Valmont Industries Inc. v. Nat'l Labor Relations Bd.

Citation244 F.3d 454
Decision Date12 March 2001
Docket NumberNo. 99-60439,99-60439
Parties(5th Cir. 2001) VALMONT INDUSTRIES, INC., Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner
CourtU.S. Court of Appeals — Fifth Circuit

[Copyrighted Material Omitted]

Appeals from the National Labor Relations Board

Before WIENER, and STEWART, Circuit Judges; and ROSENTHAL District Judge.*

ROSENTHAL, District Judge:

Valmont Industries, Inc. petitions for review of the National Labor Relations Board's Decision and Order finding unfair labor practices. The Board cross-petitions for enforcement of its Order. The Board's Order affirmed the decision of an administrative law judge that Valmont violated sections 8(a)(1) and (a)(3) of the National Labor Relations Act, 29 U.S.C. 158(a)(1) and (a)(3), by giving two employees written warnings motivated by antiunion animus; discharging one of those employees and issuing a written warning to another for asking a coworker if he had signed a union card, in violation of the company's no-solicitation policy; and orally warning a fourth employee for distributing union literature, also in violation of the no-solicitation policy.1 One member of the Board dissented in part, finding insufficient evidence that the first two warnings were motivated by antiunion animus and concluding that because the discharged employee had violated a valid no-solicitation rule, he was properly fired.

This court has carefully reviewed the record as a whole. See Asarco, Inc. v. NLRB, 86 F.3d 1401 (5th Cir. 1996). Based on the facts disclosed in the record, and on the deferential review the law requires this court to apply, this court grants enforcement as to part of the Board's Order and denies it in part. Specifically, we conclude that the record provides substantial evidence that Valmont violated sections 8(a)(3) and (a)(1) by issuing a written warning to the employee who asked her coworker if he had signed a union card and violated section 8(a)(1) by issuing an oral warning to the employee who distributed leaflets. We also conclude that substantial evidence supports the finding that Valmont violated section 8(a)(1) by firing the employee for violating the no-solicitation rule. We grant enforcement of the Board's Order with respect to these findings. However, we do not find that substantial evidence supports the finding that Valmont violated sections 8(a)(3) and (a)(1) by issuing the first two written warnings. Nor do we find substantial evidence to support the finding that the firing or the oral warning violated section 8(a)(3). We deny enforcement of the Board's Order with respect to these findings and remand to the Board to modify its Order in conformity with this opinion.

I. Background

Petitioner, Valmont Industries, Inc., manufactures steel poles at a plant in Brenham, Texas. The United Steelworkers of America, AFL-CIO, CLC (the "Union") supervised an unsuccessful organizational campaign among Valmont's employees, ultimately losing an NLRB-conducted election in September 1996.

After this campaign, and in part because of it, Valmont instituted a no-solicitation rule. That rule provided:

Distribution of literature during the working time of any employee involved is prohibited. Working time does not include breaks or meal times. Distribution of literature is also prohibited in working areas.

Solicitation by employees on their working time or on the working time of any employee solicited is prohibited.

The parties agree that the no-solicitation policy is facially valid.

In late July 1997, the union began a second effort to organize Valmont's employees. The disciplinary actions at issue in this suit issued shortly after the start of this second organizational campaign.

A. Valmont's Warning of Lewis and Sharp

On Monday, July 28, 1997, Michael Sharp, an employee in the shipping department, took a malfunctioning machine to the plant's maintenance shop for repair. The maintenance shop is at the end of a building that also contains the large pole and small pole manufacturing departments. Sharp went first to the maintenance shop, then to the large pole department, where Edgar Lewis worked. Sharp found Lewis and they had a brief conversation. It is undisputed that Sharp's ordinary work duties would not take him to Lewis's department or work station.

Sharp later explained that when he discovered he did not have a pen needed to complete a maintenance request form, he went to find his friend Lewis to borrow one. Lewis walked to his nearby locker to find a pen. Sharp testified that he filled out the maintenance request form, entering the time as "8 a.m.," and including the date and his signature, and went back to the maintenance shop. Lewis and Sharp both testified that their conversation lasted less than two minutes and consisted of Sharp asking for, receiving, and returning a pen to complete the maintenance form.

