Ozburn-Hessey Logistics, LLC v. Nat'l Labor Relations Bd., Case No. 19-1054
| Decision Date | 12 March 2020 |
| Docket Number | Case No. 19-1090,Case No. 19-1054 |
| Parties | OZBURN-HESSEY LOGISTICS, LLC, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, et al., Respondents/Cross-Petitioners. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0145n.06
ON PETITION FOR REVIEW AND CROSS-APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD
Before: BATCHELDER, DONALD, and READLER, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. This is an appeal from a National Labor Relations Board decision finding that a company violated federal labor law. The company seeks review and reversal of that decision while the Board and the intervenor Union seek enforcement. We GRANT the petition, AFFIRM in part, REVERSE in part, and ENFORCE in part.
Ozburn-Hessey Logistics (OHL) packs, stores, and ships products for customers. It has four warehouses and 300 employees in the Memphis area. A union-representation election in July 2011 led to a long labor fight between OHL and the Union but ultimately resulted in union certification in May 2013. The Union is the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO. This appeal stems from OHL's firing of five employees between May and September 2013, each for a different reason. Those employees were Lauren Keele, Shawn Wade, Nannette French, Stacey Williams, and Jerry Smith, Sr. During those five months, the Union was certified and brought the charges about the firings, but there was no collective bargaining agreement (CBA).
When these events began, OHL had a longstanding time-and-attendance policy that included a progressive-discipline system based on an accumulation of points, culminating in an employee's firing after 12 points. Employees clocked in and out of their shifts and received points for tardiness as well as absence. No one here challenges any aspect of that policy.
On April 22, 2013, OHL replaced its push-button time clocks with touch-screen clocks. It did so unilaterally without collective bargaining. Eight days later, on April 30, Lauren Keele clocked in one minute late. She blamed it on a touch-screen mistake. OHL did not excuse her mistake; it assessed her an attendance point, which brought her total to 13, and fired her.
On May 15, 2013, Shawn Wade was running late to work, so he parked in a visitor parking spot, clocked in on time, and then went back to his car and moved it to the employee lot. By leaving the building during his shift after he had clocked in, Wade violated the time-and-attendance policy at a level that prescribed firing, even for a first offense. OHL fired him.
On May 17, 2013, Nannette French clocked in one minute late returning from her lunch break. OHL assessed her an attendance point, which brought her total to 13, and fired her.
On June 17, 2013, Stacey Williams kissed a coworker at work and OHL decided that proper discipline was a written warning for inappropriate workplace behavior. On June 20, two OHL managers met with Williams to execute the ordered discipline by giving Williams a copy of the written warning. Williams refused it and requested union representation. When the managers explained that he was not entitled to representation at the execution of an already-decided discipline, Williams walked out of the room and refused their repeated requests that he return. Finding this conduct to be unprofessional, inappropriate, and insubordinate, OHL fired him.
In September 2013, OHL identified on its security videos several employees who had left the warehouse without clocking out. It then followed up with a questionnaire to each of them, asking whether they had left the warehouse while clocked in on a specific day or days and, if so,whether they had obtained permission to leave. When Jerry Smith, Sr. lied by asserting that he had not left the building while clocked in, OHL fired him for lying on the questionnaire.
The Union filed charges with the Board on behalf of these five employees and the Board's General Counsel filed a consolidated complaint pursuant to the National Labor Relations Act, 29 U.S.C. § 160, which led to a hearing before an administrative law judge (ALJ). The ALJ found, as relevant here: that OHL's time-clock upgrade was not a material, substantial, or significant change in the terms and conditions of employment, so it did not violate the Act and, therefore, OHL did not violate the Act by firing Keele; and, also, that OHL did not violate the Act by firing Wade, French, or Smith, Sr., but did violate the Act by firing Williams. The ALJ suggested standard remedies.
