Palace Sports & Entertainment v. N.L.R.B., 04-1261.

• Decision Date: 31 May 2005
• Docket Number: No. 04-1276.,No. 04-1261.,04-1261.,04-1276.
• Citation: 411 F.3d 212
• Parties: PALACE SPORTS & ENTERTAINMENT, INC., d/b/a St. Pete Times Forum, f/k/a Tampa Bay Ice Palace, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 212

411 F.3d 212

PALACE SPORTS & ENTERTAINMENT, INC., d/b/a St. Pete Times Forum, f/k/a Tampa Bay Ice Palace, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent

No. 04-1261.

No. 04-1276.

United States Court of Appeals, District of Columbia Circuit.

Argued March 18, 2005.

Decided May 31, 2005.

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Robert M. Vercruysse argued the cause for petitioner. With him on the briefs was Gary S. Fealk.

David A. Fleischer, Senior Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Arthur F. Rosenfeld, General Counsel, John H. Ferguson, Assistant General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Meredith L. Jason, Attorney.

Before: GINSBURG, Chief Judge, and EDWARDS and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge EDWARDS.

HARRY T. EDWARDS, Circuit Judge.

Palace Sports & Entertainment, Inc. ("Palace" or "the Company") petitions for review of an order of the National Labor Relations Board ("NLRB" or "Board"), and the Board cross-applies for enforcement. On charges filed by the International Alliance of Theatrical Stage Employees, AFL-CIO ("Union"), the Board held that, in the months following Palace's assumption of operations at the St. Pete Times Forum ("Forum") in Tampa, Florida, the Company committed various unfair labor practices in violation of § 8(a)(1) and (3) of the National Labor Relations Act ("Act"), 29 U.S.C. § 158(a)(1), (3) (2000). Specifically, the Board found that Palace prohibited employees from conversing about the Union, interrogated employees about their knowledge of union activity and their communications with the Board, and threatened employees if they cooperated with the Board or supported the Union, all in contravention of § 8(a)(1). The Board also concluded that the Company violated § 8(a)(1) and (3) by disciplining and subsequently discharging a pro-union employee, Peter Mullins. The Board issued an order requiring the Company to cease and desist from its unlawful conduct and to take certain affirmative remedial action, including the reinstatement of Mullins with back pay. See In re St. Pete Times Forum, 342 N.L.R.B. No. 53, 2004 WL 1701333 (July 27, 2004). The Company does not challenge most of the Board's § 8(a)(1) findings; accordingly, we grant the cross-application to enforce the portions of the Board's order based on these unchallenged findings of unfair labor practices.

Palace's principal claim in this case is that the Board erred in concluding that the employer's discipline and later discharge of Mullins violated the Act. Mullins was issued warnings for violating the Company's solicitation and harassment policies during the course of his discussions with a fellow employee about whether to join the Union. In evaluating this disciplinary action, the Board relied on the framework approved in NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23, 85 S.Ct. 171, 13 L.Ed.2d 1 (1964), under which an employer violates the Act, despite its good faith, by disciplining an employee for misconduct arising out of a protected activity, when it is shown that the misconduct did not in fact occur. The Board concluded that Mullins did not in fact commit the offenses for which he was disciplined. We conclude that these findings are supported by substantial evidence.

Months after he received the disciplinary warnings, Mullins was discharged for making an improper remark during a conversation with an employee of a vendor located in the Forum. The Board ostensibly employed the framework set forth in Wright Line v. Lamoureux, 1980 WL 12312, 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir.1981), to determine whether protected activity was the motivating factor in Palace's decision to fire Mullins. The Board's opinion on this point is hopelessly unclear, so we are unable to discern the precise basis upon which the Board concluded that Mullins' discharge was unlawful. We therefore remand the case to the Board so that it may revisit this issue.

I. BACKGROUND

A. Factual Background

Palace Sports & Entertainment, Inc. owns and operates various sports and entertainment arenas, including the Palace of Auburn Hills located near the Company's headquarters in Detroit, Michigan. In July 1999, the Company purchased the Ice Palace in Tampa, Florida, an arena which has since become known as the St. Pete Times Forum. Palace assumed various contractual obligations made by the previous owner, including a contract with SMG a company whose employees maintained the facility and performed the work necessary to effectuate conversions of the arena floor, e.g., from a hockey rink to a concert venue. SMG had a labor contract with the Union.

