affirming dismissal of claims that petitioners’ concede were moot
How later courts described this case
- affirming dismissal of claims that petitioners’ concede were moot
Written by the judges who cited it.
The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0188p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
CATERPILLAR LOGISTICS, INC., ┐
Petitioner/Cross-Respondent, │
│
│
v. > Nos. 15-1433/1611
│
│
NATIONAL LABOR RELATIONS BOARD, │
Respondent/Cross-Petitioner, │
│
│
INTERNATIONAL UNION, UNITED AUTOMOBILE, │
AEROSPACE AND AGRICULTURAL IMPLEMENT │
WORKERS OF AMERICA, │
Intervening Respondent. │
┘
On Petition for Review and Cross Application for Enforcement
of an Order of the National Labor Relations Board.
Nos. 09-CA-110687; 09-CA-114560; 09-CA-120356; 09-RC-111362.
Argued: March 10, 2016
Decided and Filed: July 19, 2016*
Before: COLE, Chief Judge; MERRITT and GRIFFIN, Circuit Judges.
_________________
COUNSEL
ARGUED: Joseph J. Torres, WINSTON & STRAWN LLP, Chicago, Illinois, for
Petitioner/Cross-Respondent. Valerie L. Collins, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for Respondent/Cross-Petitioner. Kristin Seifert Watson, CLOPPERT,
LATANICK, SAUTER & WASHBURN, Columbus, Ohio, for Intervening Respondent. ON
BRIEF: Joseph J. Torres, Derek G. Barella, Heather S. Lehman, WINSTON & STRAWN LLP,
Chicago, Illinois, Mary M. Lenahan, WINSTON & STRAWN LLP, Washington, D.C., for
Petitioner/Cross-Respondent. Valerie L. Collins, Julie B. Broido, Linda Dreeben, NATIONAL
*
This decision was originally issued as an unpublished opinion filed on July 19, 2016. The court has now
designated the opinion as one recommended for full-text publication.
1
Nos. 15-1433/1611 Caterpillar Logistics, Inc. v. NLRB Page 2
LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner. Kristin
Seifert Watson, CLOPPERT, LATANICK, SAUTER & WASHBURN, Columbus, Ohio, for
Intervening Respondent.
_________________
OPINION
_________________
MERRITT, Circuit Judge. In this labor relations case, Caterpillar Logistics, Inc.
(“Caterpillar”) petitions for review of an order of the National Labor Relations Board (“the
Board”) finding that Caterpillar committed unfair labor practices in connection with a 2013
representation election and also unlawfully discharged an employee. The Board cross-applies
for full enforcement of its order. Reviewing the administrative record for substantial evidence,
we affirm the Board’s order in full. Caterpillar’s petition for review is thus DENIED, and the
Board’s application for enforcement is GRANTED.
I. Factual and Procedural History1
On September 27, 2013, employees at Caterpillar’s Clayton, Ohio facility voted on
whether they would be represented as a union by the United Automobile Workers (“UAW”).
The representation election failed; 188 employees voted for representation, and 229 voted
against. In October 2013, the UAW filed objections to conduct that allegedly violated the
National Labor Relations Act (“the Act”) and impacted the election results. Particularly relevant
here, the UAW objected to two instances of interrogation, the creation of the impression of
improper surveillance, and the improper announcements of an employee bonus and new smoking
shelters shortly before the vote.
The first alleged instance of interrogation and the alleged instance of the creation of an
impression of surveillance occurred during a workday in late August 2013. The night before, the
UAW held its first organizing meeting, with no supervisors or management personnel in
attendance. The following day at work, Caterpillar supervisor Nick Ewry approached employee
1
Because we hold that the administrative fact-finding was supported by substantial evidence, see infra Part
II, we primarily rely on those facts in this summary. While we document some major factual disputes here, we
ultimately accept the administrative adjudicators’ resolution of those disputes. Id.
Nos. 15-1433/1611 Caterpillar Logistics, Inc. v. NLRB Page 3
(and meeting attendee) John Sponsler, who was working alone at the time, and asked Sponsler
what he thought about the union. Sponsler explained that he favored unionization but that he
feared retaliation if the union vote failed. Prior to this encounter, he had never revealed his
union support to a manager or supervisor and was “extremely nervous about anyone knowing
about” his involvement.
