The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Bowling Transportation Nos. 01-2386/2588
ELECTRONIC CITATION: 2003 FED App. 0431P (6th Cir.) v. NLRB
File Name: 03a0431p.06
_________________
UNITED STATES COURT OF APPEALS COUNSEL
FOR THE SIXTH CIRCUIT ARGUED: Konrad Kuczak, Dayton, Ohio, for Petitioner.
_________________ Christopher W. Young, NATIONAL LABOR RELATIONS
BOARD, APPELLATE COURT BRANCH, Washington,
BOWLING TRANSPORTATION, X D.C., for Respondent. ON BRIEF: Konrad Kuczak, Dayton,
INC., - Ohio, for Petitioner. Christopher W. Young, Aileen A.
Petitioner/ - Armstrong, Frederick C. Havard, NATIONAL LABOR
- Nos. 01-2386/2588 RELATIONS BOARD, APPELLATE COURT BRANCH,
Cross-Respondent, - Washington, D.C., for Respondent.
>
,
v. DOWD, D. J., delivered the opinion of the court, in which
- GILMAN, J., joined. BOGGS, C. J. (pp. 21-22), delivered a
-
NATIONAL LABOR RELATIONS - separate opinion concurring in part and dissenting in part.
BOARD , - _________________
Respondent/ -
Cross-Petitioner. - OPINION
- _________________
N
On Petition for Review and Cross-Application DOWD, District Judge. The above-captioned appeal
for Enforcement of an Order of the revolves around Petitioner/Cross-Respondent’s statements to
National Labor Relations Board. and discharge of three of its employees in 1999. The
No. 25-CA-26896. Administrative Law Judge ruled against the Petitioner/Cross-
Respondent. A three-member panel of the National Labor
Argued: June 20, 2003 Relations Board affirmed with only slight modifications to
the ALJ’s order. Petitioner/Cross-Respondent seeks an entry
Decided and Filed: December 8, 2003 from this Court vacating the Board’s decision;
Respondent/Cross-Petitioner seeks an entry from this Court
Before: BOGGS, Chief Judge; GILMAN, Circuit Judge; enforcing the Board’s decision.
DOWD, District Judge.*
*
The Ho norable D avid D . Dowd, Jr., United States District Judge for
the Northern District of Ohio, sitting by designation.
1
Nos. 01-2386/2588 Bowling Transportation 3 4 Bowling Transportation Nos. 01-2386/2588
v. NLRB v. NLRB
This Court has jurisdiction pursuant to 29 U.S.C. § 160(e), These employees’ conduct may not immediately strike the
(f) (1984).1 For the reasons stated herein, we AFFIRM. casual observer as unionizing or any other kind of protected
activity. Moreover, given the fact that Bowling faced losing
I. BACKGROUND its only customer if it did not terminate the three employees,
it hardly appears illegal that Bowling did, in fact, terminate
This case presents an unusual set of facts in that the three the three employees. Despite these appearances, however, the
employees for whom the Respondent/Cross-Petitioner facts brought to light in this section, the standard of review in
General Counsel of the National Labor Relations Board the following section, infra Part II, and the analysis, infra Part
(“General Counsel”) brought this action did not actually III, show that Bowling violated the National Labor Relations
intend to form a union. Nevertheless, the General Counsel Act (“NLRA”), requiring an affirmance of the decision by the
brought this action against the Petitioner/Cross-Respondent Board.
Bowling Transportation, Inc. (“Bowling”), for violating
Bowling’s employees’ right to engage in protected concerted A. Facts
activity2. On the surface, it appears that two of Bowling’s
employees, Richard Ashby and Kenneth Hanks, were merely Bowling, whose office and place of business is in
complaining about a safety incentive program. Jeffrey Owensboro, Kentucky, provides transportation services for
Horton, the third employee at issue, was simply bringing to steel producers. One such producer is AK Steel Company
the attention of Bowling management what may be (“AK Steel”), who was Bowling’s only customer in 1999.3
considered no more than a simple grievance about work rules. AK Steel maintained several plants in a number of states,
supplying steel to the “Big Three” automobile manufacturers.
AK Steel contracted out some of its operations to other firms.
