El Paso Elec. Co. v. Nat'l Labor Relations Bd.

• Decision Date: 18 May 2012
• Docket Number: No. 10–60771.,10–60771.
• Citation: 681 F.3d 651
• Parties: EL PASO ELECTRIC COMPANY, Petitioner Cross–Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross–Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

681 F.3d 651

EL PASO ELECTRIC COMPANY, Petitioner Cross–Respondent,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent Cross–Petitioner.

No. 10–60771.

United States Court of Appeals,
Fifth Circuit.

May 18, 2012.

[681 F.3d 655]

Dan C. Dargene (argued), Ogletree Deakins, P.C., Dallas, TX, for Petitioner Cross–Respondent.

Linda Dreeben, Deputy Assoc. Gen. Counsel, Heather Stacy Beard (argued), Richard Alan Cohen, Sr. Atty., Jill A. Griffin, Supervisory Atty., NLRB, App. Court Branch, Washington, DC, Cornele A. Overstreet, NLRB, Phoenix, AZ, for Respondent Cross–Petitioner.

Petitions for Review for Enforcement of an Order of the National Labor Relations Board.
Before DENNIS, CLEMENT and HIGGINSON, Circuit Judges.

HIGGINSON, Circuit Judge:

The issue before us is whether there is sufficient evidence to support the findings by the Respondent, the National Labor Relations Board (the “General Counsel”),¹ that the Petitioner, El Paso Electric Company (“EPE”), engaged in unfair labor practices prohibited by the National Labor Relations Act (the “NLRA”).

EPE contends that the record does not support the Board's findings. First, it is settled law that this court “do[es] not make credibility determinations or reweigh the evidence” when reviewing the Board's decisions. NLRB v. Allied Aviation Fueling of Dallas LP, 490 F.3d 374, 378 (5th Cir.2007) (citing NLRB v. Cal–Maine Farms, Inc., 998 F.2d 1336, 1339–40 (5th Cir.1993)). Second, EPE acknowledged in oral argument that its denial of unfair labor practices is properly considered in the context of EPE's other admitted and historically established violations. See, e.g. NLRB v. Citizens Hotel, 326 F.2d 501, 506 (5th Cir.1964) (“[P]rior violations may have relevance on motivation.”); NLRB v. J.P. Stevens & Co., Inc., Gulistan Division, 538 F.2d 1152, 1163 (5th Cir.1976) (“When a company has historically evinced disdain for employees' rights and the Congressional mandate, its prior history is relevant to the question of a de minimis failure to bargain.” (citations omitted)). Third, it is undisputed that the specific process leading to the factual findings EPE contests included a ten-day hearing, 1831 pages of witness testimony, and volumes of exhibit testimony weighed firsthand by the administrative law judge (the “ALJ”) and thereafter reviewed by the Board, which, in turn, unanimously found the instant violations. El Paso Electric Co. & Int'l Bhd. of Elec. Workers, Local Union 960, 355 NLRB No. 71 (2010). Notably, at the same time, the Board reversed two of the ALJ's findings, remanded a third issue for additional fact-finding, and particularized five other findings which it chose not to reach or for which it adopted only part of the ALJ's reasoning. Id. at *1 & n. 3. The fact finder separately set forth fifteen unfair labor practice findings that EPE does not dispute.² Finally, it should be kept in mind that the crux of the Board's

[681 F.3d 656]

holding is not that EPE is prohibited from implementing workplace changes and disciplining employees based on those changes, but only that it is prohibited from doing so unilaterally, without conferring with the Union. We affirm.

I. Factual Background

EPE is an electric utility that generates and distributes electricity to customers in western Texas and southern New Mexico. The International Brotherhood of Electrical Workers, Local 960 (the “Union”) has represented EPE's linemen and other operational employees for almost seventy years. EPE's meter readers/collectors (“meter readers”) joined the Union in 2003, and EPE's call center customer service representatives (“CSRs”) joined in 2004.

EPE has a long and somewhat rocky history dealing with its unionized workforce. On February 2, 2002, the Union filed a number of charges alleging that EPE had violated § 8(a)(1), (3), (4), and (5) of the NLRA in response to the Union's successful organizational efforts to add employee groups to the bargaining unit. The charges were consolidated and collectively tried before an ALJ in August and September 2006. The ALJ issued his decision on March 1, 2007. EPE appealed the ALJ's decision to the Board by filing exceptions to certain findings while the Union filed cross-exceptions. The Board issued its Decision and Order on August 10, 2010. El Paso Electric Co., 355 NLRB No. 71.