According to Sponsler, Ewry responded that he did “not think [Sponsler] had anything to
worry about,” that “he did not think there would be any retaliation whatsoever, and that upper
management already knew everyone that . . . [was] involved.” Afterwards, Sponsler spoke to
multiple colleagues about his encounter with Ewry, and told them that he “was afraid that
someone had given the company information and surveilled [the union] meeting, because of
[Ewry’s] comment about upper management knowing everyone . . . involved.”
The second alleged instance of interrogation occurred around the same time. Following a
mandatory anti-union meeting organized for employees by the management, supervisor Cory
Butcher approached employee Marquis Applin while Applin was working alone and proceeded
to ask Applin what he thought about the meeting and whether he had made a voting decision.
Butcher also said that if the union vote succeeded, he would no longer be able to talk to Applin
“one on one.” During the conversation, Applin was “nervous” and “kind of shocked,” and he
later testified that he tried not to indicate that he was a union supporter for fear of being fired.
Applin would later relay his encounter with Butcher to other Caterpillar employees.
The first alleged instance of an improper announcement of an employee benefit came at
an employee meeting on September 18, when Caterpillar General Manager Brian Purcell and
Safety Manager Kevin Rivera announced to plant employees a one-time $400 safety bonus,
which was ultimately paid out in December 2013. Many employees claim they were first
notified of the impending bonus at that meeting. Caterpillar argues that it explained to
employees in both March and July 2013 that the award was forthcoming upon a successful
submission for the company’s “Chairman’s Safety Award.”
The second alleged instance of an improper announcement of an employee benefit came
at the same September 18 meeting, when Caterpillar announced to employees for the first time
Nos. 15-1433/1611 Caterpillar Logistics, Inc. v. NLRB Page 4
that it would be constructing covered smoking shelters in the outdoor break areas used by
employees that smoked. Since at least 2011, employees had consistently complained about the
designated smoking areas in use at the time, which were uncovered and difficult to reach in bad
weather. The smoking shelters were ultimately constructed in March 2014.
The representation election was held on September 27, and a majority of employees
voted against unionization. In October, the UAW filed its objections to the election, alleging
interrogation, the impression of surveillance, and the improper announcement of benefits.
On November 14, while the UAW’s objections were pending, Caterpillar held an
employee meeting to announce the construction of a guard shack. At the meeting, employee
Michael Craft asked what the shack was for. General Manager Purcell responded that the shack
was “for guards,” eliciting laughter from the other employees present. Purcell’s dismissive
response upset Craft, who relayed the incident to two coworkers the next day at work.
According to supervisor Jason Brown, who overheard the remarks, Craft told them:
You guys (union supporters) just gained another supporter, I’m sick of the way
they treat us in here, He (Brian Purcell) thinks he can treat us like he treated the
thugs he managed in Denver, I’m not putting up with it anymore, I’m sick of it,
that motherfucker is going down now, the gloves are fucking off now . . . .
Brown asked Craft why he was upset. According to Brown,
[Craft] stated that he felt embarrassed and made out to look foolish [by Purcell].
[Craft] continued to say that he was for the union now due to the way Brian
Purcell is treating the associates like they were thugs. . . . Mike said that he never
meant he wanted to do physical harm to Brian Purcell he just meant that he
wanted Brian to be held accountable for his actions towards Mike Craft.
Brown reported the incident to Assistant Value Stream Manager John Gruet, who then reported it
to Purcell and Human Resources Manager Jason Murphy. Gruet also told them: “I don’t believe
Mike is a violent person but he is upset. I don’t believe Mike intended physical harm . . . .”
Nonetheless, Murphy decided to suspend Craft, and Purcell later reported the incident to police
and terminated Craft’s employment. Craft filed an objection with the Board, arguing that he had
been terminated in violation of the Act. His complaint was consolidated with the UAW’s
pending election objections.
Nos. 15-1433/1611 Caterpillar Logistics, Inc. v. NLRB Page 5
On August 4, 2014, an Administrative Law Judge (“the Judge”) issued a decision finding
that Ewry and Butcher had violated the Act by interrogating employees about union sympathies
“during the critical period between the filing of the representation petition and the election,” and
that Purcell had violated the Act by announcing the safety bonus and smoking shelters during the
critical period. The Judge also found that Michael Craft was discharged in violation of the Act
because his outburst had amounted to protected activity and was not sufficient to forfeit the Act’s
protection. The Judge ordered Caterpillar to: reinstate Craft with back pay; cease and desist from
unfair labor practices; and post and distribute a notice advising employees of their rights,
acknowledging its violations, and listing the remedial measures it was taking. The Judge also
ordered that the election results be set aside and a new election held.