1
Bowling provided transportation, or carrier, services, which
As to the Petitioner/Cross-R espo ndent’s app eal, jurisd iction is involved hauling steel coils within and between AK Steel’s
premised upon 29 U.S.C. § 160(f), which states in relevant part: “Any four or five facilities, and offsite to AK Steel’s customers.
person aggrieved by a final order of the Board ... may obtain a review of
such order in any U nited S tates court of ap peals in the circuit where in the
unfair labor practice in question was alleged to have been engaged in or Among Bowling’s key players in this litigation are: Bill
where in such person resides or transacts business.” As to the Bowling, president and chief executive officer; Paul Brewer,
Respondent/Cross-Petitioner’s application for enforcement of the National safety and maintenance supervisor; and Lawrence Martin,
Labor Relation Board’s final order, jurisdiction is based on 29 U.S.C. terminal manager for Bowling at AK Steel’s Rockport,
§ 160(e), which states in relevant part: “T he B oard shall have power to Kentucky4, facility. Bowling’s treatment of three former
petition any court of ap peals of the United States ... within any circuit ...
where in the unfair labor practice in question occurred or wherein such
person resides or transacts business, for the enforcement of such order and 3
for ap propriate temporary relief or re straining o rder.” Bo wling’s presid ent’s testimo ny revealed that its subsequent
customers included Bethlehem, USX, Inland, and LTV. (Admin. Hr’g Tr.
2 at 14 (J.A. at 158 -59).)
“Protected conc erted activity” is a term (or phrase) of art that
appears often in the record and this opinion. A protected concerted 4
activity is one of those activities protected by section 7 of the National An ambiguity appears in the record, where ALJ Kocol indicates in
Labor Relations Act, 29 U.S.C. § 1 57 (199 8). See NLRB v. Main Street one place of his opinion that Rockport is in Indiana and just a few
Terrace Care C tr., 218 F.3d 53 1, 540 (6th Cir. 2000). paragraphs later that Roc kpo rt is in Kentucky (J .A. at 33). Also notable
Nos. 01-2386/2588 Bowling Transportation 5 6 Bowling Transportation Nos. 01-2386/2588
v. NLRB v. NLRB
employees, Richard Ashby, Kenneth Hanks, and Jeffrey manager of transportation and materials in the Rockport,
Horton, who all worked at the Rockport AK Steel site, is what Kentucky, facility, Ashby encountered Hanks and told him
prompted the General Counsel to file this action. Ashby and that he was off to give Rydberg “some hell.” Hanks tagged
Hanks worked as “supertruck” drivers, operating heavy duty along. Upon their arrival at Rydberg’s office, they asked to
and “tow motor” vehicles. Both Ashby and Hanks performed speak to him and Rydberg invited the two Bowling
their work on AK Steel property. Horton also operated tow employees into his office. There, Ashby expressed his
motor vehicles and drove trucks principally on AK Steel dissatisfaction with Bowling’s handling of the safety bonus.
property. Bowling discharged these three employees in After about a ten to fifteen minute discussion, Rydberg
December 1999. indicated that Bowling’s handling of the bonus was not his
concern and referred them to Glen Easterling, another AK
The events that the General Counsel alleges led to Ashby’s Steel employee. Hanks and Ashby exited Rydberg’s office.
and Hanks’s discharges occurred shortly before their
respective terminations, when AK Steel offered its Subsequently, Rydberg contacted Martin to tell him about
contractors, including Bowling, a per-employee bonus of up his encounter with Ashby and Hanks. Rydberg explained that
to one dollar for each injury-free hour worked. The objective AK Steel management should not be the one entertaining
of this bonus was to improve safety at AK Steel sites, thereby complaints about such matters. Rydberg instructed Martin to
(presumably) avoiding liability exposure. AK Steel “strongly remove Ashby and Hanks from the premises. In response,
encouraged” its contractors to pass the bonus on to their Bowling issued a notice to its employees, prohibiting them
employees. (J.A. at 417.) Bowling instead paid only fifty from contacting any AK Steel employee without prior
cents of each bonus dollar to its employees,5 some of whom permission and warning that failure to comply with the
felt entitled to the full amount. Ashby was one such prohibition would result in discipline or termination.
employee. He discussed this matter with his co-workers at
the AK Steel plant, including Hanks, who shared his Bowling also decided to terminate Ashby and Hanks. On
discontent with Bowling keeping half of the bonus. Ashby December 19, 1999, Martin and a security guard escorted
also voiced his concerns to Brewer. Ashby, and later Hanks, off the AK Steel site. Martin
accused Ashby of attempting to unionize based on the earlier
On December 9, 1999, Ashby decided to take his concerns discussion with Rydberg. Ashby denied the accusation, to
to AK Steel. On his way to see Brian K. Rydberg, AK Steel’s which Martin responded that an investigation would be
initiated. Thereafter, Martin advised Ashby to draft a letter
explaining why he was talking to Rydberg. Ashby followed
is that the ALJ’s opinion attached to the NLRB’s affirmance is not an the advice and put together the following typewritten
accurate reproduction of the full-length opinion signed by ALJ Kocol statement:
(J.A. 5-21) with respect to the identification of the state in which
Rockport is located. A q uick sea rch on the internet revealed that a Approximately one week ago[,] I went to Bryon [sic]
Rockpo rt town exists in both Indiana and Kentucky. In any event, the Rydberg[’]s office and Kenny Hanks followed me. Once
ambiguity does not affect the decision we reach.
in [Brian’s] office[,] I ask[ed] him if he knew anthing
5 [sic] about the safty [sic] bonus[.] He said he did not[.]
