UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 01-60891
_______________________
TELLEPSEN PIPELINE SERVICES COMPANY,
Petitioner-Cross-Respondent,
versus
NATIONAL LABOR RELATIONS BOARD,
Respondent-Cross-Petitioner.
________________________________________________________________
Petition for Review and Cross Petition for Enforcement
of an Order of the National Labor Relations Board
_________________________________________________________________
February 14, 2003
Before JONES, SMITH and SILER,* Circuit Judges.
SILER, Circuit Judge.
Tellepsen Pipeline Services Company (“Tellepsen” or “the
Company”) petitions for review from a final decision and order of
the National Labor Relations Board (“NLRB” or “the Board”)
determining that it committed violations of sections 8(a)(1) and
8(a)(3) of the National Labor Relations Act (NLRA) during a
campaign by the Pipeline Local Union No. 798 (“the Union”) to
*
Circuit Judge of the United States Court of Appeals for the
Sixth Circuit, sitting by designation.
organize workers. The Board cross-petitions for enforcement of its
order. The Board affirmed the decision of the administrative law
judge (“ALJ”), finding that Tellepsen violated section (8)(a)(1) of
the Act by coercively interrogating employees about their Union
sympathies, informing an employee that he was discharged because of
his Union activity, and telling employees that their jobs would be
in jeopardy if the Union won the upcoming election. The Board also
determined that Tellepsen violated section 8(a)(3) of the Act, 29
U.S.C. §§ 158(a)(3), by terminating two of its welders for engaging
in protected activities. We affirm the Board’s conclusions in
part, and reverse in part.
I. Background
Tellepsen, a non-union company headquartered in Houston,
Texas, specializes in construction, operation, and maintenance work
for the pipeline industry throughout the United States. In 1997,
it secured a contract with TXU Electric & Gas (“Texas Utilities” or
“TXU”), formerly Lone Star Pipeline, to perform work for TXU’s
natural gas pipeline. A provision in the agreement grants TXU the
right to unilaterally cancel the contract without cause.
In order to service the TXU contract, Tellepsen opened an
office in Joshua, Texas and hired eleven welders, including Jimmie
Vickery and Scott Stacy, two employees who were allegedly
discharged for engaging in protected activities. Stacy was known
to be a member of the Union when hired. Vickery has never been a
2
member of the Union. At an introductory meeting, the welders were
told they would be given contract work on an as-needed basis and
that the Company expected them to perform non-welding manual tasks
(e.g., “throwing skids” and carpentry work) when the job so
required.
In 1999, the Union began a campaign to organize the
welders of Tellepsen. In May 1999, Union representatives met with
Tellepsen Vice-President Brian Reese and General Manager Rick
Morris to discuss the Union’s intent to organize the Company’s
operators and welders. Morris testified that Union officials also
told him that Tellepsen would soon being having “trouble” on some
of its jobs. Shortly thereafter, in June 1999, the Union staged a
slow-down at an American National Power job (“ANP job”) in
Midlothian, Texas. The Union filed a representation petition on
June 7 and the election was held on August 10. The Union lost the
election, with 17 votes cast in favor of the Company and 12 for the
Union. The Union thereafter filed timely objections, asserting
that Tellepsen engaged in an unfair labor practice by interfering
with their employees’ right to organize.
The NLRB, adopting most of the conclusions by the ALJ,
found that Tellepsen engaged in various acts in violation of
section 8(a)(1) of the Act, including coercive interrogation and
threatening job loss. Specifically, the ALJ cited three separate
incidents in violation of section 8(a)(1). First, Tracy LaBuff, a
supervisor at Tellepsen’s Berea and Morehead, Kentucky sites,
3
coercively interrogated workers as to how they and their friends
planned to vote in the upcoming election and threatened workers’
job security should the Union win. Second, the Company’s president,
Howard Tellepsen, told employees at a Company safety meeting in
Texas that “the main reason we had the [TXU] contract is because we
weren’t union, and that if we did go union, we wouldn’t have a
job.” This finding was buttressed by statements from Kentucky
workers who testified that LaBuff indicated that President
Tellepsen would shut down the business before he would “go union.”
Finally, the ALJ determined that Supervisor Robert Redman violated
section 8(a)(1) by telling Stacy that “Texas Utilities could
terminate the Company’s contract if the Union won the election, and
that all the employees would lose their jobs.”
In addition to the section 8(a)(1) violations, the Board
determined that Tellepsen violated section 8(a)(3) by unlawfully
discharging two employees, Vickery and Stacy, for engaging in
protected activities during the Union’s campaign to organize. In
doing so, the Board adopted the ALJ’s finding that Vickery was laid
off on July 29, 1999 because he publically questioned President
Tellepsen about Company policy during the safety meeting and
because Vickery stated that he was reconsidering his vote in the
upcoming election. The Board also determined that Stacy did not
engage in a work slowdown as alleged and did not resign in order to
preserve his friendship with his supervisors. Instead, the Board
4
found that Stacy was unlawfully terminated for his pro-union
activities.
