IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________
NO. 93-4961 ________________________
BLUE CIRCLE CEMENT COMPANY, INC.,
Petitioner- Cross-Respondent,
versus
NATIONAL LABOR RELATIONS BOARD,
Respondent- Cross-Petitioner.
___________________________________________________________________________ ___
Petitions for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board ___________________________________________________________________________ ___
(December 14, 1994)
Before WISDOM and JONES, Circuit Judges, and FITZWATER,* District Judge.
FITZWATER, District Judge:
We are asked to set aside a decision of the National Labor Relations Board ordering
relief for an employee found to have been suspended and discharged in violation of § 8(a)(1)
of the National Labor Relations Act (the "Act"), 29 U.S.C. § 158(a)(1). See Blue Circle
Cement Co., 311 N.L.R.B. 623, 624-25 (1993). The Board, supported by the employee's
union and its local as intervenors, cross-applies for enforcement of the order. The principal
question presented is whether there is substantial evidence to support the Board's
determination that the employee was engaged in protected concerted activity within the
* District Judge of the Northern District of Texas, sitting by designation. meaning of § 7 of the Act, 29 U.S.C. § 157. Applying, as we must, a deferential standard of
review, we find no basis to disturb the Board's decision. We therefore deny the petition for
review and enforce the Board order.
I
Petitioner Blue Circle Cement Company, Inc. ("Blue Circle") suspended and then
discharged Stephen Saunders ("Saunders") from employment at its Tulsa, Oklahoma plant
after the operations manager discovered Saunders using a company photocopier to duplicate
an article on "sham recycling" produced by the environmental organization Greenpeace. See
Blue Circle Cement Co., 311 N.L.R.B. at 623 n.6 & 623-24. The incident occurred at a time
when Blue Circle was attempting to obtain regulatory approval to burn hazardous waste to
fuel its Tulsa plant cement kiln. Id. at 623, 627-28.
Saunders was a member of the United Cement, Lime, Gypsum & Allied Workers
Division, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers and Helpers, AFL-CIO ("Boilermakers International") and its Local D421 ("Local
D421"). He was also Local D421's environmental officer and was a founder and member of
Earth Concerns of Oklahoma ("ECO"), a volunteer, nonprofit environmental organization.
Id. at 623. "Saunders was concerned that heavy metals in hazardous waste would be released
to the atmosphere by the burning of hazardous waste in Blue Circle's kiln." Id. at 631
(footnote omitted). The Greenpeace article that Saunders was discharged for duplicating
addressed the topic of toxicological properties of heavy metals. Id. at 623, 631.
Blue Circle terminated Saunders on the ground that he had used company equipment
and materials, on paid time, to work against the company's legitimate business interests. Id.
at 624. Boilermakers International and Local D421 filed an unfair labor practice charge with
the Board, contending Blue Circle had disciplined Saunders for engaging in concerted
-2- protected activities, in violation of § 8(a)(1).1 Id. at 627. A three-member panel of the
Board--with one member dissenting--adopted the ALJ's recommendation, finding that
Saunders' use of the photocopier was protected concerted activity, rather than personal
conduct.
Blue Circle challenges the Board order on the basis of two overarching premises. It
contends, first, that it did not commit an unfair labor practice by suspending and terminating
an employee who used the company's photocopier, on company time, to duplicate anti-
company materials for distribution to non-employees who opposed Blue Circle's waste fuel
recycling proposal. Blue Circle argues, second, that the remedy of reinstatement and
backpay ordered by the Board is inappropriate in the case of an employee found to have
given false testimony before the Board.
These dual propositions are supported by the underlying contentions that the Board's
General Counsel did not prove that Saunders was engaged in protected activity within the
scope of § 7 of the Act; the ALJ and Board reached an erroneous result by failing to focus on
the purpose of Saunders' photocopying activity; the Board improperly held disloyal actions
to be protected; and the order of reinstatement and backpay should be vacated because
Saunders lied under oath at the administrative hearing. The Board cross-applies for
enforcement of its order.
