8, it is requested that each subcontractor require their employees to remain in their designated work areas and not travel around in other areas of the project. These particular areas are permit areas and require special training to enter. Your cooperation is appreciated.

On March 12, Thermon's Safety Director, Paul Wagstaff, responded to this directive by issuing the following safety rule to its employees:

In order to maintain a safe, continual and productive work force, it is necessary that all craft personnel remain in their assigned work areas.

This mandate will commence this date and shall include all breaks and on the job lunch periods.

This program will assist foremen as to the whereabouts of their employees should an emergency arise now that Brown & Root Braun is beginning to utilize corrosives with the flushing of pipelines.

We all should realize that additional changes may occur as our project changes from a "grass root" job to a gradual "live unit".

As always your continued support is appreciated.

Under the new safety rule, an employee could visit another work area if he had permission from his foreman and if the foreman of the other work area knew that the employee would be visiting. Employees who violated this rule were to be issued a written warning in the first instance. A second violation would result in termination. Thermon eventually terminated fifteen (15) employees for violating the safety rule.

During the strike, Walter McNeely, a paid union informant, was hired by Thermon. ⁴ Thermon was unaware of McNeely's membership in the union. McNeely testified that he frequently left his work area during lunch without seeking his foreman's permission. Moreover, McNeely told the NLRB of four occasions on which he was seen outside of his work area by those that the NLRB found to be supervisors on the site or agents of Thermon. On the first occasion, McNeely encountered Safety Director Paul Wagstaff. They spoke, but nothing was said about the fact that McNeely was out of his work area. On the second occasion, McNeely saw and spoke with Doug Brookshire, the site Superintendent while McNeely was outside of his work area. Again, McNeely was not challenged about his failure to comply with the safety rule. McNeely also encountered another In addition to never having been disciplined for violating the safety rule, McNeely testified that, before the strike ended, he overheard Wagstaff saying that he intended to use the new safety rule to discipline union members who were distributing union literature outside of their assigned work areas. He also testified that, while seated near a Thermon foreman at lunch, he heard Thermon foremen talking on walkie-talkies and warning each other that "union people" had left their assigned blocks and were on their way.

Superintendent, Todd McMain, while he was outside of his work area. Again, no action was taken against McNeely for violating the safety rule. Finally, McNeely encountered Thermon's General Foreman, Tom Maydian while McNeely was away from his assigned work area. Just as before, McNeely was not disciplined for failing to comply with the safety rule. ⁵

On March 17, the strike was called off and Local 479 made an unconditional offer for the strikers to return to their jobs. When the strikers returned to work in April, Wagstaff gave them a safety briefing and a copy of the new safety rule.

Between April 11 and April 27, Thermon issued warnings to fifteen employees who violated the new safety rule. These fifteen employees had all previously been on strike. Each of these employees claims to have been engaged in union activities when he was cited for violating the safety rule. All fifteen were discharged shortly after receiving the initial warning for violating the rule a second time. The NLRB found that Thermon was aware of the union affiliation of the fifteen employees who were fired for violating the safety rule and that, therefore, these fifteen terminations resulted from the rule's being enforced in a discriminatory manner against union activists.

STANDARD OF REVIEW

We will uphold the NLRB's decision if it is reasonable and supported by substantial evidence. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Trencor, Inc. v. NLRB, 110 F.3d 268 (5th Cir.1997). The Supreme Court has defined substantial evidence as "more than a scintilla.... [S]uch relevant evidence as a reasonable mind would accept to support a conclusion." Universal Camera, 340 U.S. at 477, 71 S.Ct. at 459. In determining whether the NLRB's factual findings are supported by the record, we do not make credibility determinations or reweigh the evidence. NLRB v. Cal-Maine Farms, 998 F.2d 1336, 1339-40 (5th Cir.1993) (citing cases). " 'Recognizing the Board's expertise in labor law, we will defer to plausible inferences it draws from the evidence, even if we might reach a contrary result were we deciding the case de novo.' " NLRB v. Turner Tool & Joint Rebuilders Corp., 670 F.2d 637, 641 (5th Cir.1982) (quoting TRW, Inc. v. NLRB, 654 F.2d 307, 310 (5th Cir. Unit A Aug.1981)); see also NLRB v. Great Western Coca-Cola Bottling Co., 740 F.2d 398, 404 (5th Cir.1984) (on review, this Court accords "great deference" to the NLRB's findings of fact). However, in assessing whether the evidence in the record is substantial we must consider the facts that militate or detract from the NLRB's decision as well as those that support it. TRW, 654 F.2d at 310. The NLRB's legal conclusions are reviewed de novo.

DISCUSSION

Thermon argues that there is insufficient evidence supporting the NLRB's findings in this matter. In particular, Thermon urges the following: (1) that Tom Maydian and Paul Wagstaff were not "supervisors" under the Act and, therefore, their actions cannot be imputed to Thermon, (2) that Thermon did not apply its safety rule in a discriminatory manner, and (3) that Thermon had no knowledge of the union activities of the dismissed employees.

I. Tom Maydian and Paul Wagstaff

McNeely testified that both General Foreman Tom Maydian and Safety Director Paul Wagstaff observed and acknowledged him during periods when he had, without permission, left his work area during his lunch break and visited other areas. Thermon contends that while Maydian and Wagstaff may have observed McNeely violating the safety rule, their observations are immaterial because they were not supervisors under the meaning imputed to this term by Section 2(11) of the Act, which defines "supervisor" as follows:

any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or adjust their grievances, or effectively recommend such action, if in connection with the foregoing exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

Superintendent Brookshire, testified that Maydian was "an electrical supervisor" who had authority to run crews, and to direct and reprimand employees. This testimony supports the NLRB's finding that Maydian was a "supervisor" under the Act.

The NLRB found that Wagstaff, on the other hand, was not a supervisor. Rather, the NLRB held that he was an agent of Thermon. It is, however, unnecessary for Wagstaff to have been a supervisor in order for his knowledge to have been imputed to Thermon. Rather, an agent's violation of the Act is sufficient for said violation to be imputed to the employer. See Atlas Minerals, 256 NLRB 91, 96 (1981); Uniontown Hosp. Ass'n, 277 NLRB 1298,...