Sysco Grand Rapids, LLC v. Nat'l Labor Relations Bd.
| Decision Date | 04 September 2020 |
| Docket Number | Case No. 19-2421,Case No. 19-2371 |
| Parties | SYSCO GRAND RAPIDS, LLC, Petitioner Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner, GENERAL TEAMSTERS UNION LOCAL NO. 406, Intervenor. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR PUBLICATION
COOK, Circuit Judge. In 2014, workers at Sysco Grand Rapids, LLC began a unionization drive. Managers met the effort with their own campaign advocating against unionization. After losing the ensuing election by a close margin, the General Teamsters Union Local No. 406 filed with the National Labor Relations Board charges of unfair labor practices against the company. In 2019, the Board found that the company committed numerous unfair labor practices and ordered a new election along with other remedies. The company now petitions for review of the Board's order, and the Board's General Counsel cross-applies to enforce the order.
We GRANT the petition for review in part, GRANT the cross-application for enforcement in part, and ENFORCE the Board's order as modified by this opinion.
Sysco Corporation, the parent company of Sysco Grand Rapids, LLC, runs the world's largest broad line food supplier. The Grand Rapids subsidiary ("Sysco") markets and distributes food to restaurants, hospitals, schools, and other institutions throughout most of Michigan. It employs just under 400 employees.
In late 2014, several longtime employees began a campaign to unionize Sysco's warehouse workers and truck drivers. Within two months, a majority of eligible employees signed authorization cards signaling their support for representation by the General Teamsters Union Local No. 406.
In response, Sysco and its parent corporation launched an effort to discourage workers from unionizing. The company first created a database for supervisors to log each employee's perceived support for the union. It then held a series of mandatory meetings at which Sysco's highest-ranking officers warned employees that union representation may entail wage and benefit losses. Managers also cautioned employees that they could lose their jobs if Sysco unionized. In a letter circulated to workers, Sysco represented that the "only way" employees could avoid a strike and risk "losing everything" was to vote against unionizing.
In early 2015, Sysco fired one of the leading supporters of unionizing, George Brewster. Sysco also reduced the hours of another union supporter, Jesse Silva, after Silva challenged a manager's criticism of union representation.
The employees ultimately voted against union representation—71 in favor and 82 against. One week later, the local Teamsters union objected to the election results, filing charges of unfairlabor practices against Sysco. Around this time, Thomas Barnes, a senior manager at Sysco's parent company, gathered employees and "defiantly denounced the charges at a captive audience meeting." Barnes "declared that he would never let the Union in" and "knew how to get around the [NLRA], even [if] it meant continuing to violate federal law, because he 'always got away with it.'" Barnes then warned that Sysco "was an insignificant part of the Sysco Corporation organization and [Sysco Corporation] would shut [the Grand Rapids subsidiary] down and move its operations to Detroit if the Union prevailed."
An administrative law judge found Sysco's misconduct pervasive enough to warrant a bargaining order under NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). A Gissel order mandates that the employer bargain with the union, even without the typical certification by the Board following a formal election, when "an employer's unfair labor practices have made the holding of a fair election unlikely and have undermined the union's majority." Ctr. Constr. Co. v. NLRB, 482 F.3d 425, 433 n.3 (6th Cir. 2007). The ALJ also recommended imposing various other traditional and special remedies to rectify Sysco's unfair labor practices, including setting aside the election, imposing a broad cease-and-desist order against violating the NLRA, ordering Sysco to conduct a public reading of the Board's notice, and granting the Union access to Sysco's facilities and employees. Sysco filed an administrative appeal.
A three-member panel of the Board unanimously upheld the ALJ's factual findings and unfair-labor-practices conclusions. The panel divided on the proper remedy, however. The majority noted that the passage of four years since the election and significant employee turnover during that time "temper[ed] the need for a bargaining order" and perhaps rendered such an order unenforceable. The majority also recognized that issuing a bargaining order would likely prolong litigation and thus ill serve workers. The majority thus rejected the ALJ's recommendation toissue a Gissel order and instead ordered a new election. The Board adopted with modifications the other remedies recommended by the ALJ—the cease-and-desist order, notice-reading order, access provisions, and make-whole remedies for Brewster and Silva. One member dissented in part and would have issued the Gissel order.
