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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 17, 2003 Decided December 2, 2003
No. 02-1300
INTERNATIONAL UNION OF OPERATING ENGINEERS,
LOCAL 470, AFL–CIO,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
PACTIV CORPORATION, D/B/A TELLECO PACKAGING, INC.,
INTERVENOR
On Petition for Review of an Order of the
National Labor Relations Board
Helen L. Morgan argued the cause for the petitioner.
Richard F. Griffin was on brief.
William M. Bernstein, Attorney, National Labor Relations
Board, argued the cause for the respondent. Arthur F.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Rosenfeld, General Counsel, John H. Ferguson, Associate
General Counsel, and Aileen A. Armstrong, Deputy Associate
General Counsel, National Labor Relations Board, were on
brief.
Harold R. Weinrich and Jonathan J. Spitz were on brief
for the intervenor.
Before: HENDERSON, TATEL and ROBERTS, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: The Interna-
tional Union of Operating Engineers, Local 470 (Union) seeks
review of a decision of the National Labor Relations Board
(NLRB, Board) affirming and adopting the decision of the
administrative law judge (ALJ) and concluding that Pactiv
Corp., a subsidiary of Tenneco Corp., d/b/a Tenneco Packag-
ing, Inc., (Tenneco) did not commit an unfair labor practice
against Gary McClain, an employee of Tenneco’s plastics
manufacturing facility in Beech Island, South Carolina. See
Pactiv Corp, 337 N.L.R.B. No. 142 (July 29, 2002) (NLRB
Dec.). The Union had charged that Tenneco violated section
8(a)(1) and (3) of the National Labor Relations Act (Act), 29
U.S.C. § 158(a)(1), (3), by retaliating against McClain for his
union organizing activity. Specifically, the Union asserted
that Tenneco management acted out of anti-union animus
when it contacted the Aiken County, South Carolina Sheriff
about McClain’s allegedly threatening behavior, resulting in
McClain’s arrest and involuntary psychiatric commitment,
and when it later conditioned McClain’s return to work upon
clearance by a Tenneco-approved psychiatrist. We agree
with the Board that the General Counsel failed to make out a
prima facie case that the challenged acts were motivated by
anti-union animus and we therefore deny the Union’s petition
for review. See Wright Line, 51 N.L.R.B. 1083 (1980),
enforced, NLRB v. Wright Line, 662 F.2d 899 (1st Cir. 1981),
cert denied, 459 U.S. 989 (1982).
I.
Following are the material facts, as found by the ALJ and
adopted by the Board, leading up to and culminating in
3
McClain’s arrest and commitment and Tenneco’s refusal to
reinstate him unconditionally.
Tenneco operates a non-union plastic products manufactur-
ing facility in Beech Island, South Carolina. McClain has
been employed there in various capacities since at least 1985.
Sometime in the late 1980s he began working as a lubricator,
a position in which he had only minimal contact with other
employees.
In early 1999 Tenneco was planning a reorganization to
integrate maintenance employees into the production work
force. Under the reorganization, maintenance employees like
McClain were slated to be reassigned to new positions for
which they had to be recertified. In February 1999, worried
about how McClain might react to the reorganization in light
of past problems,1 Tenneco’s Human Resources Manager Ron
Clark contacted Joseph Berley, Tenneco’s director of occupa-
tional health services. Berley told Clark he did not see any
need to take immediate action but to keep him informed.
Also in February 1999, McClain visited Human Resources
Assistant Brenda Taylor to complain that people were enter-
ing his trailer and watching him while he slept, turning his
clock back to make him late for work and moving his medi-
cine. McClain also informed Taylor that he slept with a
loaded gun on either side of his bed. Taylor immediately
reported the conversation to Clark.
In April 1999, the day after the shooting tragedy at Colum-
bine High School in Colorado, Clark again contacted Berley
and told him that earlier that day McClain had visited his
office and reported hearing two employees remark that ‘‘if
anything happened to them regarding their job TTT there
could be violence resulting from that.’’ JA 347. Berley and
1 In 1985 McClain’s supervisor Joe Powell referred him to coun-
seling after an angry outburst and in 1986 or 1987 a consulting
psychologist who interviewed McClain advised the Human Re-
sources Department that Tenneco should not attempt to fire
McClain ‘‘under any circumstances’’ because he was ‘‘a time bomb
waiting to explode,’’ JA 449.
