United States Court of Appeals,
Fifth Circuit.
No. 95-60203.
ASARCO, INC., Petitioner-Cross-Respondent,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.
July 10, 1996.
Petition for Review & Cross-Petition for Enforcement of an Order of the National Labor Relations Board.
Before REYNALDO G. GARZA, WIENER and STEWART Circuit Judges.
STEWART, Circuit Judge:
This case involves a petition for review of and a
cross-application for enforcement of an order of the National Labor
Relations Board regarding the dismissal and subsequent treatment of
a labor union president. Asarco Incorporated seeks review of the
ruling of the National Labor Relations Board, which found that
Asarco violated sections 8(a)(1) and 8(a)(3) of the National Labor
Relations Act by discharging Jerry Halford. The Board also found
that Asarco violated sections 8(a)(1) and 8(a)(5) of the Act by
refusing to provide witnesses' names and telephone numbers as
requested by the Union to process Halford's grievance and by
refusing to deal with Halford as the Union's representative after
his discharge. We grant review of the Board's rulings. Our review
of the record has revealed insufficient evidence to support all of
the Board's decisions. Accordingly, enforcement of the Board's
order is denied in part, modified, and as modified is granted in
part.
1 FACTS
Asarco operates a copper refinery in Amarillo, Texas. Most of
the 590 employees belong to a collective bargaining unit, which has
been the predominant certified bargaining representative since May
1976. Unions are active at several other Asarco plants in the
country. The company has shared a peaceful relationship with the
various unions and has no history of violating the National Labor
Relations Act ("NLRA").
Jerry Halford, the president of United Steelworkers of
America, Local 5613 since 1985 ("the Union"), was employed as a
chargeman1 in the refined casting area at the Amarillo refinery.
Halford's duties as president established him as the chief
representative of the Union in dealing with management. Before
serving as president, Halford was the grievance representative of
the Material Handling Department for 1977 and 1978. He also served
as the chairman of the grievance committee from 1980 to 1984. As
chair of the union's grievance committee, Halford processed 1500
grievances and 300 workers' compensation claims. Halford continued
participating in the grievance process after he became president.
About 130 grievances awaited arbitration in 1993.
On May 11, 1993, Halford met with Dave Woodbury, Asarco's vice
president of human resources, to complain about the backlog of
grievances. Halford blamed the backlog on Mike Owsley, a new
1 Halford's primary responsibility in the refinery was to ensure that the shaft furnace (which melts down copper cathodes, bars and coils for processing into cast rods) was properly charged or fueled at all times.
2 Asarco supervisor. Halford arranged to send Woodbury information
regarding the problem; however, Woodbury did not guarantee
changes. Though Stu Bryant, an Asarco manager, was present during
the conversation and possibly overheard Halford's complaints,
Owsley was not aware of Halford's complaint to Woodbury.
The very next day, during a down time in the refinery, Halford
threw a clear plastic sandwich bag filled with about four ounces of
water from his charge floor. The bag hit Mike Sanchez on the head,
knocking off his hard hat and face mask. Supervisor Gene Thompson,
who witnessed Sanchez walking in a "dazed" manner, sent Sanchez to
the nurse's office where he was treated for minor head and neck
pain.
For at least twenty years, horseplay was commonplace in the
plant, and employees were not disciplined for incidents of
horseplay. Some of these pranks involved throwing objects down on
other employees; others even involved throwing water bags from the
charge floor, as Halford had done. Horseplay went undisciplined
even though a previous union grievance representative, Lowell
Farmer, asked several supervisors to take corrective action
regarding the horseplay before someone got hurt.2
When questioned about the horseplay at issue in this case,
Halford admitted that he threw the object which struck Sanchez.
However, he described the incident as an "accident." Halford
2 Halford testified that the company has a rule regarding horseplay; however, the record does not reflect the specifics of the rule or when Asarco issued it. Halford did testify, however, that two written warnings recently have been issued regarding horseplay incidents involving knives.
3 claimed he was attempting to toss the bag into the trash dumpster
below the charge floor but missed and mistakenly hit Sanchez. Stu
Bryant suspended Halford for a safety violation and suspected
horseplay pending further investigation.