On appeal, the Board affirmed the order of the Judge, except to the extent that it also
found that Ewry violated the Act by creating the impression of surveillance and modified the
ordered remedies to reflect the finding of surveillance.
Caterpillar now petitions for review of the Board’s decision and order, arguing that the
Board’s order should not be enforced because Caterpillar did not violate the Act through
interrogation, the creation of the impression of surveillance, the improper announcement of
benefits, or the dismissal of Craft.2 The Board cross-applies for full enforcement of its order.
II. Discussion
“Our review of the Board’s decision is quite limited.” Torbitt & Castleman, Inc. v.
NLRB, 123 F.3d 899, 905 (6th Cir. 1997). We defer to the Board’s factual determinations if they
are supported by substantial evidence on the record as a whole. 29 U.S.C. §§ 160(e), (f);
Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 488 (1951). “Substantial evidence means
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
2
Among its positions, Caterpillar argues that we should review and overturn the Board’s order setting aside
the representation election and ordering a new one. It is a well-settled rule, however, that such an order is not
“final” and thus is not subject to our appellate review. U.S. Elec. Motors v. NLRB, 722 F.2d 315, 320 (6th Cir.
1983) (per curiam) (citing Am. Fed’n of Labor v. NLRB, 308 U.S. 401 (1940); NLRB v. Int’l Bhd. of Elec. Workers,
308 U.S. 413 (1940)) (additional citations omitted). Moreover, Caterpillar conceded the mootness of this claim in a
letter to our Court announcing that the second election had been conducted and a majority of employees again voted
against representation. See Bingham v. Nat’l Credit Union Admin. Bd., 927 F.2d 282, 285 (6th Cir. 1991) (affirming
dismissal of claims that petitioners’ concede were moot).
Nos. 15-1433/1611 Caterpillar Logistics, Inc. v. NLRB Page 6
Dupont Dow Elastomers, L.L.C. v. NLRB, 296 F.3d 495, 500 (6th Cir. 2002) (citation and
internal quotation marks omitted). Our review of fact-finding is even more deferential for
credibility determinations: “We will overturn those determinations only if they overstep the
bounds of reason,” Kusan Mfg. Co. v. NLRB, 749 F.2d 362, 366 (6th Cir. 1984) (citation and
internal quotation marks omitted), or “unless they are inherently unreasonable or self-
contradictory,” Tel Data Corp. v. NLRB, 90 F.3d 1195, 1199 (6th Cir. 1996) (citation and
internal quotation marks omitted). The Board’s application of law to the facts is also reviewed
for substantial evidence, NLRB v. Mead Corp., 73 F.3d 74, 78 (6th Cir. 1996), and its
“[c]onclusions of law are subject to a de novo review, although [we] will uphold the Board’s
reasonable interpretation of the [National Labor Relations Act] where Congress has not spoken
to the contrary on the same issue.” Dupont Dow Elastomers, 296 F.3d at 500 (citation omitted).
A. Unfair Labor Practices
The National Labor Relations Act guarantees to 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.” 29 U.S.C. § 157. “It shall be an
unfair labor practice for an employer . . . to interfere with, restrain, or coerce employees in the
exercise of [these] rights . . . .” Id. §§ 158(a), (a)(1). An unfair labor practice “occurs when
substantial evidence demonstrates that the employer’s [actions], considered from the employees’
point of view, had a reasonable tendency to coerce.” Dayton Newspapers, Inc. v. NLRB,
402 F.3d 651, 659 (6th Cir. 2005) (citation omitted). A finding of “actual coercion” is not
required. Id. (citation omitted). “In making [an unfair labor practices] determination, the Board
considers the total context in which the challenged conduct occurs and is justified in viewing the
issue from the standpoint of its impact upon the employees.” NLRB v. Okun Bros. Shoe Store,
825 F.2d 102, 105 (6th Cir. 1987).
1. Interrogation
Coercive interrogation of employees about union activities constitutes an unfair labor
practice in violation of 29 U.S.C. § 158(a)(1). NLRB v. E.I. DuPont De Nemours, 750 F.2d 524,
Nos. 15-1433/1611 Caterpillar Logistics, Inc. v. NLRB Page 7
527 (6th Cir. 1984) (citations omitted). “[T]he basic test for evaluating the legality of an
interrogation is ‘whether under all of the circumstances the interrogation reasonably tends to
restrain, coerce, or interfere with rights guaranteed by the Act.’” Dayton Typographic Serv., Inc.