II
Blue Circle first contends the General Counsel did not sustain his burden of proving
by a preponderance of the evidence that Saunders was engaged in a protected concerted
activity, within the meaning of § 7, when he was photocopying the Greenpeace article. The
company argues that the ALJ's findings demonstrate this failure of proof because the ALJ
determined inter alia that it was "entirely possible that, as Saunders copied the pages, his
1 The union and its local also alleged that Blue Circle had violated § 8(a)(3) of the Act. The ALJ rejected the § 8(a)(3) charge. See 311 N.L.R.B. at 635. This claim is not now before us, and we do not discuss it further.
-3- focus was on ECO concerns," Blue Circle Cement Co., 311 N.L.R.B. at 633, and "that
Saunders was making the copies to provide to persons who had no direct connection with
Blue Circle," id. at 636, and the Board recognized that Saunders intended the materials for
ECO and not for officers of Local D421, id. at 624. The company argues there is no
evidence that Saunders was engaged in activity for anyone other than himself and ECO when
he was using the photocopier, and the General Counsel could not have proved that Saunders
was exercising § 7 rights.
Blue Circle also posits that the union had adopted a bargaining position that
supported the company's waste fuel proposal; therefore, Saunders' conduct can properly be
viewed as an effort to supplant the union's position as exclusive bargaining representative,
and thus unprotected by the Act.
A
We consider initially Blue Circle's assertion that the General Counsel did not meet his
burden of proof.
Section 7 of the Act guarantees an employee the right to engage in "concerted
activities for the purpose of collective bargaining or other mutual aid or protection." 29
U.S.C. § 157. Section 8(a)(1) protects the employee's right to engage in concerted activities
by making it an unfair labor practice for an employer "to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in [§ 7]." 29 U.S.C. § 158(a)(1). To
establish a violation of § 8(a)(1) in a discharge case, the General Counsel must prove that the
discharged employee was engaged in protected activity. NLRB v. Brookshire Grocery Co.,
919 F.2d 359, 363 (5th Cir. 1990).
We review Blue Circle's evidentiary challenge to the Board's decision to "determine
whether the underlying findings of fact are supported by substantial evidence on the record
considered as a whole." NLRB v. Motorola, Inc., 991 F.2d 278, 282 (5th Cir. 1993) (citing
-4- 29 U.S.C. § 160(e); NLRB v. Powell Elec. Mfg. Co., 906 F.2d 1007, 1011 (5th Cir. 1990);
Standard Fittings Co. v. NLRB, 845 F.2d 1311, 1314 (5th Cir. 1988)). Under the substantial
evidence standard of review, "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 had the matter been presented to it in the first instance." Standard Fittings, 845
F.2d at 1314. We are bound by the credibility choices of the ALJ unless the choice is
unreasonable or contradicts other findings of fact, or the credibility choice is based on an
inadequate reason or no reason at all. See Motorola, 991 F.2d at 282. We will "defer to
plausible inferences [the ALJ] drew from the evidence, even though we might reach a
contrary result were we deciding this case de novo." Id. at 283 (quoting Cooper Tire &
Rubber Co. v. NLRB, 957 F.2d 1245, 1255 (5th Cir. 1992)).
The ALJ was unable to determine from the evidence either Saunders' purpose for
making the photocopies, or precisely to whom Saunders intended to give the copied pages.
Blue Circle Cement Co., 311 N.L.R.B. at 633. The ALJ expressly rejected, as not credible,
Saunders' testimony that he was duplicating the article to give it to Local D421's other
officers. Id. at 635-36. The ALJ found "that Saunders was making the copies to provide to
persons who had no direct connection with Blue Circle." Id. at 636. Based on other
evidence, which we discuss below, the ALJ made the following findings: (1) the
photocopies were part of a publication aimed at preventing cement companies from burning
hazardous waste as fuel in their kilns; (2) all of Saunders' relevant activities concerning
cement companies' use of hazardous waste "were aimed specifically at preventing Blue
Circle from burning hazardous waste;" (3) Local D421 opposed Blue Circle's plan, and its
opposition stemmed at least in part from a concern about the effect of emissions on the
health of company employees; (4) Saunders believed Blue Circle's use of hazardous waste as
a fuel would be harmful to his health and to the health of his co-workers and nearby
-5- residents; (5) Local D421 appointed Saunders as its environmental officer; and (6) the union
deliberately sought to enlist the support of nearby residents and the public to fight the
company's plan. Id. at 633.
