The opinion
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0193n.06
Nos. 15-1040/1193
FILED
UNITED STATES COURT OF APPEALS Apr 06, 2016
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
LOU’S TRANSPORT, INC., et al., )
)
Petitioners-Cross-Respondents, )
) ON PETITION FOR REVIEW
v. ) OF AN ORDER FROM THE
) NATIONAL LABOR
NATIONAL LABOR RELATIONS BOARD, ) RELATIONS BOARD
)
Respondent-Cross-Petitioner. )
)
BEFORE: KEITH, COOK, and McKEAGUE, Circuit Judges.
DAMON J. KEITH, Circuit Judge. Lou’s Transport Inc. (“Lou’s”) and T.K.M.S., Inc.
(“TKMS”) (collectively, “Petitioners”) seek review of a decision of the National Labor Relations
Board (the “Board”). The Board concluded that Petitioners terminated Michael Hershey
(“Hershey”) in violation of Section 8(a)(1) of the National Labor Relations Act (the “Act”)1 after
Hershey complained about work conditions. The Board cross-petitioned for enforcement of its
order. Because there is substantial evidence in the record to support the Board’s decision, the
petition for review is DENIED and the cross-petition for enforcement is GRANTED.
1
29 U.S.C. § 158(a)(1).
Nos. 15-1040/1193, Lou’s Transport, et al. v. NLRB
I. BACKGROUND
A. The Underlying Facts
Hershey was hired as a truck driver for Lou’s in July 2012.2 Hershey worked on a site
known as the Sylvania Quarry (the “Quarry”) beginning in November 2012. Hershey was
represented by a union.
As a driver at the Quarry, Hershey’s job consisted of driving from one end of the Quarry
to the other end, transporting dirt and clay. The roundtrip was less than one mile, and Hershey
would repeat the process throughout the day. Most of the roads driven on by the truck drivers
were made of clay, dirt, and stone. Therefore, weather played a critical role in the condition of
the Quarry roads at any given time.
The roads were very slippery and become more so when they are wet or thawing after a
freeze. The trucks frequently had flat tires, which the company often replaced with bald tires
that were also dangerous. Trucks often got stuck in the clay. One of the trucks flipped over at
the Quarry, and the trucks operated in close proximity to drops as much as 200 feet. At some
point, every driver complained about the poor condition of the roads to Sean Schmidt, a manager
for the Quarry project.
On January 7, 2013, Hershey was talking to another employee, Timothy Pledger
(“Pledger”) on a company radio.3 Hershey and Pledger discussed the poor working conditions.
Pledger told Hershey he was forced to pay a traffic fine for driving on bad tires that the company
refused to fix. Hershey explained how he was unable to get new tires from the company until he
was pulled over by the police and given a ticket. Hershey further explained that when he gave
2
The corporate distinction or relationship between Lou’s and TKMS is of no consequence to the instant
appeal. The parties stipulated before the Administrative Law Judge that the two entities are jointly and
severally liable for any remedies found appropriate in this case regardless of the employment relationship
between Lou’s and TKMS. The Board relied upon and accepted this stipulation.
3
The “company radio” is a two-way radio on which people can transmit and receive communications.
2
Nos. 15-1040/1193, Lou’s Transport, et al. v. NLRB
the company the ticket, he was told all truck parts had been on back order for six weeks.
Hershey and Pledger also expressed their thoughts that one of the owners of the company, Dan
Israel (“Israel”), was cheap for failing to properly maintain the equipment. Profanity was used
during this conversation.
Both Hershey and Pledger believed that they were having a private conversation, but
David Laming, a sales manager for Lou’s, overheard a portion of the conversation. David
Laming invited Israel to listen as well, which he did. Hershey testified that the conversation was
meant to be a private conversation, and he apologized to David Laming for making it public.
Hershey also said to David Laming, “[L]ook, dude, I’m here, I’m working, but I have issues with
my safety, so I’m going to say something about it.”
David Laming wanted to terminate Hershey after the conversation, but Israel persuaded
him not to do so. The next day, David Laming met with Hershey and Pledger. David Laming
asked, “[W]hy are you still here[?]” He also told them that the company spends “a lot of money
and equipment to repair things, and if [Hershey and Pledger] have a problem, [they] need to find
a different place to work.” He stated that “[i]f . . . per your conversation you think this is a
terrible place to work, you know, I would never work anywhere that I wasn’t happy working,
and why do you work here?” Both Hershey and Pledger received a verbal warning, but neither
employee was discharged. The verbal warning was memorialized in writing. The paperwork
reflects that Hershey received a verbal warning for badmouthing the company and for improper
language on the company radio. Hershey was also offered another position that would have
taken him out of the Quarry, but Hershey declined the relocation because he would make more
money in his current position.