Bowling used the po rtion it kep t to pay for the company Christmas
party that year and to p urchase safety ge ar, includ ing bo ots and helmets.
I went on to tell him that I ... heard that we where [sic]
Nos. 01-2386/2588 Bowling Transportation 7 8 Bowling Transportation Nos. 01-2386/2588
v. NLRB v. NLRB
getting one dollar an hour and that Bowling was taking (Hanks Statement (J.A. at 414).)
fifty cents of it for boots, hard hats, and glasses. I then
told him I was informed that our boots where [sic] to last Although some evidence in the record suggests that Martin
one year and showed him the soles of my boots and [sic] made some attempt to keep Ashby and Hanks on the payroll,
told wim [sic] I had only been working for Bowling for his efforts were fruitless. Apparently, AK Steel was adamant
approximatly [sic] four and a half months. He then about keeping the two employees off its premises, and
informed me that he knew nothing about any of it. He threatened to kick Bowling off the site if they remained.
then said that these problems where [sic] between Further, they were not otherwise employable by Bowling
Bowling and me, and that he or A.K.Steel [sic] had an because any other job would involve working at an AK Steel
thing [sic] to do with it. At that time[,] me and Kenny site. As such, in late December 1999, Bowling fired both
left [Brian’s] office. Ashby and Hanks. Their termination notices indicated that
they were “[un]able to function on AK Steel property.”
Me and Kenny where [sic] in Byron’s office for (Bowling Termination Notices for Ashby and Hanks (J.A. at
approximatly [sic] five to ten minutes. If I caused any 412, 415).)
problems[,] I apologize but I was trying to get an answer,
but at no time was me or Kenny thinking about[,] let Horton, the third employee for whom this enforcement
alone trymng [sic][,] toform [sic] a union. action was brought, was dissatisfied with some of Bowling’s
work rules. Horton vocalized his dissatisfaction to co-
(Ashby Letter to Martin (J.A. at 409).) workers and put together a list of those rules that troubled
him. He showed the list to other employees and proposed to
Hanks also put together a statement: show the list to Bill Bowling at the 1999 Christmas party.
Horton did as he said he would, presented the list to Bill
On or around the 8th or 9th of December[,] I took a Bowling, and discussed the matter in Bill Bowling’s office.
load to door 722[.] [W]hen I got there[,] Richard [Ashby] The next day, Horton was suspended, which prompted him to
was walking towards Brian[’]s office. I asked what he call Bill Bowling. Bill Bowling confirmed to Horton his
was doing, Richard said he was going to give Brian some knowledge of the suspension and expressed a concern that the
hell. Not knowing what he was going to ask, I went to employees were attempting to unionize under Horton.
the office with him. Richard asked Brian if he had a Despite Horton’s denials, Bill Bowling told him that there
moment. Brian said yes come on in. Richard and I went was not going to be a union because he was the union. A few
in and sat down. days later, on December 23, 1999, Martin terminated Horton
at the direction of Bill Bowling. His termination notice
Richard asked who was in charge of the safty [sic] indicated the reasons for his termination were failure to
program. follow instructions and “employee priorities to [sic]
inconsistent with company policy.” (Bowling Termination
Brian said Glenn Easterling and then asked[,] Notice for Horton (J.A. at 407).)
[“]Why?[”] Richard then told him about our safty [sic]
[b]onus.
Nos. 01-2386/2588 Bowling Transportation 9 10 Bowling Transportation Nos. 01-2386/2588
v. NLRB v. NLRB
B. Procedural Posture II. STANDARD OF REVIEW
Administrative Law Judge William G. Kocol began the The Board is empowered by Congress to prevent unfair
hearing in this matter on July 31, 2000, and concluded it the labor practices and to remedy violations of the NLRA.
next day. In his written decision (J.A. 5-23), ALJ Kocol Kentucky General v. NLRB, 177 F.3d 430, 435 (6th Cir.