On the basis of the record evidence, the ALJ concluded the photocopying activity was
protected concerted conduct. His reasoning followed two routes. First, the ALJ held that
"no matter to whom Saunders intended to give the copies, Saunders surely made the copies
to further his opposition to Blue Circle's plan to burn hazardous waste." Id. at 633. His use
of the company photocopier "was the `logical outgrowth' of earlier activities that plainly
were protected by Section 7," including Local D421's opposition to Blue Circle's plan to
burn hazardous waste, the union's efforts to involve the public in its opposition, and the
union's "appointment of Saunders as its point man in the fight against [Blue Circle's] plan."
Id. at 633-34 (citing Mike Yurosek & Son, Inc., 306 N.L.R.B. 1037, 1038 (1992), for the
proposition that the Board will find that individual action is concerted where the evidence
supports the finding that the concerns expressed by the individual are the logical outgrowth
of concerns expressed by the group).
The ALJ reasoned, second, that because Local D421 had appointed Saunders "to lead
the fight against Blue Circle's plan to use hazardous waste," Saunders had made the copies in
furtherance of his opposition to the plan, and Saunders' was concerned about the impact of
burning hazardous waste on the health of Blue Circle's employees, "all efforts by Saunders to
prevent [Blue Circle] from putting its plan into effect prima facie constituted concerted
protected activity." Id. at 634. The ALJ concluded that Blue Circle was obligated to
overcome this prima facie showing, but did not do so. Id.
The ALJ recognized that "[b]oth of these routes presume that an employee's activity
may be protected even if a reason--or, indeed, the main reason--that the employee engaged in
it had nothing to do with the mutual aid or protection with which Section 7 is concerned."
Id. He determined, however, "that the purposes of the Act would be better fulfilled if an
-6- activity is deemed protected so long as one of the reasons the employee engaged in the
activity was for mutual aid or protection (and the activity otherwise would be found to be
protected)." Id.
The Board adopted the ALJ's recommendation that Blue Circle be found to have
violated § 8(a)(1). Id. at 624-25. The Board majority agreed with the ALJ that Saunders was
engaged in concerted rather than personal activity. The Board held that Local D421's
"strategic efforts were broad in scope and encompassed enlisting support from the local
community, including ECO and other environmental groups, to oppose [Blue Circle's] plan."
Id. at 624. Saunders' duties and activities in opposing the plan "were intimately connected
to, and derived from, the Union's broad-based strategic efforts." Id. "As a practical matter,
therefore, Saunders' efforts on behalf of the Union and on behalf of ECO, in opposing [Blue
Circle's] plan, were virtually inseparable." Id. The Board disagreed with Blue Circle's
assertion that Saunders' "activity was entirely personal and not in any way connected with
the Union" because "as the [ALJ] found, the actions in question were a logical outgrowth of
the multiple efforts of Saunders and [Local D421] to oppose [Blue Circle's] plan to burn
hazardous waste." Id. The Board found it immaterial in the context of the facts before it that
the photocopied materials were intended for persons having no direct connection with Blue
Circle--i.e. ECO--because this endeavor was "yet another form of concerted activity
undertaken for the purpose of protecting the health and safety of those affected by [Blue
Circle's] plan, including, of course, the health and safety of his fellow bargaining unit
employees most directly affected by the plan." Id.
Applying, as we must, the deferential substantial evidence standard of review, we
hold that the General Counsel met his burden of proving that Saunders' photocopying was a
concerted protected activity. Although our decision in this case may approach--if it does not
reach--the outer limits of putatively individual conduct that we will uphold as concerted
-7- activity, we conclude from the record as a whole that a reasonable person could have found
as did the ALJ.
Local D421 became concerned about Blue Circle's plan to burn hazardous waste as
fuel in its Tulsa plant kiln. Id.2 Officials of the local jointly concluded they did not want the
company to effect the plan. Id. Because of this concern and based upon Saunders' interest in
environmental matters, the local appointed Saunders--a clerk-typist at the Tulsa plant and an
"ardent environmentalist"--as its environmental officer. Id. ECO, which Saunders had
helped create and operate, opposed Blue Circle's intentions to use hazardous waste as fuel.