On review, the Board held that the time-clock upgrade was a material, substantial, and significant change, so OHL violated the Act by upgrading unilaterally and by firing Keele; and that OHL violated the Act by firing Wade, French, Smith, Sr., and Williams. The Board sua sponte crafted a remedy with three unusual requirements: that OHL (1) post for three years a notice of the Board's ruling; (2) read the notice aloud, publicly, with OHL's top managers and human-resources officials present for at least one reading; and (3) publish the notice in two publications of broad circulation and local appeal twice per week for eight weeks.
OHL petitioned for review, arguing that the Board erred by ruling for the Union/employees and by sua sponte imposing the extraordinary remedies. The Board cross-petitioned for enforcement of its order pursuant to 29 U.S.C. § 160(e). The Union intervened as the prevailing party. See Auto. Workers v. Scofield, 382 U.S. 205, 208 (1965).
Our review of the Board's determination is highly deferential. FirstEnergy Generation, LLC v. NLRB, 929 F.3d 321, 328-29 (6th Cir. 2019). We review the Board's factual findings for"substantial evidence on the record considered as a whole." Id. at 328 (quoting 29 U.S.C. § 160(f)). "[S]ubstantial evidence is not an exacting standard—it means more than a mere scintilla and only such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Hendrickson USA, LLC. v. NLRB, 932 F.3d 465, 470 (6th Cir. 2019) (quotation marks omitted). We review questions of law de novo but grant deference to the Board's interpretation of the Act so long as it is "reasonably defensible." FirstEnergy, 929 F.3d at 328 (citation omitted). Under this deference, "[w]e may not displace the Board's choice between two fairly conflicting views, even though [we might] justifiably have made a different choice had the matter been before [us] de novo." Id. (). But neither may we "stand back and 'rubber-stamp' Board decisions that controvert the [Act]; instead [we] must carefully scrutinize accusations that the Board failed to abide by precedent." Id. ().1
OHL says the Board erred by holding that OHL violated NLRA § 8(a)(5) when it unilaterally upgraded its time clocks, and by finding that OHL wrongfully fired Keele. We agree.
OHL argues that its replacement of its old push-button time clocks with new touch screens was not "a material, substantial, and significant change in the terms or conditions of employment," Ead Motors E. Air Devices, Inc., 346 NLRB 1060, 1065 (2006), so it did not violate the Act by making this physical upgrade unilaterally. The difference between the old and new clocks is that the employee now pushes a touch screen rather than a plastic button. OHL relies on Board precedent holding that the change from hand writing time entry on cards to push-button time clocks was not material, substantial, or significant, so that unilateral change did not violate the Act. RustCraft Broad. of New York, Inc., 225 NLRB 327, 327-28 (1976). And OHL mocks the Board's statement that the touchscreen system is "significantly more complicated" than the push-button system as not only unsupported by the record but nonsensical in modern society.2
The Board's General Counsel argues that the time-clock upgrade was "a material, substantial, and significant change in the terms or conditions of employment," Ead Motors, 346 NLRB at 1065, because the touch screen system has a "complicated menu" that takes time for "each separate page to load," and because "pressing a button on a sensitive screen can lead to more mistakes than doing so on a clock with physical buttons." General Counsel's more emphatic argument, however, is that the time clock upgrade also changed the process for an employee to request time off: previously, an employee submitted the request to a supervisor in person, but with the new time clocks, the employee was to submit the request electronically using the touch screen. The new method delays the decision on the request until the supervisor logs into the system and receives it, whereas the old method allowed—though it did not require—the supervisor to make the decision immediately. General Counsel claims that it is "irrelevant that Keele's discharge had nothing to do with the change to leave requests," or that OHL subsequently "reversed part of that change and allowed employees to use paper leave slips again."
The physical change in the time clocks is not a material, substantial, and significant change in the terms or conditions of employment, and—as the ALJ determined—there is no evidence that would support the claim that the touch screens are significantly different from (or more difficult than) the push buttons. Moreover, the physical clocks and the clocking-in function are distinctfrom the time-off policy, and the difference is most evident because that policy is no longer even in place. Therefore, the time-off policy (which reasonably could warrant collective bargaining as a material, substantial, and significant change in the terms or conditions of employment) is irrelevant here.
OHL did not violate the Act by physically upgrading the time clocks unilaterally. We vacate the portion of...
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