Tschiggfrie Props., Ltd. v. Nat'l Labor Relations Bd.

• Decision Date: 24 July 2018
• Docket Number: No. 17-2198,No. 17-1450,17-1450
• Citation: 896 F.3d 880
• Parties: TSCHIGGFRIE PROPERTIES, LTD. Petitioner v. NATIONAL LABOR RELATIONS BOARD Respondent Tschiggfrie Properties, Ltd. Respondent v. National Labor Relations Board Petitioner
• Court: U.S. Court of Appeals — Eighth Circuit

896 F.3d 880

TSCHIGGFRIE PROPERTIES, LTD. Petitioner

v.NATIONAL LABOR RELATIONS BOARD Respondent

Tschiggfrie Properties, Ltd. Respondent

v.National Labor Relations Board Petitioner

No. 17-1450

No. 17-2198

United States Court of Appeals, Eighth Circuit.

Submitted: May 15, 2018

Filed: July 24, 2018

Davin C. Curtiss, Christopher Charles Fry, O'Connor & Thomas, Dubuque, IA, for Petitioner in 17-1450.

Ruth E. Burdick, Deputy Assistant General Counsel, Linda Dreeben, Deputy Associate General Counsel, Amy H. Ginn, Milakshmi V. Rajapakse, National Labor Relations Board, Washington, DC, for Respondent in 17-1450.

Davin C. Curtiss, Christopher Charles Fry, O'Connor & Thomas, Dubuque, IA, for Respondent in 17-2198.

Ruth E. Burdick, Deputy Assistant General Counsel, Linda Dreeben, Deputy Associate General Counsel, Amy H. Ginn, Milakshmi V. Rajapakse, National Labor Relations Board, Washington, DC, for Petitioner in 17-2198.

Before BENTON, KELLY, and STRAS, Circuit Judges.

BENTON, Circuit Judge.

Tschiggfrie Properties, Ltd., petitions for review of the National Labor Relations Board’s findings that it violated sections 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (3). See Tschiggfrie Props., Ltd. , 365 NLRB No. 34, 2017 WL 680506, at *1-2 (2017). The Board seeks to enforce all of its order. Having jurisdiction under 29 U.S.C. § 160(f), this court partly enforces the order and remands for further proceedings.

I.

In May 2015, Tschiggfrie’s employees unionized. Employee Darryl Galle initiated the process and served as observer for the union election. He frequently discussed the union, prompting some employees to complain that he "harrass[ed]" them at work. Tschiggfrie’s lawyer communicated with the union, but Galle did not change his behavior. Tschiggfrie’s president decided to issue Galle a written warning on August 17, 2015. It reprimanded Galle "for discussing union organizational viewpoints with fellow employees during work" and ordered him to "stop immediately."

About six weeks later, while looking for Galle at work, Tschiggfrie’s manager found Galle’s laptop open to personal websites. He confronted Galle, who confirmed the laptop was his but denied visiting personal websites during work. Not believing Galle, the manager fired him on the spot. The manager later testified that Galle’s habit of sleeping on the job also contributed to the decision to fire him.

The union charged that the warning and the firing were unfair labor practices. The Board’s General Counsel filed a complaint and scheduled a hearing. Preparing for the hearing, Tschiggfrie twice interviewed one of Galle’s coworkers. The Board moved to amend its complaint to allege that the interviews were coercive interrogations in violation of the Act.

The administrative law judge found that the warning and the firing were violations—but not the interviews. The Board adopted the ALJ’s findings about the warning and the firing, but disagreed about the interviews, finding they also violated the Act. Tschiggfrie Props. , 365 NLRB No. 34, at *1-2. Tschiggfrie petitions for review.

Because Tschiggfrie does not contest the Board’s finding about the warning, this court enforces the parts of the Board’s order addressing that violation. See NLRB v. Bolivar-Tees, Inc. , 551 F.3d 722, 727 (8th Cir. 2008) ("The Board is entitled to summary enforcement of the uncontested portions of its order."). As for the contested parts of the order, this court enforces them "if the Board has correctly applied the law and its factual findings are supported by substantial evidence on the record as a whole, even if we might have reached a different decision had the matter been before us de novo." ConAgra Foods, Inc. v. NLRB , 813 F.3d 1079, 1084 (8th Cir. 2016). This court "defer[s] to the Board’s interpretation of the [Act] so long as it is rational and consistent with that law," but reviews de novo all other legal conclusions. Cellular Sales of Mo., LLC v. NLRB , 824 F.3d 772, 775 (8th Cir. 2016) (internal quotation marks omitted).

II.

Tschiggfrie contests the Board’s finding it fired Galle for union activity in violation of section 8(a)(1) and (3). Tschiggfrie argues it fired him for misusing its Wi-Fi and sleeping on the job. "Although an employer violates Section 8(a)(1) and (3) of the Act if it discharges an employee for engaging in protected activities, ‘employers retain the right to discharge workers for any number of other reasons unrelated to the employee’s union activities.’ " Nichols Aluminum, LLC v. NLRB , 797 F.3d 548, 554 (8th Cir. 2015), quoting NLRB v. Transportation Mgmt. Corp. , 462 U.S. 393, 394, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983).