found that Bowling had violated § 8(a)(1) and (3) of the 1999). Our scope of review of the Board’s findings is
National Labor Relations Act for, one, telling Ashby and limited. Id. That is, we review findings of fact and
Hanks that they were being removed from AK Steel’s application of law to facts only to determine whether
property for their protected concerted activity and, two, by substantial evidence supports them. Id. “Substantial
discharging Ashby and Hanks for protected concerted activity evidence” consists of evidence that adequately supports a
and for suspected union activity. ALJ Kocol also found that given conclusion in the mind of a reasonable person. NLRB
Bowling violated section 8(a)(1) and (3) by threatening v. General Security Services Corp., 162 F.3d 437, 441 (6th
Horton with reprisals for unionizing activity and suspected Cir. 1998). Conflicts in testimony give rise to fact and
unionizing activity, and for discharging him for both credibility calls for the Board to resolve. NLRB v. Aquatech,
activities. He dismissed as unsupported by the evidence, Inc., 926 F.2d 538, 544 (6th Cir. 1991). Given this sort of
however, the General Counsel’s allegations that Bowling process, we will not displace the Board’s reasonable
made statements either prohibiting employees from inferences, even if we may justifiably reach a different
discussing their wages or creating the impression that conclusion. Kentucky General, 177 F.3d at 435. This same
unionizing activities were under surveillance. level of deference is not required, however, when the Board
interprets judicial precedent. Legal conclusions other than
A three-member panel of the Board then re-visited the interpretations of the NLRA are subject to a de novo review.
issues. With only slight modifications to ALJ Kocol’s Albertson’s, Inc. v. NLRB, 301 F.3d 441, 448 (6th Cir. 2002);
findings, the panel affirmed and adopted his order.6 Among Uforma/Shelby Business Forms, Inc. v. NLRB, 111 F.3d 1284,
other things, the final order directed Bowling to cease and 1289-90 (6th Cir. 1997).
desist from violating the NLRA, reinstate the three subject
employees, and provide the Board with certain documentation III. ANALYSIS
for the purpose of calculating a back pay award. (J.A. at 20-
21, 32, 39.) The General Counsel did not take exception to Under the NLRA, “[e]mployees ... have the right to self-
the two dismissals. organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
Now, Bowling seeks to vacate the NLRB’s decision. choosing, and to engage in other concerted activities for the
Simultaneously, the General Counsel seeks to enforce the purpose of collective bargaining or other mutual aid or
NLRB’s final order. Again, the Court has jurisdiction to hear protection.” 29 U.S.C. § 157 (1998). These activities are
this case pursuant to 29 U.S.C. § 160(e) and (f). commonly known as “protected concerted activities.” See
NLRB v. Main St. Terrace Care Ctr., 218 F.3d 531, 540 (6th
Cir. 2000). Employers may not “interfere with, restrain, or
6 coerce employees in the exercise of the rights protected” in
The Board made only non-substantive modifications. (NLRB
Decision and O rder at 1 n.3, 4 (J.A . at 29).)
the above section. 29 U.S.C. § 158(a)(1) (1998). “For an
Nos. 01-2386/2588 Bowling Transportation 11 12 Bowling Transportation Nos. 01-2386/2588
v. NLRB v. NLRB
individual’s complaints to constitute concerted action, this employers.”8 Bowling says that AK Steel, not Bowling,
court requires that the complaints must not have been made decided to banish Ashby and Hanks from the site with the
solely on behalf of an individual employee, but [they] must be threat that all of Bowling‘s operations would be removed if its
made on behalf of other employees or at least with the object directive was ignored. It cites to ALJ Kocol’s finding that
of inducing or preparing for group action.” Main St. Terrace Bowling could not employ the three in any other aspect of its
Care Ctr., 218 F.3d at 539 (internal quotations marks business because AK Steel was its sole client. Bowling
omitted). “[I]t is not necessary that an employee be appointed concludes that reinstating the three employees, which would
by his fellow employees in order to represent their interests.” inevitably involve work on AK Steel’s property against AK
Id. Further, employers may not engage in “discrimination in Steel’s wishes, was outside of the NLRB’s authority. To
regard to hire or tenure of employment or any term or support this argument, Bowling relies exclusively on NLRB
condition of employment to encourage or discourage v. Doug Neal Management Co., 620 F.2d 1133 (6th Cir.
membership in any labor organization.” 29 U.S.C. 1980).
§ 158(a)(3).