4
Clark then participated in a teleconference with Tenneco’s
security director Robin Montgomery, during which they dis-
cussed McClain’s previous anger problems. Berley pointed
out that it might be stressful for McClain to work closely with
other employees and to face the recertification requirement.
In addition, Clark observed that the employees McClain had
identified did not seem the type for workplace violence. It
was agreed that Clark would monitor the situation.
The reorganization was announced in May and McClain
began work in his new maintenance position on ‘‘A Crew’’ on
July 10. One night shortly thereafter, Rita Wethington,
McClain’s neighbor, was working at the plant and found
herself in need of maintenance assistance. She spotted
McClain sitting in an office and asked him if he ‘‘ ‘was
maintenance on that [A] crew.’ ’’ NLRB Dec. at 5 (quoting
JA 113). He responded that he wasn’t and she called in
another maintenance associate. A few days later she encoun-
tered Training Coordinator Linda Milton and asked Milton if
McClain worked maintenance on A crew and was told that he
did. During their conversation, Wethington told Milton she
had observed McClain in his yard staring up into the trees
and that on the day after the reorganization was implement-
ed, he looked ‘‘agitated’’ and was ‘‘walking around in his yard
‘throwing his hands in the air’ ’’ NLRB Dec. at 5 (quoting JA
282).
About the same time Catherine Bing, who had been as-
signed to train McClain in his new maintenance position,
reported to Milton that McClain was not reading his work
reference guide but instead wanted her to explain his new job
responsibilities to him. Milton told supervisor Doug Boynton
who met with McClain during the week of July 19. Accord-
ing to Boynton, McClain seemed unfocussed and agitated and
kept changing the subject and complaining that supervisor
Joe Powell had been ‘‘ ‘picking on him.’ ’’ NLRB Dec. at 6
(quoting JA 211). McClain described to Boynton a conversa-
tion with Powell during which Powell was continuously ‘‘slid-
ing his fingers up and down a nail’’ and told Boynton Powell
had been putting nails in McClain’s tires. Id. He also
complained that when he had worked as a machine operator
5
ten years earlier ‘‘people had sabotaged his machine.’’ Id.
According to Boynton, McClain’s behavior became increasing-
ly ‘‘agitated’’ during the meeting which ‘‘ ‘really disturbed’ ’’
him. Id. (quoting JA 212).
Then an A Crew co-worker, Danny Mills, reported to
Powell that McClain told him (Mills) that Powell ‘‘ ‘had done
something to TTT [McClain] in the past’ ’’ and Mills warned
Powell he ‘‘ ‘might want to watch his back.’ ’’ NLRB Dec. at
6 (quoting JA 141–42). Also about the same time, McClain
crept up behind Powell late one shift and asked if that scared
him. Powell responded ‘‘ ‘yes.’ ’’ Id. at 6 (quoting JA 237).
On July 28, 1999 Bing met with Milton and recounted four
incidents involving McClain: (1) McClain complained to her
that Powell had put nails in his automobile tire, (2) McClain
accused Bing of instructing him incorrectly about some pa-
perwork and warned her that she should ‘‘ ‘be careful’ ’’ about
what she told him because ‘‘ ‘once he put it in his head that
way that’s the way it’s going to be,’ ’’ NLRB Dec. at 6
(quoting 151); (3) McClain had used his own, sharp knife to
perform work tasks after being told to use only a company
‘‘safety’’ knife and (4) McClain told her ‘‘people had done him
wrong at the plant,’’ id. (quoting JA 155). According to
Milton, Bing also reported that McClain said he ‘‘ ‘had a list
of people who had TTT done wrong’ ’’ and that ‘‘ ‘they may
think he’s forgotten about it, but he hadn’t.’ ’’ Id. (quoting
JA 280).