When Palace purchased the Forum, it decided that it would take control over the maintenance and conversion operations itself instead of employing subcontractors like SMG. On June 30, 2001, when SMG's contracts with the Forum and the Union expired, Palace assumed the maintenance and conversion operations for the arena. The Company hired some of SMG's former employees, including numerous Union officials, but it did not recognize the Union. One of the employees Palace hired was Peter Mullins, a mechanical engineer who had been on the Union's negotiating committee while he was employed by SMG. After he was hired, Mullins and other pro-union employees began soliciting union authorization cards. The presence of this union activity at the Forum resulted in a number of incidents involving the management of the Company, which ultimately resulted in the filing of unfair labor practice charges in this case.

On June 27, 2001, the Company posted a policy prohibiting solicitation by one employee to another "while either is working." In response to some complaints from employees regarding solicitation on behalf of the Union, Palace vice president Sean Henry reviewed this no-solicitation policy with employees at a meeting on July 18. He informed the employees that solicitation in violation of the Company's policy could result in termination. During the course of the meeting, Henry effectively promulgated a rule prohibiting any conversation about the Union. Specifically, Henry told employees that they could "talk about virtually anything" so long as they did not solicit. But by "virtually anything" Henry excluded conversations about the Union, because he viewed any discussion regarding the Union as solicitation.

In mid-July, operations manager Carson Williams asked employee Thomas Roberts whether anyone had approached him "about the union organization process." After Roberts responded that nobody had, Williams said, "I know if anyone comes to you, you will let me know." Also in mid-July, employee George Freire spoke with a new employee and gave him a union authorization card. The next day, Williams told Freire "not to be discussing union issues on the clock or in the building."

Around November 20, 2001, Williams approached Roberts and told him that he "didn't like rumors" and wanted to clear one up. He said that he had heard that Roberts had gone to the NLRB to complain about him, and asked Roberts to explain his action. Roberts answered that he did not know what Williams was talking about, that he had not gone to the Board. Williams then conceded that it might have been another employee with the same name as Roberts who had complained to the Board, but that "it would all come out and once it did" Williams "would take care of it."

On June 18, 2002, Williams called Mullins to his office to fix a problem with the building's automation system. After the problem was corrected, Williams commented that he would be "lost" without Mullins, to which Mullins replied that he was not planning on going anywhere. Williams then told Mullins that if he "and the rest of the union supporters file for a new election, then you are going to be terminated." When Mullins responded that he could not be fired for "doing something legal," Williams stated that the Company would terminate the leader "and then the rest of you will get in line." Mullins asked Williams who had told him that, and Williams replied, "Sean Henry."

On July 11, 2002, less than a month after this conversation, employee James Carpenter arranged to speak with Henry to complain about Peter Mullins. According to Henry, Carpenter reported that Mullins would not leave him alone, that he "is always... talking to me and telling me the merits of the Union." Carpenter told Henry that initially this happened "three, four, five times a week," but that it was now "every time" he saw Mullins. Carpenter further noted that he had told Mullins to leave him alone "dozens of times."

Henry referred the matter to the Company's human resources director, Beth Fields, and, the next day, Henry, Fields, and Williams met with Carpenter. According to a memorandum summarizing this meeting (signed by Henry, Williams, Carpenter, and Carpenter's supervisor), Carpenter reported being "harassed and solicited" by Mullins. He specifically reported the most recent incident, which had taken place in the employee break room at 7:30 a.m. on July 11, before Carpenter had clocked in but after Mullins began work at 7:00 a.m. Carpenter related that he and another employee went to the break room, where Mullins asked him why he would not join the Union. Carpenter explained that he liked working for Palace and that the Company had been good to him. Mullins told Carpenter that the Union could negotiate a better raise for him, but Carpenter responded that he was not interested and then left. Carpenter reported that Mullins was always" `antagonizing'" him about joining the Union and confronts him "at least 3-5 times per week," and that it was interfering with his work.

Following this meeting, Carpenter prepared a written statement, dated July 17, 2002, in which he stated that, "[f]...