NLRB v. Caval Tool Division, Docket No. 00-4203

• Decision Date: 03 May 2001
• Docket Number: Docket No. 00-4203
• Citation: 262 F.3d 184
• Parties: (2nd Cir. 2001) NATIONAL LABOR RELATIONS BOARD, PETITIONER, v. CAVAL TOOL DIVISION, CHROMALLOY GAS TURBINE CORPORATION, RESPONDENT. August Term 2000 Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 184

262 F.3d 184 (2nd Cir. 2001)

NATIONAL LABOR RELATIONS BOARD, PETITIONER, v. CAVAL TOOL DIVISION, CHROMALLOY GAS TURBINE CORPORATION, RESPONDENT.

Docket No. 00-4203

August Term 2000

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: May 3, 2001

Decided August 21, 2001

On application for enforcement of an order of the National Labor Relations Board.

Order enforced.

[Copyrighted Material Omitted]

James M. Oleske, Jr., National Labor Relations Board, Washington, D.C., (Sharon I. Block, Supervisory Attorney, Leonard R. Page, Acting General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, on the brief) for Petitioner.

Richard I. Manas, Oppenheimer, Blend, Harrison & Tate, San Antonio, TX for Respondent.

Before: Newman and Cabranes, Circuit Judges, and Underhill, District Judge.^*

Underhill, District Judge

The National Labor Relations Board (the "Board") has applied for enforcement of an order in which it adopted the findings of Administrative Law Judge Michael A. Marcionese (the "ALJ"). After a two-day trial, the ALJ held that the respondent, Caval Tool Division, Chromalloy Gas Turbine Corporation¹ ("Caval"), violated Section 8(a)(1) of the National Labor Relations Act (the "NLRA"). Specifically, the ALJ determined that Caval violated the NLRA by suspending Diane Baldessari ("Baldessari") without pay and placing her on probation, because she challenged a new break policy at a company meeting. He further determined that Caval violated the NLRA by imposing overly broad probationary terms on Baldessari, who was found to have been prohibited from engaging in "protected concerted activity." Finally, the ALJ concluded that Caval maintained an overly broad employee solicitation/distribution rule. By order dated July 25, 2000, the Board adopted the ALJ's findings of fact and conclusions of law (the "Order") and required Caval to take the remedial action set forth therein. See Caval Tool Division, 331 NLRB No. 101, 2000 WL 1054862 (July 25, 2000).

Caval opposes enforcement of the Order, arguing that, in adopting the ALJ's conclusion that Caval violated Section 8(a)(1), the Board mistakenly held Baldessari's conduct to be "concerted activity" under Section 7 of the NLRA. Specifically, Caval argues that the ALJ applied an incorrect legal standard in determining that Baldessari's conduct was "concerted activity." Caval also argues that the Board erred in adopting the ALJ's conclusion that Caval violated Section 8(a)(1) because there was not substantial evidence in the record from which the ALJ could properly conclude that Baldessari was engaged in Section 7 "concerted activity." We find Caval's arguments to be without merit and, accordingly, enforce the Order.

BACKGROUND

The following facts were found by the ALJ and adopted by the Board. On August 14, 1998, Caval held a series of informational meetings for its employees, all of which were conducted by Caval's president, Paul Pace. Each meeting included a period for questions and comments. Baldessari, a computer programmer, attended the 11:30 a.m. meeting with other employees holding similar positions.

At that meeting, Pace expressed dissatisfaction with worker productivity and "scrap" rates at Caval. Specifically, Pace lamented the amount of production "downtime" and the fact that employees were often seen lingering around the company's vending machines. Pace also announced a change in the company's break schedule that was intended, at least in part, to address the concerns about worker productivity. Under the new break policy, employees would receive two ten-minute breaks, one in the morning and one in the afternoon, during which they were to take care of all of their personal business. Under the prior break policy, employees received one fifteen-minute break in the morning, but were free to leave their work areas throughout the day to get coffee from the company's vending machines or to attend to personal business.

After Pace announced the new break policy, Baldessari began to question Pace concerning the specifics of the policy. Baldessari first asked Pace if, under the new policy, employees would no longer be allowed to get coffee throughout the day outside of the designated break time, and if employees would be "written up" if they did so. Pace responded affirmatively to both questions.²

Baldessari then asked if the new break policy would apply to office employees. Pace responded by asking Baldessari if she would like the policy to apply to office workers. Baldessari responded affirmatively and stated that "it would be nice if things were fair for a change." Pace then stated that the policy would indeed apply to office workers.