As the ALJ noted, at that point several other employees
warned supervisors that they felt that McClain posed a
danger to other employees: (1) former employee Angela
Lowe told Milton that she was ‘‘concerned about how McClain
was going to react to the reorganization, ‘because he would
get upset about stuff’ ’’and that if nothing was done she
feared there would be ‘‘ ‘another Phelon’ ’’—referring to an
Aiken County plant that had been the site of a deadly
shooting spree by a recently discharged employee, NLRB
Dec. at 6 (quoting JA 89, 273); (2) employee Becky Manning
told Milton that ‘‘it would be dangerous to sit by Boynton or
her, Milton, because, ‘if Gary [McClain] came in there that
6
they would be the first two that he would take out,’ ’’ id.
(quoting JA 95); (3) employee Brent Williams told Powell, as
McClain walked by, ‘‘ ‘[t]here goes your next postal worker.
I have great concerns that he’s capable of going off the deep
end and taking some people out,’ ’’ id. at 7 (quoting JA 239);
(4) employee Tammy Kirkland told Powell she was ‘‘afraid of
McClain’s actions at work’’ and that ‘‘she felt he was capable
of doing bodily harm,’’ id.; and (5) employee Chris White told
supervisor Larry Wonoski ‘‘he was concerned about possible
violent or aggressive behavior and related an incident in the
past that had upset him when McClain had allegedly shot a
dog,’’ id.
Against this background, in early July the Union began an
organizing drive at the plant during which McClain wore a
union hat and handed out union flyers. The morning of July
28 plant manager Joseph Garrison conducted a mandatory
meeting for all A Crew employees and delivered a speech
opposing unionization. During the meeting McClain inter-
rupted the speech to correct Garrison regarding a statement
about union dues. Various employees present at the meeting
testified that McClain ‘‘ ‘was very agitated, very loud, very
rude,’ ’’ NLRB Dec. at 7 (quoting 136); that he made audible
comments such as ‘‘ ‘[W]hen I’m done they’ll know who I
am,’ ’’ id. (quoting JA 98); ‘‘that he was rubbing both hands
on his legs, the top of his thighs’’ and ‘‘[s]weat was running
down the side of his face ‘[l]ike he was upset’ ’’ Id. After the
meeting two employees—Johnny Partin and Karen Padgett—
told Wonoski that McClain’s behavior at the meeting had
frightened them.
By that time (late July) reports that coworkers were wor-
ried about McClain reached Berley, who was already con-
cerned about McClain because a union drive ‘‘ ‘can be a very
stressful situation’ ’’ and ‘‘can have a significant effect on an
individual.’’ NLRB Dec. at 7 (quoting JA 352). He therefore
arranged for a conference call which was held the morning of
July 29 among Berley and Human Resources Director Joe
O’Leary at corporate headquarters and Garrison, Milton,
7
Clark, Boynton and Wonoski at the Beech Island plant.2 The
parties discussed McClain’s ‘‘escalating’’ behavior and it was
decided Berley was to contact McClain’s doctor and Mont-
gomery was to contact the Aiken County Sheriff. NLRB
Dec. at 7 (quoting JA 231).
Montgomery spoke with the Sheriff and two deputies. He
related that employees had reported being frightened of
McClain and specifically mentioned ‘‘ ‘he had used a knife that
had frightened a female employee,’ ’’ NLRB Dec. at 8 (quot-
ing JA 325), that ‘‘ ‘firearms had been seen in his residence,’ ’’
that ‘‘ ‘he’d talked about guns in the plant,’ ’’ id. (quoting JA
326), and that ‘‘ ‘[a] list had been prepared TTT in the same
context that if I lose my job, I’ve got a list prepared,’ ’’ JA
329. One of the deputies, Jody Rowland, then had a conver-
sation with Clark from which Rowland ‘‘understood that the
sheriff’s office was being asked to provide extra security.’’
N.L.R.B. Dec. at 8.
Berley called McClain’s primary care physician and was
referred to his psychiatrist, David Steiner. After speaking
with Steiner, Berley reported on the conversation in a second
conference call. During the call he directed Montgomery to
ask the sheriff’s department to contact Steiner. Rowland
spoke with Steiner who characterized McClain as ‘‘ ‘a ticking
time bomb.’ ’’ NLRB Dec. at 8 (quoting JA 71–72). While
checking their records for information on McClain, the sher-
iff’s department personnel discovered a four-year-old out-
standing warrant for his arrest. The afternoon of July 29
deputies stopped McClain en route to work, frisked him,
handcuffed him and took him to the Aiken Regional Hospital.