v. NLRB, 778 F.2d 1188, 1194 (6th Cir. 1985) (quoting Rossmore House, 269 N.L.R.B. 1176,
1177 (1984)). “When assessing the coercive tendency of an interrogation, the [Board] looks at,
among other things, the background, the nature of the information sought, the questioner’s
identity, and the place and method of interrogation.” Id. (citation omitted).
a. The Interrogation of John Sponsler
The Judge concluded that Ewry’s questioning of Sponsler was an attempt to assess
Sponsler’s position on unionization in order to report it to Caterpillar corporate labor relations
official Ron Hassinger, and that such questioning was coercive because it closely followed a
management-organized anti-union meeting for employees. The Board agreed with this
conclusion.
Substantial evidence supports the Board’s conclusion that Sponsler’s questioning of Ewry
amounted to coercive interrogation in violation of the Act. This conclusion is supported by: the
background of the exchange, in that an anti-union meeting had been held the day before and
Sponsler’s union support was private; the nature of the information sought, in that Ewry clearly
sought Sponsler’s position on the union; the questioner’s identity, in that Ewry was Sponsler’s
supervisor; and the place and method of interrogation, in that Ewry approached Sponsler on the
work floor while Sponsler was alone, a situation in which he might have felt more vulnerable
than if he had been surrounded by his peers. The Board reasonably concluded that this encounter
had a reasonable tendency to coerce. See Allegheny Ludlum Corp. v. NLRB, 104 F.3d 1354,
1359 (D.C. Cir. 1997) (quoting Struksnes Constr. Co., 165 N.L.R.B. 1062, 1062 (1967)) (“[A]ny
attempt by an employer to ascertain employee views and sympathies regarding unionism
generally tends to cause fear of reprisal in the mind of the employee if he replies in favor of
unionism and, therefore, tends to impinge on his [National Labor Relations Act] rights.”)
(internal quotation marks omitted).
Nos. 15-1433/1611 Caterpillar Logistics, Inc. v. NLRB Page 8
b. The Interrogation of Marquis Applin
The Judge also concluded that Butcher’s questioning of Applin was an attempt to assess
Applin’s position on unionization in order to report it to Hassinger, and that such questioning
was coercive because it closely followed the mandatory anti-union meeting for employees. The
Board agreed with this conclusion.
Substantial evidence supports the Board’s conclusion that Butcher’s questioning of
Applin amounted to coercive interrogation in violation of the Act. This conclusion is supported
by evidence similar to the evidence supporting the conclusion that Sponsler was coercively
interrogated: an anti-union meeting had been held the day before; Butcher clearly sought
Applin’s position on the union; Butcher was Applin’s supervisor; and Butcher approached
Applin on the work floor while Applin was alone, a potentially vulnerable setting. See Allegheny
Ludlum Corp., 104 F.3d at 1359; supra Part II.A.1.a.
2. Surveillance
Creating the impression that employees’ union activities are under surveillance
constitutes an unfair labor practice in violation of 29 U.S.C. § 158(a)(1), see NLRB v.
Homemaker Shops, Inc., 724 F.2d 535, 538, 550 (6th Cir. 1984), because “employees should be
free to participate in union organizing campaigns without the fear that members of management
are peering over their shoulders, taking note of who is involved in union activities, and in what
particular ways.” Flexsteel Indus., 311 N.L.R.B. 257, 257 (1993). A finding of actual
surveillance is not required; “the test for determining whether an employer has created an
impression of surveillance is whether the employee would reasonably assume from the statement
that their union activities had been placed under surveillance.” Id.