The Board ordered Tellepsen to cease and desist from
engaging in future unfair labor practices, including interfering
with, restraining, or coercing employees in the exercise of their
rights under section 7 of the Act, 29 U.S.C. § 157. A new election
was also ordered. Additionally, the Board ordered the Company to
reinstate Vickery and Stacy without prejudice to their seniority
rights and awarded back pay and compensation for any additional
loss of benefits.
II. Standard of Review
This court reviews questions of law de novo, but defers
to the legal conclusions of the Board if reasonably grounded in the
law and not inconsistent with the Act. Valmont Indus. v. NLRB, 244
F.3d 454, 464 (5th Cir. 2001). With respect to mixed questions of
law and fact, this court must sustain the Board’s application of
its legal interpretations to the facts of the particular case when
supported by substantial evidence based upon the record considered
as a whole. See Beth Israel Hosp. v. NLRB, 437 U.S. 483, 501, 98
S. Ct. 2463, 2473-74 (1978). Similarly, the Board’s factual
determinations must be upheld if supported by substantial evidence.
See Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88, 71 S. Ct.
456, 464-65 (1951).
5
Under the substantial evidence standard, “the ALJ’s
decision must be upheld if a reasonable person could have found
what the ALJ found, even if the appellate court might have reached
a different conclusion.” Valmont Indus., 244 F.2d at 463. In
reviewing the record, this court is obligated to consider evidence
that detracts from the Board’s findings. Asarco, Inc. v. NLRB, 86
F.3d 1401, 1406 (5th Cir. 1996). When credibility issues arise,
this court is “bound by the credibility choices of the ALJ, unless
(1) the credibility choice is unreasonable, (2) the choice
contradicts other findings, (3) the choice is based upon inadequate
reasons or no reason, or (4) the ALJ failed to justify his or her
choice.” NLRB v. Motorola, Inc., 991 F.2d 278, 282 (5th Cir.
1999).
III. Unfair Labor Practices
Section 8(a)(1) of the NLRA, 29 U.S.C. § 158(a)(1),
prohibits employers from interfering with, restraining, or coercing
employees in the exercise of their right to self-organization under
section 7 of the Act, 29 U.S.C. § 157. The test as to whether an
employer has violated section 8(a)(1) is whether the employer’s
questions or statements tend to be coercive under the totality of
the circumstances, not whether the employees were in fact coerced.
TRW-United Greenfield Div. v. NLRB, 637 F.2d 410, 415-16 (5th Cir.
1981) (citing Sturgis Newport Bus. Forms, Inc. v. NLRB, 563 F.2d
1252, 1256 (5th Cir. 1977)). We separately review the Board’s
6
findings that the Company engaged in coercive interrogation and
threatened workers with job loss in the event the Union won the
election.
A. Coercive Interrogation
Section 8(a)(1) prohibits an employer from questioning
employees about their union involvement or how they plan to vote in
a representation election if, under the totality of the
circumstances, the interrogation tends to coerce employees in the
exercise of their right to organize under section 7 of the Act.
See Poly-America, Inc. v. NLRB, 260 F.3d 465, 484 (5th Cir. 2001).
The Board determined that LaBuff, a supervisor at Tellepsen’s
Kentucky job sites, violated the Act by asking welder Jimmy Word
how he planned to vote in the upcoming election and by telling him
that if he joined the Union he could no longer work on the job. In
addition, the Board upheld the ALJ’s finding that LaBuff stated “he
was not going to hire union employees” in the presence of Word and
two other employees, Keve Blacksher and Frank Howard. Tellepsen
disputes the findings in two respects: first, whether the ALJ made
reasonable credibility findings and second, whether substantial
evidence supports a finding that LaBuff’s remarks tended to coerce
employees.
In finding that LaBuff unlawfully interrogated employees,
the ALJ credited the testimony of Word and Blacksher over that of
LaBuff. The ALJ indicated that Word and Blacksher impressed him as
7
credible witnesses, particularly because they had worked for
Tellepsen from time to time, and, therefore, had no incentive to
jeopardize their employment by testifying falsely against the
Company’s interests. The fact that Word and Blacksher ceased
working on the Kentucky project in August does not detract from
this inference since both welders continue to be employees who
remain eligible for future contract work. Nevertheless, Tellepsen
urges us to set aside the ALJ’s credibility finding on the basis
that Blacksher was not a credible witness because, prior to the
election, the Union waived part of a fine and dropped charges
against him for crossing a picket line. The ALJ considered this
fact and found no evidence that the Union dismissed the charge in
return for Blacksher’s assistance in organizing Tellepsen’s
welders. On review, Tellepsen has failed to present evidence
sufficient to call into question the ALJ’s finding. Moreover,
although welder Vernon Freeman’s testimony, in which he denied that
LaBuff ever asked him how he planned to vote, conflicts with
Blacksher’s testimony, “this court is not at liberty to displace
the ALJ’s choice if it is between two fairly conflicting views even
though it would justifiably have made a different choice had the
matter been before the court de novo.” Universal Camera Corp., 340
U.S. at 488, 71 S. Ct. at 465. The ALJ specifically found LaBuff
to be a less reliable witness, and, contrary to the Company’s
contention, LaBuff’s history of hiring union welders does not
8
negate the ALJ’s finding nor is it inconsistent with his telling
Word, Blacksher, and Howard that he would not hire union welders
during the Union’s organizing campaign. Therefore, we accept the
ALJ’s credibility findings and evaluate whether LaBuff’s statements
were coercive as a matter of law.