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Nos. 15-1040/1193, Lou’s Transport, et al. v. NLRB
Sometime later, Hershey began displaying hand-written signs in his truck regarding the
working conditions and other unrelated matters. After Hershey began displaying the signs, one
day in February 2013, the drivers collectively refused to continue working because the road
conditions were unsafe.
On March 25, 2013, a safety meeting was held at which the owner of the Quarry, Bill
Begley, addressed all employees. At the meeting, Hershey stated that the drivers were upset
because of the dangerous road conditions.
Two days later, on March 27, 2013, Jeffrey Laming, TKMS’s Operation Manager,
became aware that drivers were talking about Hershey’s signs. Jeffrey Laming and Schmidt
checked Hershey’s truck and found sixteen signs. Some of the signs referred to the poor
working conditions at the Quarry; others did not.
Jeffrey Laming contacted David Laming, his brother, and told him about the signs. The
two also discussed the January 7 radio conversation and concluded that Hershey was “still
talking bad” about the company. David Laming testified that the signs were “especially
inappropriate following the discussion” he had with Hershey in January about “badmouthing the
company.” The brothers decided that “enough’s enough.” Hershey was fired that same day.
Regarding the termination, David Laming testified as follows:
A. I wasn’t happy because, you know, I’d already spoken to [Hershey] about
conversations over the radio. Then I saw these signs, and I thought about, you
know, these are out there, our customers see them, you know. . . . [I]t was just
like, you know, this isn’t – this isn’t the kind of person we want working for us.
So I told Jeff Laming it probably’d be best if we terminate him.
....
Q. And that was due to the signs?
A. Yes.
Q. And also the fact that you had previously spoken to him regarding his
behavior?
A. Yes, correct.
....
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Nos. 15-1040/1193, Lou’s Transport, et al. v. NLRB
A. I felt that he wasn’t the type of person we wanted working for us. He
continually showed behavior of badmouthing the company and not doing the right
thing, or what I would consider the right thing, which is represent the place you’re
employed like you’re proud to be there and you want to be there.
....
Q. Okay. And then he was terminated based on the signs and the previous verbal
warning reprimand for badmouthing the company over the radio, correct?
A. Yes.
Similarly, Jeffrey Laming testified that Hershey was discharged “because of the sign[s],”
which evinced “continued” behavior of “disparaging the company” in light of the previous radio
conversation. The Board filed a charge against Petitioners, and the Administrative Law Judge
(“ALJ”) concluded that Petitioners had violated the Act in firing Hershey for the radio incident
and for the signs. Petitioners filed the following exceptions to the ALJ’s findings with the
Board: (1) Petitioners argued that Hershey was not fired for the January 7 radio incident and
(2) Petitioners argued that the signs were not a protected activity.
B. The Board’s Decision
On December 16, 2014, the Board issued its Decision and Order. The Board concluded
that Petitioners had violated Section 8(a)(1) of the Act when they discharged Hershey.
Specifically, the Board concluded that Hershey was fired for displaying the signs and for his
January 7 radio conversation with a fellow driver. The Board concluded that the radio
conversation was unquestionably a protected activity. The Board also concluded that even
assuming that Hershey had only been fired for the signs, the discharge would still be unlawful.
The Board stated that regardless of whether displaying the signs was a protected activity,
because the Petitioners believed it was a protected activity, the termination was unlawful.
Petitioners now seek review of the Board’s decision, and the Board cross-petitions for
enforcement of its order.
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Nos. 15-1040/1193, Lou’s Transport, et al. v. NLRB
II. DISCUSSION
A. Jurisdiction
The Board “has jurisdiction ‘to prevent any person from engaging in any unfair labor
practice.’” Meijer, Inc. v. NLRB, 463 F.3d 534, 538 (6th Cir. 2006) (quoting 29 U.S.C.
§ 160(a)). Additionally, “[t]his court has jurisdiction over petitions to review or enforce orders
issued by the NLRB.” Id. at 539 (quoting Pleasantview Nursing Home, Inc. v. NLRB, 351 F.3d
747, 752 (6th Cir. 2003)). “There is no statutory time limit for filing a petition for review of a
final order of the NLRB.” Id. (citing 29 U.S.C. § 160(e), (f)).
