New Orleans Cold Storage v. Nat'l Labor Relat.

• Decision Date: 24 January 2000
• Docket Number: No. 98-60653,98-60653
• Citation: 201 F.3d 592
• Parties: (5th Cir. 2000) NEW ORLEANS COLD STORAGE & WAREHOUSE CO., LTD., Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner
• Court: U.S. Court of Appeals — Fifth Circuit

Page 592

201 F.3d 592 (5th Cir. 2000)

NEW ORLEANS COLD STORAGE & WAREHOUSE CO., LTD., Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.

No. 98-60653

IN THE UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

January 24, 2000

Revised February 11, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Petition for Review & Cross Petition For Enforcement of an Order of the National Labor Relations Board

Before POLITZ and STEWART, Circuit Judges, and LITTLE, District Judge.^*

LITTLE, District Judge:

This case was brought by New Orleans Cold Storage & Warehouse Co., Ltd. ("NOCS") to overrule the National Labor Relation Board's ("the Board") determination that NOCS violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act ("the Act"). For the following reasons, we AFFIRM.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

NOCS operates storage warehouses for chilled and frozen cargo in several cities in the United States. Nelson Pierre, the charging party in this matter, began working at NOCS' New Orleans Nashville Avenue location in 1982. When he joined NOCS, Pierre worked as a lift driver in the freezer. In 1983, he moved to a position on the dock. In 1986, Pierre transferred once more to the chill rooms. While in this position, Pierre received three warnings, one for tardiness, one for mishandling an order, and another for missing four and a half days of work. In June 1992, while still employed in the chill rooms, Pierre filed a grievance with Local Teamsters Union No. 270 ("the union") over a warning he had received for allegedly mishandling the produce order.

Pierre again changed jobs in April 1993, becoming a warehouse porter. On 28 December 1993, Pierre filed a grievance with the union asserting that NOCS had not paid him for overtime work he had done over the past four months. Also on 28 December, NOCS informed Pierre that his work schedule would change from noon to 8 p.m., to 2:00 a.m. to 10:00 a.m., because of congestion on the docks. Pierre then filed another grievance protesting his change in hours and requesting to be reassigned to the produce department. This request was denied. On 1 February 1994, NOCS issued a warning and suspended Pierre for missing a day of work. Pierre filed two grievances with the union on that day asserting that there was a reasonable explanation for his one-day absence and therefore the warning and suspension were not warranted. Pierre was ultimately discharged from his position as a checker/lift operator ("CLT")¹ porter on 8 February 1994. Pierre filed an unfair labor practice charge and grievance seeking reinstatement shortly thereafter. The matter was then submitted to an arbitrator pursuant to the collective bargaining agreement between NOCS and the union.

The arbitrator ruled that Pierre's discharge should be converted to a suspension and ordered Pierre be returned to employment without any loss of seniority. Union Business Agent Robert Louis ("Louis") then contacted Gary Escoffier ("Escoffier"), NOCS' Chief Executive Officer, to discuss Pierre's reinstatement. Escoffier told Louis that Pierre would be reassigned to the freezer so Escoffier could "keep an eye" on him. Pierre protested his reassignment to the freezer when Louis notified him that he had been assigned to a position as freezer CLT because of the health problems he had experienced while working in the freezer in 1982.² Louis again spoke with Escoffier about finding another position for Pierre, but Escoffier insisted that Pierre return to the freezer. Louis advised Pierre that he had been given an ultimatum either to work in the freezer or remain at home and therefore his best course of action was to accept this position and file a grievance with the union. Pierre returned to work and filed a grievance.

Once back at work on 11 July 1994, Pierre asked Rickey Calligan ("Calligan"), the warehouse manager, why he was not reinstated to his prior position. The manager informed Pierre that he was not given his old job back because Escoffier had decided he was filing too many grievances. Upon his reinstatement, Pierre began receiving oral and written warnings for various alleged transgressions. First, on 15 July 1994, Calligan warned Pierre orally and in writing about a mistake he made on a receiving tally. This oral warning was a departure from routine company policy that allows CLTs to correct tally's themselves, or after being advised by a company secretary who catches tally discrepancies. Further, normally CLTs are only given warnings for mistakes that cause monetary loss. On 8 August, Calligan filed a written warning after purportedly Pierre took too long to unload an order, even though Pierre apparently was legitimately delayed in completing his job. Calligan attached a receiving record with two time stamps reflecting the time Pierre had been given the unload order, and the time he finished the job. The ALJ found that time stamping also was not typical company practice.³ The ALJ also found that Pierre never received notice of this warning. Again on 10 August, Calligan wrote two warnings to Pierre, one for failing to fill in the number of pallets used in shipping an order, and another for allowing a driver from another company to take pallets without paying for them. Pierre also received a warning on that day for taking too long to unload a container.

