Poly-America, Inc. v. Nat'l Labor Relations Bd

• Decision Date: 09 August 2001
• Docket Number: RESPONDENT-CROSS-PETITIONER,PETITIONER-CROSS-RESPONDENT,INC,POLY-AMERIC,No. 00-60013,00-60013
• Citation: 260 F.3d 465
• Parties: (5th Cir. 2001) ,, v. NATIONAL LABOR RELATIONS BOARD,
• Court: U.S. Court of Appeals — Fifth Circuit

Page 465

260 F.3d 465 (5th Cir. 2001)

POLY-AMERICA, INC., PETITIONER-CROSS-RESPONDENT, v. NATIONAL LABOR RELATIONS BOARD, RESPONDENT-CROSS-PETITIONER.

No. 00-60013

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

Aug. 9, 2001

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[Copyrighted Material Omitted] Dan C. Dargene, John David Smart, Winstead Sechrest & Minick, Dallas, TX, Adam brian Ross (argued), Poly America, Inc., Grand Prairie, TX, for Poly-America, Inc.

Aileen A. Armstrong, Deputy Associate Gen. Counsel, Margaret Ann Gaines, Andrew J. Krafts (argued), NLRB, Washington, DC, Michael Dunn, Director, NLRB, Fort Worth, TX, Mark Kaplan, NLRB, New Orleans, LA, NLRB.

Petition for Review & Cross Petition for Enforcement of an Order of the National Labor Relations Board

Before Barksdale, Emilio M. Garza, and Benavides, Circuit Judges.

Emilio M. Garza, Circuit Judge

Poly-America, Inc. seeks review of an order by the National Labor Relations Board finding that it violated sections 8(a)(1) and (3) of the National Labor Relations Act in its handling of events surrounding a work stoppage at one of its plants. In general terms, the order requires Poly-America to (1) cease and desist from promulgating and enforcing various anti-union policies; (2) reinstate with backpay the nineteen employees who participated in the work stoppage; (3) reinstate with backpay a former employee associated with the union whom it discharged on misconduct grounds; and (4) provide backpay to two employees associated with the union whom it suspended on misconduct grounds. The Board cross-petitions for enforcement.

We do not find substantial evidence to support the findings on which the Board based its order requiring Poly-America to offer reinstatement and backpay to Jason Snow, to cease and desist from threatening employees that it was rescinding an offer to pay for time off because of their union activities, to cease and desist from telling employees that they had been fired because of their union activities, and to cease and desist from conditioning the reinstatement of striking employees on acceptance within an unreasonably short period of time. We therefore reverse that portion of the Board's order. We do find substantial evidence in the record to support all of the Board's other determinations. Accordingly, we deny Poly-America's petition insofar as it asks this court to reverse the Board's decision as it applies to the promulgation of an overly broad anti-solicitation rule, threats against and interrogation of employees, videotaping of employees' union activities, and discharge and suspension of union-active employees.

I.

Poly-America operates a plastic products manufacturing plant in Grand Prairie, Texas; in November 1996, the Union of Needletrades, Industrial and Textile Employees (UNITE) attempted to unionize the plant. One impetus for the unionization was an INS raid which had generated a great deal of employee dissatisfaction. Following the raid on November 6, the company owner addressed the employees through an interpreter (translating into Spanish for the Spanish-speaking work force). The parties dispute what was promised, but some of the employees apparently understood the owner to say that they would be paid for the remainder of the shift following the meeting, regardless of whether they returned to work.

Nineteen of these employees walked off the job on November 14 when, after receiving their paychecks for that period, they learned that they had not been paid for the entire November 6 shift. The plant manager attempted to convince the employees to return to work, but the workers, speaking through a UNITE organizer, announced that they were striking, and articulated three demands: to be paid for the evening shift of November 14, to be ensured that there would be no reprisals against the strikers, and to be paid for the entire November 6 shift. The plant manager agreed to the first two conditions, but told the strikers he had no authority to promise payment for the November 6 shift.

The parties dispute what occurred following this impasse on the evening of November 14. Poly-America maintains that the employees refused to return to work, forcing the company to replace the strikers. Poly-America insists that it made replacement hires before informing its employees that they could not return to work. The NLRB, however, maintains that the employees were discharged almost immediately following the walkout, on the night of November 14. Because this discharge took place before any replacement hires were made, the NLRB argues, the discharge was unlawful.

