Charter Communications, Inc. v. NLRBCharter Communications, Inc. v. NLRB
Before: SILER, STRANCH, and NALBANDIAN, Circuit Judges.
COUNSEL
ON BRIEF: Henry E. Farber, Matthew R. Jedreski, DAVIS WRIGHT TREMAINE LLP, Bellevue, Washington, Andrea J. Bernard, Matthew T. Nelson, WARNER NORCROSS + JUDD LLP, Grand Rapids, Michigan, for Petitioner/Cross-Respondent. Linda Dreeben, Kira Dellinger Vol, Eric Weitz, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner.
STRANCH, J., delivered the opinion of the court in which SILER, J., joined, and NALBANDIAN, J., joined in part. NALBANDIAN, J. (pp. 28–32), delivered a separate opinion concurring in part and in the judgment.
JANE B. STRANCH, Circuit Judge. Jonathan French created pro-union flyers and asked a union organizer to distribute them at his workplace, Charter Communications, Inc. (Charter or the Company). Three months later, Charter fired French and two of his colleagues, James DeBeau and Raymond Schoof. In the intervening period, all three employees were temporarily reassigned to more isolated regions, and Charter supervisors watched French closely, warned him that the Company was aware of his undisclosed pro-union activities, and threatened him with discharge.
The National Labor Relations Board (NLRB or the Board) concluded that Charter repeatedly violated the National Labor Relations Act (NLRA or the Act) during that three-month period. The Board also found that French was discriminatorily discharged because of his union activity and that DeBeau and Schoof were discriminatorily discharged because of their perceived union activity. Charter petitions for review of these decisions. The General Counsel for the Board, on behalf of French, DeBeau, and Schoof, cross-petitions for enforcement. Because substantial evidence supported the Board‘s decisions, we DENY the petition for review and GRANT the cross-petition for enforcement.
I. BACKGROUND
A. Union Handbilling and the Aftermath
The parties dispute what happened in the summer and fall of 2014. The record created by the administrative law judge (ALJ) and adopted by the Board establishes the following.
Until October 2014, French worked as an auditor at Charter, a company providing television, internet, and telephone services. As an auditor, his job was to visit addresses of Charter subscribers and confirm
After speaking to an IBEW organizer, French and his wife created a set of pro-union flyers; one of his wife‘s coworkers distributed the flyers at a Charter оffice in Bay City, Michigan. That first round of flyers failed to generate responses, in part because Charter supervisors removed the flyers from unattended vehicles. French then suggested that the union handbill (that is, personally distribute flyers) outside his Charter office in Saginaw.
From approximately 8 to 9:30 a.m. on July 15, 2014, as the technicians were arriving for their weekly meeting at the Saginaw office, the union organizer and his team passed out the handbills French had made. Two supervisors heard the technicians talking and went outside. One of those supervisors, Shawn Felker, oversaw the region‘s auditors, including French, DeBeau, and Schoof. Felker called his boss, T.J. Teenier, manager of all the auditors and technicians in Michigan, who immediately drove to Saginaw from his office 15 to 20 minutes away in Bay City. Teenier also called his boss, Regional Director Greg Culver. According to Teenier, Culver instructed him “to pay attention to who‘s taking the flyers” and “to take notes if possible.”
Meanwhile, the two supervisors observed the handbilling. When an auditor on Felker‘s team drove into the lot and spoke briefly to the organizers, Felker walked directly to the auditor‘s vehicle and asked if he had taken a flyer. He had not. The two supervisors remained outside, watching. When Teenier arrived, he reiterated the instructions to “take notes” and see “who is paying attention and who seemed to be generally interested.” Though neither supervisor took written notes, Teenier testified that one passed on a couple names. That supervisor denied he had done so.
The union activity prompted a series of management conference calls. During a call no more than a day after the handbilling, a regional vice president directed Teenier “to meet with Jon French because his name had c[o]me up as being a possible instigator for the union activity.” Company notes from the call state that French “is trouble” and end with a note: “TJ – talk to Jonathan French.”
Pursuant to that direction, Teenier visited French in the field the day after the handbilling. He invited French into his car and, in his words, “tr[ied] to figure out if [French] was involved with the union.” Teenier testified that he told French that he was being looked at closely by members of upper management and that if he was involved with the union, it will bring a lot of unwanted attention onto himself and to the team. Teenier urged that if there was anything French needed to discuss, he should bring it to Teenier‘s attention. French could not recall the conversation verbatim, but explained that he felt uncomfortable because Teenier was asking if French “knew of anyone that did anything with union stuff” or could give names of any employees. Notes from the next day‘s conference call indicate that Teenier told French and a pro-union technician French had been in contact with that both their names were brought up.
On July 17, two days after the handbilling, Teenier‘s boss, Culver, took French for an unscheduled ride-along (or ride-out). Culver testified that it was his practice as a new manager to go on ride-alongs two to
The management conference calls continued. In late July, the same vice president who prompted Teenier‘s meeting with French instructed Teenier to isolate the emрloyees and keep them away from other technicians and other audiences. Teenier reassigned all four auditors on French‘s team (including DeBeau and Schoof) to rural areas on the outskirts of Saginaw. The move made their work harder, more isolated, and more distant from their homes. And although the auditors sometimes worked in these outlying areas, DeBeau found his transfer odd because he had just finished auditing one area he was sent to. When he brought up the oddity, Teenier told DeBeau that the transfer was to keep the field auditors separated so that they wouldn‘t talk about the union activity. In the meantime, Charter scheduled several weeks of mandatory union avoidance meetings.
By August, most of the transferred auditors had returned to work in Saginaw. According to two Charter officials, the union worries were dying down, with union-related calls ending in early August. Teenier disagreed, maintaining that though calls became less frequent, they continued through September and perhaps October.
