Nat'l Labor Relations Bd. v. Roemer Indus., Inc.
| Decision Date | 27 August 2020 |
| Docket Number | Case No. 19-2397,Case No. 19-2356 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner/Cross-Respondent, v. ROEMER INDUSTRIES, INC., Respondent/Cross-Petitioner. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR PUBLICATION
JOHN K. BUSH, Circuit Judge. Roemer Industries, Inc. ("Roemer") petitions for review of a decision by the National Labor Relations Board (the "Board"), and the General Counsel for the Board applies for enforcement of the same. The Board found that Roemer violated § 8(a)(1) and (3) of the National Labor Relations Act by terminating Bruce Haas for engaging in protected activity. We hold that substantial evidence supports the Board's decision, and therefore GRANT the General Counsel's application for enforcement and DENY Roemer's petition for review.
Roemer manufactures industrial identification nameplates in Masury, Ohio. The company has approximately twenty production and maintenance employees, all of whom have been represented by the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (the "Union") since 1973.
Bruce Haas began working for Roemer in 1976 and was its most senior employee before his termination. He held many different roles over the years and was working in fabrication at the end of his tenure. In the last few years before his discharge, he earned positive performance evaluations, and he was described as a reliable employee who had his own way of performing his work but knew what he was supposed to be doing. However, Haas's performance reviews and disciplinary records at Roemer were spotty over the years, and he received discipline short of discharge on multiple occasions throughout his tenure.
Haas's conduct at issue here related to the collective-bargaining agreement ("CBA") between Roemer and the Union. Their most recent CBA expired on April 22, 2016. Roemer and the Union began negotiating a successor contract in March 2016, but they failed to reach an agreement. At the time of the trial in this case, the parties had not reached an agreement on a CBA. In those negotiations, Roemer was represented by outside counsel, and the Union was represented by United Steelworkers Business Agent Jose Arroyo and Union Steward Ron Merrick.
A main point of disagreement in the negotiations was whether the successor contract would continue to require employees to become Union members (as the Union wanted) or if it would convert Roemer to an "open shop" in which employees could choose whether or not to be Union members (as Roemer wanted). Joseph O'Toole, Roemer's president and owner, indicated that transitioning to an open shop was essential to his ability to sell the company, but the Union saw an open-shop provision as non-negotiable.
In the summer of 2016, while contract negotiations were ongoing, Haas and other employees demonstrated support for the Union's position by displaying signs on their cars thatbore the Union's logo and stated "Fair Contract Now." Those signs were provided by the Union and distributed by Merrick in the Roemer parking lot. O'Toole asked Merrick for a "Fair Contract Now" sign and covered the Union logo with a "Roemer" logo. He then posted the modified sign on a doorway inside the building.
In August, Haas had a conversation with Amanda Shinkovich, Roemer's quality manager, and asked whether the stalled contract negotiations were causing as much stress in the office as among bargaining-unit employees in the shop. The next day, O'Toole brought Haas into his office and asked why he had asked Shinkovich that question. O'Toole instructed Haas to repeat the question to another manager and Roemer's bargaining representative. O'Toole then walked Haas around the office and made him repeat the question to approximately twelve other employees.
In addition to the "Fair Contract Now" signs provided by Merrick, Haas showed additional support for the Union's position, and opposition to the open-shop proposal, by asking his niece to make bumper stickers bearing the words "Open Shop" enclosed in a prohibition sign. Haas also distributed these "No Open Shop" bumper stickers to his coworkers in the parking lot as Merrick had done with the "Fair Contract Now" signs. He did so before work for a few days and then left a box of the stickers in his unlocked car and told his coworkers to help themselves. Other employees availed themselves of his offer and displayed the "No Open Shop" stickers.
There is conflicting testimony about the timing of these events. Haas testified that he received the stickers from his niece and distributed them to his coworkers sometime in mid-September 2016. Roemer employee Harold Hrabowy testified that he remembered Haas handing out the stickers shortly before he was terminated, but Hrabowy could not be more specific than to recollect that the incident occurred when the weather was still warm enough to ride a motorcycle.Merrick testified that he remembered Haas's handing out the stickers a couple months before he was terminated.