B. Standard of Review
“The legal conclusions of the Board are entitled to deference” because of the “Board’s
special function of applying the general provisions of the Act to the complexities of industrial
life.” Id. at 539. The Board may “fashion general rules for application to generic labor
disputes.” Id. at 542. Further, “[t]he rule which the Board adopts is judicially reviewable for
consistency with the Act, and for rationality, but if it satisfies those criteria, the Board’s
application of the rule, if supported by substantial evidence on the record as a whole, must be
enforced.” Id. at 539 (quoting Beth Israel Hosp. v. NLRB, 437 U.S. 483, 501 (1978)).
“Substantial evidence means ‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Id. (quoting Universal Camera Corp. v. NLRB, 340 U.S.
474, 477 (1951)).
Similarly, “[t]he factual findings of the Board must be upheld if supported by substantial
evidence on the record considered as a whole.” W.F. Bolin Co. v. NLRB, 70 F.3d 863, 870 (6th
Cir. 1995). “Where the evidence supports two conflicting views, we may not disturb the Board’s
findings and its order must be enforced.” Id.
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C. Analysis
Section 7 of the Act “grants employees the right ‘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.’” Meijer, 463 F.3d at 539 (quoting 29 U.S.C. § 157). Section 8(a)(1)
of the Act “makes it an unfair labor practice for an employer to interfere with employees
exercising the right guaranteed them by § 7 of the Act[.]” W.F. Bolin, 70 F.3d at 870.
“Improper employer motivation may be inferred from circumstantial as well as direct evidence.”
Id. at 871. “[T]he Board is not required to accept an employer’s self-serving declarations even
when credited by the administrative law judge, but may draw its own inferences, giving such
statements the weight it deems appropriate[.]” Id. at 874 (quoting NLRB v. Brooks Cameras,
Inc., 691 F.2d 912, 915 (9th Cir. 1982)).
In order to establish “an unfair labor practice” under Section 8(a)(1) of the Act, the Board
must first prove a prima facie case of discrimination by showing that:
(a) the employee was engaged in protected activity;
(b) the employer knew of the protected activity; and
(c) the employee’s protected activity motivated the adverse treatment.
See Conley v. NLRB, 520 F.3d 629, 642 (6th Cir. 2008).
The activity must also be concerted. NLRB v. Lloyd A. Fry Roofing Co., Inc., 651 F.2d
442, 445 (6th Cir. 1981). “Concerted” means “related to group action for the mutual aid or
protection of other employees.” Id. But it is also “well settled that ‘an individual employee may
be engaged in concerted activity when he acts alone.’” NLRB v. Main St. Terrace Care Ctr.,
218 F.3d 531, 539 (6th Cir. 2000) (quoting NLRB v. City Disposal Sys., Inc., 465 U.S. 822, 831
7
Nos. 15-1040/1193, Lou’s Transport, et al. v. NLRB
(1984)). An employee, for example, may act alone but “on behalf of other employees” or “with
the object of inducing or preparing for group action.” Id. “Protests of wages, hours, other
working conditions and the presentation of job-related grievances are for the mutual aid and
protection of employees.” Lloyd A. Fry Roofing Co., Inc., 651 F.2d at 445. After the Board
makes out the prima facie case, “the burden of persuasion switches to the employer to prove that
it would have made the same employment decision regardless of the employee’s union
activity[.]” Conley, 520 F.3d at 642-43 (quoting Ctr. Const. Co. v. NLRB, 482 F.3d 425, 435
(6th Cir. 2007)).4
When an ALJ issues a written determination regarding a labor dispute under the Act, it is
incumbent upon the parties to file exceptions to any contested portion of the determination with
the Board in order to preserve the issue. 29 C.F.R. § 102.46. Otherwise, the issue is deemed
waived. See id. § 102.46(b)(2) (“Any exception to a ruling, finding, conclusion, or
recommendation which is not specifically urged shall be deemed to have been waived.”). And a
similar limitation applies when a party fails to urge an issue before the Board even after the
Board issues its decision and order. See Woelke & Romero Framing, Inc. v. NLRB, 456 U.S.