In early September, Teenier belatedly complied with an order Culver had given him several months before to even out the size of his supervisors’ teams. Felker, who supervised French, DeBeau, and Schoof, had a larger team than the supervisor covering the region immediately to the north, Rob Lothian. When Teenier explained the transfer, Felker suggested that Teеnier move French, in addition to DeBeau and Schoof, so that the union spotlight was off of Felker‘s team. Teenier agreed. When the switch was announced, Felker heard Lothian mumble, you‘re giving me “the problem child” and “the guy that caused all th[e] union problems.” Teenier disagreed, saying Lothian was pleased to have three of the best guys in the state on his team.
The record reveals that Lothian, who did not testify, had reason to be both pleased and concerned. French, DeBeau, and Schoof all had outstanding productivity statistics and no history of discipline. But Teenier had been displeased with Lothian‘s recent performance and indicated his hope that the extra responsibility might encourage Lothian to retire.
B. Human Resources Investigation
Just over two weeks after the transfer, on September 19, Lothian went to Charter‘s human resources department and spoke to Stephanie Peters. After discussing an unrelated matter, Lothian listed an array of complaints about Teenier, Felker, and his three new auditors. Based on the report that Peters later generated summarizing the conversation, Lothian was concerned that Teenier had “built his own
Lothian told Peters that he had heard from Felker about one special project DeBeau and Schoof had worked on a week before. Lothian alleged that Felker had a photo of DeBeau, Schoof, and Teenier laying sod at Schoof‘s home on company time (Lothian did not explain to Peters how he knew when the photo was taken, though the ALJ noted that “[c]ellphones generally show the time and date a picture was taken.“). Lothian also said that DeBeau and Schoof fixed plumbing at one of Teenier‘s rental homes during work hours. In a follow-up conversation a week later, Lothian complained that DeBeau had been pulled for a special project, cleared by Felker, working at a haunted house run by the owner of a car repair shop affiliated with Charter. Peters told Lothian that she would involve the appropriate individuals and that their conversations should remain confidential.
Shortly after that conversation, Peters received a call from Regional Director Culver. Peters described the allegations Lothian had made just moments before. The two agreed to meet and, together, drew up a list of employees to interview. The investigation startеd in earnest immediately after that meeting. Over the next week and a half, Peters (often with Culver) conducted a series of interviews regarding some—though not all—of Lothian‘s accusations. Culver himself rejected Lothian‘s claim that French, DeBeau, and Schoof had bad statistics; he reported before the interviews began that the team‘s numbers were outstanding. And Peters appears to have ignored some of Lothian‘s vaguer accusations, such as lining the baseball fields on company time and unnecessarily borrowing drill bits. She focused on three of the special project charges: the sod laying, the haunted house, and the rental home repair.
When questioned about the sod, DeBeau, Schoof, and Teenier readily agreed that they laid sod at Schoof‘s house several weeks before. But all three told Peters that they started after work hours, between 5 and 6 p.m., and none were aware of any photos. Felker, Lothian‘s source, stated that he knew nothing about laying sod but if it was happening, it would happen after hours. When asked about photos, he initially offered his phone, then retracted it, scanned its contents, and denied taking any pictures. Peters never saw the photo of sod laying that Lothian had initially described, and at a later hearing, Felker testified that his only photo of the sod was taken two weeks after the work was сompleted.
When Peters asked DeBeau about the haunted house, he explained that as he was waiting for his Charter van to be fixed, the owner of the repair shop (and the haunted house) asked DeBeau to go to the house to prepare a list of plumbing repairs. Because he was there anyway, he did. Peters asked if DeBeau had been on his lunch at the time; he said no. Peters did not ask if a supervisor granted him permission; Teenier later told Peters that he had approved DeBeau‘s request. Peters also did not ask if DeBeau worked eight hours that day; he testified at the hearing that he did. As for the rental home repair, Teenier‘s tenant (himself a Charter employee) was unaware
Meanwhile, on September 30, the same day that Peters interviewed DeBeau and Schoof, Lothian met with French for a routine safety check—and stayed for an extended conversation. Lothian recounted his complaint to human resources about Felker discovering DeBeau, Schoof, and Teenier laying sod on company time. Lothian told French that he had been “outed as the union mastermind” and should get on Lothian‘s side with this because “people were going to get fired,” adding that lоng ago, he became a supervisor by “squashing a union drive.” Lothian then discussed his finances and retirement prospects. Over the course of the two-hour conversation, Lothian may have said that he sometimes brought a gun to work.2
The next night, French called Schoof to discuss the conversation. Because Peters had told Schoof the day before that the investigation was confidential, Schoof called Peters to tell her what French had relayed about Lothian‘s statements. He told Peters how French kept saying that Rob Lothian had sat down with French for about two hours and told French everything. By the time she received Schoof‘s evening call, Peters had already scheduled an interview with French for the following morning. When that interview began, French told Peters what he had told Schoof the night before: that he already knew what was going on because Lothian told him everything about the investigation. French also relayed that Lothian told him about the gun. Under further questioning, French clarified that he had not seen a gun during that conversation but that he did see a gun that Lothian brought to work earlier, when French was a contractor and working for Charter. French went on to describe Lothian‘s fear of being fired, the supposed pictures of DeBeau and Schoof laying sod, and Lothian‘s concerns about Teenier‘s favoritism. French did not, however, have any firsthand knowledge of the three special projects.
The next day, Peters called Lothian. She asked Lothian if he had talked with Jon French this week and if so, whether he disclosed anything about the investigation. Lothian said no and that he seldom talked to French because of French‘s union involvement. Peters also asked if Lothian had brought a gun on company property or had a gun in his Charter vehicle this week. Lothian denied that as well, saying he had brought a gun to work only once, years before, in the trunk of his personal car.