The investigation, conducted by supervisors Bill McLean and
Stu Bryant, revealed other objects that Halford had thrown from the
charge floor. Don Warren explained that he had seen Halford hit
Frank Leal with a water bag a month before the Sanchez incident.
Rachel San Miguel said that Halford had hit her with a one inch
stone that left a mark on her neck and shoulder. Further,
employees Wayland, Huddleston, and Leal, indicated that Halford had
thrown objects in the past.
The investigation findings were reported to unit manager Mike
Owsley. Halford asked Owsley to conduct an independent
investigation before making a decision because Halford believed
that Owsley could be more objective than the other managers. On
May 18, Owsley interviewed the employees again. Their stories
corroborated the information given previously. Additionally,
Owsley visited the charge floor and casting floor. Owsley
concluded that Halford's story was not possible.
Owsley also reviewed a summary of Halford's disciplinary
record, which revealed that several previous disciplinary actions
had been taken against Halford. In fact, just two months before
the water bag incident Halford was suspended for two days for
dereliction of duty and unsatisfactory work performance because he
was not keeping the furnace full. Though charges were filed with
4 the NLRB for some of the disciplinary actions, Owsley was unaware
of this fact when making his decision regarding the water bag
incident.
After reviewing the water bag incident and Halford's
disciplinary record, he decided to discharge Halford and instructed
McLean to draft a discharge letter. Despite his decision, Owsley
allowed Halford to relate to him Halford's side of the story. On
May 20, Halford described to Owsley the same "accident" story.
Owsley asked had Halford done anything similar in the past;
Halford replied that he had not. After the meeting, Owsley
notified Halford by letter of his decision to discharge him
effective May 13. The letter based Halford's discharge on several
violations of Asarco's rules:
The bases for your termination include violation of both Plant Safety Rules and General Rules of Conduct related to unsafe acts, dishonesty and unsatisfactory work performance. Each of these offenses is a separate and distinct basis for your termination.
After the May 20 termination, Asarco officials altered their
treatment of Halford because he was no longer an employee of the
company. For example, Asarco informed Halford that he was not
permitted in the plant because he was not an employee.
Consequently, a previously scheduled meeting took place without
Halford on May 27. Halford also was barred from attending an
Occupational Safety and Health Act ("OSHA") inspection on June 14.
The Union immediately reacted to Halford's suspension. On
June 2, 1993, the Union filed an unfair labor practice charge with
the NLRB, alleging violations of sections 8(a)(1), (3), and (4) of
5 the NLRA. On June 18, 1993, the Union amended its charge to allege
a violation of section 8(a)(5).
On July 9, 1993, the Regional Director for the 16th Region
filed a complaint with the NLRB based on the Union's charge and
amended charge. Additionally, the complaint alleged that on May
25, 1993, the Union requested by letter that the Company furnish
the names and telephone numbers of all witnesses who would be
involved in the grievance filed on behalf of Halford and that
Asarco has failed and refused to furnish the information. Further,
the complaint alleged that Asarco has failed and refused to bargain
with Jerry Halford, the Union's agent. Asarco answered the charge
admitting in part and denying in part the allegations.
After a three day hearing, the administrative law judge
("ALJ") issued his decision and recommended order. The ALJ found
that Asarco violated sections 8(a)(1) and (3) by discharging
Halford, that it had violated section 8(a)(5) by refusing to
bargain with the Union's agent, Halford, and that Asarco violated
section 8(a)(5) by failing and refusing to provide the Union with
the requested information. The ALJ further found that Asarco did
not violate section 8(a)(4).
Asarco filed an exception to the ALJ's findings. However, a
divided three member panel of the NLRB filed a Decision and Order
(reported at 316 N.L.R.B. No. 111) adopting the ALJ's
recommendations. The dissenting panel member noted that he would
not have found that it was proven by a preponderance of the
evidence that Halford was discharged for unlawful reasons. The
6 NLRB ordered Asarco to offer Halford immediate and full
reinstatement to his former job or an equivalent one and to provide
Halford with back pay. Asarco now petitions the Fifth Circuit for
review of this order, and the Board cross-petitions for enforcement
of its order.
