N.L.R.B. v. Air Contact Transport Inc.

• Decision Date: 11 April 2005
• Docket Number: No. 03-2513.,03-2513.
• Citation: 403 F.3d 206
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AIR CONTACT TRANSPORT INCORPORATED, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

403 F.3d 206

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AIR CONTACT TRANSPORT INCORPORATED, Respondent.

No. 03-2513.

United States Court of Appeals, Fourth Circuit.

Argued: March 7, 2005.

Decided: April 11, 2005.

COPYRIGHT MATERIAL OMITTED

ARGUED: Steven R. Weinstein, Becker Meisel, L.L.C., Livingston, New Jersey, for Respondent. David S. Habenstreit, National Labor Relations Board, Office of the General, Washington, D.C., for Petitioner. ON BRIEF: Arthur F. Rosenfeld, General, John E. Higgins, Jr., Deputy General, John H. Ferguson, Associate General, Aileen A. Armstrong, Deputy Associate General, Jeffrey M. Hirsch, National Labor Relations Board, Washington, D.C., for Petitioner.

Before WILKINS, Chief Judge, and WILLIAMS and TRAXLER, Circuit Judges.

Application for enforcement granted by published opinion. Judge WILLIAMS wrote the opinion, in which Chief Judge WILKINS and Judge TRAXLER joined.

OPINION

WILLIAMS, Circuit Judge:

The National Labor Relations Board (Board) seeks enforcement of an order against Air Contact Transport, Inc. (Air Contact). The order concluded that Gary Goode (Goode), a former Air Contact employee, had engaged in protected concerted activities under § 7 of the National Labor Relations Act (NLRA or Act), 29 U.S.C.A. § 157 (West 1998), by asking management questions on behalf of himself and his coworkers, despite the fact that he asked the questions in a "loud" and "boisterous" manner. It also concluded that Air Contact's letter to Goode, which informed him that his manner of speaking was unacceptable to it, reasonably tended to coerce him from exercising his § 7 rights in violation of § 8(a)(1) of the NLRA, 29 U.S.C.A. § 158(a)(1) (West 1998). Finally, it concluded that Goode's termination for failing to acknowledge the letter also violated § 8(a)(1). For the reasons that follow, we grant the application for enforcement.

I.

Air Contact, a freight transportation company, employed Goode as a delivery truck driver at its Lorton, Virginia terminal. On August 10, 2000, Air Contact held a going-away party for one of its employees at a local restaurant. Vince DeCarlo, Air Contact's General Manager, attended the party. As the party was winding down, DeCarlo, as he customarily did at employee functions, asked the employees still present if they had any questions on work-related matters. Goode raised his hand and asked a number of questions pertaining to pay and benefits "on behalf [of himself] and other co-workers." (J.A. at 18.) Goode began talking in a "loud" and "boisterous" voice in the course of the ensuing discussions, which lasted about an hour. (J.A. at 81, 217). While DeCarlo was responding to one of Goode's questions, Goode muttered "baloney" to a fellow employee, (J.A. at 100), but there is no evidence that DeCarlo either heard or later became aware of this statement.¹

On Friday, September 22, 2000, over a month after the going-away party, DeCarlo sent a letter to Goode responding to the substance of the pay-related questions Goode asked at the restaurant. The letter also addressed what DeCarlo perceived as the disrespectful tone of Goode's voice. The letter stated Goode was "very public in [his] loud voicing of [his] discontent" and that the "challenging, loud, animated and insubordinate tone [was] embarrass [ing to DeCarlo]." (J.A. 351.) The letter suggested Goode should "survey other companies" because "[i]t is possible that somewhere there is something better or more attractive." (J.A. 351.) The letter also stated, however, "[i]t is your absolute right to talk to whomever you please regarding pay and benefit related issues....[W]e always appreciate well-intended and helpful input." (J.A. at 351.) DeCarlo instructed Mike Rish, Goode's immediate supervisor, to ensure that Goode signed the letter as an acknowledgment of his receipt and understanding of it. Goode refused to sign the letter, asserting that he did not agree with DeCarlo's assertions that he had been insubordinate at the party.

On Friday, September 29, 2000, Bradford Honingsberg, Air Contact's president, called Goode at home to discuss why Goode had not signed the letter, which Honingsberg called a "reprimand". (J.A. at 37.) During this conversation, Goode again refused to sign the letter and maintained that he did not agree with the assertions therein. Honingsberg informed Goode that if he did not sign the letter, Air Contact would be "cutting ties" with him. (J.A. at 386.) Upon hearing this statement, Goode hung up the phone. On Monday, October 2, Goode reported to work, and Rish informed him that he had been fired.