Id. Officials of the local were concerned that this would have a detrimental impact on the
health of plant employees. Id. at 628-29. The union president decided that Local D421
should actively oppose Blue Circle's plan. Id. at 629. One of the first actions that the local's
president undertook was to appoint Saunders to the post of environmental officer. Id.
Saunders concluded the company's plan should be challenged because it would cause
health problems for anyone exposed to air that contained emissions of chemicals from the
kiln. Id. He opposed the plan "doing so both as the Union's environmental officer and as a
member of and a spokesman for ECO." Id. Saunders researched hazardous waste burning by
cement plants. One of his principal research sources was the Greenpeace article on "sham
recycling" of hazardous waste by cement plants. Saunders determined how Blue Circle
employees felt about the company's plan. At each union meeting, beginning in January
1991, he discussed his views of the dangers of burning hazardous waste. Saunders also
organized opposition to Blue Circle's plan among residents of communities located nearby
2 The ALJ recognized that the union and its employees "viewed opposing the Company's hazardous waste plan as a way to put pressure on . . . Blue Circle to increase wages and the like and as a way to attract the public's attention to the employees' economic grievances." Blue Circle Cement Co., 311 N.L.R.B. at 629. The ALJ also found, however, that "there is also no doubt that Local D421's position was that Blue Circle should not use hazardous waste as fuel for its kiln and that the Union's officers and at least some Blue Circle employees were concerned about what they perceived to be the health hazards of hazardous waste burning." Id.
-8- the plant. Id. As Saunders fought Blue Circle on this matter, he fulfilled two different roles
and wore two hats: one was that of Local D421's environmental officer; the other was that of
ECO activist and spokesman. Id.
Saunders and other union officers organized a rally near the plant to publicize the
company's waste-burning plan as well as the union's contract dispute with the company. Id.
During a pre-rally meeting with the Tulsa plant manager, union officials voiced total
opposition to the plan. Id. The rally was attended by Blue Circle employees and family
members, residents of nearby communities (whom Saunders had encouraged to attend), and
members of the media (to whom Saunders had publicized the rally). Id. The union
instructed picketers to focus on usual labor issues, but also advised participants that it desired
to inform the public of Blue Circle's hazardous waste plan and of the possible health
consequences. Saunders drafted handbills that Blue Circle employees distributed at the rally.
These expressed concern about economic issues but also addressed "health care needs
resulting from hazardous waste burning." Id. A member of Local D421's negotiating
committee who spoke to reporters referred to the waste burning issue and how it might affect
the worker. A picket sign written by Saunders and carried at the event referred to the union
as being "against pollution." Id.
Following this rally, union members engaged in several months of informal picketing
before work and during lunch. Id. at 630. Picket signs addressed the hazardous waste issue
as well as the usual contract issues. Id. Saunders was among the most frequent members of
the picket line. Id. A second rally was also conducted within two weeks of the first. Id.
Saunders' role in the subsequent event was similar to his role in the first. Id.
After Blue Circle formally submitted its hazardous waste proposal to the
Environmental Protection Agency ("EPA"), the Local D421 negotiating committee
distributed to Tulsa plant employees a letter, drafted by Saunders, expressing the union's
-9- concern regarding the company's proposal and enclosing pages from the Greenpeace
publication on "sham recycling." Id.
The union thereafter staged another rally similar to the two conducted earlier, with
Saunders again actively involved as an organizer and spokesman to the media. A handout
drafted to publicize the rally referred to requests by ECO, Boilermakers International, and
Local D421, among others, that citizens "join in a demonstration in solidarity with workers
and residents threatened by hazardous waste burning." Id.
Saunders was later terminated from employment at Blue Circle after he was
discovered making the photocopies in question.