Surrounding the November 14 walkout were a host of other less dramatic confrontations between Poly-America management and plant employees--alleged destruction of union literature, videotaping of employees engaged in union activity, threats against employees interested in the union, interrogation of active employees. Poly-America disputes both whether these incidents actually occurred, as well as whether the individuals allegedly acting on behalf of the company are the company's agents.

Finally, the parties dispute the events surrounding the discharge of one employee, Jason Snow, and the suspension of two others, Britt Samson and Brian Robinson. Snow was a probationary employee, discharged by the company at the end of his probationary period, purportedly for poor performance. Snow was also active in the union, and was frequently questioned about his union involvement. Samson and Robinson participated in union activities as well, and were suspended following a confrontation with the company security guards in which they refused to surrender the union materials they were distributing in the company parking lot, and refused to leave the property. According to the company, they were suspended for insubordination.

After conducting a hearing, an Administrative Law Judge held that Poly-America violated sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act.¹ The ALJ ruled against Poly-America on each of the issues outlined above, and identified a score of specific violations of the Act. The Board affirmed the ALJ's decision in essentially all respects. The Board first affirmed the decision that Poly-America violated section 8(a)(1) by promulgating and enforcing an overly broad no-solicitation/no-distribution rule; by threatening employees with loss of wages, hours, and job security if they selected union representation; by informing employees that it was rescinding its promise to pay them for the November 6 shift because of their union support; by interrogating employees about their union activities; by threatening employees with isolation and discharge if they signed union authorization cards; by threatening employees that the union would force them to strike and picket if they signed authorization cards; by videotaping employees' union activity; by confiscating and selectively destroying union materials; by telling employees that they had been fired because they had engaged in a protected strike; and by conditioning reinstatement of former strikers on response to the offer of reinstatement within an unreasonably short period of time. The Board also upheld the ALJ's findings that the company violated sections 8(a)(1) and 8(a)(3) by discharging the nineteen striking employees; by discharging Jason Snow because of his union activity; and by suspending Britt Samson and Brian Robinson on the basis of their union involvement.

The Board's order requires Poly-America to fully reinstate the nineteen striking employees, as well as Jason Snow. The order also requires Poly-America to compensate these employees, along with Britt Samson and Brian Robinson for any loss of earnings. Finally, the order calls upon Poly-America to post a remedial notice, and cease and desist from the above-described unfair labor practices.

We affirm the Board's factual findings iF.Supp.orted by substantial evidence on the record, considered as a whole. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88, 71 S.Ct. 456, 464-65, 95 L.Ed. 456 (1951); Central Freight Lines, Inc. v. NLRB, 666 F.2d 238, 239 (5th Cir. 1982). Substantial evidence is "such relevant evidence that a reasonable mind would accept to support a conclusion." Universal Camera, 340 U.S. at 488, 71 S.Ct. at 465; see also Valmont Indus. v. NLRB, 244 F.3d 454, 463 (5th Cir. 2001) ("A reviewing court will uphold the Board's decision if it is reasonable and supported by substantial evidence on the record considered as a whole."); NLRB v. Thermon Heat Tracing Serv., Inc., 143 F.3d 181, 185 (5th Cir. 1998) ("Recognizing the Board's expertise in labor law, [the court] will defer to plausible inferences it draws from the evidence, even if we might reach a contrary result were we deciding the case de novo."); Standard Fittings Co. v. NLRB, 845 F.2d 1311, 1314 (5th Cir. 1988) ("[T]he ALJ's decision must be upheld if a reasonable person could have found what the ALJ found, even if the appellate court might have reached a different conclusion had the matter been presented to it in the first instance."). We review questions of law de novo, see NLRB v. Motorola, Inc., 991 F.2d 278, 282 (5th Cir. 1993), but defer to the legal conclusions of the Board if reasonably grounded in the law and not inconsistent with the Act. See Valmont Indus., 244 F.3d at 464.

II

Characterization of a strike as an economic or an unfair labor practice strike affects the discretion of the company to replace the striking employees. See NLRB v. International Van Lines, 409 U.S. 48, 50, 93 S.Ct. 74, 76, 34 L.Ed.2d 201 (1972). Unfair labor practice strikers--strikers protesting alleged labor law violations by their employer--are entitled to reinstatement immediately upon an unconditional offer to return...