As Peters continued to interview Charter employees about Lothian‘s special project allegations, she did not ask any questions regarding French‘s gun allegation. The hearing record, however, contains the following. Schoof testified that Lothian had shown him a derringer Lothian kept in his work vehicle. Felker testified that he saw Lothian with handgun ammunition at work on multiple occasions and that Lothian once went gun shopping during work hours. And another auditor testified that Lothian showed him a rifle that Lothian was keeping under his desk and that, another time, the auditor saw the outline of a derringer in Lothian‘s pocket.
During the final days of her investigation, Peters called Lothian again. This time, under specific questioning, Lothian
On October 14, three months after the union handbilling and three weeks after Lothian brought his complaint to human resources, Charter fired five employees: French, DeBeau, and Schoof; as well as their bosses, Teenier and Felker. The termination notices for French, DeBeau, and Schoof stated only that they were fired for “Violation of Charter‘s Code of Conduct” and “Violation of Charter‘s Employee Handbook“; DeBeau‘s added “Violation of Charter‘s Timekeeping Policy.” The form notices contained no other information or description of the violations. All three auditors asked Peters why they were being fired and received no answer.
C. Procedural History
French, DeBeau, and Schoof filed charges with the Board alleging discriminatory discharge in violation of the NLRA. French also alleged discrimination related to Lothian‘s comments during the September 30 safety check. French subsequently amended his charge to allege additional violations of the Act based on his supervisors’ conduct during and after the union handbilling.
After a multi-day hearing, the ALJ upheld most of French‘s claims, determining that his termination had violated the Act, as had the meetings with Teenier and Culver after the handbilling, his reassignment to rural areas, and Lothian‘s comments during the safety check. The ALJ did not find a violation, however, with regard to Charter surveillance of the handbilling. The ALJ also denied DeBeau and Schoof‘s discriminatory discharge claims, finding that Charter had reason to believe they laid sod on company time.
On appeal, the Board largely agreed with the ALJ‘s disposition of French‘s claims, though it added that the Company surveillance of the handbilling had been improper and altered the rationale for deeming the meetings with Culver and Teenier unlawful. But the Board concluded that Charter had discharged DeBeau and Schoof based on the mistaken belief that they were involved with the union. The Board deemed the sod-laying rationale pretextual for two reasons: the Company‘s “reasons for relying on Lothian‘s secondhand account simply do not withstand reasonable scrutiny,” and offenses of this kind had not resulted in discharge in the past. Charter petitions for review, and the General Counsel cross-petitions for enforcement.
II. ANALYSIS
The NLRA guarantees the right of employees “to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
Our review of a Board decision applying these provisions “is quite limited.” Id. at 542 (quoting Torbitt & Castleman, Inc. v. NLRB, 123 F.3d 899, 905 (6th Cir. 1997)). We review the Board‘s legal conclusions de novo, though we “will uphold the Board‘s reasonable interpretation of the [NLRA] where Congress has not spoken to the contrary on the same issue.” Id. (quoting Dupont Dow Elastomers, LLC v. NLRB, 296 F.3d 495, 500 (6th Cir. 2002)). We review the Board‘s factual conclusions for substantial evidence. “Under that deferential standard, we must uphold the NLRB‘s factual determinations if they are supported by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if we may have reached a different conclusion had the matter been before us de novo.” Airgas USA, LLC v. NLRB, 916 F.3d 555, 560 (6th Cir. 2019) (citations and internal quotation marks omitted). And finally, we may overturn the Board‘s credibility determinations “only if they overstep the bounds of reason’ or ‘are inherently unreasonable or self-contradictory.‘” Id. (quoting Caterpillar Logistics, 835 F.3d at 542).
A. Pre-Discharge Allegations
We consider Charter‘s alleged violations of the Act in the order they occurred, beginning with the five instances that the Board determined violated
As a preliminary matter, Charter asserts that most of these claims are barred because they were not raised in French‘s initial charge filed with the NLRB, which listed only French‘s termination and the September 30 conversation with Lothian. French added the first four events in an amended charge filed approximately a year later.
We have entertained challenges to the Board‘s decision to allow аmendments in a handful of cases. See, e.g., Peters v. NLRB, 153 F.3d 289, 296 (6th Cir. 1998); Don Lee Distrib. Inc. v. NLRB, 145 F.3d 834, 844–45 (6th Cir. 1998); Henry Bierce Co. v. NLRB, 23 F.3d 1101, 1108 n.1 (6th Cir. 1994); Briggs Plumbingware, Inc. v. NLRB, 877 F.2d 1282, 1291 (6th Cir. 1989). These cases confirm, albeit under varying formulations, that our review of this trial management matter is limited and deferential. See Peters, 153 F.3d at 296 (granting the Board “latitude” in “interpreting its own rules“); Don Lee, 145 F.3d at 845 (applying the substantial evidence standard); Henry Bierce, 23 F.3d at 1108 n.1 (emphasizing the Board‘s “broad authority” regarding amendments (citation omitted)).
Our central concern has been compliance with the Act itself, the “statutory
Another problem arises when the allegations raised against the employer change significantly during administrative proceedings, such that “the nature of the charges in the [Board‘s] complaint d[oes] not provide notice to the company” of the violations it must defend against. Henry Bierce, 23 F.3d at 1106. We expressed discomfort, for example, when a complaint was amended on the final day of the hearing. Id. at 1107–08 & n.1. But French‘s amendment was to his charge and was issued more than five months before the hearings began. As the Supreme Court has instructed, “[a] charge filed with the Labor Board is not to be measured by the standards applicable to a pleading in a private lawsuit. Its purpose is merely to set in motion the machinery of an inquiry.” Fant Milling, 360 U.S. at 307. Thus, neither the six-month limitation in the NLRA nor the timeliness of amendments to a complaint are at issue here.