By virtue of his long tenure at Roemer, Haas had an assigned parking spot near the front of the lot. That parking spot is visible on security-camera footage that was regularly viewed by O'Toole and Ann Fraley, Roemer's Production Supervisor. Fraley and Shinkovich parked in the same lot, as did O'Toole on occasion.
On September 14, 2016, Haas was assigned a job of shearing aluminum into smaller strips. Rather than use a cart to move the sheared strips to the next work station, as dictated by Roemer policy, Haas hand carried the material in two trips. O'Toole saw Haas carry the first handful and instructed him to use a cart, but Haas refused, stating instead that there were no carts in the area. After Haas dropped off the first handful of strips, he returned to the work station and continued shearing the remainder of the order. Haas hand carried the second load of materials, and O'Toole again observed the conduct and reprimanded Haas. Fraley overheard the second interaction and approached Haas to ask why he did not obey O'Toole's instruction and use a cart. Haas replied that it would take longer to look for a cart than to just carry the materials. Fraley then pointed to a cart in the immediate vicinity and brought it to Haas.
Fraley testified that she approached O'Toole later in the day and said that Haas should be written up for insubordination. Under Roemer policy, insubordination is considered an "intolerable" offense and the employee will be sent home immediately. The offense could warrant elevation to an immediate three-or five-day suspension. However, Haas was not disciplined that day. Instead, he received a disciplinary notice two weeks later on September 30th from O'Toole for a "quality of work" violation, which gave as the reason the failure to use the "Theory ofConstraints methodology."1 The "Theory of Constraints" is a philosophy promoting efficiency that O'Toole ascribed to, and he provided management-level employees with a book about this philosophy when they were promoted to managerial positions. There is no evidence that bargaining-unit employees were provided any specific training on the philosophy.
The disciplinary notice provided for a five-day suspension pending discharge, and was set to run from October 10th through October 14th. Roemer's internal disciplinary policy follows a sequence, from warnings, to suspension, to discharge. That escalating discipline provides a verbal warning for the first offense, written warning for the second offense, one-day suspension for the third offense, three-day suspension for the fourth offense, and a five-day suspension pending discharge for the fifth offense. A discipline stays in an employee's file for one year, unless the employee receives another infraction. Notwithstanding the progressive nature of the disciplinary system, O'Toole testified that he exercises discretion in implementing this policy, including skipping disciplinary steps (and imposing punishment at the higher end of the range) and also by retaining employees who reach the end of the disciplinary progression.
It is undisputed that at the time of his notice, Haas had accumulated four previous disciplinary events and the next step was a five-day suspension pending discharge. As indicated, however, this was not Haas's first experience with multiple disciplinary events on his record. His disciplinary records show that he had twice reached the five-day suspension level for unsatisfactory work quality, receiving a five-day suspension in July 2002. When he was again suspended for the same violation in June and September 2003, O'Toole allowed Haas to opt for a decrease in certification (and pay) along with a three-day suspension rather than termination.
Haas also received a discipline in 2013 for incorrectly cutting parts, and he filed a grievance disputing the discipline. Union officers Merrick and Geraldine Dolta attempted to investigate the grievance, but O'Toole suspended them for their efforts. This led to a separate proceeding in which the Board found that Roemer had discriminated against Merrick and Dolta for engaging in protected union activity, and this court enforced the Board's order. Roemer Indus., Inc. v. NLRB (Roemer I), 688 F. App'x 340 (6th Cir. 2017). That case had not been resolved at the time of Haas's termination.
Haas's suspension went into effect on October 10th as planned, and he was terminated in a letter dated October 11th. The letter did not provide a reason for his discharge. The Union grieved the discharge, which Roemer denied, and Roemer declined to participate in arbitration.
After Haas was terminated, strained contract negotiations between Roemer and the Union continued. On January 3, 2017, a management group...
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