We conclude from the record that the Board's finding that Saunders was engaged in
concerted protected activity when he was making the photocopies in question is supported by
substantial evidence. Therefore, regardless whether we might prefer the dissenting member's
analysis of the evidence to the majority view, we hold that the General Counsel sustained his
B
Blue Circle also contends the Board order must be set aside because the union
adopted a bargaining position in support of Blue Circle's plan to use hazardous waste to fuel
its kiln. Blue Circle relies upon evidence in the administrative record that representatives of
Boilermakers International stated during bargaining sessions that the union would not oppose
burning hazardous waste, so long as it was done according to EPA regulations. It contends
the union realized the importance of burning waste fuels, and that one of Boilermaker
International's representatives stated that the union recognized the company and union must
pull together to make the plan successful, and offered to help the company obtain EPA
approval.
The Board implicitly adopted the ALJ's finding that "Saunders' efforts to prevent
[Blue Circle] from burning hazardous waste were in support of the Union's position, not
- 10 - contrary to it." 311 N.L.R.B. at 635 (ALJ finding); see id. at 623 n.1 (Board decision). The
ALJ agreed with Blue Circle that during a two-day negotiating session in June 1991,
negotiators for Boilermakers International "seemed to support the Company's use of
hazardous waste as fuel (subject to certain conditions)." Id. at 634. He nevertheless found
that Blue Circle employees opposed the plan for a considerable period of time, both before
and after the negotiating session; that the union never agreed to the company's use of
hazardous waste as fuel; and both prior to and after Saunders' discharge, the union opposed
the plan. Id. at 634-35. The ALJ therefore determined that the position taken by
Boilermakers International "was a temporary one . . . stemming from the identity of the
persons negotiating on behalf of the Union." Id. at 635. Except for this occasion, the union
consistently opposed the plan. Id.
We conclude that these findings are supported by substantial evidence. We reject
Blue Circle's attempt to set aside the Board order on this basis.
III
Blue Circle next argues that the ALJ and the Board failed to focus properly on the
purpose of Saunders' photocopying activity.
Blue Circle asserts that because § 7 only protects activities that are for the purpose of
mutual aid or protection, "[t]he purpose of the activity is crucial in evaluating whether it is
protected." Pet. Br. at 22. Blue Circle urges that the ALJ and the Board "erroneously
focused on the photocopying activity itself rather than the purpose behind the photocopying,"
id., and thereby "ignored the possibility of disparate purposes behind Saunders' various
activities and the legal relevance of the objective of a certain activity." Id. at 22-23.
We confess some difficulty discerning what Blue Circle means by the concept of
improperly focusing on the "photocopying activity itself." We do not find from our review
of the record that the Board attached especial significance to the activity of photocopying as
- 11 - being particularly indicative of concerted protected activity. There is no suggestion that the
ALJ and Board viewed this type of conduct as inherently concerted or presumptively
undertaken for mutual aid and protection. Blue Circle appears to be asserting that the Board
and ALJ uncritically accepted that photocopying an article on "sham recycling" and the
toxicological properties of heavy metals was simply another of the myriad activities that
Saunders had undertaken in support of his union's opposition to the company plan, without
adequately considering the possibility that Saunders had a different--and entirely personal--
purpose on this occasion.
We disagree that the ALJ and Board improperly disregarded the purpose for the
photocopying. Both the ALJ and the Board addressed this very issue. The ALJ found that at
least one of the reasons Saunders had engaged in the activity was for mutual aid and
protection. See Blue Circle Cement Co., 311 N.L.R.B. at 633-34. The Board similarly held
that Saunders' purpose was to achieve the union goal of opposing and stopping Blue Circle's
plan. Id. at 624. These findings are supported by substantial evidence. We decline to set
aside the Board order on this ground.
Blue Circle also argues, on the basis of our decision in Motorola, 991 F.2d 278, that
Saunders' status as an employee did not give him the right to advance the objectives of ECO,
an outside organization, in the workplace. The company maintains that the ALJ and the
Board have apparently taken the position, contrary to Motorola, that the inclusion of a
workplace issue (use of hazardous wastes) in ECO's agenda cloaks with the protection of § 7
of the Act all of Saunders' activities at the Blue Circle plant taken on ECO's behalf. Because
we find Motorola distinguishable and disagree with Blue Circle's characterization of the
Board's holding, we decline to accept this argument.