Charter urges us nonetheless to scrutinize the Board‘s finding that the original and amended charges are “closely related” under the three-factor test laid out in Redd-I, Inc., 290 N.L.R.B. 1115, 1118 (1988).3 Assuming for purposes of argument that this test governs the validity of charge amendments, a long line of Board precedent recognizes that challenges to different aspects of an employer‘s “overall plan” to resist or undermine union organization are both legally and factually related—the first two Redd-I factors. See, e.g., SKC Elec., Inc., 350 N.L.R.B. 857, 858 (2007); Carney Hosp., 350 N.L.R.B. 627, 630 (2007); Well-Bred Loaf, 303 N.L.R.B. 1016, 1016 n.1 (1991). As French frames his allegations, Charter responded to his attempts at organization with a concerted campaign against unionization in general (by surveilling the handbilling and scheduling union avoidance meetings) and against him in particular (by questioning, reassigning, threatening, and, ultimately, firing him). As is discussed below, many of these actions amounted to independent violations of the Act. Each action emanated from the same protected activity, the union handbilling that French instigated. All but
the surveillance itself targeted (at least in part) the same employee, French. Several involved the same Charter official, Regional Director Culver.
As for the final Redd-I prong and Charter‘s submission that it does not assert identical defenses to each of French‘s
We now turn to the merits of French‘s pre-discharge claims. In each instance, we ask whether substantial evidence supports the Board‘s conclusion that the challenged actiоn, placed in context and “considered from the employees’ point of view, had a reasonable tendency to coerce.” Caterpillar Logistics, 835 F.3d at 543 (citation omitted).
1. July 15 Surveillance of Handbilling
The Board found Charter unlawfully surveilled the union handbilling. The NLRB has deemed surveillance objectionable when supervisors stood “close enough to the handbilling that they could identify not only those employees who passed by the handbillers, but even which employees took a handbill from the union organizers.” Partylite Worldwide, Inc., 344 N.L.R.B. 1342, 1342 (2005). Charter‘s observers took comparable steps to identify employees with union sympathies, including one supervisor stopping an employee who reported to him to ask whether he had taken a flyer.
We have likewise held that, although “an employer‘s mere observation of open, public union activity on or near its property does not constitute unlawful surveillance, when surveillance activity constitutes more than mere observation, the employer‘s conduct violates the Act.” Clock Elec. v. NLRB, 162 F.3d 907, 918 (6th Cir. 1998) (citation and internal quotation marks omitted). Employers cross this line when they “engage in behavior that is ‘out of the ordinary.‘” Partylite, 344 N.L.R.B. at 1342 (quoting Arrow Auto. Indus., 258 N.L.R.B. 860, 860 (1981)). In this case, a state-wide manager, Teenier, took the unusual steps of driving over from his office just to observe the handbilling and calling his Regional Director, Culver. Teenier may also have relayed instructions from Culver that the supervisors should note which employees took handbills—another out-of-the-ordinary behavior.
Because a reasonable employee might be dissuaded from engaging in protected activity under these circumstances, substantial evidence supports the Board‘s finding of an unfair labor practice.
2. July 16 Conversation with Teenier
Next, we turn to Teenier‘s visit and discussion with French the day after the handbilling. The Board determined this conversation violated the Act in four different ways. Because each potential violation is relevant to the ordered relief, we consider each in turn.
Creating an impression of surveillance violates the Act because “employees should be free to participate in union organizing campaigns without the fear that
Second, as with surveillance, employers may not interrogate employees in a manner that, under all the circumstances, “reasonably tends to restrain, coerce, or interfere with rights guaranteed by the Act.” Caterpillar Logistics, 835 F.3d at 543 (quoting Dayton Typographic Serv., Inc. v. NLRB, 778 F.2d 1188, 1194 (6th Cir. 1985)). “A finding of ‘actual coercion’ is not required.” Id. (quoting Dayton Newspapers, 402 F.3d at 659). In assessing the coercive potential of an interrogation, the Board considers factors including “the background, the nature of the information sought, the questioner‘s identity, and the place and method of interrogation.” Id. (quoting Dayton Typographic, 778 F.2d at 1194). Here, Teenier went out to the field, spoke alone with French in Teenier‘s car, and asked about French‘s undisclosed involvement in union activities. We have found coercion on materially similar facts, where the employee‘s “union support was private,” a supervisor “sought [the employee‘s] position on the union,” and the supervisor “approached [the employee] on the work floor while [he] was alone.” Id. And though Teenier and French appear to have enjoyed a friendly working relationship, we have deemed friendly relations “irrelevant” to the coercion calculus. Seligman & Assocs., Inc. v. NLRB, 639 F.2d 307, 309 (6th Cir. 1981); see also id. (“Section 8(a)(1) prohibits any conduct, friendly or not, which interferes with the free exercise by employees of their rights under the Act.“). Substantial evidence therefore supports the Board‘s finding that Charter violated the Act through coercive interrogation.
Next, “employer threats of closer supervision because of union activity violate” the Act. Paul Mueller Co., 332 N.L.R.B. 312, 312 (2000). The day after union handbilling, during an unscheduled one-on-one meeting, Teenier told French that if he was involved with the union, it will bring a lot of “unwanted attention” onto himself and to the team and that French was being “looked at closely by members of upper management.” French could not recall the conversation verbatim, describing only its general investigative tenor. The Board credited Teenier‘s explicit description of his threat of closer supervision, which supports its finding of a violation of the Act.
