N.L.R.B. v. Rockline Industries, Inc., 04-2439.

• Decision Date: 21 June 2005
• Docket Number: No. 04-2439.,04-2439.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ROCKLINE INDUSTRIES, INC., Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

412 F.3d 962

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ROCKLINE INDUSTRIES, INC., Respondent.

No. 04-2439.

United States Court of Appeals, Eighth Circuit.

Submitted: February 18, 2005.

Filed: June 21, 2005.

COPYRIGHT MATERIAL OMITTED

CouJohn H. Zawadsky, argued, Madison, WI (Paul Alvin Gilker, on the brief), for respondent.

Jason Walta, argued, Washington, D.C. (Samuel J. Oshinsky, on the brief), for NLRB.

Before WOLLMAN, HANSEN, and BENTON, Circuit Judges.

HANSEN, Circuit Judge.

The National Labor Relations Board (Board) petitions for enforcement of an order it entered finding that Rockline Industries, Inc. (Rockline) engaged in unfair labor practices and ordering Rockline to reinstate David Kennan, an employee that Rockline had suspended and then discharged in violation of § 8(a)(3) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(3) (2000). We grant the petition and enforce the order.

I.

Rockline Industries employs approximately 650 employees at its manufacturing facility in Springdale, Arkansas. In May 2002, the United Food and Commercial Workers Union, Local 2008 (Union) began an organizational campaign at Rockline's facility. David Kennan had begun working at Rockline in 1997 and was employed as a maintenance worker. Kennan became a member of the union organizing committee in June 2002 and participated in the organizing drive by attending union meetings, passing out union literature, and soliciting union membership.

Rockline promulgates an employee handbook that contains rules governing employee discipline and sets out a progressive discipline policy consisting of a verbal warning, an initial written warning, a final written warning (which may include suspension), and final termination. (J.A. at 316.) In June 2002, Kennan received a written warning for interrupting the work of a co-worker for ten minutes to discuss union-related activities.¹ Prior to this time, Kennan had received one verbal warning for not performing his job duties during his five years of employment. On August 27, 2002, Kennan was not scheduled to work. Instead, he distributed prounion literature in the parking lot of Rockline. During work two days later, Kennan stopped a warehouse employee, Bonnie Bunch, who was operating a forklift, and told her that "those fliers they [Rockline] are handing out are illegal." The evidence is disputed as to the length of the conversation, but Bunch told Kennan that she did not know anything about it and drove off. Bunch did not report the incident, but her supervisor later asked her to prepare a statement about the incident.

The following day, Kennan greeted another employee, Duane Stevens, on the plant floor, and Stevens responded by saying something about "that union crap." Kennan told Stevens that he could not discuss union issues during work time, but would be glad to discuss it with him during break time. Stevens responded that he would rather discuss it "in the parking lot," and the two exchanged a few more words. Kennan reported to his administrator, Catherine Jones, that Stevens had threatened him and asked to see Human Resources Director Sam Wilson about it. Kennan was called to Wilson's office later that day, where Jones and Kennan's supervisor, Linda Riley, were present. Kennan voiced his complaint to Wilson about Stevens, stating that he felt threatened by Stevens' words. Wilson agreed to investigate, but told Kennan not to expect much since it was a "he said/she said" kind of situation. Stevens later denied that he intended to threaten Kennan, though he thought Kennan might have misunderstood what he had said as a threat. Stevens was not disciplined in relation to the incident.

After Kennan discussed the Stevens incident with Wilson, and as part of the same conversation, Wilson told Kennan that he had a couple of things to discuss with him. Wilson first brought up Kennan's distribution of papers in the parking lot on August 27. Wilson told Kennan that if he came to the premises on his day off, he needed to get a visitor's badge. Wilson presented Kennan with a written "Employee Warning Record" and asked Kennan to sign it. The warning detailed his actions in distributing the papers, not mentioning that the papers were pro-union literature, and stated that Kennan's presence in the parking lot presented a security issue. The warning directed Kennan to obtain a visitor's pass if he came to Rockline on a day when he was not scheduled to work, and it informed Kennan that he needed permission to go to areas of the plant other than human resources on such visits. The warning stated that Kennan "will be terminated if [he] violates this direction." Rockline has never insisted on such requirements from any of its other employees. After giving Kennan the written warning, Wilson also gave Kennan a written suspension notice premised on Kennan's actions the prior day in stopping a warehouse employee (Bunch) from performing her work to discuss non-work-related issues. The notice did not identify Bunch by name, and Wilson did not ask Kennan for his version of the events. Again, the notice did not mention whether the non-work-related discussion was related to the union.