In response, the General Counsel argues that Bowling’s
Bowling makes three challenges to the NLRB’s decision. failure to raise this argument below operates as a waiver of
First, it argues for the first time that the NLRB’s decision is the issue. He cites a provision of the NLRA, that provides:
unenforceable because AK Steel was an indispensable party, “No objection that has not been urged before the Board, its
yet absent from the entire proceeding.7 Second, it contends member, agent, or agency, shall be considered by the court,
that the NLRB improperly attributed the unlawful conduct of unless the failure or neglect to urge such objection shall be
AK Steel to it in order to arrive at its decision. Lastly, it excused because of extraordinary circumstances.” 29 U.S.C.
argues that reinstatement and an award of back pay for the § 160(e). The General Counsel indicates that Bowling failed
three employees require disinterested, corroborating to identify any “extraordinary circumstances” in either its
testimony. The General Counsel simply claims that the appellate brief or reply brief warranting relief.
NLRB’s order was proper and petitions the Court for
enforcement of it. In reply, Bowling again calls the Court’s attention to Doug
Neal Management for the proposition that the failure to raise
A. AK Steel is not an Indispensable Party this issue below did not constitute a waiver. Bowling insists
that the argument is still viable and that the NLRB’s decision
Bowling indicates that AK Steel was never joined as a party is unenforceable. Therefore, it asks this Court to vacate the
and that the General Counsel never alleged, nor did ALJ NLRB’s decision.
Kocol find, that Bowling and AK Steel were “joint
8
7
Two or more employers are dee med “jo int employers” if they exert
Notable, howe ver, is that B owling argued in its exceptions to ALJ significant control over the same employee(s) with respect to key terms
Ko col’s decision that “AK Steel, a non[-]employer of Ashby and Hanks, and conditions of emp loyme nt. Painting Co. v. NLRB, 298 F.3d 492, 500
cannot violate ‘rights’ of no n-emp loyees.” (J.A. at 5.) W e view this (6th Cir. 2002). Joint-employer status allows the conduct of one
argument as plainly different from the argument that AK Steel was an emp loyer to be attributed to its jo int emp loyer. See, e.g., Carrier Corp.
indispensable party rendering the NLRB’s decision unenforceable. v. NLRB, 768 F.2d 77 8, 781 (6th Cir. 1985).
Nos. 01-2386/2588 Bowling Transportation 13 14 Bowling Transportation Nos. 01-2386/2588
v. NLRB v. NLRB
Indeed, this Court plainly stated that the issue of an Inc., 411 F. Supp. 755, 757 (S.D.N.Y. 1977)). AK Steel does
indispensable party may be addressed even if not raised in the not satisfy these criteria. First, AK Steel is not likely to be
administrative proceedings, and even if the appellate court harmed by enforcement of the NLRB’s order. Nowhere in the
raises the issue sua sponte. Doug Neal Mgmt., 620 F.2d at final order does the NLRB direct AK Steel to install the three
1139. This holding was based, at least in part, on Federal employees in any of its facilities. Rather, the order directs
Rule of Civil Procedure 19, which provides for indispensable Bowling to offer the three employees “reinstatement to their
parties. Id. While we acknowledge that at least one circuit former jobs or, if those jobs no longer exist, to substantially
court has held that the Federal Rules of Civil Procedure do equivalent positions, without prejudice to their seniority or
not apply to administrative proceedings, Kelly v. U.S. Envtl. any other rights or privileges previously enjoyed.”10 (Kocol’s
Prot. Agency, 203 F.3d 519, 523 (7th Cir. 2000), we also Decision & Order at 16 (J.A. at 20) (emphasis added).) None
acknowledge that the decision of one panel of this Court is of the parties, or AK Steel for that matter, would be subject to
binding on any subsequent panel, Dupont Dow Elastomers v. multiple or otherwise inconsistent obligations if the order
NLRB, 296 F.3d 495, 506 (6th Cir. 2002); Salmi v. Sec’y of were enforced. Moreover, full relief plainly can be accorded
Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985).9 to the parties without AK Steel’s involvement. We note that
Thus, although the argument was certainly available for a NLRB proceeding does not serve to adjudicate private
Bowling to make earlier, its failure to do so does not preclude rights, but operates as an enforcement of the NLRA to prevent
this Court from deciding the issue of whether AK Steel was unfair labor practices. National Licorice Co. v. NLRB, 309
an indispensable party to the proceedings. Accordingly, we U.S. 350, 362 (1940); NLRB v. Hiney Printing Co., 733 F.2d
turn to examine it now, but, for the reasons that follow, 1170, 1171 (6th Cir. 1984). Therefore, the NLRB’s order is
conclude that AK Steel was not an indispensable party. not unenforceable simply because AK Steel has not, at any
time, been part of the proceedings.