And finally, “an employer cannot solicit grievances from employees during a union organizing campaign with the express or implied suggestion that the problems will be resolved if the union is turned away.” Ctr. Constr. Co. v. NLRB, 482 F.3d 425, 435 (6th Cir. 2007) (quoting NLRB v. V&S Schuler Eng‘g, Inc., 309 F.3d 362, 370 (6th Cir. 2002)). The Board has found an implied suggestion
3. July 17 Ride-Along with Culver
The Board found that Charter violated the Act again the next day, when Regional Director Culver initiated an unscheduled ride-along with French. Just as an employer may not threaten closer supervision due to union activity, it may not follow through on that threat. Thus, an employer violates the Act “by more closely monitoring employees who had engaged in union activity.” Gold Kist, Inc., 341 N.L.R.B. 1040, 1040 (2004). Contrary to Charter‘s argument, union activity need not be “personally seen” during the close supervision; the question is whether the supervision is motivated by earlier union activity. Id. Here, Culver spent two hours observing French one-on-one. This observation occurred two days after union handbilling and one day after Teenier threatened French with closer supervision. No supervisor had ever gone on a ride-along with French before. In light of these suggestive facts, the Board was not required to credit Culver‘s explanation that “he was new to the department and wanted to learn the operation he was supervising“—just as that explanation was not credited in Stabilus, Inc., 355 N.L.R.B. 836, 864 (2010); see also id. at 837 & n.7 (adopting the ALJ‘s findings regarding monitoring).
In addition, Culver reported back to senior management about the ride-along, highlighting that French “talked about things he had no reason to be involved with,” such as the way technicians were evaluated. Because French was an auditor, the technicians’ complaints would presumably be of interest to him only if he had been discussing grievances with technicians—as, indeed, he had. On this record, the Board could draw the same conclusion that French himself did: that he was being monitored more closely because of his protected activity.
4. Late July Reassignment
The Board also sustained French‘s charge that Teenier discriminatorily reassigned French‘s entire group to rural areas in the weeks after the handbilling. “It is well settled that an employer may not transfer employees for the purpose of discouraging union activity.” Temp-Masters, Inc. v. NLRB, 460 F.3d 684, 690 (6th Cir. 2006). For example, employers may not transfer pro-union employees to “limit[] their contact with other employees.” Am. Red Cross Mo.-Ill. Blood Servs. Region, 347 N.L.R.B. 347, 348 n.12 (2006). In this case, Teenier, who ordered the reassignment, admitted unlawful motivation, saying a Company vice president
Charter points out that the transferred auditors had some post-transfer contact with other employees. But a contact-limiting transfer is impermissible even if the employer does not “isolate [the transferred employees] from every other employee on every day of employment.” Id. Charter also submits that it had a valid business reason for the transfer, as periodic audits of rural areas are necessary. But again, the Board was entitled to credit Teenier‘s testimony about impermissible motivation. And without regard to that testimony, the Board could infer pretext from French‘s testimony that he was reassigned before completing his in-city assignment and DeBeau‘s testimony that he was reassigned to an area he had already completed. The Board‘s decision is supported by substantial evidence.
5. September 30 Safety Check with Lothian
Turning to the final pre-discharge allegation, the Board concluded that Lothian‘s conversation with French during the September 30 safety check violated the Act in two different ways. French described the relеvant portion of the conversation as follows:
[Lothian] told me that the landscape of the department was going to change. You know, being as that you‘re the—you know, you were outed as the union mastermind, you know, you should get on my side with this because people were going to get fired. He told me that years ago, he became supervisor by squashing a union drive . . . .
(Administrative Record at 74–75) Charter urges that French‘s description of the conversation is not credible. But Lothian was not called to testify, and French‘s account stands uncontradicted in the record. The Board‘s decision to credit the only evidence before it does not overstep the bounds of reason. See Airgas, 916 F.3d at 560.
Turning to the substance of the violations, Lothian‘s unexplained “union mastermind” comment, like Teenier‘s July 16 statement, created an impermissible impression of surveillance. See Caterpillar Logistics, 835 F.3d at 544. Once again, a Charter supervisor told French that the Company was “aware of [his] union activities, but fail[ed] to tell [him] the source of that information.” McClain & Co., 358 N.L.R.B. at 1073. For the reasons described in the context of the July 16 violation, the Board could conclude that this statement created an impermissible impression of surveillance.
The Board also held that these statements amounted to an impermissible threat of discharge. The NLRA prohibits employers from “threatening employees with reprisals. In determining whether a statement is a coercive threat, the Board considers the total context of the situation and is justified in determining the question from the standpoint of employees over whom the employer has a measure of economic power.” Torbitt & Castleman, 123 F.3d at 906 (citations, ellipsis, and internal quotation marks omitted). The total context of Lothian‘s statement that French should “get on [Lothian‘s] side with this because people were going to get fired”
In sum, the Board‘s decisions finding violations of
B. Discriminatory Discharge of French
We now turn to the Board‘s determination that French was terminated in violation of the Act,
1. Prima Facie Case
Under the Wright Line rubric, the General Counsel bears the initial burden of establishing a prima facie case of discrimination. Airgas, 916 F.3d at 561. The prima facie case has three elements: “(1) [that] the employee was engagеd in protected activity; (2) that the employer knew of the employee‘s protected activity; and (3) that the employer acted as it did on the basis of anti-union animus.” Id. (quoting FiveCAP, 294 F.3d at 777). Charter concedes that the first two elements are satisfied here. French reached out to union organizers, made pro-union flyers, and suggested the organizers distribute them. And though his protected activity was private, Charter concluded that French was involved within a day.
Turning to the third element, anti-union animus, we examine the record for either circumstantial or direct evidence on point. Id. Circumstantial evidence inviting an inference of animus includes, among other examples, “the company‘s expressed hostility towards unionization combined with knowledge of the employees’ union activities” and “proximity in time between the employees’ union activities and their discharge.” FiveCAP, 294 F.3d at 778 (quoting W.F. Bolin Co. v. NLRB, 70 F.3d 863, 871 (6th Cir. 1995)). Both are present here.
