Pioneer Natural Gas Co. v. N.L.R.B.

Decision Date30 November 1981
Docket NumberNo. 80-2324,80-2324
Citation662 F.2d 408
Parties108 L.R.R.M. (BNA) 3255, 92 Lab.Cas. P 13,143 PIONEER NATURAL GAS COMPANY, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner. . Unit A *
CourtU.S. Court of Appeals — Fifth Circuit

Locke, Purnell, Boren, Laney & Neely, Larry M. Lesh, Dallas, Tex., John Cosmic, Amarillo, Tex., for Pioneer Natural Gas Co.

Elliott Moore, Deputy Associate Gen. Counsel, Robert M. Smith, N.L.R.B., Washington, D. C., for the N.L.R.B.

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

Before THORNBERRY, REAVLEY and POLITZ, Circuit Judges.

REAVLEY, Circuit Judge:

An administrative law judge determined that the Pioneer Natural Gas Company had violated § 8(a)(1) and § 8(a)(3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), (3) by interrogating and discriminating against certain employees. The National Labor Relations Board summarily affirmed the ALJ's "rulings, findings, and conclusions" and adopted his order with a slight modification. 1 Pioneer petitions for review, and the Board cross-petitions for enforcement of its order. We grant Pioneer's petition and deny enforcement.

I. Background

In March 1978, a union began a campaign to organize Pioneer's employees at Pioneer's several places of business. The campaign ended on October 13, 1978. There is no evidence in the record that Pioneer actively opposed this or any other union. The union simply failed to gain sufficient support from the employees. As the ALJ found, Pioneer demonstrated "little or no" anti-union animus.

The violations found in this case all occurred in one department on one floor in one of Pioneer's many facilities. This "gas measurement" department had 17 non-supervisory employees; all but one were female. Five women worked under the supervision of James Blatzheim, the chief clerk of gas measurement; the others worked under the supervision of James Goldston, the computer supervisor. Both Blatzheim and Goldston reported to supervisor Bob Brotherton; Brotherton reported to Guy Bufkin, the Assistant Director of the Department; and Bufkin reported to Bob Spikes, the Director. With a single exception, all of the events involved three of the five employees who worked for Blatzheim Ninnevah Kay Younger, Biolanda Benitez, and Deborah Gallegos (the "reprimandees").

The ALJ found, and the record makes clear, that, prior to June 1978, there was constant bickering between the three reprimandees and some of the women who worked for Goldston. On June 6, the three were called individually into Blatzheim's office and were reprimanded for criticizing, badgering, deliberately antagonizing, and threatening violence against Goldston's employees, and for making deliberate mistakes on the job and bragging that supervisors couldn't tell them what to do. That all of these charges had some basis in fact is established by the three reprimandees' own testimony at the hearing. 2 The ALJ found, however, that the reprimands were issued because two of the three had attended a union meeting on May 25, and because all three had thereafter distributed union cards and advocated the union.

The ALJ also found that two statements Blatzheim made to Younger on June 6, and two questions Goldston asked Benitez and another employee in late May and early June, were instances of "restraint and coercion" prohibited by § 8(a) (1).

Finally, the ALJ found that the discharge of Gallegos in June 1979, over eight months after the union campaign had ended, was in retaliation for her attempt to engage in "concerted activity" protected by § 7 of the Act, 29 U.S.C. § 157.

As we have said, all of the ALJ's determinations were affirmed by the Board.

II. Review of the Merits

We are, of course, bound by the Board's findings of fact if they are supported by substantial evidence in the record "considered as a whole." 29 U.S.C. § 160(e); see Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). If the Board applies an erroneous legal rule in concluding that the facts establish a violation of the Act, however, we are not bound by the Board's conclusion that the Act has been violated. See Allied Chem. & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 182, 92 S.Ct. 383, 399, 30 L.Ed.2d 341 (1971) ("the legal standard to be applied is ultimately for the courts to decide and enforce"). Instead, we apply the Board's factual findings to the correct legal standard. If the Board has not made a necessary finding, we may nevertheless sustain its conclusion if the record clearly supports the omitted finding. If the record is unclear, we may remand to the agency for further proceedings. If the record clearly provides no support for the necessary finding, however, we may deny enforcement without resort to remand. See Delco-Remy Div., Gen. Motors Corp. v. NLRB, 596 F.2d 1295, 1309-10 (5th Cir. 1979).