DISCUSSION
A. STANDARD OF REVIEW.
This Court's review of the NLRB's decision is more than a
mere rubber stamp of the decision; however, a certain degree of
deference is accorded. See Huck Mfg. Co. v. NLRB, 693 F.2d 1176,
1181 (5th Cir.1982). The NLRB's factual findings are reviewed
under a substantial evidence standard. Id. The court will sustain
the NLRB's decision if it is supported by substantial evidence in
the record. Under the substantial evidence standard, "the ALJ's
decision must be upheld if a reasonable person could have found
what the ALJ found, even if the appellate court might have reached
a different conclusion." Id. Substantial evidence is determined
by evaluating the entire record. See NLRB v. Brookshire Grocery,
837 F.2d 1336, 1340 (5th Cir.1988). Reviewing the whole record we
are obligated to consider evidence that detracts from the Board's
finding. Id. When credibility issues arise, however, we are
"bound by the credibility choices of [the] ALJ," unless one of the
following factors exists: (1) the credibility choice is
unreasonable, (2) the choice contradicts other findings, (3) the
choice is based upon inadequate reasons or no reason, or (4) the
ALJ failed to justify his choice. NLRB v. Motorola, Inc., 991 F.2d
7 278, 282 (5th Cir.1993).
As to questions of law, we review the decision de novo;
however, if the NLRB has given a "reasonably defensible"
construction of a statute, we will affirm the decision. See
Standard Fittings Co. v. NLRB, 845 F.2d 1311, 1314 (5th Cir.1988).
It is within this framework that we review the present record and
determine whether Halford has proven by a preponderance of the
evidence that Asarco discharged him for unlawful reasons and
whether Asarco violated the Act by refusing to provide the
requested documents and to bargain with Halford.
B. SECTIONS 8(a)(1) AND (3) VIOLATION.3
Asarco contends that the Board failed to meet its burden.
First, Asarco argues that the NLRB had to prove that union animus
was a motivating factor in its decision to discharge Halford.
Asarco has a long record of peaceful union relations and no history
of having violated the Act. Further, the record is completely void
of evidence of disparate treatment or union animus.
Second, even if union animus was proven, Asarco argues that
3 The United States Code delineates unfair labor practices by an employer as follows:
It shall be an unfair labor practice for an employer—
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [29 USCS § 157];
(3) by 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)(1), (3).
8 the burden still is not satisfied because the Board has not proven
causation. Halford was not similarly situated in "all respects"
with employees who were treated more leniently than he: (1) his
conduct constituted aggravated horseplay because it caused injury
and threatened a lethal explosion, (2) he had been dishonest, and
(3) his work performance was unsatisfactory. Further, Asarco
contends that the "but for" causation test fails because Asarco
consistently discharged employees for safety rules violations, for
giving false information to management, and for unsatisfactory work
performance. Moreover, there is no proof that Asarco intended the
alleged disparate treatment.
Third, Asarco maintains that it produced enough evidence to
prove that it had sufficient cause to discharge Halford
notwithstanding his protected union activities. Asarco has had in
place rules proscribing violations for safety regulations,
falsification of information, and unsatisfactory work performance.
On the other hand, the NLRB argues that the Board's findings
are supported by substantial evidence. The findings are supported
by the aggregate of Halford's union activity, the timing of the
suspension, Asarco's departure from past practice in discharging
Halford, and Asarco's treatment of Halford after the discharge.
The NLRB claims that the labor relations atmosphere was less than
cordial because of the large number of grievances Halford had
filed. To further irritate the relationship, Halford had
complained the day before the water bag incident about Owsley's
failure to work with the Union. Moreover, the NLRB stressed that
9 Asarco's tolerance of horseplay in the refinery was common
knowledge.
Further, the NLRB discredits the reasons advanced by Asarco as
justification for its discharge of Halford for this particular
prank. First, the contention that previous horseplay did not
involve dangerous conduct is meritless. The NLRB presented
examples of more dangerous pranks, one of which was executed by a
supervisor. Second, the contention that discharge was necessary
because the prank injured Sanchez also fails. Sanchez was slightly
dazed; however, he went to the nurse's office only after
Supervisor Thompson ordered him to go. Sanchez walked a quarter
mile to and from the nurse's office and then completed his shift
after visiting the nurse. Third, there is no evidence that the
company relied on the apparent discrepancies in Halford's story
when making its discharge decision. Fourth, the contention that
Halford's discharge is comparable to previous discharges is false.