French was terminated three months after his protected activity, a temporal proximity that alone may raise concerns. See Singfield v. Akron Metro. Hous. Auth., 389 F.3d 555, 563 (6th Cir. 2004) (concluding, in the context of a Title VII retaliation claim, that the three-month proximity between filing a charge and termination sufficed to infer a retaliatory motive); see also Dish Network, LLC, 363 N.L.R.B. No. 141, 2016 N.L.R.B. LEXIS 172, at *49 (Mar. 3, 2016). That three-month period included numerous Company violations of the Act. As discussed above, French was interrogated, threatened, and reassigned, all because of his protected activity. One of the supervisors involved in those violations, Regional Director Culver, was also involved in the decision to terminate French. And perhaps most tellingly, just two weeks before French was discharged, his immediate supervisor threatened that French, as the “union mastermind,” would be discharged. “[W]here an employer‘s representatives have announced an intent to discharge or otherwise retaliate against an employee for
2. Nondiscriminatory Reasons
Under Wright Line, the burden next “shifts to [Charter] ‘to prove that it would have made the same employment decision regardless of [French‘s] protected activity.‘” Airgas, 916 F.3d at 565 (quoting Ctr. Constr., 482 F.3d at 435). Charter offers two nondiscriminatory reasons for French‘s discharge: first, that French lied to Peters about Lothian telling him “everything” about the investigation, and second, that French lied to Peters about Lothian having a gun at work. If these justifications are “determined to be pretextual, the Board need not consider [them].” Id. And, in light of our deferential standard of review, “[s]imply showing that the evidence supports an alternative story is not enough. [Charter] must show that the Board‘s story is unreasonable.” NLRB v. Galicks, Inc., 671 F.3d 602, 608 (6th Cir. 2012).
In evaluating Charter‘s two rationales, the dispositive question is not whether French “committed the alleged offense.” NLRB v. Consol. Biscuit Co., 301 F. App‘x 411, 432 (6th Cir. 2008) (quoting McKesson Drug Co., 337 N.L.R.B. 935, 937 n.7 (2002)). Rather, Charter “must show that it had a reasonable belief that [French] committed the offense, and that it acted on that
belief when it discharged him.” Id. at 432-33 (quoting McKesson, 337 N.L.R.B. at 937 n.7). Charter may not, however, rest on an argument that a senior decisionmaker had a reasonable belief if “one of [the Company‘s] supervisors was a primary actor in the fabrication leading to the discharge.” JMC Transp., Inc. v. NLRB, 776 F.2d 612, 619 n.6 (6th Cir. 1985). Because Charter has consistently maintained that the discharge decision rested on the facts laid out in Peters‘s investigative report, our analysis focuses on the contents of and omissions from that report.
We begin with the first rationale, that French lied about Lothian discussing the investigation. Charter‘s invocation of this justification has been inconsistent over time. When Peters initially told French he was fired, she handed French a termination form that contained two phrases, with no detail: “Violation of Charter‘s Code of Conduct” and “Violation of Charter‘s Employee Handbook.” When French responded that the handbook is long and asked for specifics, Peters refused. During the administrative proceedings, the ALJ asked Peters why she concluded French was dishonest; Peters cited only the gun comment. In its briefing before the ALJ, Charter did not discuss its belief that French was lying about Lothian having violated Peters‘s confidentiality instruction. Because Charter‘s “asserted justification is shifting and unreliable, its case is weakened, and the conclusion that the true reason [that French was discharged] was for union activity is correspondingly strengthened.” Airgas, 916 F.3d at 566 (quoting Healthcare Emps. Union, Local 399 v. NLRB, 463 F.3d 909, 922 (9th Cir. 2006)).
Moreover, Peters‘s report reflects that French knew about Lothian‘s fear of being fired, the concerns about Teenier‘s favoritism, and Felker‘s purported pictures of DeBeau and Schoof laying sod on company time. The simplest explanation for how French knew this information is the one French gave that day and Schoof gave the night before: Lothian talked. Indeed, another
In sum, the report Charter relied on caught Lothian in a lie and substantially corroborated French‘s version of еvents. Charter has therefore failed to demonstrate that the Board‘s finding of pretext is unreasonable. Galicks, 671 F.3d at 608.
Next, Charter asserts that it fired French because he lied about Lothian bringing guns to work. As Peters testified, bringing a gun to work is a serious violation of company policy. Charter‘s employee handbook strictly prohibits guns at the workplace, warning that “immediate termination” will result if employees have weapons “on their person, in their personal vehicle, or in a Company vehicle at any time while on property owned or leased by Charter, or while conducting Charter business, regardless of the location.” For example, Teenier remembered one employee who was issued a final warning for keeping a gun in his van. And yet, after hearing this serious allegation, Peters did nothing to investigate except ask Lothian if he had a gun at work that week and, more than a week later, review Lothian‘s disciplinary file—which revealed past discipline for bringing a gun to work. Peters did not ask Lothian if he had brought a gun to work on other occasions, instead limiting her inquiries to the week of the safety check. On that basis, she (and, ultimately, Charter) concluded that French, not Lothian, was lying.
Because an employer‘s “failure to conduct a meaningful investigation” into allegations leading to discharge may give rise to an inference that anti-union sentiment was the true cause of the employer‘s actions, Airgas, 916 F.3d at 563 (quoting Bantek West, Inc., 344 N.L.R.B. 886, 895 (2005)), we consider whether Peters‘s limited investigation was “meaningful.” Even though Peters spent the days after French‘s accusation interviewing employees who worked closely with Lothian, her report does not reference a single question about whether Lothian had guns at work. The director of human resources confirmed that no one questioned other employees about the allegation or checked Lothian‘s office or vehicle for guns. Peters simply concluded that, because of the date mismatch between French‘s allegation and Lothian‘s discipline, French was dishonest. When the ALJ asked Peters the obvious follow-up question—“what about the possibility that [French] saw a gun on another occasion other than the one for which Mr. Lothian was disciplined . . .?“—Peters could say only that she would not have concluded that Lothian brought guns on company property any other time because she “believed [Lothian] was honest and truthful.” As discussed above, the record shows that this faith in Lothian‘s honesty was not warranted.