NOCS held a step-one grievance meeting regarding the grievance Pierre had filed on 11 July protesting his reinstatement to the freezer. Escoffier told Pierre that the arbitrator only reinstated him because he felt sorry for him and again told Pierre that he was writing too many grievances. Pierre responded that he would stop filing grievances if NOCS would stop issuing warnings to him. Finally on 31 August 1994, NOCS terminated Pierre, referring generally to his numerous warnings and a "history of poor workmanship." Pierre filed another grievance upon termination.

This case came before the Board upon filing of an unfair labor practice complaint by the General Counsel of the Board, following an investigation of unfair labor practice charges filed by Pierre. On 21 December 1994, the Acting Regional Director for Region 15 issued an order to show cause why the issue concerning the position to which Pierre should have been reinstated should not be resubmitted to the arbitrator. The arbitrator issued a supplemental decision on 31 July 1995 finding that it was beyond his power to reinstate Pierre to any one position, since NOCS had only one job category, that of CLT, and there was no classification of "porter."⁴

On 25 October 1994, Pierre filed a charge against NOCS alleging that NOCS discharged him in retaliation for filing grievances. Pierre filed a first amended complaint on 25 November 1994 repeating the allegations in his original charge and adding that NOCS failed to reinstate Pierre to the position as porter. Finally on 11 September 1996, Pierre filed a second amended charge, contending that NOCS threatened unspecified reprisals against Pierre. NOCS then moved for dismissal of the retaliation charge. NOCS argued that this allegation was time barred by Section 10(b) of the National Labor Relations Act ("the Act"), 29 U.S.C. 160(b)(1994), because Pierre did not set forth the charge alleging violation of Section 8 of the Act, 29 U.S.C. 158(a)(1),(3) (1994), until 11 September 1996. After a full hearing, the administrative law judge ("ALJ") issued a decision and recommended order denying NOCS' motion to dismiss and finding that NOCS had violated Sections 8(a)(1) and 8(a)(3) of the Act. The ALJ also rejected NOCS' argument that any of Pierre's charges are time barred by Section 10(b). The Board affirmed the ALJ's finding.

II. STANDARD OF REVIEW

This court must uphold the Board's decision if it is reasonable and supported by substantial evidence. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S. Ct. 456, 464, 95 L.Ed. 456 (1951); NLRB v. Thermon Heat Tracing Servs., 143 F.3d 181, 185 (5th Cir. 1998); Trencor, Inc. v. NLRB, 110 F.3d 268, 269 (5th Cir. 1997). The Board's decision is supported by substantial evidence if it is based on "such relevant evidence as a reasonable mind would accept to support a conclusion." Universal Camera, 340 U.S. at 477, 71 S.Ct. at 459; Thermon Heat Tracing Serv., 143 F.3d at 185.

A. The Board's Decision not to Defer to Arbitrator

NOCS argues that the Board erred by refusing to defer to the arbitrator's supplemental decision concluding that he was without the power to reinstate Pierre to any one position at the company because NOCS had only one job classification - that of CLT. This court reviews the Board's decision not to defer to an arbitrator only for abuse of discretion. See NLRB v. Ryder/P.I.E. Nationwide Inc., 810 F.2d 502, 506 (5th Cir. 1987). In deciding whether deferral is appropriate, this court applies the four-part test set forth in Spielberg Manufacturing Co., 112 NLRB 1080, 1082 (1955). The Board will defer to the arbitrator's decision if the arbitration proceeding was fair and regular, all parties agreed to be bound, the arbitration decision was not clearly repugnant to the purposes and policies of the Board, and the arbitrator considered the unfair labor practice issue. See id.; see also NLRB v. Magna Corp., 734 F.2d 1057, 1063 (5th Cir. 1984)(applying Spielberg). The arbitrator is deemed to have considered the unfair labor practice issue if: "(1) the contractual issue is factually parallel to the unfair labor practice issue and (2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice issue." Ryder/P.I.E. Nationwide, 810 F.2d at 506 (citing Olin Corp., 268 N.L.R.B. 573, 574 (1984)).

The ALJ was correct in noting that the arbitrator's award did not address the same question as that before the Board -- whether Pierre was discriminatorily reinstated because he engaged in activity protected...