Asarco has discharged employees for safety violations that led to
property damage, for failing to comply with OSHA standards, and for
coming to work drunk. Asarco has never discharged an employee for
mere horseplay. Additionally, the contention that Owsley was a new
manager with no knowledge of the history of horseplay is equally
meritless because Owsley relied on reports from other, experienced
management personnel when making his decision.
The ALJ found that Halford engaged in conduct that justified
discipline and even discharge. In assessing credibility, the ALJ
expressly found that Halford's story was physically impossible and,
10 accordingly, was untrue. "Falsification of information, horseplay,
dereliction of duty, ... unauthorized absence from duty area, and
disobeying safety regulations, or creating or contributing to any
unsafe condition are all among the list of reasons stated in the
[Asarco] rules as warranting discharge." Nonetheless, the ALJ
found that the general counsel established a disparate treatment
case. Although he produced no direct evidence of union animus, the
ALJ inferred the motive from the totality of the circumstances.
Further, the ALJ found that Owsley did not make the discharge
decision alone; he acted upon the input of others.
We must determine whether the record contains sufficient
evidence permitting an inference of disparate treatment. As in
employment discrimination cases, labor discrimination cases employ
a burden shifting paradigm. The NLRB must establish a prima facie
case by proving that union animus was a motivating factor in the
employer's decision to discharge the employee. NLRB v. Mini-Togs,
980 F.2d 1027, 1032-33 (5th Cir.1993). If the Board establishes a
prima facie case, the burden shifts to the employer to prove that
it would have discharged the employee even if the employee had not
engaged in union activity. Id.
"Motive is a factual matter ... and the Board reasonably may
infer motive from the circumstances surrounding the employer's
actions, as well as from direct evidence." Id. However, an
anti-union attitude cannot lightly be inferred onto an employer
with a history of good union relations, and "mere suspicions of
unlawful motivation" are insufficient to establish violations of
11 the NLRA. See Delco-Remy Div., General Motors Corp. v. NLRB, 596
F.2d 1295, 1305 (5th Cir.1979). Nevertheless, an inference of
union animus based upon disparate treatment can be made if the only
difference between two differently treated employees is the
illegitimate criteria at issue (i.e., union activity). See Green
v. Armstrong Rubber Co., 612 F.2d 967, 968 (5th Cir.1980), cert.
denied, 449 U.S. 879, 101 S.Ct. 227, 66 L.Ed.2d 102 (1980)
(discussing disparity in the context of a race discrimination
case). When there is unjustified disparate treatment between union
and non-union employees designed to induce union employees to
abandon their union, section 8(a)(3) of the NLRB Act is violated.
Russell-Newman Mfg. Co. v. NLRB, 406 F.2d 1280, 1282 (5th
Cir.1969).
Though the NLRB may make inferences to establish anti-union
motive or disparate treatment, the inferences must be reasonable
and must be supported by substantial evidence. "If the Board's
ultimate factual conclusions rest on inferences from the evidence,
we cannot uphold the findings if these inferences are implausible."
Mini-Togs, 980 F.2d at 1035. In the present case, the ALJ's
inferences stem directly from Asarco's long history of
undisciplined horseplay. The ALJ notes that supervisors had
engaged in horseplay more serious than Halford's water bag prank.
The ALJ inferred union animus from Asarco's drastic departure from
its horseplay policy coupled with the level of Halford's union
activities and the timing of his discharge.
We find that the record presents insufficient direct evidence
12 of disparate treatment and presents inadequate evidence from which
disparate treatment reasonably may be inferred. Accordingly, we
can only conclude that the ALJ has made impermissible inferences
from the evidence presented. An anti-union attitude cannot be
lightly inferred onto an employer which has enjoyed a history of
good union relations, unless there is substantial evidence
supporting the inference. We find that Halford is guilty of more
than executing a harmless prank. Halford violated safety rules,
blatantly lied to management, and neglected his charge floor duties
for the second time in two months.