This court has developed a list of factors, commonly
referred to as the Bourne test, to determine whether an
interrogation tends to be coercive or threatening in light of the
total circumstances. Poly-America Inc., 260 F.3d at 484; see also
NLRB v. McCullough Envtl. Serv. Inc., 5 F.3d 923, 928 (5th Cir.
1993); Fiber Glass Sys, Inc. v. NLRB, 807 F.2d 461, 463 (5th Cir.
1987). The factors include: “(1) the history of the employer’s
attitude toward its employees; (2) the nature of information
sought; (3) the rank of the questioner in the employer’s hierarchy;
(4) the place and manner of the conversation; (5) the truthfulness
of the employee’s reply; (6) whether the employer had a valid
purpose in obtaining the information sought about the union; (7)
whether a valid purpose, if existent, was communicated to the
employee; and (8) whether the employer assured the employee that
no reprisals should be forthcoming should he or she support the
union.” McCullough Envtl. Serv. Inc., 5 F.3d at 928. No single
factor is determinative and “coercive interrogation may still be
found to have occurred even if all the above enumerated factors
operate in the employer’s favor.” Id.
9
Applying the Bourne test set forth above, we find
substantial evidence to support the Board’s finding that LaBuff’s
questioning was coercive and in violation of section 8(a)(1).
Although the Company maintained good relations with its employees
prior to the Union campaign, other factors support the Boards’
finding of coerciveness. LaBuff periodically questioned Blacksher,
Word, and Howard as to how they planned to vote in the upcoming
election. See Poly-America, Inc., 260 F.3d at 486 (finding
credited testimony establishing multiple interrogations of the same
individuals to support the existence of a coercive atmosphere).
Even though LaBuff was a low-level supervisor who had always
treated his employees well, he did not communicate a valid purpose
for asking how they planned to vote. In fact, his questioning was
coupled with threats of reprisal. See Brookwood Furniture v. NLRB,
701 F.2d 452, 462-63 (5th Cir. 1983) (finding an interrogation
coercive where it was combined with the threat of reprisal).
Blacksher testified that LaBuff told them he would not work them if
they voted union and Word testified that LaBuff told workers that
President Tellepsen would close down operations in the event of
unionization. The fact that LaBuff kept both employees on the job,
which may have suggested that reprisals would not in fact occur,
does not negate the fact that threats were made. Furthermore, that
the welders either avoided answering LaBuff’s questions or told him
that it was “none of his business” lends additional support for the
10
Board’s finding that, under the circumstances, the questioning was
in fact coercive. See McCullough Envtl. Serv. Inc., F.3d at 929
(“If interrogation is coercive in nature, it makes no difference
that employees are not actually coerced.”); Sturgis Newport Bus.
Forms, Inc., 563 F.2d at 1256 (finding that an employee’s evasive
answers to questions raises the inference that they feared
reprisal). Accordingly, we will not disturb the Board’s finding of
unlawful interrogation.
B. Threats of Job Loss and Work Site Closure
Section 8(a)(1) of the Act makes it an unfair labor
practice for an employer to threaten job loss or the closure of a
work site in the event of unionization. See NLRB v. Gissel Packing
Co., 395 U.S. 575, 617-19, 89 S. Ct. 1918, 1942 (1969); McCullough
Envtl. Serv. Inc., 5 F.3d at 932. Under section 8(c), however, an
employer is free to communicate to his employees a statement of
opinion about the union as well as to predict the precise effect
that unionization may have on the company so long as it does not
contain a “threat of reprisal or force or promise of benefit.” 29
U.S.C. § 158(c). See also Gissel Packing Co., 395 U.S. at 617-19,
89 S. Ct. at 1942. A statement or prediction rises to the level of
a threat if, under the totality of the circumstances, “the
employees could reasonably conclude that the employer is
threatening economic reprisals if they support the Union.” TRW-
United Greenfield Div., 637 F.2d at 418. A court making an
11
assessment regarding a statement must take into account “the
economic dependence of the employees on their employers, and the
necessary tendency of the former, because of that relationship, to
pick up intended implications of the latter that might be more
readily dismissed by a more disinterested ear.” Gissel Packing Co.,
395 U.S. 617, 89 S. Ct. at 1942.
The Board determined that the Company violated section
8(a)(1) when President Tellepsen told employees during a July 14
Company safety meeting “that the main reason that we [Tellepsen]
had the TXU contract is because we weren’t union, and if we go
union, we wouldn’t have a job” and when LaBuff later told Kentucky
employees that President Tellepsen said “he would shut the doors on
the business before he would ‘go Union.’” Another violation
occurred during a conversation between Redman and Stacy. During
this conversation, Redman said that “Texas Utilities could
terminate Tellepsen’s contract in about 30 days if the Union won
the vote,” and further added, “all Tellepsen employees could
possibly lose their jobs if the Union won the vote.”