The Board found that Erwy created the impression of surveillance when, during his
discussion of union activities with Sponsler, he said “that upper management already knew
everyone that . . . [was] involved.” This finding is supported by substantial evidence. Sponsler
testified that he had attended an off-site union meeting the day before, that he had not publicly
indicated support for the union, and that Ewry did not disclose his source of information. The
Judge credited Sponsler’s testimony, and Caterpillar makes no argument that that credibility
Nos. 15-1433/1611 Caterpillar Logistics, Inc. v. NLRB Page 9
determination overstepped the bounds of reason or was inherently unreasonable or self-
contradictory.
Thus, Ewry indicated to Sponsler that management was aware of protected labor
activities without revealing his source, thereby creating an impression that protected activity had
been improperly surveilled. See Sam’s Club, 342 N.L.R.B. 620, 620-21 (2004) (“[Manager]
Roberts’ telling [employee] Peto that he ‘heard Peto was circulating a petition about wages’
leads reasonably to the conclusion that the [employer] had been monitoring Peto’s activities.
Peto did not circulate the petition openly, and Roberts never revealed how he came by the
information.”).
3. Impermissible Promising of Benefits
The promise or conferral of a benefit to employees in the run-up to a union election will
typically amount to coercion, and thereby an unfair labor practice in violation of the Act. See
NLRB v. Bailey Co., 180 F.2d 278, 279 (6th Cir. 1950) (“[T]hrough the promises of . . .
economic benefits . . . , the respondent was demonstrating to its employees that resort to self-
organization was plainly unnecessary. This constituted interference with the exercise by the
employees of their right of self-organization and collective bargaining through representatives of
their own choosing.”). “[T]he critical inquiry is whether the benefits were granted for the
purpose of influencing the employees’ vote in the election and were of a type reasonably
calculated to have that effect.” United Airlines Servs. Corp., 290 N.L.R.B. 954, 954 (1988)
(citing NLRB v. Exchange Parts Co., 375 U.S. 405 (1964)). “[U]nless the company can present a
legitimate business reason for the timing of its guarantee,” such “a promise [of benefits] will be
presumed impermissibly influential.” DynCorp, Inc. v. NLRB, 233 F. App’x 419, 430 (6th Cir.
2007) (citing Bailey Co., 180 F.2d at 279).
a. The $400 Safety Bonus
The Judge found that there “was no reason for Brian Purcell to announce [in September]
the fact that employees would be receiving the bonus in December other than to influence them
in voting in the representation election” and that “the announcement was motivated by
[Caterpillar’s] desire to discourage unit employees from voting for union representation,”
Nos. 15-1433/1611 Caterpillar Logistics, Inc. v. NLRB Page 10
because there was “no credible evidence that a firm decision had been made to pay employees
the $400 bonus prior to the filing of the representation petition on August 16.” Thus, the Judge
found that the announcement of the safety bonus was an impermissible benefit amounting to an
unfair labor practice in violation of 29 U.S.C. § 158(a)(1). The Board agreed with these
findings.
Caterpillar continues to argue that the bonus was first announced in March or July of
2013, when it would not have influenced an impending representation election. But the Judge
credited the testimony of twelve employees who recalled no such announcements, and found that
even if Caterpillar’s witnesses were credited, their testimony would indicate at most that
Caterpillar announced in March or July that it might apply for the bonus, without conclusively
indicated if or when an application would be made. The Board agreed with these findings.
The Board’s findings are supported by substantial evidence. We agree that “a reasonable
mind might accept as adequate [the evidence] support[ing]” the Board’s conclusion that even if
Caterpillar’s witnesses are credited regarding the purported March and July announcements,
these announcements indicated at most that Caterpillar might apply for the safety bonus. Dupont
Dow Elastomers, 296 F.3d at 500 (citation and internal quotation marks omitted). For instance,
Value Stream Manager Sara Pahlas testified that then-General Manager Jeff Slocum presented to
employees at the March meeting the proposal for the safety bonus, reading from a PowerPoint
presentation. The PowerPoint presentation that was purportedly displayed to employees at the
meeting says conditionally that a bonus will be paid out to employees “IF AND ONLY IF we are
positioned to submit a viable safety program for consideration in the annual ‘Chairman’s Safety
Award’ Process.” Likewise, Safety Manager Rivera testified that, at the July meeting, he
“covered the two projects that [he] thought we would be submitting, or we thought we would be
submitting for that award.” Assuming these announcements were in fact made — which the
testimony of the twelve employees draws into doubt — adequate evidence suggests they were
conditional at best.