Nothing in the record supports the ALJ's assumptions that
Asarco disciplined Halford differently because of his union
activity. First, the ALJ's credibility determinations are
inconsistent with the inference of union animus which he finds.4
The ALJ expressly found that Owsley was an almost perfect witness;
however, he apparently rejected Owsley's testimony regarding the
reasons he discharged Halford. Further, the incidents of horseplay
described by Farmer did not involve dangerous pranks, dishonesty,
or neglect of duty. Considering the credibility determinations,
which we must accept, the ALJ should have concluded that union
4 The ALJ discredited all of Halford's testimony that was not corroborated or that was in dispute. He similarly limited the weight given to the testimony of Halford's co-workers, Huddleston and Muehling, because they appeared biased for Halford. He found Thompson less than perfect but more credible than Halford, Huddleston, and Muehling. The ALJ found McLean to be "absolutely truthful," but limited the weight given to McLean's testimony because McLean could see things only in one dimension. The ALJ credited Farmer's testimony as having "the very ring of truth to it," and found that Owsley made a "good, if not perfect, impression for veracity and credibility."
13 activity did not factor into the discharge decision and that the
previous horseplay incidents could not properly be compared to
Halford's water bag prank because Halford's prank involved other
rule violations.
Second, the parties conceded during oral argument that Owsley,
who ultimately decided to terminate Halford, was completely unaware
of Halford's complaints to Dave Woodbury regarding the company's
slow handling of the Union's grievances. Consequently, the ALJ's
inference that the timing of the discharge demonstrated union
animus is completely meritless.
Third, the record demonstrates that Halford actively filed
grievances throughout his tenure as union president. Asarco had
tolerated Halford's performance of his duties as chair of the
grievance committee and then president since 1980 and had
cooperated with the amicable resolution of the grievances during
Halford's reign. At the time of discharge, Halford was doing
exactly what he had done all along. Further, the company had
previous opportunities to discharge Halford because on several
occasions he had committed infractions of the company's rules that
would have justified summary discharge. There is absolutely no
evidence establishing a reason or motive for Asarco to retaliate
against Halford by discharging him. Accordingly, we are not
persuaded that an inference of anti-union animus arises because
Halford was an aggressive union president.
Finally, the record does not supply, and the parties could not
present during argument, any other horseplay incidents involving
14 the additional factors (injury, dishonesty, and unsatisfactory job
performance) justifying Halford's termination. The testimony of
Farmer, to which the ALJ gave great weight, presented several
incidents of horseplay, but the pranks did not involve the
aggravating factors present in Halford's case. During oral
argument, Asarco confirmed that the company did not have in place
a procedure for investigating horseplay incidents in the past.
Without documentation of past pranks, no one can verify the
severity of injuries that prior pranks may have caused. If no
investigation occurred, there would have been no opportunity for an
employee to lie to investigating managers or for the employee's
potential neglect of duty to be assessed. It is clear to us that
because previous incidents of horseplay had not been investigated,
there is no evidence to prove that Asarco departed from its usual
practice in handling a horseplay incident that also involved other
violations. This was the first documented, investigated prank that
violated safety regulations, involved dishonesty, and established
neglect of duties. Accordingly, no comparison logically can be
made and no disparity can be proven.
The Act does not prevent an employer from disciplining an
employee for violating established company rules and policies,
especially when the discipline is provided in a manner consistent
with discipline given for similar conduct in the past. See Delco-
Remy, 596 F.2d at 1305 (the court reversed the ALJ's findings that
the company, which had a peaceful history with the union, violated
the NLRA because the active union employee committed a
15 dischargeable offense by arriving to work late and then falsifying
his time card on more than one occasion); and Mini-Togs, 980 F.2d
at 1033 (the court reversed the NLRB's finding of a violation; the
conclusions were not supported by substantial evidence because the
union employee was not the first employee disciplined for directing
profanity at a co-worker and because the record amply demonstrated
that the company's discipline was consistent with similar profanity
incidents in the past). We find that the ALJ's inferences of
disparate treatment constitute "mere suspicions of unlawful
motivation," which are insufficient to establish violations of the
NLRA.
Having rejected the ALJ's inferences, we still must determine
whether Asarco discharged Halford pursuant to established company
policy. It is not disputed that Asarco had long-established
policies regarding safety, honesty, and neglect of duties. McLean
testified that employees had been terminated for these violations.
