PHILADELPHIA – The U.S. Court of Appeals for the Third Circuit has ruled in favor of the National Labor Relations Board, which had been seeking enforcement of two orders related to its prior findings of unfair labor practices by United Scrap Metal PA, LLC.
Third Circuit judges Cheryl Ann Krause, L. Felipe Restrepo and Paul B. Matey handed down such a decision on Sept. 16, with Restrepo authoring the Court’s opinion in this case.
“The National Labor Relations Board applies for enforcement of two of its orders, and United Scrap Metal PA, LLC cross-petitions for review. In those orders, the Board: (1) found that USM engaged in unfair labor practices during a union organizing campaign and unlawfully changed employees’ work schedules shortly after a unit of employees elected Laborers’ International Union of North America, Local 57, as its exclusive collective bargaining representative; (2) overruled USM’s objections to the election result and certified the union; and (3) found that USM unlawfully refused to bargain with and provide information to Local 57. For the following reasons, we will grant the Board’s applications for enforcement and deny USM’s cross-petitions for review,” Restrepo said.
Restrepo began the Court’s analysis by providing the background of the events at issue.
“As an initial matter, USM has not challenged the finding made by the administrative law judge that it violated Section 8(a)(1) of the National Labor Relations Act, in the lead-up to the election by instructing employees not to accept Local 57’s organizing material and by confiscating union shirts. Accordingly, the Board is entitled to summary enforcement of those parts of its Feb. 8, 2023, order. Moreover, substantial evidence supports the Board’s finding that USM discriminatorily changed its employees’ work schedules after the representation election,” Restrepo stated.
“Section 8(a)(3) of the NLRA prohibits an employer from taking adverse employment action against an employee in retaliation for union membership or activities. To make out a claim under this section, ‘the employee must establish that the protected conduct was a ‘substantial’ or ‘motivating’ factor [for the employer’s action]. Once this is accomplished, the burden shifts to the employer to demonstrate that it would have reached the same decision absent the protected conduct.”
Restrepo said it was “undisputed” that, about one hour after the election results were announced, USM reduced the work hours of the bargaining-unit employees by ending their shifts each weekday at 3 p.m. instead of 5 p.m. and by eliminating Saturday overtime shifts.
Restrepo added that USM “also concedes the evidence supports a prima facie showing that the employees were engaging in protected union activity and that USM was aware of and hostile to that activity…the company’s main argument is that, regardless of its employees’ union activity, it nevertheless would have reduced work hours at that time due to the economic impact of the COVID-19 pandemic.”
In support of that argument, USM referenced a Nov. 16, 2020, emergency order from then-Mayor of Philadelphia Jim Kenney (which went into effect the same day as the union election) that extended pandemic-related restrictions on indoor and outdoor gatherings through the new year.
“But the Board reasonably found that USM’s justifications for eliminating overtime and Saturday shifts at the time it did, even if facially legitimate, were not credible. The company had refrained from cutting hours or overtime for most of the pandemic up to that point (even as business levels dropped), and the mayor’s order – which, at the time, was set to last for under two months – did not so drastically alter the state of play that USM inevitably would have made these changes,” Restrepo said.
“Moreover, managers at USM were well aware that employees in the bargaining unit were ‘very concerned about [the] union coming in and how it may affect their [overtime],’ and the leaders discussed threatening the elimination of benefits such as ‘consistent overtime opportunities’ if the union won the election. Once the employees voted for union representation, the company immediately changed their work schedule. Accordingly, substantial evidence supports the Board’s finding that neither the mayor’s order nor the broader circumstances of the COVID-19 pandemic ‘would have moved [USM] to take the challenged action absent the protected conduct.”
Restrepo and his colleagues found the Board “also acted within its discretion in overruling USM’s objections to the election of Local 57 and, in turn, correctly found that USM’s refusal to bargain with or provide information to the union violated Sections 8(a)(5) and (1) of the NLRA.”
Restrepo added that only in the case of prejudice to the fitness of a union representation election, could the Board’s order to certify such an election’s results not be enforced.
“First, USM argues that Osman Rivera Acosta, a pro-union employee, affected the fairness of the election by threatening another employee, Erik Larios, with bodily harm in the presence of several other eligible voters after Mr. Larios voiced support for USM during a company meeting. For one, Mr. Rivera did not have actual or apparent authority to engage in the allegedly objectionable conduct on behalf of Local 57; though he allegedly referred to himself as the union’s ‘jefe’, he never worked for or received payment from Local 57. Thus, his conduct is best understood as a third-party threat because he did not act as an agent of the union. Additionally, even assuming that Mr. Rivera’s threat to Mr. Larios was grounded in his support for Local 57, USM failed to show that anyone besides Mr. Larios and one other employee heard the threat and that the threat was disseminated. Accordingly, we cannot conclude that Mr. Rivera’s alleged conduct ‘created a general atmosphere of fear and reprisal rendering a free election impossible,” Restrepo stated.
“Second, USM maintains that a group of Local 57 representatives photographed USM employees who refused to stop their cars to interact with them as they distributed union literature outside the company’s Philadelphia facility. The parties disagree as to whether this occurred, but the ALJ ultimately credited testimony from two Local 57 representatives present in the group that day, both of whom denied that the group photographed anyone. The ALJ regarded the Local 57 agents as ‘strong and believable witnesses’, and the Board affirmed the ALJ’s factual finding on that basis. We give the Board’s credibility determinations ‘great deference’ and do not disturb them ‘in the absence of any evidence indicating otherwise.’ USM has not demonstrated why either the Board or the ALJ erred in crediting the union agents’ testimony over that of its own witnesses, so we see no basis to depart from that conclusion.”
For these reasons, the Third Circuit granted the Board’s applications for enforcement and denied USM’s cross-petitions for review.
U.S. Court of Appeals for the Third Circuit cases 23-1583, 23-1758, 23-2367 & 23-2561
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com