929 F.3d 610
8th Cir.2019Background
- St. Paul Park Refining Co. (SPPRC) operates a 24/7 refinery; some employees are union-represented. Vacancy relief operator and union steward Richard Topor raised safety concerns about a changed Penex restart procedure that used steam-heated hydrochloric acid cylinders not reflected in written procedures.
- Topor and coworker Michael Rennert asked for a written step-change; unit engineer Eric Rowe prepared one instructing that other acid cylinders be removed from the area.
- Supervisors instructed Topor to restart the Penex using insulation blankets instead of removing spare cylinders; Topor insisted on removing them and repeatedly sought a safety stop and review by the safety department.
- A loud exchange occurred; supervisors sent Topor home, documented the incident relying mostly on supervisors’ accounts, and later suspended Topor for 10 days and issued a final written warning; his quarterly bonus was later denied.
- Topor filed unfair labor practice charges alleging retaliation for protected concerted activity; an ALJ found for Topor, the NLRB adopted the decision, and SPPRC petitioned for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Topor’s afternoon refusal to work was protected concerted activity | Topor: his refusal was a logical outgrowth of earlier concerted safety discussions with Rennert and thus protected | SPPRC: Topor was individually insubordinate and not engaged in protected concerted activity | Held: Protected — substantial evidence supports logical outgrowth and protection for safety-related concerted activity |
| Whether SPPRC disciplined Topor because of anti-union animus | Topor/NLRB: SPPRC’s investigatory failures, shifting reasons for discipline, reliance on supervisors, and timing show discriminatory motive | SPPRC: discipline was for insubordination and inappropriate conduct | Held: Motivating factor established — evidence supports discriminatory motive; SPPRC failed to prove it would have disciplined absent protected activity |
| Whether ALJ credibility findings should be reversed | Topor/NLRB: ALJ credibility determinations were supported by testimony consistency and demeanor | SPPRC: ALJ’s credibility findings were wrong and should be overturned | Held: Defer to ALJ/Board — credibility will not be overturned absent extraordinary circumstances |
| Whether Board abused discretion by denying SPPRC’s motions to reopen the record | SPPRC: Board should have admitted a later-issued arbitration award and Minnesota OSHA correspondence | NLRB: Award not newly discovered and issued after hearing; SPPRC’s exceptions were too bare to preserve other reopening argument | Held: No abuse — arbitration award excluded as untimely; other reopening claim waived for inadequate exceptions |
Key Cases Cited
- Town & Country Elec., Inc. v. NLRB, 106 F.3d 816 (8th Cir.) (deference to NLRB/ALJ factual findings and credibility)
- NLRB v. Rockline Indus., Inc., 412 F.3d 962 (8th Cir.) (employer must show its stated nondiscriminatory reason is the true justification)
- NLRB v. City Disposal Sys., Inc., 465 U.S. 822 (U.S. Supreme Court) (deference to Board’s construction of scope of protected concerted activity)
- NLRB v. RELCO Locomotives, Inc., 734 F.3d 764 (8th Cir.) (Wright Line burden-shifting framework for motivating-factor analysis)
- Chemvet Labs., Inc. v. NLRB, 497 F.2d 445 (8th Cir.) (extraordinary circumstances required to overturn ALJ credibility findings)