Filed: May 11, 2007
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-1537 LB&B ASSOCIATES, INCORPORATED; OLGOONIK LOGISTICS, LLC, d/b/a North Fork Services Joint Venture, a joint venture, Petitioners, versus NATIONAL LABOR RELATIONS BOARD, Respondent, INTERNATIONAL UNION OF OPERATING ENGINEERS, Local 30, Intervenor - Respondent. No. 06-1583 INTERNATIONAL UNION OF OPERATING ENGINEERS, Local 30, Intervenor - Petitioner, versus LB&B ASSOCIATES, INCORPORATED; OLGOONIK LOGISTICS, LLC, d/b/a North
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-1537 LB&B ASSOCIATES, INCORPORATED; OLGOONIK LOGISTICS, LLC, d/b/a North Fork Services Joint Venture, a joint venture, Petitioners, versus NATIONAL LABOR RELATIONS BOARD, Respondent, INTERNATIONAL UNION OF OPERATING ENGINEERS, Local 30, Intervenor - Respondent. No. 06-1583 INTERNATIONAL UNION OF OPERATING ENGINEERS, Local 30, Intervenor - Petitioner, versus LB&B ASSOCIATES, INCORPORATED; OLGOONIK LOGISTICS, LLC, d/b/a North ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1537
LB&B ASSOCIATES, INCORPORATED; OLGOONIK
LOGISTICS, LLC, d/b/a North Fork Services
Joint Venture, a joint venture,
Petitioners,
versus
NATIONAL LABOR RELATIONS BOARD,
Respondent,
INTERNATIONAL UNION OF OPERATING ENGINEERS,
Local 30,
Intervenor - Respondent.
No. 06-1583
INTERNATIONAL UNION OF OPERATING ENGINEERS,
Local 30,
Intervenor - Petitioner,
versus
LB&B ASSOCIATES, INCORPORATED; OLGOONIK
LOGISTICS, LLC, d/b/a North Fork Services
Joint Venture, a joint venture,
Parties in Interest,
and
NATIONAL LABOR RELATIONS BOARD,
Respondent.
______________
No. 06-1673
______________
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
versus
LB&B ASSOCIATES, INCORPORATED; OLGOONIK
LOGISTICS, LLC, d/b/a North Fork Services
Joint Venture, a joint venture,
Respondents.
On Petitions for Review and Cross-application for Enforcement of an
Order of the National Labor Relations Board. (29-CA-25511; 29-CA-
25668; 29-CA-25762; 29-CA-25777; 29-CA-25779)
Argued: March 13, 2007 Decided: May 11, 2007
Before WILLIAMS and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petitions for review denied and cross-application for enforcement
granted by unpublished per curiam opinion.
ARGUED: Jennifer McDougal Miller, WYRICK, ROBBINS, YATES & PONTON,
Raleigh, North Carolina, for LB&B Associates, Incorporated. Philip
Adam Hostak, NATIONAL LABOR RELATIONS BOARD, Office of the General
Counsel, Washington, D.C., for the Board. Marty G. Glennon, MEYER,
SUOZZI, ENGLISH & KLEIN, P.C., Melville, New York, for the
International Union of Operating Engineers, Local 30. ON BRIEF:
Benjamin N. Thompson, J. Kellam Warren, WYRICK, ROBBINS, YATES &
PONTON, Raleigh, North Carolina, for LB&B Associates, Incorporated.
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Ronald Meisburg, General Counsel, John E. Higgins, Jr., Deputy
General Counsel, John H. Ferguson, Associate General Counsel,
Aileen A. Armstrong, Deputy Associate General Counsel, Julie
Broido, Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD,
Office of the General Counsel, Washington, D.C., for the Board.
Unpublished opinions are not binding precedent in this circuit.
3
PER CURIAM:
LB&B Associates, Inc. and Olgoonik Logistics, LLC, doing
business as North Fork Services Joint Venture ("the Company")
petition for review of the Decision and Order of the National Labor
Relations Board finding that the Company violated the National
Labor Relations Act (“the Act”) by discharging an employee for
engaging in protected union activity and by failing to reinstate
eight employees who had engaged in a strike. Local 30 of the
International Union of Operating Engineers (“the Union”) cross-
petitions for review of the Board’s conclusion that the Company did
not violate the Act by failing to reinstate two former employees to
particular prestrike position. We deny the petitions for review
and grant the Board’s application for enforcement of its Order.
