Submitted November 18, 2015.
For ConAgra Foods, INC., Petitioner (14-3771): Ross M. Gardner, Chad P. Richter, JACKSON & LEWIS, Omaha, NE.
For National Labor Relations Board, Respondent (14-3771): Linda Dreeben, Deputy Associate General Counsel, Jill A. Griffin, Supervisory Attorney, Jamie L. Ireland Zuzaana Murarova, Milakshmi V. Rajapakse, NATIONAL LABOR RELATIONS BOARD, Washington, DC.
For United Food and Commercial Workers International Union, Local 75, Intervenor (14-3771): James B. Coppess, United Food and Commercial Workers International Union, AFL-CIO, United Food & Commercial Workers, Washington, DC.
Before RILEY, Chief Judge, BEAM and KELLY, Circuit Judges.
BEAM, Circuit Judge.
Upon charges filed by the United Food and Commercial Workers International Union, Local 75 (the Union), the National Labor Relations Board (the Board) issued a complaint alleging, as amended, that ConAgra Foods, Inc., violated the National Labor Relations Act (the Act), 29 U.S.C. § § 151-169, by censuring an employee for soliciting union membership and by posting a sign prohibiting discussion of unions during working time. Additionally, the General Counsel for the Board moved for default judgment against ConAgra under a settlement agreement to an earlier dispute. An Administrative Law Judge (ALJ) ruled in favor of the Union on both allegations, and a divided Board panel affirmed and granted the motion for default judgment. We grant ConAgra's petition for review, set aside the Board's order in part, enforce it in part, and remand for further proceedings.
At all times relevant to this dispute, ConAgra has maintained a policy that its employees may not solicit union support or distribute union-related materials during working time or in work areas. " Working time" and " work areas" include times and areas where employees are expected to be working; they do not include, for example, employee-break times, break rooms, restrooms, parking lots, or hallways. The policy does not prohibit, at any time or place, discussions about unions that do not amount to solicitation. The legality of this policy is not disputed.
In August 2011, the Union began a drive to organize workers at ConAgra's Slim Jims manufacturing plant in Troy, Ohio. Around that time, ConAgra allegedly engaged in certain unfair labor practices, namely removing union literature from employee break rooms and prohibiting discussion of unions during working times and in work areas. ConAgra entered into a settlement agreement with the Union which provided that if ConAgra did not comply with the agreement's terms, the Union would bring charges based on the 2011 conduct and ConAgra would not challenge those allegations.
In April 2012, ConAgra posted a letter on a bulletin board in the plant that read, in part:
We also wish to remind employees that discussions about unions are covered by our Company's Solicitation policy. That policy says that solicitation for or against unions or other organizations by employees must be limited to non-working times. Distribution of materials is not permitted during working time or in work areas at any time.
The following September, an incident occurred between Janette Haines, an employee and leading proponent of union organization at the plant, and two other plant employees, Megan Courtaway and Andrea Schipper. The exact course of events is disputed. Haines's version is this: She approached Courtaway and Schipper in the restroom and asked them to re-sign union authorization cards, and they said that they would. A few days later, again in the restroom, Haines asked Schipper if Schipper would like Haines to put the cards in Schipper's locker. Schipper said that she would, gave Haines her locker number, and explained that she and Courtaway shared a locker. Haines proceeded to put three cards in the locker, one for Schipper, one for Courtaway, and one for Courtaway's husband, who was also an employee at the plant. Afterward, Haines walked past Schipper and Courtaway on the production floor of the plant. As she walked by, she said to them, " [H]ey, I put those cards in your locker." Several days passed, and Haines had not yet received signed cards from Schipper or Courtaway. Haines saw them again in the restroom, and asked them if they were reconsidering their decision to sign the cards. Courtaway indicated her husband was having second thoughts, and Haines attempted to persuade them to sign the cards. This was the end of their interaction.
Courtaway and Schipper testified to a different version of events. Courtaway testified that she and Haines had only a single conversation, which occurred on the production floor as Haines walked by. Haines told Courtaway that she was going to place cards in Schipper's locker, and that she needed Courtaway and Courtaway's husband to re-sign them. Schipper testified that she was standing nearby during that conversation and overheard it and that Haines only spoke directly to Courtaway. The conversation Schipper testified to overhearing comports with Courtaway's account. Schipper testified that this was the first time she had heard anything from Haines about signing authorization cards and that there were no other conversations with Haines on the subject.
It is undisputed that the encounter on the production floor occurred during working time and in a work area. It is also undisputed that Courtaway was cleaning at that time, that she had to stop cleaning because of the conversation, that Schipper was standing by the production line waiting for it to begin running, and that the conversation was very brief. Afterward, Courtaway and Schipper reported the conversation to management. About a week later, management presented Haines with a verbal warning memorialized by a notice of corrective action, which she signed along with several members of plant management. The notice stated: " On 9/24/12, we received two complaints from your coworkers that you solicited them in a working area, while you and your coworkers were working, and you asked them to sign union cards."
B. Procedural History
In response to the warning, the Union filed a charge against ConAgra with the Board, alleging ConAgra violated § 8(a)(1) and (3) of the Act, 29 U.S.C. § 158(a)(1), (3), by censuring Haines. The Acting Regional Director for Region 9 of the Board filed an order consolidating the charge with an earlier filed charge, along with a complaint and a notice of hearing before an ALJ. At the close of the hearing, the General Counsel moved to amend the complaint to allege that the posted letter chilled union activity and so also violated § 8(a), and the ALJ granted the motion. The ALJ found that the warning and the posted letter violated the Act, and he dismissed the earlier filed charge. ConAgra filed exceptions to the ALJ's findings and conclusions as to the two violations of the Act. Additionally, the General Counsel moved for default judgment on charges based on the 2011 conduct because the violations of the Act violated the terms of the settlement agreement.
A divided, three-member Board panel affirmed the ALJ's findings, conclusions, and rulings, adopted and modified his recommended order, and granted the motion for default judgment. Although the ALJ credited Haines's, Courtaway's, and Schipper's conflicting testimony, his findings, adopted by the Board, comported with Haines's version. The Board concluded the warning violated the Act because Haines did not engage in solicitation. It found she did not request that Courtaway and Schipper sign an authorization card, noting that the encounter was very brief and that Haines did not present an authorization card for signature at that time. It also concluded the posted letter violated the Act because employees would reasonably interpret the letter as prohibiting protected conduct. Finally, the Board granted default judgment on the 2011 charges on the ...