Baldessari next asked Pace if the new break policy was meant to punish workers for the high "scrap" rate and downtime. After Pace asked Baldessari what she meant, she explained that she felt management was taking a privilege away from the workers (i.e., the ability to get coffee and conduct personal business outside of the designated break times) despite the fact that they had no control over the amount and timing of the work given them. Baldessari blamed management for scheduling problems leading to poor work flow. Pace responded to these comments by asking Baldessari if, to address her concerns, she would like him to fire all of the managers. Baldessari replied that that would be a start, except for one particular manager whom she considered to be a good manager. At that point, Pace expressed displeasure with Baldessari's continued complaints about management, and suggested a Human Resources employee "come up with a package so [Baldessari could] leave." Baldessari ceased her questioning, and the meeting continued.

That afternoon, Baldessari was escorted out of work and was placed on suspension for an indefinite period of time. After receiving permission from Caval, Baldessari returned to work on September 8, 1998 on probationary status for an indefinite term. By memorandum dated August 30, 1999, Baldessari was informed that her probation would be lifted the next day.

STANDARD OF REVIEW

This court reviews the Board's legal conclusions to ensure that they have a reasonable basis in law. In so doing, we afford the Board "a degree of legal leeway." NLRB v. Town & Country Elec., Inc., 516 U.S. 85, 89-90 (1995). We are "mindful that decisions based upon the Board's expertise should receive, pursuant to longstanding Supreme Court precedent, `considerable deference.'" Ewing v. NLRB, 861 F.2d 353, 357 (2d Cir. 1988) (citations omitted); see also Office of Prof'l Employees Int'l Union v. NLRB, 981 F.2d 76, 81 (2d Cir. 1992) ("Congress charged the Board with the duty of interpreting the Act and delineating its scope.").

Factual findings of the Board will not be disturbed if they are supported by substantial evidence in light of the record as a whole. 29 U.S.C. §§ 160(e) & (f); Electrical Contractors, Inc. v. NLRB, 245 F.3d 109, 116 (2d Cir. 2001). "Substantial evidence means more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (internal quotations omitted). In other words, we must "determine whether the supporting evidence, even if not preponderating in this court's view, nevertheless provides a sufficient basis for the Board's decision." NLRB v. Interboro Contractors Inc., 388 F.2d 495, 499 (2d Cir. 1967).

DISCUSSION

Section 7 of the NLRA was enacted "generally to equalize the bargaining power of the employee with that of his employer by allowing employees to band together in confronting an employer regarding the terms and conditions of their employment." NLRB v. City Disposal Systems, Inc., 465 U.S. 822, 835 (1984). To that end, Section 7 guarantees employees certain rights, including the right "to engage in... concerted activities for... mutual aid or protection." 29 U.S.C. § 157. That right is protected through Section 8(a)(1), which provides that it is an unfair labor practice for an employer to "interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [Section 7]." 29 U.S.C. § 158(a)(1).

The phrase "concerted activity" clearly "embraces the activities of employees who have joined together in order to achieve common goals." City Disposal Systems, Inc., 465 U.S. at 830. "Although one could interpret the phrase, `to engage in concerted activities,' to refer to a situation in which two or more employees are working together at the same time and the same place toward a common goal, the language of § 7 does not confine itself to such a narrow meaning." Id. at 831. Rather, that phrase also includes the actions of a single employee, acting alone, who intends to initiate group activity. Id. This is so because, "[t]o protect concerted activities in full bloom, protection must necessarily be extended to intended, contemplated or even referred to group action, lest employer retaliation destroy the bud of employee initiative aimed at bettering terms of employment and working conditions." Hugh H. Wilson Corp. v. NLRB, 414 F.2d 1345, 1347 (3d Cir. 1969) (internal quotations omitted).

In this case, the Board adopted the ALJ's finding that Baldessari's statements during the August 14, 1998 meeting "had the objective of initiating... or... inducing group action" in response to the company's new break policy and therefore constituted concerted activity. Caval Tool Division, 2000 WL 1054862, at *10-*16. It further adopted the ALJ's finding that Caval suspended Baldessari and placed her on probation because of her questions and comments at the August 14, 1998 meeting. In so doing, the Board concluded that Caval engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) of the NLRA.

Caval disputes both the legal and factual bases for this conclusion. Specifically, Caval argues that the Board erred in adopting the ALJ's...