The emergency room physician then on duty also described
McClain as ‘‘ ‘a ticking time bomb,’ ’’ id. at 9 (quoting JA 71–
72), and issued an emergency involuntary commitment au-
thorization. The deputies transported McClain to the Char-
ter Rivers Behavioral Health Systems facility. In describing
2The call was originally scheduled for August 3 but it was moved
up to July 29 in response to a phone call from an employee
expressing ‘‘significant concerns’’ about McClain’s behavior. JA
357–58; see also NLRB Dec. at 3 (Member Liebman concurring).
8
the arrest and commitment, Rowland testified: ‘‘ ‘That was
our doing, not Tenneco’s doing.’ ’’ Id. (quoting JA 83).
On August 11 the local probate court judge determined
that McClain was ‘‘mentally ill’’ and ‘‘there was ‘a likelihood of
serious harm to himself or others.’ ’’ NLRB Dec. at 10
(quoting JA 464). Accordingly, he ordered outpatient treat-
ment. On August 18 Tenneco’s lawyer wrote to McClain’s
counsel rejecting the latter’s suggestion that McClain be
allowed to return to work immediately and indicating that
Tenneco ‘‘ ‘m[ight] wish to conduct an independent evaluation
of Mr. McClain’s medical condition.’ ’’ NLRB Dec. at 10
(quoting JA 427). The letter further advised that McClain
would not be permitted to return to work until the company
was ‘‘satisfied that his condition is under control.’’ JA 427.
In a letter dated September 17 Tenneco’s lawyer informed
McClain’s counsel that Tenneco was ‘‘moving forward with
the independent medical examination’’ and had retained the
services of a psychiatrist for that purpose. JA 429. McClain
refused to submit to the proposed examination and Tenneco
refused to permit him to return to work without it.
Meanwhile, McClain received out-patient treatment from
the Aiken Barnwell Mental Health Facility, as ordered by the
probate judge. On January 4, 2000 his treating psychiatrist
wrote the probate court that McClain was ‘‘not TTT in need of
further court ordered outpatient treatment’’ but that, ‘‘be-
cause of ongoing stresses,’’ he ‘‘m[ight] wish to consider
pursuing voluntary outpatient counseling or other treatment
to help deal with these issues.’’ JA 471.
The Union filed unfair labor practice charges against Ten-
neco and the General Counsel issued a complaint. The
amended consolidated complaint alleges that Tenneco violated
Section 8(a)(1) and (3) of the NLRA by causing the sheriff’s
department to arrest and detain McClain on July 29, 1999 and
by refusing to reinstate him thereafter without clearance by a
psychiatrist of Tenneco’s choice.
The ALJ conducted a hearing in Aiken, South Carolina
from March 27 through 30, 2000. On June 9, 2000 he issued a
decision concluding that Tenneco did not violate the Act. In
9
its July 29, 2002 decision the Board affirmed the ALJ’s
‘‘rulings, findings, and conclusions,’’ adopted his recom-
mended order and dismissed the complaint. NLRB Dec. at 1
(footnotes omitted). The Union filed a petition for review on
September 25, 2002.
II.
In analyzing an anti-union animus case such as this, the
Board applies the Wright Line framework. Under the
Wright Line test,
the general counsel must first show that the ‘‘protected
activity was a motivating factor in the adverse employ-
ment decision.’’ Frazier Indus. Co., Inc. v. NLRB, 213
F.3d 750, 755 (D.C. Cir. 2000) (internal quotation marks
omitted). If this prima facie showing is made, the burden
shifts to the employer to demonstrate that ‘‘it would have
made the adverse decision even had the employee not
engaged in protected activity.’’ Vincent Ind. Plastics,
Inc. v. NLRB., 209 F.3d 727, 735 (D.C. Cir. 2000) (citing
Wright Line, Inc., 251 N.L.R.B. 1083, 1089, 1980 WL
12312 (1980)).