Following his suspension, Kennan returned to work on September 6. He carried a small tape recorder in his shirt pocket, which two co-employees saw and reported to Kennan's supervisor, Riley, and to Continuous Improvement Coordinator Pattie Whisenhunt. From the adjacent patio, Riley and Whisenhunt observed Kennan in the break room for approximately 15 minutes acting, in their minds, suspiciously. Kennan was not on break at the time, and although his job duties included emptying waste baskets in the break room, it did not appear that he was doing any work. After Kennan left the break room, Whisenhunt told two employees who had been in the break room that Kennan had a tape recorder and appeared to have been taping their conversation. The two employees complained to Jones and Wilson about the tape recorder, asking whether state law allowed Kennan to record their conversations without their knowledge. Neither Riley nor Whisenhunt (both supervisors) informed Wilson of their suspicion that Kennan had a tape recorder or confronted Kennan about it.

Later that afternoon, Kennan was called to Wilson's office and asked about the tape recorder. He admitted having one but denied taping any conversations. Wilson informed Kennan that he was being terminated for bringing the tape recorder to work and for being disruptive. Kennan's termination notice (which was already prepared when Kennan arrived in Wilson's office) stated: "TAPE RECORDER IN PLANT-CAUSING EMPLOYEE PROBLEMS." Wilson later testified at the administrative hearing that Kennan was also terminated because he kept other employees from doing their jobs, including twice earlier that day, and because Kennan was not doing his job. Neither of these reasons was expressed to Kennan at the time of his termination or stated on the termination notice.

The Union filed charges against Rockline with the Board, and the Board filed a complaint against Rockline on February 28, 2003. The complaint alleged that Rockline violated § 8(a)(3) of the NLRA by warning, suspending, and discharging Kennan.² An Administrative Law Judge (ALJ) held a hearing in September 2003 and recommended to the Board that, based on the evidence and the witnesses' credibility, Rockline had violated the NLRA when it warned, suspended, and terminated Kennan. The Board adopted the ALJ's recommended order, with modification. The Board now petitions this court for enforcement of its final order. See 29 U.S.C. § 160(e) (2000). Rockline challenges the order related to Kennan's suspension and termination, but does not dispute that the warning given to Kennan for distributing union literature in the parking lot on his off-duty time violated the NLRA. The Board is therefore entitled to summary enforcement of that part of its order. We turn to the contested findings.

II.

We will enforce the Board's order as long as the Board correctly applied the law, and its findings are supported by substantial evidence, even if we might have reached a different decision on de novo review. N.L.R.B. v. La-Z-Boy Midwest, a Div. of La-Z-Boy Inc., 390 F.3d 1054, 1058 (8th Cir.2004); King Soopers, Inc. v. N.L.R.B., 254 F.3d 738, 742 (8th Cir.2001). Substantial evidence is such evidence that a reasonable mind would find adequate to support the Board's conclusion. La-Z-Boy, 390 F.3d at 1058. Although we give great deference to the fact finder's credibility assessments, these, too, must be supported by substantial evidence. Id.

Under § 8(a)(3) of the NLRA, an employer commits an unfair labor practice when, "by discrimination in regard to ... any term or condition of employment [it] encourage[s] or discourage[s] membership in any labor organization." 29 U.S.C. § 158(a)(3). This section makes it an unfair labor practice for an employer to discipline an "employee in order to discourage [him] from engaging in union activities." SCA Tissue N. Am. LLC v. N.L.R.B., 371 F.3d 983, 988 (7th Cir.2004). To support a violation of § 8(a)(3) based on employee discipline, the General Counsel of the Board "must make a prima facie showing that protected conduct was a `motivating factor' in the employer's decision to discipline the employee." La-Z-Boy, 390 F.3d at 1057 (describing the NLRB's burden-shifting analysis of Wright Line, 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982)). The Sixth Circuit describes the prima facie case as containing the following elements: "(1) the employee was engaged in protected activity; (2) ... the employer knew of the employee's protected activity; and (3)... the employer acted as it did on the basis of anti-union animus." FiveCAP Inc. v. N.L.R.B., 294 F.3d 768, 777 (6th Cir.2002). The burden then shifts to the employer to put forward a...