I.
The Department of Homeland Security (“DHS”) operates the Plum
Island Animal Disease Center (“the Center”), located off Long
Island, New York, to study exotic animal diseases. The Company
runs the physical plant facilities and systems, and operates
ferries to and from the Center. The Union represents the Company's
non-supervisory maintenance, operations, and support employees.
Following the expiration of a collective-bargaining agreement, the
Center's union-represented employees went on strike on August 14,
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2002. The strike ended on March 21, 2003, with the Union's
unconditional offer to return to work.
During the strike, in November 2002, the Company hired James
McKoy (unaware that he was a union member) to replace a striking
air-conditioning technician. McKoy and a co-worker worked
primarily in the chiller plant; at times of their choosing they
left the chiller plant to use the lavatory, take breaks, and eat
lunch, etc. McKoy had a perfect disciplinary record and the
Company rated his work as very good.
Six weeks after the strike ended, on June 19, 2003, McKoy
distributed union leaflets during his lunch break and posted
leaflets on the break-room bulletin board. McKoy offered a leaflet
to his supervisor, Ronald Primeaux, who instructed McKoy not to
distribute the leaflets and prepared a counseling document
regarding the incident. McKoy also left leaflets in employee
mailboxes and continued to hand out the leaflets in the employee
cafeteria. That same afternoon, McKoy attended a community meeting
featuring Mark Hollander, a DHS official and the Center's director,
and Rise Cooper, an aide to Senator Hillary Clinton; at the meeting
McKoy identified himself as a union member and raised workplace
health, safety, and security concerns.
After lunch Primeaux spoke with his superior, Matthew Raynes,
who instructed him to discipline McKoy. Primeaux found McCoy as he
was leaving the community meeting and brought him to Raynes's
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office. McCoy identified himself as a union member and
acknowledged attending the community meeting. Raynes told McKoy
that he intended to discharge him for being away from his work area
without permission. Hollander then arrived and told Raynes he
could not fire McKoy for talking with him, and instructed McKoy to
return to work the following morning.
The next morning, an armed security guard met McKoy at the
ferry landing, searched him, and brought him to Raynes's office,
where Primeaux handed him a termination later, dated that day,
stating that he was being discharged for leaving his work area
without his supervisor's permission. When hired, McKoy had signed
a document describing the Company's disciplinary policy, which
provided that posting and distributing notices and leaflets, and
failure to be at the designated work area after breaks or meals,
were infractions that "do not warrant immediate discharge;" but
that incidents involving drugs, fighting, fraud, sabotage, and
"leaving the job or work area during work hours without proper
supervisory approval" could lead to immediate discharge.
In addition to firing McKoy, the Company also failed, after
the strike, to reinstate nine former strikers: Charles Bumble,
Arthur Siemerling, Arthur Kerr, Bernard Patenaude, Albert Letavec,
Virginia Soullas, Martin Weinmiller, Robert Borrusso, and Francis
Occhiogrosso.
6
The Board subsequently filed a complaint and notice of hearing
against the Company, alleging that the Company violated the Act by
discharging McKoy because of his protected activities and by not
reinstating the nine former strikers after they offered to return
to work.
After a six-day hearing, an Administrative Law Judge (“ALJ”)
found that McKoy and a non-union co-worker whose testimony
supported McKoy, Joseph Franco, offered credible and reliable
testimony. In contrast, the ALJ did not find Hollander (whom the
ALJ considered "not an accurate witness"), Raynes, and Primeaux to
be credible and reliable because of "inconsisten[cies]", "serious
discrepanc[ies]," and "inaccura[cies]" in their testimony. Based
on these credibility determinations, the ALJ found that the Company
"seized upon a pretext to discharge McKoy," and "would not have
discharged McKoy but for the fact that he engaged in union
activities," and so violated the Act. The Board affirmed the ALJ's
conclusion as to McKoy.