Thus, the Board and the Judge reasonably determined that employees were told for the
first time, nine days before the election, that they would be receiving a bonus of $400. The
Board and the Judge could have reasonably concluded that the bonus was “granted for the
Nos. 15-1433/1611 Caterpillar Logistics, Inc. v. NLRB Page 11
purpose of influencing the employees’ vote in the election and [was] reasonably calculated to
have that effect.” United Airlines Servs. Corp., 290 N.L.R.B. at 954. And even if the bonus was
warranted for business reasons (like safety), Caterpillar cannot provide a “legitimate business
reason for the timing of its guarantee” in order to rebut the presumption that the announcement of
the bonus was impermissibly coervice. DynCorp, 233 F. App’x at 430 (emphasis added).
Indeed, the timing of the announcement reinforces the presumption that it was intended to
coerce. Although the bonus was to be awarded on the basis of warehouse safety through the end
on September 2013, the application was prepared in August, submitted on September 13, and
announced of September 18 — just nine days before the election. Thus, substantial evidence
supports the conclusion that the bonus was impermissibly secured “right before an election and
sprung on the employees in a manner calculated to influence the employees’ choice.” NLRB v.
Arrow Elastic Corp., 573 F.2d 702, 706 (1st Cir. 1978); see also St. Francis Fed’n of Nurses &
Health Profs. v. NLRB, 729 F.2d 844, 850 (D.C. Cir. 1984) (“Thus the timing of the
announcement of a [benefit] may violate section [158(a)(1)], even though the employer’s initial
decision to [provide the benefit] was perfectly legitimate.”)
b. The Smoking Shelters
The Judge found that the promised smoking shelters amounted to a benefit, and that the
timing of their announcement was “designed to convince the employees that their demands
would be met through direct dealing with [Caterpillar] and that union representation could in no
way be advantageous to them.” The Judge thus found that the announcement of smoking
shelters amounted to an unfair labor practice in violation of the Act. The Board agreed with the
Judge’s conclusions.
Substantial evidence supports the Board’s conclusion that the announcement of smoking
shelters amounted to an unfair labor practice in violation of 29 U.S.C. § 158(a)(1). The shelters
were a solution to a problem that Caterpillar employees had complained of for a long time, and
the shelters were announced for the first time shortly before the election. That the shelters were
purportedly a response to safety concerns about uncovered smoking areas does not necessarily
mean that there was a “legitimate business reason for the timing” of their announcement.
Nos. 15-1433/1611 Caterpillar Logistics, Inc. v. NLRB Page 12
DynCorp., 233 F. App’x at 430; see St. Francis Fed’n of Nurses & Health Profs., 729 F.2d at
850.
The timing here indicates that neither safety nor any other legitimate purpose was the
primary reason for the announcement that shelters would be constructed, and that in fact the
announcement was “for the purpose of influencing the employees’ vote in the election and [was]
of a type reasonably calculated to have that effect.” United Airlines Servs. Corp., 290 N.L.R.B.
at 954. Specifically, employees had complained for years about the exposed outdoor smoking
areas, but no action was taken to address the issue until the shelters were announced nine days
before the election. Further undercutting the purported safety rationale is the fact that the
shelters were not in fact constructed until March of 2014, forcing employees to endure another
winter in the exposed smoking areas. The Board’s conclusion that the announcement of the
shelters amounted to an unfair labor practice is therefore supported by substantial evidence.