If the Company had asked the follow-up questions that would be expected in a meaningful investigation, it likely would have uncovered helpful information regarding the honesty of those involved. For example, Peters interviewed one of French‘s teammates, Kent Payne, the afternoon
At issue is Charter‘s decision to discharge French for dishonesty without meaningfully investigating the issue upon which the discharge rested. See Airgas, 916 F.3d at 563. The critical point is that, if Charter had investigated, it could have either corroborated French‘s accusation with information from Payne, Felker, and Schoof or determined, as the ALJ later did, that French‘s statements about Lothian and guns were “somewhat confusing and/or contradictory.” But Charter failed to conduct even a rudimentary investigation on the stated basis for French‘s discharge. Therefore, the Board could conclude that Charter did not reasonably believe, see Consol. Biscuit Co., 301 F. App‘x at 432-33, that the report proved French was lying. The finding of pretext is supported by substantial evidence.
C. Discriminatory Discharge of DeBeau and Schoof
Charter next challenges the Board‘s determination that DeBeau and Schoof were also discharged in violation of the Act. As with French‘s discriminatory discharge claim, we apply the Wright Line burden-shifting test.
1. Prima Facie Case
DeBeau and Schoof, unlike French, were not involved in the union handbilling. But the Board has recognized for decades that it is “immaterial that the employee was not in fact engaging in union activity as long as that was the employer‘s perception and the employer was motivated to act based on that perception.” Dayton Hudson Dep‘t Store Co., 324 N.L.R.B. 33, 35 (1997); see also NLRB v. Link-Belt Co., 311 U.S. 584, 589-90 (1941) (finding a violation of the Act when a supervisor mistakenly believed an employee was involved with the union and discharged him “because of his alleged union activities“). This is the logical corollary to the proposition, discussed above, that an employer may discharge an employee based on a reasonable, but mistaken, belief that the employee engaged in misconduct. In both circumstances, the employer‘s liability turns on its intentions.
We therefore look to evidence of Charter‘s perceptions about DeBeau and Schoof. In the immediate aftermath of the handbilling, both names came up in management discussions. During the same call in which Teenier reported that he had told French and a technician that their “names were brought up,” only one other employee‘s name is listed on the page: Schoof. And although the note reads that Schoof loves Charter, singling him out is itself significant—especially because Culver originally intended to go on a ride-along with Schoof the same day as his unlawful ride-along with French. And around the same time Teenier was asking French about his uniоn sympathies, Teenier also asked DeBeau how he felt about the union and urged him to steer clear of it.
Then, a senior vice president told Teenier that “it seemed a little funny” that everything seems to be coming out of one team (the “team” appears to have consisted of everyone reporting to Felker—including French, DeBeau, and Schoof).
Turning to the question of anti-union animus, the Board emphasized that, like French, DeBeau and Schoof were discriminatorily reassigned in violation of the Act. In addition, Charter‘s “contemporaneous unfair labor practices clearly support a finding of animus.” Bates Paving & Sealing, Inc., 364 N.L.R.B. No. 46, 2016 WL 3853833, at *4 (July 14, 2016); see also Contemporary Cars, Inc. v. NLRB, 814 F.3d 859, 876 (7th Cir. 2016); NLRB v. Interstate Builders, Inc., 351 F.3d 1020, 1036 (10th Cir. 2003); NLRB v. Grand Canyon Mining Co., 116 F.3d 1039, 1048 (4th Cir. 1997). In addition to the coercive tactics employed during the months between the handbilling and the discharges, French was discriminatorily discharged on the very same day that DeBeau and Schoof were discharged. A reasonable mind could conclude from this evidence that the General Counsel made out a prima facie case of discriminatory discharge. See Airgas, 916 F.3d at 560.
2. Nondiscriminatory Reason
Moving to the second stage of the Wright Line analysis, Charter submits that it would have fired DeBeau and Schoof regardless of their perceived union activity because they performed non-company work on company time and then lied to Peters about what they had done.
The Board deemed this reason pretextual in part because other employees who committed similar offenses in the past were not discharged. Disparate disciplinary decisions may establish pretext. See, e.g., United Nurses Ass‘ns of Cal. v. NLRB, 871 F.3d 767, 781 (9th Cir. 2017) (“Such disparate treatment is enough to establish pretext.“); Ozburn-Hessey Logistics, LLC v. NLRB, 833 F.3d 210, 223 (D.C. Cir. 2016) (finding pretext where the company‘s discharge decision was “inconsistent with” other disciplinary decisions and “deviated from the Company‘s progressive disciplinary policy“); Bates Paving, 2016 WL 3853833, at *5 (finding pretext because “[t]he discharge was both a departure from established disciplinary practice and disparate treatment“).
Charter addresses the Board‘s finding of disparate treatment only in two short paragraphs of its reply briеf, without citation to caselaw or record evidence. This suggests that consideration of the disparate treatment finding is forfeited. See Kovacic v. Cuyahoga Cty. Dep‘t of Children & Family Servs., 606 F.3d 301, 307 (6th Cir. 2010) (“[I]t is a settled appellate rule that a party forfeits issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation.” (brackets and citation omitted)); United States v. Carson, 560 F.3d 566, 587 (6th Cir. 2009) (“The appellant cannot raise new issues in a reply brief; he can only respond to arguments raised for the first time in appellee‘s brief.” (brackets and citation omitted)).
Even if the issue is not forfeited, the record is replete with employees who
Violations related to dishonesty similarly failed to result in termination. For example, falsifying documents about work that had been completed led to a verbal warning or, when preceded by many coachings, a written warning. Intentionally providing false information to a supervisor and being dishonest about his actions when questioned resulted in a final warning—even though it followed a verbal warning for falsifying documents from the month before. In essence, the records make clear that Charter generally adheres to its progressive disciplinary policy in cases involving both misuse of company time and dishonesty.
And yet, even though DeBeau and Schoof had no prior disciplinary history, Charter terminated them both. Charter‘s bare allegation that DeBeau and Schoof‘s situation might be different than other instances of dishonesty, does not render the Board‘s finding of disparate treatment—and so of pretext—unreasonable. Because substantial evidence supports this conclusion, we do not reach the Board‘s alternate conclusion that Charter did not reasonably believe that DеBeau and Schoof performed non-company work on company time.