A party is deemed indispensable under Rule 19 “‘only if, in
his absence, (1) the absentee is likely to be harmed, (2) one of
the parties may be subject to multiple or otherwise
inconsistent obligations, or (3) complete relief cannot be
accorded to the parties.’” Doug Neal Mgmt., 620 F.2d at 1138
(quoting Nationwide Auto Transporters v. Morgan Driveway,
10
9
Perhaps Bowling could have employed the three p laintiffs within
Other authority cited by the panel in Doug Neal Management its office operations or placed them on paid leave pending litigation
includes Moore’s Federal Practice, which the Court used for the again st AK Steel for brea ch of contract, see infra Part III.B., or until
proposition that “[t]he p resence of an indisp ensab le party ‘is required in Bowling expa nded its client b ase. As indicated, supra note 3, Bo wling’s
order that the court may make an adjudication equitable to all persons later customers included Bethlehem, USX , Inland, and LTV. In any
involved.” Do ug N eal M gm t., 620 F.2d at 1139 (quoting 3 A M oore’s event, we intentionally omit any definitive discussion of what the phrase
Federal Practice ¶ 19.05(2)) (emphasis added). Even if the Federal Rules “substantially equivalent positions” entails in the context of this case
of Civil Procedure do not apply, no rationale exists to distinguish the because it is largely irrelevant--the potential hard ships faced by a
indispensable party rule in administrative proceedings because the same defendant-employer that unlawfully interferes with its employees’
concerns that serve as the basis for Rule 19 in district court proceedings protected concerted activity should not dictate whether relief is warranted,
apply to pro ceedings b efore adm inistrative agencies. whether it be re instatement or some other fo rm of relief.
Nos. 01-2386/2588 Bowling Transportation 15 16 Bowling Transportation Nos. 01-2386/2588
v. NLRB v. NLRB
B. The NLRB Properly Determined that Bowling could The General Counsel responds that Bowling cannot escape
not Establish the Wright Line Defense liability for its own, independently unlawful actions against
its employees by pointing to AK Steel’s “equally unlawfully
Wright Line, 251 NLRB 1083 (1980), as adopted by the motivated” decision to bar them from the premises. To accept
Supreme Court, allows an employer to establish as an AK Steel’s conduct as a shield for Bowling’s wrongdoing
affirmative defense that the subject employee(s) would have would distort the authority for affirmative defenses under
been fired regardless of any protected concerted activity. Wright Line.
NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 404 (1983),
modified, Director, Office of Workers’ Comp. Programs, We are reluctant to declare that AK Steel’s conduct was
Dept. of Labor, v. Greenwich Collieries, 512 U.S. 267, 278 “unlawfully motivated” because (1) AK Steel was not a party
(1994); see also Kamtech, Inc. v. NLRB, 314 F.3d 800, 811 to these proceedings and, as such, could not defend against
(6th Cir. 2002); FiveCAP, Inc. v. NLRB, 294 F.3d 768, 778 such an allegation; and (2) the General Counsel never alleged,
(6th Cir. 2002). In other words, to successfully use the and neither ALJ Kocol nor the Board found, that Bowling and
Wright Line defense, a company must show some AK Steel were joint employers. We still find, however, that
independent and lawful11 basis for a subject employee’s Bowling could not avail itself of a Wright Line defense
termination. Thus, our inquiry is whether the employees still because its argument for the application of that defense is
would have been lawfully terminated if the employees never fatally flawed.
engaged in protected concerted activity.
AK Steel’s prohibition of Ashby and Hanks from its
Bowling argues that it would have fired Ashby, Hanks, and premises is not an independent basis for their termination. In
Horton regardless of whether they engaged in protected fact, it is not properly characterized as a “cause” of anything
concerted activity. AK Steel wanted Ashby and Hanks off its relevant to the General Counsel’s enforcement action.
premises. As for Horton, Bowling says he would not follow Rather, the prohibition of Ashby and Hanks from the
AK Steel’s rules regardless of where he was performing his premises is properly and best characterized as an additional
duties. With no other job in which to install any of the three effect of the employees’ protected concerted activity. This
employees, Bowling argues that its only option was to becomes immediately apparent when we consider that, if
terminate them. Ashby and Hanks had not spoken to Rydberg (i.e., engaged in
protected activity), AK Steel likely would not have forbade
Ashby and Hanks from entering its property. In other words,
11 AK Steel’s prohibition of Ashby and Hanks does not exist but
That the independent basis must be lawful was not directly at issue for the protected concerted activity and, therefore, cannot
in Wright Line or Transportation Management and its progeny, but is a
logical and necessary extension of their holdings. To allow an employer
suffice as an independent basis for the employees’
to escape liability by asserting one unlaw ful motive in place of another termination.