Goode filed a charge with the Board, and a complaint issued against Air Contact. An ALJ conducted a hearing on the matter, and, on July 31, 2002, issued an order in Goode's favor. First, the ALJ concluded that Goode had engaged in protected activity under § 7 at the restaurant. Second, the ALJ concluded that Goode did not lose the protections of § 7 by his manner of speaking. Third, the ALJ concluded that the September 22 letter was "disciplinary" and therefore tended to coerce Goode from taking further protected activity in violation of § 8(a)(1). Fourth, the ALJ concluded that Air Contact also had violated § 8(a)(1) by terminating Goode. With respect to this fourth conclusion, the ALJ found that Air Contact had impermissibly fired Goode under Wright Line, 251 N.L.R.B. 1083 (1980) (applying a burden-shifting proof scheme to cases involving allegations of unlawful motive), enforced 662 F.2d 899 (1st Cir.1981), approved in NLRB v. Transp. Mgm't Corp., 462 U.S. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983), as modified in Office Workers' Comp. Programs v. Greenwich Collieries, 512 U.S. 267, 276-78, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994), because Air Contact did not rebut the prima facie § 8(a)(1) case of unlawful termination. In addition, the ALJ found that Air Contact's termination of Goode was unlawful under Kolkka Tables, 335 N.L.R.B. 844 (2001) (holding that a discharge is unlawful if it resulted from a refusal to comply with an employer's order that itself interfered with the employee's § 7 rights), because the September 22 letter was unlawful, thus making Goode's failure to sign it an improper basis for his discharge.

On September 30, 2003, the Board affirmed the ALJ's findings in whole and his conclusions as modified. With respect to the ALJ's fourth conclusion — that Air Contact's termination of Goode violated § 8(a)(1) — all three members of the Board affirmed under Kolkka Tables, while one member also would have affirmed on the ground on which the ALJ relied, i.e., that Air Contact did not rebut the prima facie case under Wright Line. The Board's order required Air Contact to reinstate and reimburse Goode.

On December 12, 2003, General Counsel to the Board filed an application for enforcement, which Air Contact opposed.

II.

In contesting the Board's application for enforcement, Air Contact concedes that the content of Goode's speech was protected but argues that there was not substantial evidence in the record to support the Board's conclusions that (1) Goode did not lose the protections of the NLRA by his manner of speaking at the party, (2) the September 22 letter was coercive, and (3) the termination of Goode for failing to sign the letter was unlawful. The Board's legal interpretations of the NLRA are entitled to deference so long as they are "rational and consistent" with the Act. Consol. Diesel Co. v. NLRB, 263 F.3d 345, 352 (4th Cir.2001) (quoting NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 787, 110 S.Ct. 1542, 108 L.Ed.2d 801 (1990)). We must affirm the Board's factual findings if they are "supported by substantial evidence on the record considered as a whole." 29 U.S.C.A. § 160(e) (West 1998); Consol. Diesel, 263 F.3d at 351. Likewise, we review mixed questions for substantial evidence where the Board's legal interpretations are otherwise valid. See Wal-Mart Stores, Inc. v. NLRB, 173 F.3d 233, 240 (4th Cir.1999). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Alpo Petfoods, Inc. v. NLRB, 126 F.3d 246, 250 (4th Cir.1997) (internal quotation marks omitted). "If such evidence exists, we must uphold the Board's decision `even though we might have reached a different result had we heard the evidence in the first instance.'" Id. (quoting NLRB v. Gen. Wood Preserving Co., 905 F.2d 803, 810 (4th Cir.1990))

With these principles in mind, we turn to Air Contact's arguments.

A.

Air Contact does not quarrel with the Board's conclusion that the content of Goode's speech at the party was concerted, and therefore protected, activity under § 7. Rather, it contends that the Board erred in concluding that the manner in which Goode spoke was also protected. In particular, it argues that because Goode became loud and boisterous while asking his otherwise-protected questions, his conduct was so insubordinate as to remove the protection of § 7. We disagree.

Section 7 of the NLRA provides that employees "have the right to self-organization ... and to engage in other concerted activities for the purpose of ... mutual protection." 29 U.S.C.A. § 157. In NLRB v. Washington Aluminum Co., 370 U.S. 9, 82 S.Ct. 1099, 8 L.Ed.2d 298 (1962), the Supreme Court examined whether an employee's insubordinate conduct undertaken in the course of other activity protected by § 7 can remove the protections of that section. In Washington Aluminum, the employer had refused to provide adequate heating in its workplace. Id. at 10-11, 82 S.Ct. 1099. On a particularly cold day, a group of employees organized and walked off the job, and the employer discharged them. Id. at 11-12, 82 S.Ct. 1099. The employer argued that it did not terminate the employees because of their concerted activity, but rather because they had violated its absentee policy by leaving work. Id. at 16, 82 S.Ct. 1099. The Supreme Court rejected this argument,...