III. CONCLUSION
For the foregoing reasons, we DENY Charter‘s petition for review and GRANT the General Counsel‘s cross-petition for enforcement.
CONCURRING IN PART AND IN THE JUDGMENT
NALBANDIAN, Circuit Judge, concurring in part and concurring in the judgment. I concur in the majority‘s opinion and write separately on one issue: Charter‘s surveillance of the union handbilling on July 15, 2014. Although I agree with the majority that there is substantial evidence supporting the Board‘s conclusion that Charter violated
As the majority notes, supervisors may lawfully observe union activity “on or near [company] property,” without violating
So how do we draw the line between lawful observation and unlawful surveillance—and how can employers be sure not to cross it? The majority points to a line of Board decisions explaining that an employer violates
Several federal appellate courts have cautionеd against the “out of the ordinary test” to distinguish lawful observation from unlawful surveillance. The Fourth Circuit, for example, explained that the NLRA “requires more than mere ‘out-of-the-ordinary’ conduct in an area where employees can be seen; the Act requires conduct that could have reasonably been construed in the totality of the circumstances as coercive, intimidating, or threatening in nature.” Intertape Polymer Corp. v. NLRB, 801 F.3d 224, 239 (4th Cir. 2015). And the Eighth Circuit noted that some of the Board‘s more recent decisions overlook the fact that
Instead of merely asking whether the challenged conduct was unusual, we must determine whether the employer‘s observation, “considered from the employees’ point of view, had a reasonable tendency to coerce.” Caterpillar Logistics, Inc. v. NLRB, 835 F.3d 536, 543 (6th Cir. 2016) (quoting Dayton Newspapers, Inc. v. NLRB, 402 F.3d 651, 659 (6th Cir. 2005)). Several factors help guide that inquiry, including the duration of the observation, the distance between the observing employer and the union activity, whether
Using those factors as a guide, I disagree with the Board‘s conclusion (which the majority upholds) that Charter supervisor T.J. Teenier engaged in unlawful surveillance of the union handbilling. Teenier testified that he spent about fifteen to twenty minutes observing the union activity. (Administrative Record at 387-88.) But a prior Board decision found that a Wal-Mart supervisor did not violate
There is no record evidence about how close Teenier came to the union handbillers and no evidence that he was so close to the handbillers that his presence was physically intimidating. Nor is there evidence that Teenier engaged in other behavior that courts and the Board have found to be coercive, such as photographing employees interacting with the union representatives, (see, e.g., Clock Elec., 162 F.3d at 917-18), verbally harassing employees who took union literature (see, e.g., Arrow Auto. Indus., 258 N.L.R.B. at 863), or giving the impression—whether accurate or not—that he was recording which employees were engaging with the union representatives (see, e.g., Eddyleon Chocolate Co., 301 N.L.R.B. 887, 888 (1991)).
One additional factor to consider is whether Teenier had a legitimate reason for being in Saginaw. At the time of the handbilling, Teenier managed Charter‘s plant security for the state of Michigan. Given this role, Teenier would not have seemed out of place, even though he drove fifteen minutes from his home office in Bay City. To be sure, several Board decisions have found a violation of
The Fourth Circuit also enforced an NLRB order finding that several supervisors engaged in unlawful surveillance when they traveled to a local high school, thinking that their employees were participating in a union meeting there. NLRB v. Nueva Eng‘g, Inc., 761 F.2d 961, 967 (4th Cir. 1985). The supervisors arrived at the high school to find that the meeting had been canceled, but they happened to spot three emрloyees driving on an adjacent road and followed them to a nearby home. Id. But here, of course, Teenier observed the union handbillers from Charter‘s parking lot, not an offsite location.
Applying all of the Intertape factors to these facts suggests that Teenier‘s observation did not violate
If Teenier‘s presence in Saginaw cannot support the Board‘s conclusion that Charter violated
I agree with the majority that substantial evidence supports the Board‘s conclusion and write separately only to underscore that mere “[q]uestioning or interrogation of employees by the employer is not per se unlawful.” N.L.R.B. v. Homemaker Shops, Inc., 724 F.2d 535, 548 (6th Cir. 1984) (citing N.L.R.B. v. Dale Indus., 355 F.2d 851, 852-53 (6th Cir. 1966)). Homemaker Shops makes clear that “[i]nfrequent, isolated and innocuous inquiries of a relatively small number of employees, standing alone, do not constitute interference, restraint or coercion within the meaning of section 8(a)(1) of the Act.” Id. at 548-49 (quoting N.L.R.B. v. Elias Bros. Big Boy, Inc., 325 F.2d 360, 364 (6th Cir. 1963)); see also N.L.R.B. v. Okun Bros. Shoe Store, Inc., 825 F.2d 102, 108 (6th Cir. 1987). So when an employee alleges unlawful interrogation, Homemaker Shops instructs us to consider “all the surrounding circumstances” and ask whether that interrogation “reasonably tended to interfere with the free exercise of employee rights.” Homemaker Shops, 724 F.2d at 548 (citations omitted).
Felker‘s question, by itself, seems benign. Payne testified that Felker аsked no other questions about the union, nor did Felker threaten Payne with repercussions if he engaged with the union. But the “surrounding circumstances” cast Felker‘s question in a different light. Felker stood guard in Charter‘s parking lot for 90 minutes, about three times as long as Teenier. Felker also testified that Charter supervisor Chad Erskine told him to “make a mental note” of anyone who had taken a flyer—and to notify Charter‘s human resources
So although a standalone, non-threatening question about participation in union activity is not a per se violation of the NLRA, there is enough evidence here to conclude that Felker‘s question was not one of pure curiosity and that it violated the NLRA.