unlawful motive would produce absurd results. As pointed out by the
Board (NLRB Decision and Order at 3 n.12 (J.A. at 31)), other circuits We also respectfully disagree with the dissent’s
have indicated the other, independent basis for a termination must be characterization of Ashby’s and Hanks’s contact with
lawful, see, e.g., Cad bury Beverages, Inc. v. NLRB, 160 F.3d 24, 2 9 n.4 Rydberg as “obnoxious behavior.” They were in fact engaged
(D.C. Cir. 19 98); NLRB v. Joy Recovery Tech. Corp., 134 F.3d 1307,
1314 (7 th Cir. 1998).
in concerted activity when they complained about Bowling’s
Nos. 01-2386/2588 Bowling Transportation 17 18 Bowling Transportation Nos. 01-2386/2588
v. NLRB v. NLRB
allocation of the safety bonus being paid by AK Steel. Likewise, in this case, Bowling had an obligation to stand
Bowling’s acquiescence in AK Steel’s demand to remove up to AK Steel when it threatened Bowling’s ejection if the
them from the latter’s premises for this behavior might or three employees were not removed. Had AK Steel eliminated
might not have been unlawful, but Bowling’s action in Bowling from the site, Bowling certainly could have pursued
discharging them definitely was. a breach of contract action against AK Steel and/or filed suit
with its employees against AK Steel for violations of the
As for Horton, we note that ALJ Kocol and the Board NLRA. To allow subcontractors to mindlessly approve
allowed, considered, and rejected Bowling’s Wright Line illegal directives is not the intent, purpose, or proper effect of
defense pertaining to his termination (J.A. at 14, 31-32). the NLRA, and sets a dangerous precedent for employers to
Thus, Bowling’s concerns about its ability to assert a Wright use the “just-following-orders” or “devil-made-me-do-it”
Line defense do not apply to Horton. Further, Bowling does defense to unfair labor practices.
not argue that the Board’s decision on the Wright Line
defense as applied to Horton was unsupported by “substantial C. Corroborating Testimony was not Required
evidence.”
Bowling argues that, contrary to Sixth Circuit precedent,
The fact that Bowling’s sole customer at the time was AK back pay is inappropriate because the General Counsel failed
Steel and that the ALJ found Ashby, Hanks, and Horton were to offer evidence corroborating Ashby, Hanks, and Horton’s
not employable elsewhere in the company should not operate version of events. The General Counsel argues that Bowling
to render the NLRB’s order unenforceable, though these misreads Sixth Circuit authority, suggesting that
factual aspects do present some practical concerns for corroborating testimony is not a strict requirement,
enforcement. This principle is reinforced by looking to a particularly when no contradictory evidence is offered.
more egregious example of discrimination. If instead AK
Steel had banished Ashby, Hanks, and Horton from its Bowling’s blanket legal proposition is incorrect in view of
facilities because they were African-American or because the relevant authority. “[U]ncorroborated and self-serving
they were women, it would hardly be an appropriate defense statements of a party who stands to benefit from an award of
for Bowling to follow AK Steel’s directive to remove them, back pay may, standing alone, constitute substantial evidence
even if it were facing complete elimination from the site. where such testimony is reasonably deemed to be credible and
Instead, it would have been Bowling’s obligation under the trustworthy, and where it is not undermined by evidence to
civil rights laws to resist AK Steel’s influence and perhaps the contrary.” Sam’s Club v. NLRB, 141 F.3d 653, 658 (6th
file suit against AK Steel for breach of its contract and/or join Cir. 1998) (emphasis added). Furthermore, whether an
its employees in a race discrimination suit against AK Steel, administrative law judge explains his credibility
as the employer did in Lewis v. Haskell Co., Inc., 108 F. determinations, as opposed to simply declaring a witness
Supp. 2d 1288 (M.D. Ala. 2000).12 credible, is also a relevant factor in these circumstances.
12
Presumably, such an emp loyer fac ing this situation would have a
federal cause of action, too, under 42 U.S.C. § 1981 (1991), which con tracts, Newman v. Fed. Express Corp., 266 F.3d 401 , 406 (6th C ir.
prohibits racial discrimina tion in the making and enforc ement of private 2001).
Nos. 01-2386/2588 Bowling Transportation 19 20 Bowling Transportation Nos. 01-2386/2588
v. NLRB v. NLRB
Health Care & Ret. Corp. of Amer. v. NLRB, 255 F.3d 276, exceptions to the Board’s affirmance,13 we GRANT the
282 (6th Cir. 2002). General Counsel’s petition for enforcement.
