Staffing Network Holdings, LLC v. Nat'l Labor Relations Bd.

• Decision Date: 02 March 2016
• Docket Number: 15–1582.,Nos. 15–1354,s. 15–1354
• Citation: 815 F.3d 296
• Parties: STAFFING NETWORK HOLDINGS, LLC, Petitioner/Cross–Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross–Petitioner.
• Court: U.S. Court of Appeals — Seventh Circuit

815 F.3d 296

STAFFING NETWORK HOLDINGS, LLC, Petitioner/Cross–Respondent,

v.NATIONAL LABOR RELATIONS BOARD, Respondent/Cross–Petitioner.

Nos. 15–1354

15–1582.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 5, 2015.

Decided March 2, 2016.

Gerald Leonard Maatman, Jr., Amanda A. Sonneborn, Seyfarth Shaw LLP, Chicago, IL, for Petitioner/Cross–Respondent.

Linda Dreeben, Elizabeth A. Heaney, National Labor Relations Board Office of the General Counsel, Michael Hickson, National Labor Relations Board, Washington, DC, Peter S. Ohr, National Labor Relations Board, Chicago, IL, for Respondent/Cross–Petitioner.

Before FLAUM, MANION, and ROVNER, Circuit Judges.

ROVNER

, Circuit Judge.

The National Labor Relations Board ("NLRB" or "Board") concluded that Staffing Network Holdings, LLC ("Staffing Network") violated the National Labor Relations Act by twice threatening employees with discharge for engaging in protected, concerted activity, and for actually discharging employee Griselda Barrera for engaging in protected, concerted activity. See 29 U.S.C. § 151 et seq.

(hereafter "the Act"). The NLRB ordered Staffing Network to offer Barrera reinstatement and to make her whole for lost wages. Staffing Network petitions this court for review of that decision and asks that we reverse the Board's decision in its entirety. The NLRB cross-petitions for enforcement of its Order. We deny Staffing Network's petition for review and grant the NLRB's petition for enforcement.

I.

Staffing Network is a staffing agency, providing temporary and long-term employees to a variety of employers. The company operates at free-standing locations and on-site at its clients' premises. ReaderLink, an Illinois company, is an on-site client that fills book orders for other businesses. At the time of the incident leading to this action, Staffing Network provided approximately eighty full-time employees for ReaderLink, including an on-site manager, a staffing assistant, pickers and stockers. Pickers at ReaderLink work side-by-side on a production line, selecting books to fill orders, placing the books in boxes and sending them down the line. Stockers ensure that pickers have an adequate supply of books to fill the orders. Barrera began working for Staffing Network in 2004, and was placed at ReaderLink as a picker. Except for once punching the clock too early for her shift, Barrera worked at ReaderLink for eight years without incident. Staffing Network's on-site manager at ReaderLink was Andy Vega, who had been working for the company for only a few months at the time of these events. Monica Amaya worked as Vega's staffing assistant. ReaderLink also had its own in-house supervisors, including Mari Perez.

On November 15, 2012, ReaderLink was working to fill an especially large book order. At some point in the day, Perez told Vega that two of the stockers were not working quickly enough. Vega asked both stockers to work more quickly, but one of the workers, a man named Juan, said that he would work no faster for $8.25 an hour. Perez told Vega to send Juan home and Vega complied. Juan's dismissal caused an immediate reaction among the pickers, including Barrera, Olga Gutierrez and other women. They asked why Juan had been sent home, and they told Vega that Juan could not keep up with the line because he was new at the job. Vega replied that Juan was sent home because of his attitude as well as his inability to keep up with the work. Barrera, Gutierrez and others told Vega that this was not fair. Vega replied that it was not the pickers' matter to deal with and that they should get back to work. Vega also said that he could send them home as well for their attitude. He then left the area.

Vega returned a short time later. He angrily and repeatedly asked Barrera if everything was fine and told her again that he could send her home if she had an issue. Barrera asked Vega if he was threatening her and said that she could send a letter to the Department of Human Rights. Vega then told Barrera to collect her things and go home. Barrera refused, insisting that she had done nothing wrong. Vega became angrier, pointed at Barrera and said in a raised voice, "Let's see if you're not leaving." Gutierrez and others came to Barrera's defense, saying she had done nothing wrong. Vega again left the area and returned to his office.