In Motorola we refused to enforce a portion of a Board decision and order holding
that an employer's ban on distribution of literature on its property, by employee-members of
- 12 - an outside organization opposed to mandatory drug testing in the workplace, violated § 7.
See Motorola, 991 F.2d at 285. We held that the purpose for the distribution of the literature
was to advance the organization's political agenda and therefore was not protected activity.
The employees in Motorola specifically stated that they did not represent other employees in
their opposition to their employer's actions, and that they did not have any goal of changing
the employer's policies. Id. They intended instead to encourage employees to contact their
legislators and urge them to pass an ordinance banning mandatory drug testing in the
workplace. Id. at 284. Further, the outside organization controlled the distribution of the
literature. Id. at 285.
We were concerned in Motorola that the effect of the Board's order would be to
"authorize any political splinter group with employee members to disseminate literature at
the workplace as long as the group's agenda includes some issue relevant to that workplace."
Id. We therefore held that employees acting as members of an outside political organization
cannot demand the same § 7 rights as employees in collective bargaining or self-
representation in disputes with management simply because the outside organization is
concerned with a workplace issue. Id.
In the present case, by contrast, all of Saunders' activities, whether taken on behalf of
the union and/or ECO, in opposing the Blue Circle plan to burn hazardous waste were
directly aimed at changing his employer's policy on this issue. Saunders' opposition to the
Blue Circle plan was supported by Local D421 and Blue Circle employees. The employees
were attempting to change Blue Circle's plan to burn hazardous waste. The action at issue
was not initiated solely by an outside organization as was the case in Motorola, but rather by
Saunders while "wearing two hats." He undertook "virtually inseparable" activities on behalf
of both ECO and Local D421. Motorola does not support Blue Circle's position.
IV
- 13 - Relying on NLRB v. Local Union No. 1229, Int'l Bhd. of Elec. Workers, 346 U.S.
464 (1953), Blue Circle next argues that the Board improperly held Saunders' disloyal
actions to be protected.
In Local No. 1229 the Supreme Court placed limits on § 7 protected activity by
affirming the Board's decision to uphold the discharge of television station technicians who
distributed handbills severely criticizing the quality of the company's programming. The
employees initiated the attack "in a manner reasonably calculated to harm the company's
reputation and reduce its income." Id. at 471. Although the activity occurred during an
ongoing labor dispute, the disparaging handbills made no reference to wages, hours, working
conditions, or any pending labor dispute. The employees omitted any reference to the labor
controversy. Instead, the handbills were simply an attack upon the employer "made in the
interest of the public rather than in that of the employees." Id. at 477.
Blue Circle argues that Saunders' conduct was more egregious than was the
employees' conduct in Local No. 1229 because not only did Saunders allege that Blue
Circle's burning of hazardous waste would endanger public safety, he did so on company
time using the company's photocopier. We disagree.
Saunders' opposition to the waste burning plan was not simply a malicious attack
upon Blue Circle's product in order to extract concessions from Blue Circle. According to
the Board's findings, the opposition in the present case arose out of concern on the part of
Local D421, ECO, their respective members, and the surrounding community for the health
and safety of Blue Circle employees.3 The activities at issue did not disparage Blue Circle's
product or reputation. Unlike the station technicians' actions in Local No. 1229, those who
opposed the waste-burning plan did seek community support. At all times, during rallies and
picketing, opposition to the plan was voiced in conjunction with the ongoing labor dispute.
3 See supra at note 2 (discussing ALJ's recognition that the union and Blue Circle employees had mixed motives for opposing the company's plan to burn hazardous waste as fuel).
- 14 - Saunders' activities were directly related to employee interest in health and safety. Local No.
1229's limitation on activities protected by § 7 is therefore inapposite.
V
Blue Circle maintains finally that the Board's order of reinstatement and backpay
should be vacated because Saunders lied under oath regarding his purpose for using Blue
Circle's photocopier. In light of ABF Freight Sys., Inc. v. NLRB, ___ U.S. ___, 114 S.Ct.
835 (1994), decided after Blue Circle filed the instant petition for review, we find no basis to
set aside the order.
* * *
Blue Circle's petition for review of the Board order is DENIED. The Board's cross-
petition for enforcement is granted and the order is hereby ENFORCED.
- 15 -