Nat'l Labor Relations Bd. v. Arkema, Inc.

• Citation: 710 F.3d 308
• Decision Date: 28 February 2013
• Docket Number: No. 11–60877.,11–60877.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ARKEMA, INCORPORATED, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

710 F.3d 308

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.ARKEMA, INCORPORATED, Respondent.

No. 11–60877.

United States Court of Appeals,

Fifth Circuit.

Feb. 28, 2013.

Linda Dreeben, Deputy Associate General Counsel, Ruth E. Burdick, Martha Elaine Kinard, Director, David A. Seid, Barbara Ann Sheehy, National Labor Relations Board, Appellate Court Branch, Washington, DC, for Petitioner.

Alfred John Harper, II, Morgan, Lewis & Bockius, L.L.P., Bernard Lincoln Middleton, Provost Umphrey Law Firm, L.L.P., Houston, TX, for Respondent.

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

Before DAVIS, JONES, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge.

The National Labor Relations Board (“NLRB” or “Board”) applies for enforcement of its order upholding a decision of an administrative law judge (“ALJ”) invalidating a decertification election based on findings that Arkema, Incorporated (“Arkema”), violated the National Labor Relations Act (“NLRA” or the “Act”), before an election, by disciplining an employee for alleged harassment and sending an anti-harassment policy to employees. The Board also found Arkema in violation because it ceased to recognize the union after the election but before an official certification of the results. Finally, the Board determined that Arkema's post-election actions against another employee violated the NLRA. After reviewing the record and consulting the applicable law, we deny the application for enforcement.

I.

Arkema operates a chemical-manufacturing plant in Houston, where the facts occurred. The production and maintenance employees were union employees represented by the United Steelworkers of America. The most recent collective-bargaining agreement governed thirty-five employees at the Houston facility and was set to expire on October 10, 2008. Beginning in April 2008, bargaining-unit employees began a campaign to decertify the union. A decertification petition was filed in July, and a secret-ballot decertification election was held on August 11 and 12. By a count of 18–17, the bargaining-unit employees voted to decertify.

A.

Mark Saltibus was a utility and step-up chief operator. His position required him to fill in for absent employees, including sometimes serving as the highest-ranking official at the plant. About July 2008, he approached Susan Russell, a relatively new employee, and engaged her in a conversation concerning the upcoming decertification election, informing her that the union needed her support and that without it, relationships would change at the plant.

Russell, who sometimes needed the assistance of physically strong male co-workers to perform certain aspects of her job, was upset by the exchange. Fearing for her safety and job, she promptly reported the incident to Terry Freeman, the plant's site manager. According to Russell's incident statement, Saltibus specifically threatened that male union employees would not come to Russell's aid in an emergency if she did not support the union in the election.

The following day, Saltibus was summoned to the management office to offer his version of the conversation to Freeman, regional human-resources manager Wendy Dupuy, and operations superintendent Dennis Van Wye. Saltibus admitted his intended message was that Russell would no longer receive help “carrying her load” from union employees. Saltibus insisted, however, that if Russell was in any kind of danger, he would assist her and that he made no mention of her sex in the conversation.

Freeman then handed Saltibus a “written reminder” for “Violation of Company Harassment Policy” stating that Arkema had “completed its investigation into [his] alleged inappropriate behavior.” The violations alleged were “making intimidating and threatening remarks toward a coworker and creating an offensive working environment” and “threatening [Russell's] job if she continued to pursue her non-union status.” The letter also made reference to a separate occasion on which Saltibus allegedly had “made threatening and inappropriate remarks to a laboratory employee concerning her wishes to not join the Union.” The written warning concluded by advising Saltibus to reflect on the incidents and warned that failure to comply with Arkema's anti-harassment policy might result in termination.

B.

On July 23, plant manager Wendal Turley sent an email to bargaining unit employees with two attachments—an NLRB publication about union elections and a memo drafted by Turley. The memo informed employees of their rights:

• NO HARASSMENT—You have the right to not be harassed, intimidated or threatened in any way—physically or verbally—by anyone, including the union, for refusing to support a strike or certification.

• NO THREAT OF JOB LOSS—The union cannot threaten that you will lose your position by not supporting them in a vote.