Tellepsen challenges the Board’s determinations by
arguing that the ALJ erroneously credited the testimony of
employees over testimony given on behalf of the Company with
respect to what was said during the Company safety meeting. In the
alternative, the Company argues that, even if the ALJ’s credibility
determinations were sound, neither President Tellepsen’s nor
12
Redman’s statements rise to the level of section 8(a)(1)
violations as a matter of law.
With respect to the ALJ’s credibility determinations,
Tellepsen argues that the ALJ erroneously credited the testimony of
Vickery, an alleged victim of retaliatory discrimination who
indicated President Tellepsen threatened job loss in the event of
unionization, when President Tellepsen and Morris testified
otherwise.1 In particular, the Company points out that the general
counsel of the NRLB failed to produce additional witnesses out of
the many other welders who attended the meeting. Normally, under
NLRB precedent, the failure to call an available witness likely to
have knowledge about a particular matter gives rise to an inference
that such testimony would be adverse to the party’s position and
consistent with the opposing party. See NLRB v. E-Systems Inc.,
103 F.3d 435, 439 (5th Cir. 1997). In this case, however, the ALJ
did not base his credibility findings solely upon the testimony of
these individuals. Here, in addition to finding Vickery to be a
credible witness, the ALJ found his testimony to be corroborated by
the fact that Word and Blacksher were told by LaBuff that President
Tellepsen had stated that he would close up before “going Union.”
Furthermore, the ALJ found President Tellepsen’s admitted
1
President Tellepsen and Morris both denied that Tellepsen
threatened workers with adverse consequences should the Union win
the election. President Tellepsen testified that he only expressed
his opinion that Union practices were inconsistent with the
Company’s business philosophy of requiring workers to be multi-
skilled.
13
commentary about how the Company’s culture conflicts with union
values to be inconsistent with his general denial. Because the ALJ
is in a unique position to evaluate the credibility and demeanor of
the witnesses, this court defers to plausible inferences he drew
from the evidence, even where this court might reach a contrary
result if it were to decide the case de novo. Cooper Tire & Rubber
Co. v. NLRB, 957 F.2d 1245, 1255 (5th Cir. 1992).
Having accepted the ALJ’s credibility findings, we must
next decide whether the statements by President Tellepsen and
Redman rise to the level of an objectionable threat or whether they
are privileged as a permissible prediction under section 8(c) of
the Act. The Supreme Court has stated that if an employer chooses
to make a prediction as to the economic consequences of
unionization, “the prediction must be carefully phrased on the
basis of objective fact to convey an employer’s belief as to the
demonstrably probable consequences beyond his control or convey a
management decision already arrived at to close the plant in case
of unionization.” Gissel Packing Co., 395 U.S. at 618, 89 S. Ct. at
1942 (citing Textile Workers v. Darlington Mfg. Co., 380 U.S. 263,
274 n.20, 85 S. Ct. 994 (1965)). “If there is any implication that
an employer may or may not take action solely on his own initiative
for reasons unrelated to economic necessities and known only to
him, the statement is no longer a reasonable prediction based on
available facts but a threat of retaliation based on
14
misrepresentation or coercion. . . .” Id. Thus, an employer’s
conveyance of his prediction or belief, however sincere, that loss
of jobs may result from unionization, is not a statement of fact
unless it is capable of proof based on objective fact. Id. at 160.
(“[C]onveyance of an employer’s belief, even though sincere, that
unionization will or may result in the closing of a plant is not a
statement of fact unless, which is most improbable, eventuality of
closing is capable of proof”); Kinney Drugs v. NLRB, 74 F.3d 1419,
1429 (2d Cir. 1996) (finding a prediction that a warehouse might be
closed if employees formed a union to be permissible because the
speaker included evidence that hiring an outside shipping and
storage company would be 2% less expensive).
“[I]t is often difficult in practice to distinguish
between lawful advocacy and threats of retaliation” when an
employer attempts to state an opinion or prediction regarding the
consequences of unionization. ITT Automotive Inc. v. NLRB, 188
F.3d 375, 385 (6th Cir. 1999) (quoting NLRB v. Village IX, Inc.,
723 F.3d 1360, 1367 (7th Cir. 1983)). Relying on CPP Pinkerton,
309 NLRB 723 (1992), the Company argues that the alleged statements
made by President Tellepsen and Redman were simply objective
predictions of possible consequences of unionization. In CPP
Pinkerton, the Board determined that a letter which “merely
cautioned that the [e]mployer’s contracts on any of its jobs could
be jeopardized if it did not remain competitive” was not in
15
violation of the Act because the letter spoke of a possibility, not
a probability. Id. In ruling, the Board did not reach the
question of whether the prediction was grounded in objective fact.
