LB&B Associates, Inc. v. National Labor Relations Board

UNPUBLISHED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granted by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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.

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 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.

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 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

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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 NLRB 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."

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 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

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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

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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

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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

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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

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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.

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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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