With these principles in mind, we review the Board's determinations on each of the alleged violations.

A. The Reprimands

The ALJ concluded that the decision to reprimand Younger, Benitez and Gallegos was discrimination that violated § 8(a)(3) and § 8(a)(1) of the Act. 3 In order to prove that Pioneer discriminated against its employees, "the Board must show that the particular supervisor responsible for the (action) knew about (the employees') union activities," Delchamps, Inc. v. NLRB, 585 F.2d 91, 94 (5th Cir. 1978), and that the employees' union activities were a "motivating factor" in the employer's action, Delco-Remy, 596 F.2d at 1305; NLRB v. Whitfield Pickle Co., 374 F.2d 576, 582 (5th Cir. 1967) (anti-union animus must be a "but for" cause). In establishing the knowledge element, the Board may not simply "impute" the knowledge of a lower-level supervisor to the decision-making supervisor, Delchamps, 585 F.2d at 94; the Board may, however, "rel(y) on circumstantial evidence to infer that the knowledge of one supervisor has been communicated" to the other, id. at 95 (citing Texas Aluminum Co. v. NLRB, 435 F.2d 917, 919 (5th Cir. 1970)).

The ALJ found that Blatzheim learned on May 24 that Younger planned to attend a union meeting on May 25, and that he learned on May 26 that Younger was distributing union cards. 4 The ALJ also found that Goldston learned on May 25 that Benitez planned to attend the meeting. In addition, the ALJ noted that Blatzheim and Goldston worked in the vicinity of the three reprimandees. 5 From these facts, the ALJ found "that Respondent, through its supervisors Blatzheim and Goldston, was aware of (the three employees' union) activities during late May, 1978."

The undisputed evidence shows, and the ALJ found, that neither Blatzheim nor Goldston made the decision to reprimand the three employees. That decision was made by Assistant Director Bufkin and Director Spikes. Neither the ALJ nor the Board found that Bufkin or Spikes was aware of the reprimandees' union activities, or that Blatzheim or Goldston communicated his knowledge to Bufkin or Spikes. 6 Thus, it is clear that the ALJ performed the "mechanical imputation" of knowledge rejected in Delchamps, 585 F.2d at 95.

The Board argues that, despite its failure to follow Delchamps, the circumstances surrounding the reprimand support the inference that Spikes and Bufkin knew of the reprimandees' union activities. We think that there is no support in the record for this inference.

The reprimandees' own testimony establishes that the reprimandees themselves were not aware of the union campaign before May 18, 1978. Pioneer claimed at the hearing that the decision to reprimand was made in April. Pioneer's supervisors testified that the continuing complaints from Goldston's employees about the reprimandees were brought to Bufkin's attention sometime in April. Bufkin testified that he and Spikes decided to reprimand the three, and had Goldston's employees reduce their complaints to writing. Even if the ALJ disbelieved this testimony, the General Counsel was presented with two such written complaints at trial, and stipulated on the record that the written complaints were indeed given to management by two of Goldston's employees on May 7 and May 8. 7 The General Counsel also stipulated on the record that Goldston submitted a written statement concerning his employees' complaints on May 19, and that Blatzheim submitted his own written statement on May 22. All of this activity concerning the complaints occurred before Blatzheim or Goldston learned of the reprimandees' union activities, most of it before the reprimandees themselves even knew there was a union. There is no evidence in the record that, after they found out that Younger and Benitez had attended the union meeting, Blatzheim or Goldston participated in any way in the decision to issue the reprimands on June 6 8 or communicated their knowledge to Bufkin and Spikes during that period.

The Board argues that other circumstantial evidence, relied on by the ALJ in finding that the reprimand was motivated by the union activities, supports the inference that Bufkin and Spikes knew that the reprimandees were union supporters. The ALJ relied most heavily on two statements that, he found, Blatzheim made to Younger on June 6. Younger testified that, after Blatzheim had read to her the reprimand written by Spikes, he told her, "Maybe (the reprimand) has something to do with your union activities." Younger claimed that Blatzheim made a similar statement to her and her husband later that day in the company parking lot. Blatzheim denied making either statement, but the ALJ discredited his testimony.

Although we think that the ALJ's reasons for rejecting Blatzheim's testimony are unpersuasive, 9 we accept his credibility determination. Even so, we do not see how the two statements tend to prove that Bufkin or Spikes knew of Younger's union activities. First, under Younger's own description of the statements,...

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