The ALJ also made the following factual findings with respect
to the former strikers:
1. The Company failed to reinstate Charles Bumble, an
ordinary seaman since 2001, to that same position after he saw a
help-wanted advertisement for the job; instead, the Company filled
the position with an outside hire.
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2. The Company failed to reinstate Arthur Siemerling, a
former able-bodied seaman, as an ordinary seaman, even though the
positions had the same duties and similar pay and several outside
applicants were hired for these positions.
3. After Arthur Kerr accepted the Company's offer to return
as an ordinary seaman, and said he would return in two weeks in
order for him to give notice to his interim employer, the Company
told him it would not rehire him.
4. The Company would not reinstate Bernard Patenaude as a
part-time able-bodied seaman or master, but only offered him a
full-time position that required him to start work each morning on
the opposite side of Long Island Sound from his residence.
5. Although the Company had previously employed Albert
Letavec as a master seaman, after the strike it only offered to
rehire him as an ordinary seaman and hired an outsider for the
master seaman position.
6. The Company failed to rehire Virginia Soullas as a chef,
replacing her by promoting an outsider hired during the strike.
7. The Company filled Martin Weinmiller's former position as
an operator in the wastewater treatment plan with an outside hire.
8. The Company also failed to rehire Robert Borrusso as a
wastewater treatment operator, and instead hired an outsider for a
position as "decontamination operator" with duties virtually
identical to Borrusso's.
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9. The Company did not offer Francis Occhiogrosso, a trades
helper/laborer when the strike began, a newly created
laborer/escort position.
The ALJ found that the Company violated the Act by failing to
reinstate Bumble, Siemerling, Kerr, Patenaude, Letavec, Soullas,
Weinmiller, and Borrusso; the Board affirmed. The ALJ also found
that the Company violated the Act by not recalling Arthur Kerr to
the position of master seaman, because Kerr had done the work of a
master at times prior to the strike. The Board reversed, holding
that the Company was required to reinstate Kerr as an ordinary
seaman, but not as a full-time master. The ALJ also found that the
Company violated the Act by failing to offer a job to Francis
Occhiogrosso as a laborer/escort. The Board reversed, holding that
the newly created laborer/escort position was not substantially
equivalent to Occhiogrosso's prestrike position as a trades
helper/laborer.
The Company petitions for review of the Board’s finding that
the Company violated Sections 8(a)(1) and (3) of the Act by firing
McKoy and by failing to reinstate the eight former employees. The
Union petitions for review of the Board’s decision with respect to
Kerr and Occhiogrosso.
9
II.
Section 8(a)(1) of the National Labor Relations Act protects
the rights of workers to organize into unions by making it illegal
for employers "to interfere with, restrain or coerce employees in
exercise of" their union rights. 29 U.S.C. § 158(a)(1). As
relevant to McKoy’s case, employees have a right to distribute
union literature in non-working areas during non-working times,
Beth Israel Hosp. v. NLRB, 437 U.S. 483, 491-93 (1978), and to
express concerns about the safety and well-being of employees on
the job, Martin Marietta Corp. v. NLRB,
898 F.2d 146 (4th Cir.
1990). Section 8(a)(3) of the Act makes it an unfair labor
practice for an employer "by discrimination in regard to hire or
tenure of employment or any term or condition of employment to
encourage or discourage membership in any labor organization." 29
U.S.C. § 158(a)(3). An employer violates Sections 8(a)(1) and (3)
by discharging an employee for engaging in protected union
activities. See, e.g., FPC Holdings, Inc. v. NLRB,
64 F.3d 935,
942-43 (4th Cir. 1995).
We defer to the Board’s interpretations of the Act as long as
they are "rational and consistent with the Act." Sam's Club v.
NLRB, 173 F.3d 233, 239 (4th Cir. 1999) (internal quotation marks
omitted). We uphold the Board’s factual findings if "supported by
substantial evidence on the record considered as a whole," -- that
is, "such relevant evidence as a reasonable mind might accept as
10
adequate to support a conclusion." Id. (internal quotation marks
omitted). Finally, we accept an “ALJ's credibility determinations
. . . absent exceptional circumstances." Id. at 240.
A.