Ross Stores, Inc. v. NLRB, 235 F.3d 669, 675 (D.C. Cir. 2001).
The Board affirmed the ALJ’s conclusion that the General
Counsel failed to make out a prima facie case. The ALJ had
found that, although the General Counsel had established
anti-union animus on Tenneco’s part,3 the animus was not a
motivating factor in McClain’s arrest and commitment or in
its refusal to unconditionally reinstate McClain. ‘‘We will
affirm the judgment of the Board unless, ‘upon reviewing the
record as a whole, [this Court] conclude[s] that the Board’s
findings are not supported by substantial evidence, or that
the Board acted arbitrarily or otherwise erred in applying
established law to the facts of the case.’ ’’ Tradesman Int’l,
3 The ALJ based his animus finding on testimony that Tenneco
plant guards on one occasion accused union supporters passing out
leaflets of trespassing when there was no evidence that they were.
NLRB Dec. at 7.
10
Inc. v. NLRB, 275 F.3d 1137, 1141 (D.C. Cir. 2002) (quoting
Intern’l Union of Elec., Elec., Salaried, Mach. & Furniture
Workers v. NLRB, 41 F.3d 1532, 1536 (D.C. Cir. 1994))
(alterations original). Because the ALJ’s findings, as adopted
and affirmed by the Board, are well-grounded in the record
evidence and supported by the law, we reject the Union’s
challenges.
The Union challenges in particular Tenneco’s conduct of
the initial conference call on July 29, 1999 which led to
contacting the Aiken County Sheriff. The ALJ found, howev-
er, the call was simply ‘‘a round table discussion in which
management officials [of Tenneco] were seeking to obtain all
of the information they could in order to determine how to
handle a situation about which they were justifiably con-
cerned.’’ NLRB Dec. at 9. This finding is amply supported
by the evidence described above and catalogued by the ALJ.
As the ALJ explained:
The record establishes that a total of at least 11 employ-
ees, 6 of whom testified in this proceeding, had made
comments reflecting concerns about McClain’s behavior.
McClain himself had reported sleeping with two loaded
guns on either side of his bed to Human Resources
Assistant Taylor. Supervisors Powell and Boynton had
observed behavior that they found disturbing. McClain’s
agitation at the captive audience meeting was observed
by Boynton and Wonoski. Karen Padgett, who was
sitting next to him, was frightened by his behavior and
expressed concern to Wonoski. Shon Glover was suffi-
ciently concerned that he told Plant Man[a]ger Garrison
not to take McClain lightly. Wonoski had ‘‘never previ-
ously received reports that employees were scared of
another employee.’’
Id. Given the number of employees who expressed concerns
about McClain’s conduct and the nature of the conduct they
reported, Tenneco’s management would have been remiss had
it not taken measures to safeguard its workplace.
With regard to the arrest and detention, the ALJ found,
based on the credible testimony of Rowland, that they were
11
carried out on the initiative of the sheriff’s department alone
and that Tenneco ‘‘neither requested that any action be taken
against McClain nor provided the Sheriff with information
upon which action could be taken.’’ NLRB Dec. at 10.4 It
was the sheriff department’s discovery of the outstanding
warrant, of which Tenneco management was unaware, that
led to McClain’s arrest.5
4 The ALJ properly distinguished the situation here from Sure-
Tan, Inc., 234 N.L.R.B. 1187 (1978), enforced in relevant part, 672
F.2d 492 (7th Cir. 1982), affirmed in relevant part, 467 U.S. 883
(1984), in which the NLRB found a violation of the Act because the
employer ‘‘with full knowledge that the employees in question had
no papers or work permits, requested the Immigration and Natural-
ization Service to investigate their status’’ and the ensuing investi-
gation ‘‘resulted in immediate deportation proceedings.’’ 234
N.L.R.B. at 1187. As the ALJ noted, Tenneco ‘‘neither requested
that any action be taken against McClain nor provided the Sheriff
with information upon which action could be taken.’’ NLRB Dec. at
10. In addition, ‘‘the record reflects that [Tenneco] was unaware at
the time [it requested security from the sheriff] of the outstanding
warrant for McClain’s arrest’’ and ‘‘the judge specifically credited
the sheriff’s deputy, Major Jody Rowland, that [Tenneco] had no
involvement with his decision to execute that warrant.’’ NLRB
Dec. at 3 (Member Liebman, concurring).