Sysco filed this petition seeking review of the Board's order, and the Board's General Counsel filed a cross-application to enforce the order. See 29 U.S.C. § 160(e), (f).
On a petition for review, we accept the Board's factual findings and unfair-labor-practices conclusions if supported by substantial evidence in the record. Id. Substantial evidence is not an exacting standard—it means "more than a mere scintilla" and "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citation omitted). As usual, we review legal determinations de novo. Int'l Union, United Auto., Aerospace and Agric. Implement Workers of Am. (UAW) v. NLRB, 514 F.3d 574, 580 (6th Cir. 2008).
Sysco challenges on two grounds the finding that it fired George Brewster for engaging in union activity. Sysco first maintains that the Board lacked substantial evidence establishing that Sysco knew about Brewster's union support. It goes on to press the point that good cause justified firing Brewster.
In February 2015, Jim Brown, Brewster's supervisor, checked on Brewster as he made a delivery to a restaurant. Noticing that Brewster left the truck with its keys in the ignition, Brown hid the keys under the driver's seat and left. As it happens, the next driver that Brown observed that day also left his truck's keys in the ignition. But Brown responded differently; instead ofhiding the keys and leaving without a word, Brown handed the keys to the driver and counseled him not to do it again.
Meanwhile, Brewster discovered his keys missing and sent Brown an angry text demanding that Brown bring them back. Brewster called another Sysco manager and threatened to take a sick day unless Brown returned the keys. On the same phone call, Brewster complained about Brown's actions, employing several expletives and noting that the customer agreed with him. The manager asked how the customer knew about the situation, and Brewster admitted that he told the customer about the circumstances causing his truck to remain in the customer's parking lot. Brown's own manager quickly reprimanded Brown for hiding the keys.
The next day, Sysco managers met and decided to recommend firing Brewster to Sysco's president. The managers held a meeting with Brewster and asked about the keys incident. Sysco then fired Brewster without providing or documenting a reason. Though its vice president of operations testified that he did not consider leaving keys in the truck's ignition to constitute a basis for termination, Sysco maintains that Brewster's reaction to the incident (using profanity, complaining about the incident to a customer, and threatening to take a sick day) justified firing Brewster. The Board found the episode "an obvious attempt to lure Brewster into acting out" and concluded that Brewster's union activity "was a motivating factor" in discharging him.
Sysco's knowledge of Brewster's union activity. In finding that Sysco knew about Brewster's union support, the Board considered Sysco's records of employees' union activities. Sysco challenges that conclusion here by noting that the Board grounds its conclusion on "hearsay speculation contained in attorney-client privileged documents." Even assuming the validity of this argument, ample alternative evidence shows that Brewster openly engaged in union activity. For example, Brewster signed a union authorization cardand encouraged others to do so, discussed the union with Sysco's vice president, and spoke up in support of the union at a mandatory company meeting.
Just cause for discharge. Sysco supports its firing as justified by Brewster: "(1) threatening to abandon his route and making fraudulent use of a sick day; (2) criticizing the Company's handling of his policy infractions to a customer;" and (3) "engaging in insubordinate behavior and profane language." (Blue Br. at 40.)
Sysco attempts to meet its burden to show that these infractions rather than union animus spurred its firing by noting the weak rationale of the ALJ. According to Sysco, the "ALJ appeared content to merely offer only vague statements about his perception of the Company's normal practices, and unsupported characterizations of the incident involving Brewster's keys." This argument contradicts the record; review of the ALJ's order reveals detailed fact finding about Sysco's disciplinary practices and an exhaustive 2,500-word account of the Brewster keys incident.
Sysco also maintains that the ALJ inappropriately compared Brewster's termination to less severe disciplinary action taken against other workers....
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