Contrary to the Company’s assertions, the permissibility of their
predictions necessarily turns on whether they were based on
objective fact and adequately conveyed probable consequences beyond
the Company’s control.
Although the Board concluded that President Tellepsen
failed to provide an objective basis for his prediction, we note
evidence to the contrary. President Tellepsen did not personally
threaten to close the Company’s Joshua operations during his speech
at the safety meeting. Rather, he conveyed his belief that, if the
Union prevailed, the Company would lose the TXU contract.
According to President Tellepsen, his prediction was based on the
fact that the contract contained a clause that permitted TXU to
cancel the contract without cause. Furthermore, the statement was
made in the course of a speech discussing the Company’s culture and
the need to maintain flexible, multi-craft workers with competitive
wage rates in order to remain economically competitive. Even
Vickery, whose testimony was credited by the ALJ, did not deny that
President Tellepsen made this comment in the context of discussing
Company culture and the need for a multi-skilled and flexible work
force.
16
We need not decide, however, whether President Tellepsen
conveyed sufficient objective facts for his workforce to conclude
that his prediction was based on circumstances outside the
Company’s control. A finding that President Tellepsen’s speech was
coercive would be cumulative in light of our belief that Redman’s
statements violate section 8(a)(1).
Redman’s statements that “Texas Utilities could terminate
Tellepsen’s contract in about 30 days if the Union won the vote”
and “all Tellepsen employees could possibly lose their jobs if the
Union won the vote” constitute implied threats of reprisal for
union activities in violation of section 8(a)(1). The fact that
these statements were made during a private conversation between
Redman and Stacy, who were close personal friends outside of work,
is not determinative of whether the statements were perceived as
coercive. Compare NLRB v. M&M Marine Ways, Inc., 411 F.2d 1070 (5th
Cir. 1969) (finding action of supervisor in casual conversation
does not necessarily violate the Act), and Federal-Mogul Corp. v.
NLRB, 566 F.2d 1245, 1257 (5th Cir. 1978) (finding isolated
statements made by low-echelon foremen and supervisors who were
friends of the employees non-coercive where statements were made in
friendly conversations), with NLRB v. Big Three Indus. Gas & Equip.
Co., 579 F.2d 304, 310-11 (5th Cir. 1978) (noting that “[f]riends
can unlawfully threaten their friends” and “[Wa]rnings of Company
retaliation cast as friendly advice from a familiar associate might
17
be more credible, hence, more offensive to § 8(a)(1)”), and
Hedstrom Co. v. NLRB, 588 F.2d 1137, 143-44 (3d Cir. 1977) (holding
statements made by low-level supervisor to be coercive). “[S]ocial
relationships in themselves are not a sufficient basis to lift acts
of illegal interference from the scope of the Company’s
responsibility.” Big Three Indus. Gas & Equip. Co., 579 F.2d at
311. The coercive tendencies of an employer’s conduct must be
assessed within the totality of the circumstances surrounding the
occurrence at issue. TRW-United Greenfield Div., 637 F.2d at 415-
16.
Redman conveyed his belief that jobs would be lost if the
Union prevailed in the same conversation that he admitted to Stacy
that his pro-union activity was the primary reason that he was laid
off. While the conversation was friendly by all accounts, the fact
that Redman implied that Stacy’s layoff was ordered by upper
management bolsters the appearance that anti-union remarks were the
product of wide-scale company resistance originating at higher
echelons. As such, Stacy was more inclined to believe in its truth
despite the fact that Redman was a low-level supervisor. See Big
Three Indus. Gas & Equip. Co., 579 F.2d at 311 (finding that status
of a low-level supervisor does not in itself negate liability).
Accordingly, we find that LaBuff and Redman violated section
8(a)(1) by coercively interrogating employees and threatening job
loss.
18
IV. Unlawful Discharges
In addition to the above section 8(a)(1) violations, the
Board determined that Tellepsen violated sections 8(a)(3) and
8(a)(1) of the NLRA by unlawfully discharging Vickery and Stacy for
their union activities. Section 8(a)(3) of the Act provides that
it shall be 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 also violates section 8(a)(1) of the Act by interfering,
coercing, or restraining employees in the exercise of union
activity. 29 U.S.C. § 158(a)(1). Thus, an employer violates both
sections 8(a)(3) and (a)(1) of the Act by terminating, laying off,
or refusing to hire employees in retaliation for engaging in union
or other protected activities. NLRB v. Delta Gas, Inc., 840 F.2d
309, 311 (5th Cir. 1988).
For an adverse employment decision to constitute unlawful
discrimination under section 8(a)(3), anti-union animus must be
shown to have been a motivating factor in the employer’s decision.2
Asarco, Inc., 86 F.3d at 1408; Valmont Indus., 244 F.3d at 463.
The general counsel of the NLRB bears the burden of proving, by a
preponderance of the evidence, that anti-union animus directed
2
Unlike section 8(a)(3), a violation of section 8(a)(1) does
not require a showing of anti-union animus. Valmont Indus., 244
F.3d at 463.