• NO PUNISHMENT—The union cannot seek suspension, discharge or other punishment of an employee for not being a member of the union, even if the employee has paid an initiation fee and ongoing dues.

• NO REFUSAL TO GRIEVE—The union cannot refuse to process a grievance because an employee has criticized union officials or because an employee is not a member of the union.

The email urged employees to report any harassment, intimidation, or threats immediately to management or the NLRB's Houston office. Turley concluded with his personal opinion that a union was not needed at the Houston plant.

C.

At the conclusion of the election, Turley notified employees that “the collective bargaining agreement no longer exists at this facility.” Management sent an email to employees approximately one week after the election, seeking input regarding changes to the employee leave and accident policies. By September, Arkema had removed the union's bulletin boards and ceased collecting union dues. In about October, the company unilaterally gave a wage increase.

D.

In the wake of the decertification election, on August 19, union group president and plant instrumentation and electrical “lead man” Fred Shepherd was summoned to a meeting with site manager Freeman and plant manager Turley. Freeman informed Shepherd that the purpose of the meeting was to investigate three complaints management had received concerning Shepherd: (1) that on July 26, he was allegedly “throwing things” around the shop; (2) that he had threatened an employee by stating that the employee was either with him or against him; and (3) that on or about July 28, he had told an employee not to explain something to another employee, because that employee was non-union.

Shepherd denied the first two allegations and offered his version of the events surrounding the third. Before leaving the meeting, Turley and Freeman reminded Shepherd of the need for him, as a “lead man,” to refrain from being confrontational or creating a hostile work environment. Shepherd left without any disciplinary action's being taken.

On September 4, Shepherd met with Freeman to discuss Arkema's recognition of the union, the union's use of plant bulletinboards, and the processing of union grievances. The following day, Shepherd sent Freeman an email to confirm their discussion. Later the same day, Freeman approached Shepherd, handed him an envelope containing a document entitled “Written Confirmation—Alleged Violation of Company Anti–Harassment Policy,” and asked him to reflect on his responsibilities.

The letter described the three incidents that had been discussed with Shepherd and stated that Arkema had “completed its investigation into your alleged inappropriate behavior towards your coworkers.” The letter noted the discrepancies in Shepherd's explanation and that the allegations remained uncorroborated. It warned that if Arkema received verified reports of future misconduct, it “could lead to further disciplinary action up to and including termination.” The letter was put into Shepherd's personnel file.

II.

On August 19, the union filed an objection to the election and its initial charge of an unfair labor practice; it filed additional charges on August 29. The cases were consolidated.

The ALJ found that Arkema had violated Section 8(a)(1) of the NLRA by issuing the July 22 written warning to Saltibus and by sending the July 23 memo to unit employees. The ALJ further found that those pre-election violations had the effect of invalidating the decertification election, rendering Arkema's subsequent de-recognition of the union and unilateral actions likewise in violation of Section 8(a)(1) and (5). Finally, the ALJ found that Arkema had violated Section 8(a)(1) and (3) by disciplining Shepherd. The ALJ issued a cease-and-desist order directing Arkema to discontinue interference with union activities, to cease Arkema's unilateral actions, to resume recognition of the union, and to post remedial notices. The decertification election was to be set aside and a new election ordered.

Arkema appealed to the NLRB, which affirmed and adopted the ALJ's rulings, findings, and conclusions of law. The Board modified the ALJ's order by requiring that, in addition to physical posting of remedial notices, Arkema must post such notices electronically.

III.

We consider the factual findings of the NLRB to be “conclusive” if “supported by substantial evidence on the record considered as a whole.” 29 U.S.C. § 160(e); see El Paso Elec. Co. v. NLRB, 681 F.3d 651, 656–57 (5th Cir.2012). “Substantial evidence is that which is relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion. It is more than a mere scintilla, and less than a preponderance.” Id. at 656 (quoting Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir.1993)). “We may not reweigh the evidence, try the case de novo, or substitute our judgment for that of the Board, ‘even if the evidence preponderates against the [Board's] decision.’ ” Id. (quoting Brown v. Apfel, 192 F.3d 492, 496 (5th Cir.1999)). Nor do we displace any reasonable...