ALJ Kocol did an impressive job in explaining his
credibility determinations. For example, ALJ Kocol observed
that “Rydberg’s demeanor as a witness left me with the sense
that he was more eager to build a case to support the
discharge of the employees than merely accurately recount the
facts,” and that he was “impressed with Ashby’s demeanor as
a witness.” (Kocol’s Decision & Order at 3 n.3, 4 n.6 (J.A. at
7-8).) Moreover, ALJ Kocol made a point to credit specific
witnesses for various factual recitations. (Kocol’s Decision
& Order at 3 n.3; 4 n.4-6; 6 n.7; 7 n.8, 10-11 (J.A. at 7-11).)
Although Bowling complains that the three employees’
testimony was simply self-serving, the only evidence it cites
to contradict their testimony is the equally self-serving
testimony of Bill Bowling. (Bowling’s Appellate Br. at 27.)
Bill Bowling’s testimony is hardly sufficient to serve as
undermining evidence to the contrary. As the Board found,
ALJ Kocol cited to substantial evidence to support his
conclusions and carefully cited to that evidence throughout
his opinion. 13
Bowling sets forth three narrow issues for determination in this
app eal. (Bowling’s Appellate Br. at 1-2.) In its reply brief, Bowling even
IV. CONCLUSION complains that “the Board has attempted to recast the instant Petition for
Review as a claim by [Bowling] that the Order of the Board is not
For the foregoing reasons, we AFFIRM the Board’s supported by substantial evidenc e.” (B owling’s Rep ly Br. at 1.) Further,
decision and order. Further, since Bowling takes no other Bowling states, “[T]he resolution of the issues which [Bowling] has
assigned for review to this C ourt are exceptions which app ly despite
‘substantial evidence.’” (Bowling’s Reply Br. at 2.) Nevertheless, to the
extent that Bowling may be ad vancing, who lly inarticulately, a substantial
evidence challenge, it is important to understand how deferential is the
Court’s standard of review. “[I]t is only when a court ‘cannot
conscientiously find that the evidence supporting [the Board’s] decision
is substantial, when viewe d in the ligh t the reco rd in its entirety furnishes,
including the body of evidence opposed to the Board’s view.’” Loral
Defen se Systems-Akron v. NLRB, 200 F.3d 436, 448 (6th Cir. 1999)
(quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88
(1951)). Given the testimony, evidentiary materials, and thorough factual
findings and analysis of the ALJ in this case, the Court has no problem in
finding that the NLR B’s ord er is supported by substantial evidence and
that, therefore, the order should be enforced.
Nos. 01-2386/2588 Bowling Transportation 21 22 Bowling Transportation Nos. 01-2386/2588
v. NLRB v. NLRB
______________________________________________ labor practices, I would have no objection to the majority’s
analysis. Thus, if the workers picketed their own plant with
CONCURRING IN PART, DISSENTING IN PART signs “the boss (and Customer X) are finks,” and the boss
______________________________________________ then solicited the ire of Customer X, the majority’s analysis
would be exactly correct.
BOGGS, Chief Judge, concurring in part and dissenting in
part. I agree with the holding of the court with regard to However, as I read both the record and the NLRB decision,
Bowling’s violation of Horton’s rights, and agree that we there is no indication that Rydberg, the manager of AK Steel,
should enforce the NLRB’s order with respect to him. needed any encouragement to be legitimately incensed at a
supplier’s employees, who came to his office deliberately
I generally agree with the tenor of the analysis with respect bent on giving him “some hell” and complaining about the
to the other two workers, Ashby and Hanks, but I respectfully actions of their own bosses. The record is clear that
dissent because I do not think that their activities were Rydberg’s complaint to Bowling (and his edict that he would
“protected concerted activities” with respect to AK Steel. no longer countenance any dealings with those employees)
was completely unsolicited.
In my view, what happened here was that the obnoxious
behavior of these employees with respect to a customer meant Under these circumstances, I respectfully dissent from the
that the same activities that would have been protected had portion of the majority opinion requiring the reinstatement
they been directed toward the employer or his officials were and payment of back pay to Ashby and Hanks.
not protected when directed at a customer.
By analogy, workers are fully protected in expressing their
view that “the boss is a fink.” However, if in the course of
making deliveries to a customer, they loudly opine to the
same effect with respect to the boss of the customer, or picket
the customer’s establishment during the lunch break, I see
nothing in the NLRA that protects those activities from
discipline, either in effect, by the customer declaring those
persons to be personae non gratae, or by the employer, for
the legitimate reason that they have made themselves
obnoxious to a customer.
The majority is quite correct that the employer may not
throw blame on a customer for actions that would otherwise
be unlawful (see pages 17-18), with respect to, for example,
such issues as illegal employment discrimination. Similarly,
if there were any evidence that the employer were using the
alleged customer complaint as a pretext for his own unlawful