First, a switchman who directed an engineer to couple into cars
that were chalked and flagged with a dock plate was discharged
because people were working in and around the cars. Similarly,
Asarco discharged another employee who neglected to turn on the
cooling water and caused a molten explosion. Further, the company
discharged two employees who refused to shave, which was necessary
to obtain the proper fit and seal from the respirator. Second,
dishonesty has resulted in discharge at Asarco's Amarillo plant.
An employee who falsified her employment application was discharged
when the company discovered the falsification. Likewise, two
16 employees were terminated for supplying false doctor bills and
slips to explain their absences from work. Employees have also
been discharged for engaging in theft. Third, dereliction of
duties has resulted in several employee dismissals.
The NLRB attempts to distinguish Asarco's previous discharges
because they did not involve horseplay. We cannot accept the
Board's reasoning. Halford violated three existing policies, any
one of which would have justified his termination. Further,
Halford had been suspended two months before for the same offense:
dereliction of duty and unsatisfactory work performance. Asarco's
rules authorized dismissal for the three violations individually
and for Halford's repeat violation.
We conclude that Halford is not insulated from discharge
simply because he is the first employee to violate three policies
simultaneously. A violation of the Act is not established simply
because an employee is first to be disciplined under existing
policy. See Central Freight Lines, Inc. v. NLRB, 653 F.2d 1023,
1026 (5th Cir.1981) (the court found no evidence of disparate
treatment where the company established a strict three-accident
policy in 1977, the policy was announced to employees at a meeting
in 1978 before the Union organized, and the discharged union
employee happened to be the first and only driver to violate the
three-accident rule after the policy was announced). The NLRA does
not provide immunity to an employee because of his status as union
president. See Florida Steel Corp. v. NLRB, 529 F.2d 1225, 1234
(5th Cir.1976) (holding that union membership cannot protect
17 flagrant insubordination where the employer's discipline was not
motivated by anti-union animus); and NLRB v. Mueller Brass Co.,
509 F.2d 704, 711, 713 (5th Cir.1975) (noting that the NLRA was not
intended "to insulate every union activist from investigation and
discipline for violation of company rules"). To hold otherwise
would give to the union president a license to disregard his
employer's rules and would leave the employer with no legal
recourse to correct an inexcusable wrong.
Moreover, the presence of the horseplay does not excuse
Halford's underlying violations. Asarco has never expressly nor
impliedly departed from its policy to discipline employees for
violating rules regarding safety, honesty, and job performance. We
find that nothing in the Act prevents Asarco from adjusting its
liberal policy regarding horseplay to authorize discipline when a
particular prank violates another existing policy. See NLRB v.
O.A. Fuller Super Mkts., Inc., 374 F.2d 197, 200 (5th Cir.1967)
(noting that when no anti-union animus exists, an employer is free
to discharge a union employee "for a good reason, a bad reason, or
no reason at all"); see also Omni Int'l Hotels, Inc. v. NLRB, 606
F.2d 570, 574 (5th Cir.1979) (same); and Southwest Latex Corp. v.
NLRB, 426 F.2d 50, 57 (5th Cir.1970) (same). Halford was well
aware that discharge could result from violating safety
regulations, lying to his supervisor, or neglecting his duties. He
testified that he received an Asarco Employee Handbook, which
expressly lists dishonesty, unsatisfactory work performance, and
safety violations as grounds for summary termination. Though
18 Halford did not read the handbook when received, the labor
agreement between the Union and Asarco clearly obligated Halford to
familiarize himself with the company's rules. Thus, it is of no
moment that Halford did not receive a specific warning that
horseplay would not excuse these violations. We agree with the
ALJ's finding that Halford's actions warranted discharge under the
circumstances. Therefore, we hold that Halford has not proven by
a preponderance of the evidence that Asarco unlawfully discharged
him.
C. SECTIONS 8(a)(1) AND (5) VIOLATIONS.5
Though the heart of this appeal pertains to the discharge of
Halford, two issues remain which are an integral part of the
labor/management relationship at stake in cases such as this one.