B. The Discharge of Michael Craft
The Act prohibits “discrimination in regard to hire or tenure of employment or any term
or condition of employment to encourage or discourage membership in any labor organization
. . . .” 29 U.S.C. §§ 158(a), (a)(3). But an employee who engages in “opprobrious conduct” can
forfeit these protections. Atlantic Steel Co., 245 N.L.R.B. 814, 816 (1979). “It is well
established that ‘although employees are permitted some leeway for impulsive behavior when
engaged in concerted [organizing] activity, this leeway is balanced against an employer’s right to
maintain order and respect.’” DaimlerChrysler Corp., 344 N.L.R.B. 1324, 1329 (2005) (quoting
Piper Realty, 313 N.L.R.B. 1289, 1290 (1994)). “Where an employee engages in indefensible or
abusive misconduct during otherwise protected activity, the employee forfeits the Act’s
protection. Whether the Act’s protection is lost depends on a balancing of four factors: (1) the
place of the discussion between the employee and the employer; (2) the subject matter of the
discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any
way, provoked by an employer’s unfair labor practice.” Id. (citing Atlantic Steel Co.,
245 N.L.R.B. at 814). Although the Board’s findings of fact and application of law to fact are
otherwise reviewed for substantial evidence, see Universal Camera, 340 U.S. at 477, 488; Mead
Corp., 73 F.3d at 78, the Board’s determination of whether an employee has forfeited the
Nos. 15-1433/1611 Caterpillar Logistics, Inc. v. NLRB Page 13
protections of the Act is conclusive “unless it is illogical, arbitrary, or unreasonable,” NLRB v.
Honda of Am. Mfg., Inc., 73 F. App’x 810, 813 (6th Cir. 2003) (citing NLRB v. Hartmann
Luggage Co., 453 F.2d 178, 183-84 (6th Cir. 1971)).
Here, the Judge determined that Craft was involved in protected activity during his
outburst by telling his coworkers that he was a union supporter because of what he interpreted as
his employer’s disrespectful treatment of employees. The Board agreed with this conclusion.
The Judge also assessed the outburst according to the Atlantic Steel factors, and determined that
Craft had not forfeited the Act’s protections. Specifically, he concluded that:
[T]he place of the discussion, on the warehouse floor cuts both ways. Craft
disrupted work for a very brief period of time. On the other hand, the seriousness
of his misconduct is somewhat lessened by the fact that Brian Purcell was not
present when he made his remarks. . . . Moreover, Craft’s statement was not
accompanied by any threatening physical gestures . . . which also weighs in favor
of a finding that he did not lose the Act’s protection. [T]he subject of the
discussion: Craft’s newly discovered support for the Union cuts in favor of a
finding that he did not lose the protection of the Act. [The nature of the outburst]
is the most important. Without the first sentence, Craft’s statements are certainly
a threat which would lose him the protection of the Act. However, the M-fer
going down, the gloves are off has to be placed in context. The statement makes
no sense if one interprets it as I am going to kill or assault Brian Purcell and then
support the Union . . . . [Provocation:] Purcell certainly did not provoke Craft by
committing any unfair labor practice. . . . However, I conclude that this is an
insufficient reason to deny Craft the protection of the Act in view of the other
factors.
Thus, the Judge found that Craft had been “discriminatorily discharged” for engaging in behavior
protected by the Act, and ordered his reinstatement. The Board also agreed with the conclusion
that Craft had not forfeited the Act’s protections and was entitled to reinstatement.
Because Craft’s outburst to his colleagues was an expression of union support and a
complaint about perceived working conditions, the Board’s determination that it amounted to
protected activity under the Act is supported by substantial evidence. See 29 U.S.C. § 157
(“Employees shall have the right to self-organization, to form, join, or assist labor organizations,
. . . and to engage in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection . . . .”).
Nos. 15-1433/1611 Caterpillar Logistics, Inc. v. NLRB Page 14
Moreover, we find nothing “illogical, arbitrary, or unreasonable” about the Board’s
application of the Atlantic Steel factors and determination that Craft did not forfeit the Act’s
protections. Craft’s outburst was plainly an expression of union support and a complaint about
perceived working conditions, and while it may well have been crudely stated, it can reasonably
be viewed in context as metaphorical speech rather than threatening speech. See Kiewit Power
Constructors Co. v. NLRB, 652 F.3d 22, 28 (D.C. Cir. 2011) (“Once we acknowledge that the
employees were speaking in metaphor, the [Board’s] interpretation is not unreasonable. It is not
at all uncommon to speak of verbal sparring, knock-down arguments, shots below the belt,
taking the gloves off, or to use other pugilistic argot without meaning actual fisticuffs. What
these words stand for, of course, is a matter of context.”).
As such, we uphold the Board’s determination that Craft was improperly dismissed for
engaging in expression protected by the Act, and that Caterpillar must reinstate him.
III. Conclusion
For the foregoing reasons, Caterpillar’s petition for review is DENIED, and the Board’s
cross-application for full enforcement of its order is GRANTED.