"The so called Wright Line analysis is applied when an employer articulates a facially legitimate reason for its termination decision, but that motive is disputed." NLRB v. RELCO Locomotives, Inc. , 734 F.3d 764, 780 (8th Cir. 2013), citing Wright Line , 251 NLRB 1083 (1980). The Wright Line analysis is a burden-shifting framework:

[T]he Board’s General Counsel must prove "that the employee’s protected conduct was a substantial or motivating factor in the adverse action." ... If, and only if, the General Counsel meets that burden, the burden shifts to the employer to exonerate itself by showing that it would have taken the same action for a legitimate, nondiscriminatory reason regardless of the employee’s protected activity.

Nichols Aluminum , 797 F.3d at 554 (some internal quotation marks omitted), quoting Transportation Mgmt. , 462 U.S. at 401, 103 S.Ct. 2469.

The ALJ required the General Counsel to initially prove "union activity on the part of employees, employer knowledge of that activity, and antiunion animus on the part of the employer." According to the ALJ, "the General Counsel does not have to prove a connection between the antiunion animus and the specific adverse employment action." The Board adopted the ALJ’s analysis, reiterating that the General Counsel’s initial burden has no "nexus element." Tschiggfrie Props. , 365 NLRB No. 34, at *1 n.1. Tschiggfrie argues that the Board misapplied Wright Line by allowing the General Counsel to meet its initial burden without showing a connection or nexus between anti-union animus and the firing.

A.

The Board contends this court cannot consider the argument, because Tschiggfrie did not preserve it. Under section 10(e) of the Act, this court cannot consider any "objection that has not been urged before the Board ... unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances." § 160(e). See also 29 C.F.R. § 102.46(b)(2), (g) (2017) ("Any exception ... not specifically urged shall be deemed to have been waived. ... No matter not included in exceptions or cross-exceptions may thereafter be urged before the Board, or in any further proceeding."). It is not necessarily enough to generally object to a finding. "[T]he Board must receive adequate notice of the basis for the objection." St. John’s Mercy Health Sys. v. NLRB , 436 F.3d 843, 848 (8th Cir. 2006) (internal quotation marks omitted). "The test is whether the objection, fairly read, apprises the Board that the objector intended to pursue the issue later presented to the court." Id.

The Board relies on NLRB v. Chipotle Services, LLC . There, this court held that it had no jurisdiction to address the argument that the Board misapplied the General Counsel’s initial Wright Line burden, because the employer "did not raise this point before the Board, or otherwise contest the administrative law judge’s application of the Wright Line standard." NLRB v. Chipotle Servs., LLC , 849 F.3d 1161, 1162-63 (8th Cir. 2017).

But Tschiggfrie did contest the ALJ’s application of the Wright Line standard—specifically, the General Counsel’s initial burden. Before the ALJ, Tschiggfrie argued that even if the General Counsel had proven anti-union animus, it was animus of Tschiggfrie’s president, not the manager who fired Galle. The ALJ’s opinion noted this argument, responding that "to prove animus sufficient to carry the government’s initial burden, the General Counsel does not have to prove a connection between the antiunion animus and the specific adverse employment action." Before the Board, Tschiggfrie took "exception to the ALJ’s finding that there was sufficient evidence of antiunion animus to justify the shifting of the burden under the Wright Line framework ...."

The Board directly addressed the relevant argument in its opinion. A two-member majority agreed with the ALJ, while a third member argued that "the General Counsel must establish a link or nexus." Tschiggfrie Props. , 365 NLRB No. 34, at *1 n.1. True, "mere discussion of an issue by the Board does not necessarily prove compliance with section 10(e)." NLRB v. Monson Trucking, Inc. , 204 F.3d 822, 826 (8th Cir. 2000) (internal quotation marks omitted). But here, it shows the Board’s awareness of the basis for Tschiggfrie’s objection. See FedEx Freight, Inc. v. NLRB , 816 F.3d 515, 521 (8th Cir. 2016) ("The Board was aware of the [employer’s] challenge ..., as shown by ... concurring statements attached to the two summary affirmance orders by the Board."); NLRB v. FedEx Freight, Inc. , 832 F.3d 432, 438 (3rd Cir. 2016) ("Board member Harry Johnson’s concurrence ... indicates [the employer’s objection] provided sufficient notice of [it’s] challenge"). It also shows that the Board had an "opportunity to address" Tschiggfrie’s argument. See Monson Trucking , 204 F.3d at 826, quoting Local 900, Int’l Union of Elec., Radio and Mach. Workers v. NLRB , 727 F.2d 1184, 1191-92 (D.C. Cir. 1984). Cf. Marshall Field & Co. v. NLRB , 318 U.S. 253, 256, 63 S.Ct. 585, 87 L.Ed. 744 (1943) (section 10(e) adopts "the salutary policy ... of affording the Board opportunity to consider on the merits questions to be urged upon review of its order").

Tschiggfrie’s objection apprised the Board that it intended to pursue the issue it presents to this court....