645, 666 (1982). Where a petitioner could have raised an issue before the Board in a motion for
reconsideration, a failure to do so “prevents consideration of the [issue] by the courts.” Id.;
accord 29 U.S.C. § 160(e) (“No objection that has not been urged before the Board, its member,
agent, or agency, shall be considered by the court, unless the failure or neglect to urge such
objection shall be excused because of extraordinary circumstances.”).
Here, the Board’s determination was two-fold: First, the Board concluded that
Petitioners violated the Act because Hershey’s radio conversation was a protected activity and
4
If, however, the employer’s proffered reason is determined to be pre-textual, “the Board is not obligated
to consider whether the employer would have [made] the same decision regardless of the employee’s
union activity.” Id. at 643.
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was a reason for his termination. Then, the Board concluded that Petitioners violated the Act for
a second and separate reason—Hershey’s signs were also a reason for his termination and
Petitioners believed that he was engaged in concerted protected activity by displaying the signs.
The Board did not make a separate finding on whether the display of the signs indeed constituted
concerted protected activity. Because there is substantial evidence in the record supporting the
Board’s conclusion that Petitioners violated the Act with respect to the radio conversation, we
need not reach the merits of the claim regarding Hershey’s display of the signs. See Meijer,
463 F.3d at 539 (noting that we only determine whether the Board’s decision is supported by
substantial evidence on the record as a whole).
The Radio Conversation
(a) Concerted Protected Activity
The ALJ found that the radio conversation was a concerted protected activity. On appeal,
Petitioners admit that they did not take exception to this finding. The Board agreed that the radio
conversation was concerted protected activity. Because Petitioners failed to file an exception to
the ALJ’s finding on this issue, we cannot consider any argument that the radio conversation was
not protected activity on appeal absent “extraordinary circumstances.” Conley, 520 F.3d at 638;
accord 29 U.S.C. § 160(e). Petitioners have not argued that any extraordinary circumstances
exist, and Petitioners’ failure to present this issue to the Board constitutes a jurisdictional
limitation. See Woelke, 456 U.S. at 665-66. Accordingly, we are compelled to conclude,
without deciding, that the radio conversation was concerted protected activity because the issue
is unreviewable on appeal.5 See Conley, 520 F.3d at 638-39.
5
Petitioners argued in their reply brief that the Board “opened the door” to the issue of whether the radio
conversation was a protected activity by “presenting arguments on that issue in this appeal.” Petitioners
misapprehend the meaning and scope of the term “opening the door.” First, the Board did not open the door to the
issue. “It is true that where an appellee has made an argument not addressed by the appellant, the appellant may
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(b) Knowledge of the Protected Activity
Petitioners argue on appeal that even if the radio conversation was concerted protected
activity, the Board did not conclude that Petitioners had knowledge that the conversation was a
protected activity. In support, Petitioners argue that one of our prior cases, Meijer,6 requires a
separate finding of knowledge on the part of the employer in every case involving a Section
8(a)(1) violation of the Act. In Meijer, we abrogated a Board rule that altogether eliminated any
subjective component of a Section 8(a)(1) violation. 463 F.3d at 539-40. We held that some
subjective component is required. See id.
Nevertheless, Petitioners did not raise any argument concerning a finding of knowledge
before the Board. Accordingly, we are jurisdictionally barred from considering this new
argument on appeal as well. See S. Moldings, Inc. v. NLRB, 728 F.2d 805, 806 (6th Cir. 1984)
(en banc); accord 29 U.S.C. § 160(e).
Notwithstanding their failure to raise the issue before the Board, Petitioners assert that
there was no opportunity to raise the issue before the Board for two reasons: one, the ALJ did
not make a finding with respect to knowledge, so there was no finding to which the Petitioners
could except; and two, it was not apparent that the Board failed to make a finding with respect to
knowledge until after the Board rendered its decision. Petitioners’ argument evinces a
misunderstanding of the applicable jurisdictional bar. Our Southern Moldings opinion clarifies
the point. In that case, the court was asked to decide the question of whether one of our prior
cases “should be interpreted to require the [Board] . . . to make explicit findings and
respond to it.” United States v. Wilson, 27 F.3d 1126, 1131 n.4 (6th Cir. 1994). However, that is not what occurred
here. Here, the Board merely highlighted what the Petitioners had already admitted in their opening brief. Second,
the concept of “opening the door” is not as far-reaching as Petitioners suggest—the Board cannot “open the door” in
such a way as to excuse the jurisdictional bar of the issue. See id. (“Merely stating what is not in dispute does not
place the issue in dispute absent it being raised at the proper time.”); see also Woelke, 456 U.S. at 666 (reiterating
that the failure to urge the issue before the Board “prevents consideration of the question by the courts”).