The duty to comply with discovery requests during the grievance
process is an ongoing concern which warrants comment in the context
of this case. Moreover, because Halford continues to work in the
Union office even after discharge, we deem it appropriate to
address the issue concerning Asarco's continued relationship with
5 The United States Code provides in pertinent part as follows:
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [29 USCS § 157];
(5) to refuse to bargain collectively with the representatives of his employees.
....
29 U.S.C. § 158(a)(1), (5).
19 him. We, therefore, proceed to address these issues below.
1. Refusal To Provide Discovery Information.
Asarco argues that the witness list requested from it was
equally accessible to the Union. Asarco contends that it did not
have a duty to provide the list in the present case because the
Union already had access to the information it needed to process
the grievance through arbitration. Halford already knew the
identities of the people who witnessed the water bag incident and
the identities of the employees interviewed by Thompson, Bryant,
McLean, and Owsley. As the Union's president, he had access to the
telephone numbers and addresses of those individuals.
The ALJ found that Asarco had a duty to provide information to
the Union which would help it handle Halford's grievance. Asarco
has a duty to provide discovery-type data that is relevant and will
be used by the Union in fulfilling its statutory obligations. The
ALJ rejected Asarco's excuse for not producing the lists of
information readily available to the Union. The ALJ concluded that
the identities of the witnesses the Union intended to use in
handling the grievance were only in the minds of Asarco's
officials.
We agree that Asarco has violated the Act by failing to comply
with the request for information. The law clearly establishes that
Asarco had a duty to produce to the Union requested information
which was relevant and needed to handle grievances. See NLRB v.
Acme Indus. Co., 385 U.S. 432, 435-36, 87 S.Ct. 565, 567-68, 17
L.Ed.2d 495 (1967); NLRB v. Leonard B. Hebert, Jr. & Co., 696 F.2d
20 1120, 1124 (5th Cir.1983); and NLRB v. J.P. Stevens & Co., 538
F.2d 1152, 1164-65 (5th Cir.1976). Asarco's excuse that it
withheld the documents because Halford knew who had witnessed the
incident and who had been interviewed is unpersuasive. The Union
wanted to know the identities of the witnesses Asarco would use in
handling the grievance. Halford could not assume that the company
would use all of the people who witnessed the incident. Further,
he did not necessarily know all of the people whom the company
interviewed regarding the grievance. We find that the Board's
request was relevant to the discharge of its duties. Therefore, we
hold that the Board correctly found that Asarco violated the Act by
ignoring the discovery request.
2. Refusal To Deal With Halford After his Discharge.
Asarco argues that after Halford's discharge, it continued to
recognize him as the Union president. Asarco met with Halford
several times to discuss collective bargaining issues after
Halford's discharge. Halford continued to participate in grievance
meetings. Further, Asarco noted that the two events to which
Halford was denied access had nothing to do with Halford's duties
as the Union president. Asarco maintains that its treatment of
Halford was consistent with his status as a discharged employee.
On the other hand, the NLRB argues that only upon proof of
extraordinary circumstances demonstrating that the designated
representative presents a clear and present danger to the
collective bargaining process, can the employer refuse to deal with
the employees' designated agent. Further, the NLRB argues that
21 Halford's "discharge" status did not justify the exclusion.
The ALJ found that because Asarco refused to deal with
Halford as it had done for years, Asarco violated section 8(a)(5)
of the NLRB Act. We disagree. Though the NLRA guarantees
employees the right to choose their own representative, see 29
U.S.C. §§ 157, 159, it does not require the union representative's
presence at non-union functions.
If Asarco feared that Halford would disrupt the plant's
production or would jeopardize the bargaining process, it had to
prove "special circumstances" justifying Halford's exclusion from
any collective bargaining events at issue. See General Elec. Co.