19
toward the employee’s activities was a substantial factor in the
adverse employment action. Id. In assessing an employer’s motive,
we consider a variety of factors including:
the timing of the employer’s action in relationship to
union activity, the presence of other unfair labor
practices, the failure to investigate the conduct alleged
as the basis for discipline, disparate treatment of the
disciplined employee or discipline that deviates from the
employer’s past disciplinary practice, the implausibility
of the employer’s explanation of its action,
inconsistencies between the employer’s proffered reason
for the discipline and other actions of that employer,
and the seriousness of the alleged violation.
Valmont Indus., 244 F.3d at 456 (internal citations omitted).
Where anti-union animus is shown to be a motivating factor in the
employer’s decision to take adverse action against the employee,
the employer will be found to have violated the Act unless the
employer establishes that the employee would have suffered an
adverse employment decision even absent the protected activity.
Id.; Asarco Inc., 86 F.3d at 1408.
A. Jimmie Vickery
The Board determined that the Company laid off Vickery
and delayed in rehiring him in retaliation for his public
questioning of President Tellepsen and because he reconsidered his
vote in the upcoming election. On review, Tellepsen argues that
the ALJ ignored evidence that Vickery would have been laid off and
rehired as late as November even in absence of his protected
activity. For the reasons that follow, we find the record lacks
20
substantial evidence to support the Board’s determination that
Vickery was unlawfully discharged.
It is undisputed that Vickery questioned President
Tellepsen before a group of welders who attended the June 14 safety
meeting about the Company’s policy of requiring contract welders
and laborers, but not other employees, to share hotel rooms while
on travel. Morris told Vickery that he should have gone “through
the chain of command” rather than questioning President Tellepsen
directly. Further, after hearing that Morris told Bill Bettis,
Vickery’s immediate supervisor, that “he did not want to see
Vickery’s name on another time sheet,” Vickery told his foreman,
Eldon Scrabanick, that he was concerned about his job security and
was reconsidering his vote in the upcoming union election.
Although the evidence does suggest that Morris was
angered by Vickery’s questioning, there is no evidence in the
record to suggest that Vickery was laid off due to anti-union
animus. After discussing Morris’s comment with Bettis, Bettis
assured Vickery that everything was fine and kept him on the job
for several weeks. When Vickery was eventually laid off, he was
let go along with four other welders as was customary at the
completion of a job. The fact that Vickery was a temporary employee
who was laid off, along with three other welders, due to a reduced
workload, suggests that the layoff would have occurred whether or
not Vickery angered management by questioning President Tellepsen.
21
See Asarco, Inc., 86 F.3d at 1408 (noting that evidence that an
employee would have suffered an adverse decision even in absence of
protected activity is a defense to liability); see also Pirelli
Cable Corp. v. NLRB, 141 F.3d 503, 523 (4th Cir. 1998) (holding
that an employer may overcome an unfair labor practice charge if it
can show that the employee would have been discharged in the
absence of union activity). Furthermore, neither the ALJ nor the
Board found that Bettis was aware of Vickery’s reconsideration of
his vote prior to the July 29 layoffs. Thus, Vickery’s statement
that he was reconsidering his vote could not have been a factor in
Bettis’s decision to let him go. See McCullough Envtl. Serv. Inc.,
5 F.3d at 932 (“Before an employer can be said to have
discriminated against its employees for their protected activity,
the Board must show that the supervisor responsible for the alleged
discriminatory action knew about the protected activity. . . .”)
(citation omitted).
A remaining issue, however, is whether the Company
converted a nondiscriminatory layoff into a discriminatory
termination when it failed to recall Vickery along with the other
welders. On August 11, after hearing that other welders had been
given work at another job site, Vickery called Bettis to inquire as
to when he would be rehired. Vickery testified that Bettis told
him “[w]hen I found out that you were reconsidering your vote, I
just couldn’t let you work for me any more.” Bettis denies making
22
this statement, but admitted that he became aware of Vickery’s vote
reconsideration sometime after the June 29 layoffs. Vickery was
not called back until November 8, after a complaint was issued
alleging unlawful motive. See Valmont Indus., 244 F.3d 454 (noting
that a close temporal proximity between the exercise of protected
activity and the adverse employment decision is a strong form of
circumstantial evidence showing unlawful motivation). This
evidence, although circumstantial, is sufficient to support the
Board’s finding that anti-union animus was a motivating factor in
Tellepsen’s decision not to recall Vickery along with the other
welders. See Poly-America, 260 F.3d at 491 (noting that “[m]otive
is a factual matter. . .and the Board may reasonably infer motive
from the circumstances surrounding the employer’s actions”)
(quoting NLRB v. Mini-Togs, 980 F.2d 1027, 1032-33 (5th Cir.
1993)). We disagree, however, with the Board’s determination that
Tellepsen failed to meet its burden of proving, by a preponderance
of the evidence, that it would have recalled Vickery as late as
November even in absence of his pro-union statement.