5 We find no merit in the Union’s objections to the Board’s
motivation finding. The Union challenges the statements by Mont-
gomery to the Sheriff as ‘‘overstated and exaggerated,’’ Pet’r’s Br.
at 29, but they are solidly supported in the record. The Union also
charges that the Board ‘‘ignored’’ the ‘‘admitted failure to investi-
gate or verify highly inflammatory reports’’ before ‘‘taking action
against him,’’ id. at 30, but the ALJ reasonably found that no action
was taken against McClain by Tenneco. All Tenneco did was to
request security from the Sheriff. The adverse action was taken by
the sheriff’s office personnel after they discovered the outstanding
warrant. Finally, the Union argues the ALJ failed to consider the
fact that Tenneco did nothing on previous occasions, before the
union organizing began, when complaints were made about
McClain. As the ALJ explained, however, and the statements of
co-employees support, the reason for taking action in July was that
McClain’s disturbing behavior was ‘‘escalating’’ and seems to have
peaked at the July 28 meeting—whether because of the stress of
12
Regarding Tenneco’s insistence that McClain’s reinstate-
ment be conditioned upon his being cleared by a company-
approved psychiatrist, the ALJ found that Tenneco’s stance
resulted not from anti-union animus but from the require-
ments of Tenneco’s employee short-term disability policy.
The policy provides:
‘‘Associates should be returned to work through the
Tenneco Packaging, Specialty Products medical designee
after a disability of five or more working days absent and
present proof of illness from associate’s personal physi-
cian prior to release to return to work.’’
NLRB Dec. at 10 (quoting JA 588). As the ALJ found,
Tenneco ‘‘has consistently adhered to its policy since it was
instituted in November 1998’’ and ‘‘[n]o deviation from it
occurred in 1999.’’ NLRB Dec. at 10.6 It is therefore not
surprising that Tenneco adhered to it in McClain’s case. The
Union argues here, as below, that Tenneco’s reliance on the
provision is unreasonable because it never mentioned the
policy when it refused to reinstate McClain. The ALJ rea-
sonably rejected this contention because ‘‘[d]ocumentary and
testimonial evidence establishes that, with the exception of
the two explained oversights, [Tenneco] has consistently ad-
hered to its policy since it was instituted in November 1998.’’
NLRB Dec. at 11. The Union also argues that Tenneco
discriminated against McClain in enforcing the provision
more strictly than it had with any other employee, in particu-
lar by requiring extensive medical documentation. The re-
quired documentation, however, was at the selected psychia-
trist’s insistence, not Tenneco’s. See JA 431 (psychiatrist’s
the reorganization, the union organizing or some combination of the
two.
6 The ALJ noted that the policy was not followed twice in 1998
but that a human resources employee ‘‘credibly explained’’ them as
‘‘oversights’’—the first involved an employee who ‘‘had gone out on
November 5, prior to the plant’s receipt of the policy on November
7, 1998’’ and the other occurred in December 1998 ‘‘when the
employee returned to work during the Christmas holiday period.’’
NLRB Dec. at 10–11.
13
letter to Berley requesting all of McClain’s medical, psychiat-
ric, counseling, substance abuse treatment, arrest and mili-
tary records).
In sum, we believe the ALJ and the Board correctly
concluded that Tenneco acted reasonably, and without dis-
criminatory motive, in addressing McClain’s ‘‘genuinely
threatening behavior.’’ NLRB Dec. at 2. Tenneco manage-
ment acted with deliberation and caution in the face of
mounting evidence of McClain’s instability. As the ALJ and
the Board found, Tenneco took no action against McClain
himself but merely sought additional security, after months of
monitoring McClain’s conduct, to ensure plant safety. Tenne-
co’s responsible efforts to protect all of its employees did not
violate the National Labor Relations Act. Accordingly, the
petition for review is
Denied.