v. NLRB, 388 F.2d 213, 214 (6th Cir.1968).6 We agree with our
sister circuits that an employer may only exclude the Union's
chosen representative from union activities, even where the
representative has been discharged, when it proves "special
circumstances," demonstrating that the representative's presence
6 In General Electric, although the employer denied the former union president admission to the plant's production areas after discharge, the court found no violation of section 8(a)(5) because "special circumstances" absolved the employer from dealing with the union's designated representative. 388 F.2d at 214. The court found the employer's reservations reasonable because the former president's past actions, which resulted in a planned employee work slowdown, made him untrustworthy. The past actions led the employer to believe that the former president's admission to the production areas might cause employees to cease work and interfere with production. See also, NLRB v. Indiana & Michigan Elec. Co., 599 F.2d 185, 190 (7th Cir.1979), cert. denied, 444 U.S. 1014, 100 S.Ct. 663, 62 L.Ed.2d 643 (1980) (absent extraordinary circumstances, an employer violates section 8(a)(5) by refusing to deal with the union's selected representatives); and General Elec., 412 F.2d at 517 (requiring that the employer prove that the chosen representative's presence creates a "clear and present danger to the collective bargaining process").
22 will jeopardize the company's business enterprise or the bargaining
process. However, in the present case, we do not reach the
"special circumstances" inquiry as the Board suggests. The special
circumstances inquiry only arises when the union's rights are
violated, that is when the union's representative is excluded from
an activity expressly covered by the NLRA or the union agreement.
We find that the events of which Halford complains are not union
activities.
Halford first complains that Asarco violated the NLRA by
excluding him from an OSHA inspection. Nothing in the OSHA
regulations or collective bargaining agreement requires Halford to
accompany the OSHA representative on an inspection. Further, we
find that Halford's own testimony proves that the inspection did
not require his presence as the Union's representative. During
Halford's cross-examination, he testified that the Union had a
joint safety committee that is appointed by him as the Union
president. The joint safety committee conducts tours with the
company in three designated areas of the plant. Only if the safety
committee representatives find a problem that cannot be resolved by
them do they bring it to Halford's attention to remedy. Halford
conceded that, as president, he had delegated the duty of making
plant inspections to the designated safety representatives. The
record does not contain testimony demonstrating that Halford
deviated from this policy of delegating the responsibility of
attending OSHA inspections.
Halford also complains that Asarco violated the NLRA by
23 excluding him from a meeting scheduled to welcome an Asarco
official to the company. We find that the meeting was primarily
social in nature and did not include collective bargaining
discussions. The ALJ concluded that Asarco violated the Act
because it had reneged on a previously arranged agreement to allow
Halford's attendance. The record does not support this conclusion.
The record does not demonstrate any long-standing practice, that
might be called a custom, in which the Union's president routinely
was invited to socialize or otherwise visit informally with
Asarco's out-of-town officials.
Our conclusion that Halford's complaints do not involve union
activities precludes a finding that Asarco violated the Union's
rights. Because union activities are not implicated, Halford's
complaints are purely personal and not protected by section
8(a)(5). Asarco had no obligation to permit Halford, an
individual, to participate in the kinds of non-union events at
issue here after he has been validly terminated, regardless of his
elected union office. Moreover, once validly discharged as an
Asarco employee, Halford could not raise his individual complaints.
We conclude that the ALJ's finding that Asarco violated the Act by
refusing to bargain with Halford is not supported by substantial
evidence in the record. We therefore hold that Asarco did not
violate sections 8(a)(1) and 8(a)(5) by excluding Halford, the
Union president, from non-union functions after a valid discharge.
CONCLUSION
For the foregoing reasons, we hold that the Board's findings
24 of unlawful discharge are not supported by substantial evidence.
Accordingly, we DENY ENFORCEMENT of the Board's ruling that Asarco
unlawfully discharged Halford in violation of sections 8(a)(1) and
8(a)(3) of the National Labor Relations Act. We also DENY
ENFORCEMENT of the Board's order granting Halford back pay and full
reinstatement to his former job or an equivalent one. Upholding
the validity of Halford's discharge, we find that Asarco's
exclusion of Halford from two non-union events did not violate the
Union's rights and, consequently, did not violate sections 8(a)(1)
and 8(a)(5). Notwithstanding our determinations regarding the
discharge and the exclusions, we hold that the Board correctly
found that Asarco violated sections 8(a)(1) and 8(a)(5) by refusing
and failing to provide the requested discovery documents. We,
therefore, REMAND this case to the NLRB for issuance of a MODIFIED
order directing that Asarco refrain from further violating sections
8(a)(1) and 8(a)(5) of the Act. As modified, we GRANT ENFORCEMENT
of the Board's cease and desist order.
. . . . .