6
Meijer, Inc. v. NLRB, 463 F.3d 534 (6th Cir. 2006).
10
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conclusions” regarding elections prior to the issuance of a bargaining order. 728 F.2d at 806. In
an en banc ruling, we concluded that we lacked jurisdiction to consider the question under
Woelke and 29 U.S.C. § 160(e) because “this specific issue was not raised before the Board prior
to its decision, or upon reconsideration.” Id. (emphasis added); see also Wal-Mart Stores, Inc. v.
NLRB, 136 F. App’x 752, 754-55 (6th Cir. 2005) (holding that judicial review of an issue was
barred because it was raised for the first time on appeal).
Southern Moldings makes clear that it was incumbent upon the Petitioners to raise the
issue of knowledge before the Board, even if the first opportunity to do so would have been in a
motion for reconsideration after the Board issued its order. See 728 F.2d at 806. Petitioners
simply failed to do so. The Petitioners did not assert any extraordinary circumstances to excuse
this failure.
(c) Protected Activity Is a Motivating Factor in the Adverse Action
“In this Circuit, if a discharge is motivated ‘in part’ by an employee’s protected concerted
activities the discharge violates section 8(a)(1) of the Act.” Lloyd A. Fry Roofing Co. Inc.,
651 F.2d at 445 (quoting Vic Tanny Int’l, Inc. v. NLRB, 622 F.2d 237, 241 (6th Cir. 1980)).
Before the Board, Petitioners contended that Hershey had been fired solely for displaying the
signs in his truck, not for the radio conversation. The Board, however, found that “Hershey was
fired for displaying the signs and for his January 7 radio conversation with a fellow driver.” This
conclusion is supported by substantial evidence in the record because both Jeffrey Laming and
David Laming admitted that Hershey had been fired for both incidents. Specifically, Jeffrey
Laming testified that after he found the signs in Hershey’s truck he was concerned because
Hershey had now showed “continued” behavior of “disparaging the company.” Further, David
Laming testified as follows:
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Nos. 15-1040/1193, Lou’s Transport, et al. v. NLRB
A. I felt that he wasn’t the type of person we wanted working for us. He
continually showed behavior of badmouthing the company and not doing the right
thing, or what I would consider the right thing, which is represent the place you’re
employed like you’re proud to be there and you want to be there.
....
Q. Okay. And then he was terminated based on the signs and the previous verbal
warning reprimand for badmouthing the company over the radio, correct?
A. Yes.
We have long held that an employer’s admissions can support a finding of a Section
8(a)(1) violation. See Turnbull Cone Baking Co. of Tenn. v. NLRB, 778 F.2d 292, 297 (6th Cir.
1985) (“The Board may rely on all the evidence, including direct admissions as well as
circumstantial evidence, in determining actual motive.”). Accordingly, David’s unequivocal
statement that Hershey was fired, in part, for the radio conversation lends sufficient support for
the Board’s finding that Hershey was terminated because of the radio conversation. This
conclusion is bolstered by the fact that both David and Jeffrey testified that it was Hershey’s
“continued” behavior of badmouthing the company that led to his firing. Viewing these
statements in context reveals that Jeffrey and David were alluding to the radio incident for which
Hershey received a verbal reprimand. Accordingly, the Board’s finding that Hershey was
terminated, at least in part, because of the radio conversation is supported by substantial evidence
in the record.
Granted, at other times during their testimonies, Jeffrey and David said that the signs
were the reason for Hershey’s termination. However, even if their testimonies could support a
“conflicting” view, the court “may not disturb the Board’s findings and its order must be
enforced” where there is still substantial evidence in the record supporting the Board’s
conclusion. Main St. Terrace Care Ctr., 218 F.3d at 537. Because the radio conversation is, by
concession, a concerted protected activity, and because the discharge was motivated in part by
the radio conversation, the Board’s conclusion that a violation of Section 8(a)(1) occurred is
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supported by substantial evidence in the record. See, e.g., Jim Causley Pontiac v. NLRB,
620 F.2d 122, 126 (6th Cir. 1980) (“[I]f the discharge was motivated in part by the protected
activity, then a violation of Section 8(a)(1) has occurred.”).
III. CONCLUSION
For the foregoing reasons, the petition for review is DENIED and the cross-petition for
enforcement is GRANTED.
13