To determine whether the Board properly found that the Company
violated the Act by firing McKoy for engaging in protected union
activity, we apply the burden shifting test set forth in Wright
Line, 251 N.L.R.B. 1083 (1980), enforced,
662 F.2d 889 (1st Cir. 1981).
Under the Wright Line test, if substantial evidence supports the
Board's prima facie finding that an employee's protected activity
was a motivating factor in his termination, then the burden shifts
to the Company to prove that it would have taken the same action
absent any protected conduct. If the Board believes the Company's
stated reason for the termination is pretextual, then the
employer's defense fails. USF Red Star, Inc. v. NLRB,
230 F.3d
102, 106 (4th Cir. 2000) (citing Wright Line, 662 F.2d at 906).
In this case, the Board concluded that McKoy’s protected
activity was a motivating factor in his termination: the Board
found that McKoy engaged in protected activity, that the Company
knew of the activity, and that "the timing of [McKoy's] discharge,
which immediately followed" the Company's learning of "his union
sympathies, supports an inference of animus."
11
The Company disputes the Board’s finding that it knew McKoy
engaged in protected activity at the community meeting.
Substantial record evidence, however, belies the Company's claim
that it was unaware -- when it fired McKoy -- that McKoy's meeting
with Hollander and Cooper concerned workplace health and safety
concerns and so was of a protected nature. Furthermore, the
Company does not maintain that it did not know of McKoy’s union
membership when he engaged in leafleting activities. This
knowledge alone, which came less than 24 hours before McKoy’s
discharge, supports an inference that the Company fired McKoy for
his union activity. In sum, substantial evidence supports the
Board's finding of a prima facie case of termination based on anti-
union animus.
With the burden shifted under Wright Line, the Company next
argues that it would have discharged McKoy even if he had not
engaged in protected activities because he left his post for
non-work related matters without his supervisor's permission, an
offense that warrants immediate discharge under Company policy.
However, the record evidence supports the Board’s finding that
McKoy regularly left the chiller plant without permission to
perform air conditioning maintenance, check his mailbox, obtain
equipment, and eat lunch. Thus, substantial evidence supports the
Board’s conclusion that the Company did not enforce its policy
12
against leaving a work area without permission until it learned of
McKoy’s protected union activity.
The Company’s treatment of similarly situated employees
provides further evidence that the Company’s stated reason for
firing McKoy was pretextual. Cf. Sam’s Club, 173 F.3d at 244.
Here, the Board compared McKoy's fate to that of Alwin McElroy and
Joseph Franco, two comparators who were similarly situated to
McKoy. McElroy, a boiler operator who worked in McKoy's
department, had twice falsified his timesheets -- an offense that
also warrants immediate discharge under the Company’s disciplinary
policy. After McElroy’s first offense, the Company merely
counseled him, and after his second, the Company conducted a
thorough investigation before discharging him a week later.
Moreover, McKoy's co-worker in the chiller plant, Franco, was
absent from the plant for at least 45 minutes on June 19th -- the
day McKoy attended the community meeting -- but the Company did not
so much as investigate this absence, let alone discipline Franco
for it. Supervisor Primeaux even testified that although Franco
could have been immediately discharged under Company disciplinary
policy, Primeaux did not discipline Franco at all because Primeaux
was not "concerned" about Franco.
Based on this evidence, the Board found that the Company's
"treatment of McKoy . . . stands in stark contrast to its treatment
of other employees investigated and disciplined for violations of
13
work rules," and that the Company "presented no evidence that it
discharged or disciplined other employees for being absent from
their work area for similar periods of time." Substantial evidence
supports the Board's finding that these two comparators were
similarly situated to McKoy, and that the Company’s stated reason
for terminating McKoy was pretextual.
Accordingly, we deny the Company’s petition for review with
respect to McKoy.
B.
The Company also challenges the Board’s finding that the
Company violated Sections 8(a)(1) and (3) of the Act by failing to
reinstate eight former strikers to their vacant former positions or
substantial equivalents. The Act provides that barring legitimate
and substantial business justifications, upon their unconditional
offer to return to work, strikers are entitled to reinstatement to
their former jobs (or substantially equivalent jobs) if vacancies
exist. NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378 (1967).