Vega then directed Amaya to tell Barrera to go home. Amaya went to the production line and told Barrera to take her personal items and leave. She told Barrera that if she did not leave, Vega intended to have security guards escort her out. Again, the other women came that Vega had been rude. Amaya said there had been a lot of complaints about Vega but that there was nothing she could do. Barrera then left the work area with Amaya, turned in her radio headset that pickers used to communicate, and waited in the cafeteria for a ride to pick her up.

Amaya initially told Barrera to leave for the day. However, later in the day, Barrera sent Amaya a text message asking if she could return to work the next day. Amaya asked Vega how she should reply to the message. Amaya then sent Barrera a text message stating that Barrera needed to speak to Vega about what had happened that day, and that she should not return to work.

Having been told to leave and not come back, Barrera reasonably surmised that she had been terminated and she applied for unemployment benefits. The Illinois Department of Employment Security ("IDES") sent a request for information about Barrera's claim to Staffing Network. Vega and Amaya composed and sent Staffing Network's reply to the State. The IDES form requested that the employer provide the claimant's "current status with your company, including details." The form presented four possible statuses: (1) Lack of Work (with sub-categories of Permanent or Temporary); (2) Voluntary Separation; (3) Involuntary Separation; and (4) Still Working. Vega and Amaya checked the box for "Involuntary Separation." For Involuntary Separation, the form requested that the employer "[p]rovide reason, policy violation (include policy section), dates and details of prior warnings, and written documentation of the final incident details. Include the name & title of the individual who terminated the claimant." Vega and Amaya replied:

On 11–15–2012 the client (Mari Perez) informed me that a stacker [sic] was not working at the level he should be. When told to speed it up a bit Griselda Barrera took it upon herself to tell the onsite manager that he doesn't know what he's talking about and that he should do his homework. After this Griselda Barrera went to the rest room for about 10 min [and] when she returned she was talking to some of the ladies in the line disrupting the production. Mari Perez told the on site manager to tell Griselda Barrera if she does not want to work to punch out and go home. To which her reply to Andy Vega (on site) was "do not threaten me with nonsense, I have been here for many years and I know my rights! And you are nobody to tell me what to do," [sic] After this she was told to punch out and go home for the day but she ignored the request and continued to get the ladies in the line worked up saying this was going against the law and that they have to stand up against all the injustice we are committing.

Due to this Griselda Barrera cannot return to ReaderLink.

Ex. R–8.

In response to questions specific to the staffing industry, Vega and Amaya also indicated on the form that Barrera would "be considered for future assignments with your agency," stating, "Yes, with any account other than ReaderLink. She may call other branches for work." In response to a question regarding whether there had been any "job refusals since the last assignment ended that have not been reported," Vega and Amaya replied, "No she has not been called due to her being placed on DNR from this account." In this context, "DNR" means "Do Not Return," a status given to a Staffing Network employee when a particular client requests that the employee not return to the client's work site. The State ultimately approved Barrera's unemployment benefits. Staffing Network never told Barrera that she had not been terminated. Nor did the company tell her that she could return to work at ReaderLink or that she could work at an alternate location. After the termination, Barrera tried to meet with a representative of ReaderLink's human resources department directly. But when Barrera visited ReaderLink and asked to speak to a ReaderLink employee, Vega and Amaya met her instead and told her the ReaderLink employee was unavailable.

Barrera filed an unfair labor practice charge, and the Board's General Counsel issued a complaint alleging that Staffing Network violated section 158(a)(1) of the Act by twice threatening to discharge employees for engaging in protected, concerted activity, and by actually discharging Barrera because of her protected, concerted activity. An Administrative Law Judge ("ALJ") held a hearing at which both the General Counsel and Staffing Network presented witnesses and entered documentary evidence. The ALJ determined the facts as we have recited them above, generally crediting the General Counsel's witnesses and finding that Staffing Network's witnesses were either partly or entirely not credible. The ALJ agreed that Staffing Network violated section 158(a)(1)

as alleged by the Board. The ALJ rejected the company's claims that Barrera was not terminated, or that if she was terminated, the discharge was justified by Barrera's insubordinate behavior. The ALJ further found that Barrera did not lose the protection of the Act under the factors delineated in Atlantic Steel Co., 245 N.L.R.B. 814 (1979). Finally, the ALJ determined that a burden-shifting analysis under Wright Line, 251 N.L.R.B. 1083 (1980), enfd. 662 F.2d 899 (1st Cir.1981), was not necessary but that a violation would be found under Wright Line if the case applied.

As a remedy, the ALJ ordered that...