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Ozburn-Hessey Logistics LLC v. National Labor Relations Board

United States Court of Appeals, District of Columbia Circuit

August 19, 2016

Ozburn-Hessey Logistics, LLC, Petitioner
v.
National Labor Relations Board, Respondent United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Intervenor

          Argued March 18, 2016

         On Petitions for Review and Cross-Applications for Enforcement of Orders of the National Labor Relations Board

          Benjamin H. Bodzy argued the cause for petitioner. With him on the briefs was Stephen D. Goodwin.

          David A. Seid, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the briefs were Richard F. Griffin, General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Robert J. Englehart, Supervisory Attorney.

          Katharine J. Shaw argued the cause and filed the briefs for intervenor. With her on the briefs was Amanda M. Fisher.

          Before: Pillard and Wilkins, Circuit Judges, and Edwards, Senior Circuit Judge.

          OPINION

          PILLARD, CIRCUIT JUDGE.

         This appeal is the latest chapter in an ongoing labor dispute between Ozburn-Hessey Logistics, LLC (OHL or the Company) and the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (the Union). In 2009, the Union began a campaign to organize workers at the OHL's warehouse facilities in Memphis, Tennessee. That campaign culminated in a July 27, 2011, representation election, which the Union won by a one-vote margin. The National Labor Relations Board (the Board) found that the Company committed multiple unfair labor practices during the months leading up to the representation election. OHL violated the National Labor Relations Act, the Board determined, by threatening, interrogating, and surveilling employees; creating the impression of such surveillance; confiscating union-related materials; urging union supporters to resign; and disciplining two employees because of their pro-union views. In that same decision, the Board resolved pending ballot challenges and objections arising from the July 27, 2011, representation election and directed the Board's Regional Director to count six of the remaining challenged ballots, resulting in a wider margin of victory for the Union. Pursuant to that revised election tally, the Board's Regional Director certified the Union as the exclusive bargaining representative for the Company's Memphis employees. The Company nonetheless refused to bargain with the Union, prompting a separate Board decision determining that OHL violated the Act.

         The Company petitions for review, raising multiple objections to the Board's underlying decisions. We have accorded the Company's arguments full consideration after careful examination of the record, but address in detail only those arguments that warrant further discussion. Having found no basis to disturb the Board's well-reasoned decisions, we deny the petitions for review and grant the Board's cross-applications for enforcement of its orders.

         I. Background

         A. Facts

         OHL is a third-party logistics company that provides transportation, warehousing, and supply-chain management services for other companies. It operates warehouses throughout the country, including five in Memphis, Tennessee. In May 2009, the Union began organizing employees at OHL's Memphis warehouses and, later that year, filed an election petition with the Board to represent those workers. See Hooks ex rel. NLRB v. Ozburn-Hessey Logistics, LLC, 775 F.Supp.2d 1029, 1035-36 (W.D. Tenn. 2011). The Union lost the ensuing representation election in March 2010 and filed charges against OHL, alleging that the Company committed multiple unfair labor practices during the unionization campaign. Id. at 1035-39. The Board found merit to those allegations and concluded in two separate decisions that, between June 2009 and March 2010, OHL violated the Act by threatening employees, confiscating union materials, and disciplining union supporters. See Ozburn-Hessey Logistics, LLC, 357 NLRB 1632 (2011) (Ozburn I) (finding that OHL committed unfair labor practices between June and October 2009), enforced mem., 609 F.App'x 656 (D.C. Cir. 2015) (per curiam judgment); Ozburn-Hessey Logistics, LLC, 357 NLRB 1456 (2011) (Ozburn II) (finding that Company committed unfair labor practices between November 2009 and March 2010), enforced mem., 605 F.App'x 1 (D.C. Cir. 2015) (per curiam judgment).[1]

         The Company's challenged misconduct did not end there, however. Just a few months after the election, OHL disciplined employees Jennifer Smith and Carolyn Jones, on the basis of their union-related conduct. On June 9, 2011, the Company issued a final warning to Smith, a known union leader who distributed union literature and handbills, solicited coworkers to support the Union, and openly wore union hats and shirts to work. The final warning accused Smith of violating OHL's anti-harassment and non-discrimination policy by calling Stacey Williams, a fellow African-American, a racial slur on June 8 during a heated argument about certain office supplies. Final Employee Warning Notice, 14 J.A. 717. Smith denied having made the derogatory remark and refused to sign the final warning.