The employer carries the burden of justifying the failure to
reinstate, for example by showing that the jobs are occupied by
workers hired as permanent replacements during the strike or that
there is no need to fill the positions. Id. at 378.
Review of the record reveals that substantial evidence
supports the Board conclusions that: (1) Charles Bumble did not
14
resign during the strike, and the Company lacked a substantial or
legitimate reason for failing to reinstate him to his prestrike
position; (2) Arthur Siemerling, formerly an able-bodied seaman,
should have been reinstated as an ordinary seaman, because those
positions are substantially equivalent; (3) Arthur Kerr complied
with Company requirements regarding reinstatement and was entitled
to be reinstated as an ordinary seaman; (4) the Company should have
reinstated Bernard Patenaude as a master seaman and allowed him to
start his workday in Connecticut; (5) the Company should have
reinstated Albert Letavec as a master, because the master position
was substantially equivalent to Letavec’s prestrike work; and (6)
the Company has not shown any “substantial and legitimate” business
reason for failing to reinstate Virginia Soullas to the vacant chef
position. Accordingly, we also deny the Company’s petition for
review with respect to these workers.
As to Martin Weinmiller and Robert Borrusso, the Company
asserts that it need not have reinstated them as wastewater
treatment plant (WWTP) and decontamination operators because they
were not qualified for the vacant positions. The Company contends
that even though Weinmiller and Borrusso worked as WWTP operators
before the strike, they lack the required New York State
certifications for this position. The Board affirmed the ALJ’s
finding that the state regulations -- now, as before the strike --
require only that one person with appropriate certification be at
15
the plant for two hours each day, and the Company has offered no
evidence that any regulatory requirements have changed since the
strike and does not suggest it was not in compliance before the
strike. We therefore deny the Company’s petition for review with
respect to Weinmiller and Borrusso. We note, however, that the
Board’s reinstatement order provides the Company the opportunity to
establish during compliance proceedings that New York State
regulations prohibit the employment of Weinmiller and Borrusso as
WWTP operators.
C.
The Union cross petitions for review of the Board’s finding
that the Company did not violate the Act by failing to hire Arthur
Kerr as a full-time master and Francis Occhiogrosso as a
laborer/escort. We deny the Union’s petition with respect to both
employees.
Although the Company violated the Act by failing to reinstate
Kerr to the position of ordinary seaman, we agree with the Board
that the Company was not required to reinstate Kerr as a full-time
master. The Board concluded that "Kerr's occasional [prestrike]
part-time work as a master does not establish that he held the
position of full-time master, and his prestrike position [as an
ordinary seaman] was not substantially equivalent to the full-time
master position available after the strike." The Union argues that
16
Kerr functioned as a fill-in master one to two times per month when
another master was sick, and that he had the required licenses and
qualifications for the master position. However, substantial
evidence supports the Board’s conclusion that the positions of
ordinary seaman and master are not substantially equivalent.
Therefore, the Company had no duty to reinstate Kerr to the master
position.*
We also agree with the Board that the Company had no duty to
hire Francis Occhiogrosso for a vacant laborer/escort position.
Prior to the strike, Occhiogrosso worked as a trades
laborer/helper, and his duties included hauling cargo off boats,
handling animals, performing building repairs, and landscaping. In
response to new DHS regulations, the Center created a new
laborer/escort position, with duties including escorting visitors
and workers to secured areas. Because the Center is a secured
facility, the escort/laborer position required a limited background
investigation clearance. When a lab employee who had this
clearance turned down the vacant laborer/escort position, the
Company advertised the job as purely a security escort position,
with no laborer duties. For these reasons, we conclude that
substantial evidence supports the Board's holding that the vacant
*
This result does not contradict that reached with respect to
Bernard Patenaude. Unlike Kerr, Patenaude had a prestrike position
that was substantially equivalent to that of a master seaman: (1)
he had worked for a period entirely as a master; and (2) he worked
the majority of his time immediately before the strike as a master.
17
escort position was not substantially equivalent to Occhiogrosso’s
prestrike laborer position.
III.
For the foregoing reasons, we deny the petitions for review
and grant the Board’s application for enforcement of its order.
PETITIONS FOR REVIEW DENIED AND
CROSS-APPLICATION FOR ENFORCEMENT GRANTED
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