Under the Supreme Court’s analysis in NRLB v.
Transportation Mgmt. Corp., 462 U.S. 393, 393, 103 S. Ct. 2469,
2470 (1983),“a company may discharge [or fail to rehire] an
employee even where union activity is a motivating factor in that
discharge if the company can prove that the [] decision would have
been the same regardless of the protected conduct.” Poly-America,
23
260 F.3d at 491. The evidence establishes that Vickery was laid
off regularly for up to twelve weeks per year and was usually among
the last welders to be recalled. The Board’s attempt to
distinguish this particular layoff from those in prior years based
on the fact that the Company did not offer sufficient proof of a
custom of laying off Vickery when it had fabrication work, the type
of welding in which he specialized, fails in light of
uncontroverted evidence that Bettis regularly delayed in recalling
Vickery because he was reluctant to complete non-welding, physical
tasks. Even Vickery admitted that he had complained about being
one of the last welders recalled to jobs long before the 1999 Union
campaign. Accordingly, the record does not support the Board’s
determination that Tellepsen failed to meet its burden of proving
that it would have delayed in recalling Vickery in absence of his
union activity.
B. Scott Stacy
Finally, we examine the evidence pertaining to Stacy’s
discharge. Stacy was a long-time contract employee of Tellepsen.
He was most recently hired in May 1999 by Redman, a close personal
friend, for pipeline construction and welding work at the Company’s
Reisel, Texas site. The Board determined that Stacy, a known Union
supporter, was unlawfully fired due to his alleged support for the
Union’s organizing campaign. Tellepsen contends that the ALJ’s
findings were unreasonable because the record demonstrates that
24
Stacy was not discharged but rather quit, after engaging in a Union
slowdown, in order to preserve his friendship with Redman.
The Board adopted the ALJ’s factual findings and
concluded that there was no credible evidence to suggest that Stacy
engaged in work disruptions or slowdowns at the Reisel job. On
review, however, Tellepsen asserts that the ALJ ignored or
misinterpreted undisputed facts, which establish that Stacy engaged
in a slowdown as directed by the Union. As evidence of Stacy’s
alleged job disruptions, the Company references an article in the
Union’s local publication, the Blue Light, which directs Union
members to participate in work slowdowns. Tellepsen also provides
evidence that wide-scale job disruptions occurred at the company’s
ANP job site, which is in close proximity to the Reisel job.
Regardless of whether these facts are supported in the
record, they are not determinative as to whether Stacy participated
in any job slowdown. In fact, this evidence arguably bolsters
support for the Board’s assertion that the Company was growing
increasingly frustrated by recent Union activity, and, therefore,
changed its attitude toward Stacy’s membership in the Union.
Furthermore, there is no evidence that Union Representative Leon
Loggins approached Stacy on the job site to ask Stacy to
participate in a work slowdown. Both Stacy and his wife, Nanette,
whom the ALJ found to be credible, testified that Stacy did not
wish to engage in job disruptions.
25
Evidence presented by the Company to support its
contention that Stacy engaged in work disruptions on three
occasions is equally unsupported by the record. Tellepsen alleges
that on June 8, 1999, when Stacy should have been welding, he
interrupted a conversation between his foreman, Kirk Carter, and
James Tilley, a representative of TXU. Carter testified that Stacy
abandoned his welding to interrupt a conversation between Tilley
and himself, continued to follow the pair as they walked away from
the job site, and interrupted a second time to give Tilley a Union
sticker. Carter also testified that Stacy made negative comments
about Tellepsen in Carter’s presence and had to be told to return
to his work. Stacy denied that he was working when Tilley appeared
and testified that he was waiting for a ditch to be dug.
In contrast, Tilley, a neutral witness, testified that
Stacy was standing in the ditch waiting for a pipe to be measured
for cutting when he arrived at the work site. Although Tilley
testified that Stacy interrupted his conversation with Carter,
Tilley indicated that he normally talks to everyone on the site,
and that Stacy’s interruption was friendly. Tilley further
testified that when Stacy later approached him to hand him the
sticker, he laughed and took it. According to Tilley’s account,
Stacy made no negative comments and Carter did not appear angered
by his actions.
The second incident wherein Stacy allegedly engaged in a
job disruption occurred on June 12, 1999 when Stacy left the job to
26
visit his ailing stepmother who was recovering from surgery.
Carter acknowledged that Stacy told him that his stepmother “wasn’t
doing well” in her recovery. Carter further testified that even
though it was an inconvenient time for Stacy to leave work, he
noted that there were other things the crew could do until he got
back. Thus, Carter’s testimony is not inconsistent with the
Board’s finding that Stacy left work with permission, which
suggests that there was not a work slowdown or a dire need for
Stacy’s services.
Finally, Tellepsen argues that on Stacy’s final day of
work, June 14, 1999, he falsely claimed his welding machine was
broken so that he could no longer work. Rather than trying to
start it with leads or retrieving a machine that could have been
available in less than two hours, Stacy went home and did not
return until three days later. Stacy testified that when he told
Carter that his machine would not start, Carter directed him to
call Redman. According to Stacy, Redman told him to go home to
repair his machine and to call him on June 16 if he was ready to
return to work.