         A few days later, on June 14, the Company fired Jones, a known union leader who distributed union handbills and organizing materials, solicited coworkers to support the Union, and routinely attended union meetings. The Company's termination letter gave two reasons for Jones's discharge. First, the Company accused Jones of violating the Company's "guidelines regarding failure to cooperate with an internal investigation" by fabricating a witness statement about a heated verbal exchange that occurred on May 26, 2011. See Jones Termination Letter, 14 J.A. 558. On that day, Jones had attended a meeting during which OHL management disseminated information to employees about union dues. Afterward, Jones went to a break room and told her coworkers that the President supported their right to unionize and that it was "stupid" for employees not to want a union. ALJ Decision of May 15, 2012, 14 J.A. 740-41. According to Jones, OHL Director of Operations Phil Smith suddenly appeared behind her and said, "[I] just had two . . . employees . . . sa[y] they were called stupid. . . . Well, you all are the ones that are stupid because you're trying to get a union in here." Hearing Transcript, 14 J.A. 25. Jones asked if Phil Smith was referring to her, to which he replied, "[i]f the shoe fits, then you wear it." Id. When Jones explained to Phil Smith that she did not call anybody "stupid" and tried to end their conversation, id. at 26, Phil Smith warned her, "you better watch your back, " id. at 26-27.

         Jones soon prepared a witness statement documenting her encounter with Phil Smith and asked her coworkers to sign it. Four OHL employees signed the statement, which Jones then submitted to OHL's Human Resources Department. After investigating the incident, OHL determined that Phil Smith was innocent of any wrongdoing and that Jones had asked her coworkers to sign a blank sheet of paper before she filled in the witness statement about Phil Smith's threatening comment-conduct the Company characterized as fraudulent.

         Second, the Company claimed that Jones was fired because she violated the Company's Anti-Harassment Policy by repeatedly calling fellow employee Lee Smith a racial epithet. Jones began calling Lee Smith that epithet in the spring of 2011, shortly after he had voiced his opposition to the Union. OHL conducted an internal investigation and concluded that, despite her repeated denials, Jones in fact had used the racial epithet on multiple occasions.

         On June 14, 2011, the same day as Jones's discharge, the Union petitioned the Board for a second election to represent workers at OHL's Memphis warehouses. The Board held the representation election on July 27, pursuant to a Stipulated Election Agreement between OHL and the Union. The parties agreed that "office clerical and professional employees" would be excluded from the voting unit and further stipulated that two administrative assistants would vote subject to challenge by the Union. The Union won the election by a vote of 165 to 164. The election tally reflected fourteen ballot challenges, including the Company's challenge to Jones's ballot and the Union's challenge to ballots of the two administrative assistants. OHL and the Union thereafter each objected to the second election on several grounds.

         B. Decisions Below

         1. The Unfair Labor Practice Case

         Between June and September 2011, the Union filed a series of unfair labor practice charges against OHL challenging the Company's conduct during the months preceding the second representation election, including its punishment of Jennifer Smith and Carolyn Jones. Based on the Union's charges, the Acting General Counsel issued a consolidated complaint alleging, among other things, that the Company disciplined Smith and Jones on account of their union-related conduct and support in violation of section 8(a)(3) and (1) of the Act.

         On May 15, 2012, the Administrative Law Judge determined that OHL had committed the charged unfair labor practices. As relevant here, the ALJ found that, based on hearing testimony and other evidence, the Company violated section 8(a)(3) of the Act by issuing a final warning to Jennifer Smith and terminating Carolyn Jones because of their pro-union activities and views.[2] Applying the Board's two-part analysis from Wright Line, 251 NLRB 1083 (1980), the ALJ determined that anti-union animus motivated the Company's punishment of Smith and Jones and that the Company's putative justifications for meting out those disciplinary measures were pretextual. Because the Company's proffered reasons for disciplining Smith and Jones were "mere pretext[s], " ALJ Decision of May 15, 2012, 14 J.A. 746, the ALJ explained, it "fail[ed] by definition to show that it would have taken the same [disciplinary] action for those reasons, absent the protected conduct, " id. (quoting Rood Trucking Co., 342 NLRB 895, 898 (2004)). The ALJ therefore directed the Company to post an appropriate remedial notice regarding its violations of the Act and imposed three additional remedies. The ALJ ordered OHL (1) to distribute electronically the remedial notice to all unit employees; (2) to have the notice read aloud to the Memphis employees by a Board representative in the presence of two designated OHL managers; and (3) to cease and desist from committing the charged unfair labor practices and from otherwise violating the Act.

         In the same decision, the ALJ resolved the pending ballot challenges and objections arising from the second representation election. After ruling on the parties' electoral disputes largely in the Union's favor, the ALJ issued a recommended order to count six of the remaining ten challenged ballots. The ALJ further recommended that, if the Union did not prevail after those six votes were counted, the ...


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