The Decision and Order adopted most of the ALJ's factual findings and legal determinations, concluding that EPE had violated the NLRA through assorted interactions with union employees. EPE filed a petition in this court to appeal specific portions of the Board's decision holding that EPE violated § 8(a)(1) and (5) of the NLRA. EPE challenges the Board's determination that: (1) EPE unilaterally changed its rules regarding the meter readers' breaks; (2) EPE unilaterally implemented a more onerous disciplinary procedure for CSRs; (3) EPE unilaterally changed its policy regarding CSRs' ability to work on co-workers' accounts; (4) EPE failed to bargain in good faith over the effects of its decision to close its Chelmont facility; and (5) EPE unilaterally changed its boot replacement policy.

The General Counsel has cross-petitioned, opposing EPE's challenges to the Board's decision and requesting enforcement of the Decision and Order.

II. Standard of Review

We review “the Board's factual findings under a substantial evidence standard” and its legal conclusions de novo. Sara Lee Bakery Grp., Inc. v. NLRB, 514 F.3d 422, 428 (5th Cir.2008); see29 U.S.C. § 160(f) ( “the findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall ... be conclusive”). We uphold a Board decision “if it is reasonable and supported by substantial evidence on the record considered as a whole.” Strand Theatre of Shreveport Corp. v. NLRB, 493 F.3d 515, 518 (5th Cir.2007). “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.” Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir.1993) (emphasis added) (citations omitted); see also Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 217, 59 S.Ct. 206, 83 L.Ed. 126 (1938). 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.”

[681 F.3d 657]

Brown v. Apfel, 192 F.3d 492, 496 (5th Cir.1999) (quoting Johnson v. Bowen, 864 F.2d 340, 343 (5th Cir.1988)); see also Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951) (reviewing court engaged in substantial evidence review will not “displace the Board's choice between two fairly conflicting views” of the evidence, “even though the court would justifiably have made a different choice had the matter been before it de novo”). “Conflicts in the evidence are for the [Board] and not the courts to resolve.” Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir.1990) (citations omitted). This deference to the trier of facts is our longstanding position, see, e.g., NLRB v. Alco Min. Co., 425 F.2d 1128, 1129–30 (5th Cir.1970) (listing “credibility choices” and “reasonable inferences” as “a function primarily for the board” and as determinations “for the trier of the facts to make and there the matter ends”), yet we proceed below at some length to set forth the record showing why we cannot conclude that the findings of fact affirmed by the Board lacked substantial evidence.

III. Analysis

The Supreme Court has held that an employer violates § 8 of the NLRA if the employer “effects a unilateral change of an existing term or condition of employment.” Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 198, 111 S.Ct. 2215, 115 L.Ed.2d 177 (1991) (citing NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962)). Section 8 of the NLRA requires an employer to bargain “in good faith with respect to wages, hours, and other terms and conditions of employment ....” 29 U.S.C. § 158(d). The employer's failure to bargain collectively in good faith under subsection (d) serves as the predicate to violations under subsections (a)(1) and (5) of 29 U.S.C. § 158. An employer violates subsection (a)(5) when the employer fails to bargain collectively with union representatives. Section 8(a)(1) violations are derivative of violations of § 8(a)(5). A violation of § 8(a)(1) occurs when an employer takes adverse action against specific employees in connection with terms and conditions of their employment that are subject to collective bargaining. 29 U.S.C. § 158(a)(1), (5). If, following a successful union election, the employer “begins to strictly enforce previously existing rules which had not earlier been enforced,” § 8 of the NLRA is violated. Hyatt Corp. v. NLRB, 939 F.2d 361, 372–73 (6th Cir.1991). The employer also violates § 8 by unilaterally implementing new work rules and subjecting employees to discipline for violating those rules. Peerless Food Prods., 236 NLRB 161, 161 (1978); see also Murphy Diesel Co., 184 NLRB 757, 762 (1970) (concluding that there was a violation where the employer unilaterally imposed new rules regarding absenteeism and tardiness without giving prior notice or bargaining with the union). For a unilateral change to require the employer to bargain with the union, the change must represent a “material, substantial, and a significant change” in the terms and conditions of employment. Miss. Power Co. v. NLRB, 284 F.3d 605, 615 (5th Cir.2002); Peerless Food Prods., 236 NLRB at 161 (citing Rust Craft Broad. of N.Y., Inc., 225 NLRB 327, 327 (1976)); Murphy Diesel Co., 184 NLRB at 763. We have emphasized, however, that we do not assess materiality and substantiality in a vacuum, but rather “we remain mindful of our deference to the Board's construction of the Act, and echo the United States Supreme Court's response ... [to an argument of triviality, that] ‘the Board has a contrary view,...