In reviewing Tellepsen’s evidence regarding these alleged
incidents, the ALJ found that the Company failed to establish that
Stacy participated in a work slowdown. The notable absence of
direct evidence of a work stoppage, such as a delay in the
completion of the Reisel job or disciplinary records indicating
problems with Stacy’s work performance, is a strong indicator that
27
Stacy did not engage in a work slowdown.3 Therefore, substantial
evidence supports the ALJ’s factual determination.
The Board’s determination that Stacy was fired and did
not quit in order to preserve his longtime friendship with Redman
is also supported by substantial evidence in the record. As
Tellepsen acknowledges, the basis for the ALJ’s finding is largely
one of credibility. Only Redman and Stacy were privy to the
conversation regarding Stacy’s termination.
According to Stacy, he called Redman on June 16 to notify
him that he was able to return to work. Redman told him that he had
just gotten off the phone with his boss, Morris, who expressed
anger about the upcoming hearing and demanded to “know what it was
about.” Redman stated that he had “caught a lot of flak” about
hiring Stacy back and that he found it “funny” that Tellepsen had
not had any union problems until he hired him. Redman also told
Stacy that he could not bring him back without talking to Morris
because Morris was “really hot about all the union trouble.” In a
subsequent call on June 20, Redman said that Morris had told him
not to let Stacy return to work because he was too involved in
Union business. At all times, Stacy maintained that he did not
quit his job at Tellepsen.
3
The nine welders who participated in the slowdown on the ANP
job were disciplined and fired. The Company also kept records of
the number of welds completed each day to document the slowdown.
28
Redman’s account of the conversation was that Stacy
informed him that he was quitting because the Union had wanted him
to engage in a slowdown and he did not want to jeopardize their
friendship. Tellepsen argues that this version of the conversation
is consistent with Stacy’s pattern of quitting to “go where the
money is” and notes that, after leaving Tellepsen, Stacy took a
job for Polling & Bacon in Youngstown, Ohio where he earned almost
twice as much.
Although Stacy admitted to a history of leaving jobs for
higher pay, he maintained that he did not quit the Reisel job and
was not offered the Ohio job until after he was terminated by
Tellepsen. The ALJ credited Stacy’s testimony, finding Redman
lacking in credibility because he admitted to forging Stacy’s name
on a termination statement that read Stacy “quit to keep from
getting caught up in a labor controversy.” Even though Redman
testified truthfully that he signed Stacy’s name on the document
during the hearings, the ALJ was not unreasonable in finding
Stacy’s version of the conversation to be more credible.
Finally, the fact that Tellepsen presented evidence
showing that Morris and Redman had previously hired Stacy with full
knowledge of his Union membership, and had been supportive of
Stacy’s past Union activity, does not necessarily render the ALJ’s
finding of discrimination unreasonable. The “same actor
inference,” asserted by Tellepsen as a defense to the ALJ’s
29
credibility findings, is not implicated by the facts of this case.4
Moreover, the underlying assumption that discriminatory intent
would be manifest at the time of hiring can be overcome where there
is change in circumstances between the time of hiring and firing.
See Russell v. McKinney Hosp. Venture, 235 F.3d 219, 228 n.16 (5th
Cir. 2000) (noting same actor inference does not necessarily rule
out discrimination); Johnson v. Zema Sys. Corp., 170 F.3d 734 (7th
Cir.1999) (stating that same actor inference is not itself evidence
and does not apply to situations where the employee acts
differently than the employer expected or where the employer’s
opinion undergoes a change). Here, Stacy was hired prior to the
time the Union filed a representation petition and conducted a
hearing. The Union also staged the ANP slowdown in mid-June.
These interim events could reasonably explain an increase in anti-
union animus among members of Tellepsen management, including
Morris and Redman. According to Stacy’s credited testimony, Redman
terminated Stacy on the orders of Morris, who himself admitted that
he had become hostile due to the Union slowdowns. Therefore, the
ALJ’s credibility determinations and findings of fact are not
inconsistent with the notion that Redman and Morris were once
4
The same actor inference, which has been applied only in
context of race, gender, and age discrimination cases, assumes
that where the same person does the hiring and firing of an
individual, the firing was not likely to have been a result of
improper discriminatory motive. See Brown v. CSC Logic, Inc., 82
F.3d 651 (5th Cir. 1996).
30
supportive of Stacy’s legitimate Union activities. In reviewing
the record as a whole, substantial evidence supports the Board’s
finding that Tellepsen violated section 8(a)(3) by terminating
Stacy for engaging in protected activities.
For the foregoing reasons, we REVERSE the Board’s
determination concerning the discharge of Vickery. We AFFIRM all
other aspects of the Board’s decision and grant the petition to
enforce the Board’s order with the one exception concerning
Vickery’s discharge.
31