Foreman Sam Gregg and leadman Billy Dotson observed the conversation between Lewis and Sharp. In their later testimony before the ALJ, both denied having seen Lewis hand Sharp a pen or any other item. Dotson and Gregg testified that the conversation between Lewis and Sharp lasted between three and five minutes. As they watched the conversation, Gregg commented to Dotson "[a]bout what [they] were seeing . . . about [Lewis] and [] Sharp's being together." Gregg privately speculated that the two were talking about the union. Valmont management and supervisors knew that Lewis, and, to a lesser extent, Sharp, had been active in the 1996 organizational campaign. Neither Gregg nor Dotson was able to hear what Lewis and Sharp said.

Later that day, Gregg reported to Allen Abney, the manufacturing manager, that he had seen Lewis and Sharp talk for "a few minutes" and that they stopped talking when they noticed Gregg and Dotson watching. Gregg did not mention his speculation that Lewis and Sharp were talking about union activities.

The second union organizational campaign began on Thursday, July 31, three days after Lewis and Sharp had their brief conversation. The campaign began with the union's distribution of cards to members of an in-plant organizing committee, including Edgar Lewis. The committee members were to obtain signatures on the cards and return them to union officials. Lewis took part in visiting employees at their homes in early August to talk to them about the organizational campaign. There is no evidence in the record that Valmont management knew of these visits. The record discloses that union supporters began distributing leaflets in the plant beginning on approximately August 10 and that leafleting at the plant entrance began on August 19.

On August 1, Lewis received a final written "corrective action" for "wasting company time." The written warning, read by Abney in a meeting attended by Gregg, Dotson, and the human resources manager, Roger Bower, identified the date of violation as the week of July 28 and described the violation as follows:

Edgar Lewis has been observed numerous times wasting company time by not returning from break on time, talking to other employees at his work station during working time, leaving his assigning [sic] work station and distracting other employees while they are working. We counseled with Edgar on 11-27-96 regarding this unexceptable [sic] behavior. This behavior is a violation of company policy which states that "intentional waste of time, loitering, or leaving an assigned work area during work hours without authorization", is not permitted. It is important that Edgar understands [sic] that waste of company time will not be tolerated and any other violation of company policy will result in further corrective action up to and including termination from employment. This is a final notice.

Lewis asked why he was receiving a final written warning when he had received no written warning in the previous six months. Valmont's written progressive discipline policy provides for discussion, a documented verbal reprimand, a written reprimand, final notice, then termination. Abney responded that the discipline was for a repetition of the conduct that had led to the final written warning Lewis received in November 1996. Lewis pointed out that under Valmont's policy, the six-month probation period after a final warning had elapsed two months earlier. Lewis asked how he could be accused of "loafing" when his production level was higher than that of the majority of employees in similar positions. Abney did not respond, other than by stating that Lewis had been seen leaving his work station to talk to other employees and talking to employees who visited his work station.

In the hearing before the ALJ, Abney testified that Gregg's oral report that Lewis and Sharp had talked for a few minutes on July 28 formed the basis for the final written corrective action issued to Lewis on August 1, 1997. Abney testified that during the August 1 meeting, Lewis admitted to his July 28 conversation with Sharp. Lewis disputed this testimony, asserting that neither Sharp's name nor a specific conversation was mentioned during the August 1 meeting. The written corrective action form does not refer to a conversation with Sharp. The ALJ credited Lewis's version of the meeting and found that Abney did not refer to Sharp or the July 28 conversation at Lewis's workstation in explaining why Lewis had received the final written warning.

Abney testified that he and Bower decided to give Lewis a written final warning on August 1, 1997, because Abney had orally counseled Lewis about "disrupting employees while they [were] working and soliciting" in April or May 1997. The ALJ noted that the written corrective action form did not mention oral warnings issued to Lewis in April or May 1997 and found that Abney and Bower did not refer to prior oral counseling when they gave Lewis the form in the August 1 meeting. Lewis testified that he had received no discipline since the ...

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