SNE Enterprises, Inc. v. National Labor Relations Board

257 F. App'x 642
CourtCourt of Appeals for the Fourth Circuit
DecidedDecember 7, 2007
Docket06-1881, 06-1917
StatusUnpublished

This text of 257 F. App'x 642 (SNE Enterprises, Inc. v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
SNE Enterprises, Inc. v. National Labor Relations Board, 257 F. App'x 642 (4th Cir. 2007).

Opinions

SHEDD, Circuit Judge:

This dispute arises out of a successful organizing campaign by the United Steelworkers of America (the “Union”) at the Huntington, West Virginia plant (the “Plant”) of SNE Enterprises, Inc. (“SNE”), and out of SNE’s subsequent challenge to the results of the Union election. SNE petitions for review of an order of the National Labor Relations Board (the “Board”), determining that SNE unlawfully (1) withheld a wage increase during the Union campaign and failed to conduct planned wage reviews; (2) discharged employee Benny Moore because of his union activity; (3) prohibited employee Dana Adkins from speaking with co-workers about a disciplinary incident and discharged him for violating that prohibition; and (4) discharged supervisor Ruth Adkins for testifying adversely to SNE’s interests in a Board proceeding. The Board cross-applies, seeking enforcement of its order. Because substantial evidence supports the Board’s decision and resulting order, we grant enforcement and deny SNE’s petition for review.

I

Section 7 of the National Labor Relations Act, 29 U.S.C. § 151 et seq. (“NLRA” or the “Act”), provides that “[ejmployees shall have 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. Section 8(a)(1) of the Act [645]*645makes 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). Section 8(a)(3) makes it an unfair labor practice for an employer “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)(3).

We must affirm the Board’s interpretations of the NLRA if they are “rational and consistent with the Act,” and we must affirm the Board’s factual findings if they are “supported by substantial evidence on the record considered as a whole.” Medeco Sec. Locks, Inc. v. NLRB, 142 F.3d 733, 742 (4th Cir.l998)(internal citations and quotations omitted). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to suppoi’t a conclusion.” Consol. Diesel Co. v. NLRB, 263 F.3d 345, 351 (4th Cir.2001) (internal quotation and citation omitted). If substantial evidence exists, we must uphold the Board’s decision “even though we might have reached a different result had we heard the evidence in the first instance.” NLRB v. Daniel Const. Co., 731 F.2d 191, 193 (4th Cir.1984). Credibility determinations are left to the discretion of the Board absent “exceptional circumstances.” NLRB v. Air Prods. & Chem., Inc., 717 F.2d 141, 145 (4th Cir.1983).

II

A.

As found by the Board, SNE’s policy was to conduct wage reviews at the Plant twice per year. Although these reviews did not automatically result in a wage increase, SNE decided in early 2004 that it would grant a wage increase in March. Around this time period, the Union began its organizing campaign at the Plant. When SNE learned of the Union campaign, it posted a notice at the Plant stating that although “[a] wage increase was scheduled to be announced and implemented at the end of this week,” SNE had decided not to implement the increase while the Union vote was pending. J.A. 792. The notice further stated that “[i]f the union is rejected in the vote, we will be free to implement a wage increase after the election.” Id. After the Union pledged not to file any unfair labor practice charges if SNE implemented the planned increase, SNE posted another notice again stating that a wage increase would be granted if the Union lost the election. SNE also failed to conduct wage reviews in September 2004 and March 2005, notwithstanding its policy.

The Board concluded that SNE’s failure to grant the March 2004 wage increase and its failure to conduct wage reviews in accordance with its policy violated §§ 8(a)(1) and (3) of the Act. “An employer’s obligation with regard to wage increases during a representation campaign is to proceed as it would have proceeded without regard to union considerations.” In re Earthgrains Co., 336 N.L.R.B. 1119, 1129 (2001), enforced, 61 Fed. Appx. 1, 7 (4th Cir.2003). An employer violates the Act when it withholds a planned wage increase during an organizing campaign without a legitimate business purpose. S. Maryland Hosp. Ctr. v. NLRB, 801 F.2d 666, 668 (4th Cir.1986).

We conclude the Board’s determination is supported by substantial evidence. There is evidence in the record to support the Board’s conclusion that SNE had established a practice of conducting biannual wage reviews. The notices posted by SNE support the Board’s conclusion that SNE had decided to grant a wage increase in March 2004 and that it did not do so because of the Union. SNE does not dispute that it did not actually grant [646]*646the increase, nor that it did not conduct wage reviews in September 2004 and March 2005.

B.

The Board also concluded that SNE violated §§ 8(a)(1) and (3) of the Act by discharging employee Benny Moore for his union activity. Moore worked at the Plant from 1997 to 2004. He was responsible for initiating the Union campaign at the Plant, was a member of the Union organizing committee, and solicited other employees to join the Union. SNE maintained a policy against employee solicitation during work time. In February 2004, Moore was discharged for asking a co-worker to sign a union card during working time, in violation of that policy.

Although an employer may prohibit employee solicitation during working time, an employer may not enforce an otherwise valid no-solicitation rule against union solicitation, while permitting nonunion solicitation. Willamette Indus., Inc., 306 N.L.R.B. 1010, 1017 (1992). The Board concluded that SNE selectively enforced its no-solicitation policy against Moore, while tolerating non-Union solicitation. There is testimony in the record that SNE’s no-solicitation policy was not enforced against non-union solicitors. Employee Charles South testified that “solicitation is virtually every day. It’s all over the plant. It’s open.” J.A. 800. Other testimony indicated that employees sold various items such as candles, Girl Scout cookies, or tickets to Plant-related activities during work time, sometimes in the presence of supervisors. Accordingly, we hold that substantial evidence supports the Board’s conclusion that SNE unlawfully terminated Moore.

C.

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