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Tschiggfrie Properties, Ltd. v. National Labor Relations Board

United States Court of Appeals, Eighth Circuit

July 24, 2018

Tschiggfrie Properties, Ltd. Petitioner
v.
National Labor Relations Board Respondent Tschiggfrie Properties, Ltd. Respondent
v.
National Labor Relations Board Petitioner

          Submitted: May 15, 2018

          Before BENTON, KELLY, and STRAS, Circuit Judges.

          BENTON, Circuit Judge.

         Tschiggfrie Properties, Ltd., petitions for review of the National Labor Relations Board's findings that it violated sections 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (3). See Tschiggfrie Props., Ltd., 365 NLRB No. 34, 2017 WL 680506, at *1-2 (2017). The Board seeks to enforce all of its order. Having jurisdiction under 29 U.S.C. § 160(f), this court partly enforces the order and remands for further proceedings.

         I.

         In May 2015, Tschiggfrie's employees unionized. Employee Darryl Galle initiated the process and served as observer for the union election. He frequently discussed the union, prompting some employees to complain that he "harrass[ed]" them at work. Tschiggfrie's lawyer communicated with the union, but Galle did not change his behavior. Tschiggfrie's president decided to issue Galle a written warning on August 17, 2015. It reprimanded Galle "for discussing union organizational viewpoints with fellow employees during work" and ordered him to "stop immediately."

         About six weeks later, while looking for Galle at work, Tschiggfrie's manager found Galle's laptop open to personal websites. He confronted Galle, who confirmed the laptop was his but denied visiting personal websites during work. Not believing Galle, the manager fired him on the spot. The manager later testified that Galle's habit of sleeping on the job also contributed to the decision to fire him.

         The union charged that the warning and the firing were unfair labor practices. The Board's General Counsel filed a complaint and scheduled a hearing. Preparing for the hearing, Tschiggfrie twice interviewed one of Galle's coworkers. The Board moved to amend its complaint to allege that the interviews were coercive interrogations in violation of the Act.

         The administrative law judge found that the warning and the firing were violations-but not the interviews. The Board adopted the ALJ's findings about the warning and the firing, but disagreed about the interviews, finding they also violated the Act. Tschiggfrie Props., 365 NLRB No. 34, at *1-2. Tschiggfrie petitions for review.

         Because Tschiggfrie does not contest the Board's finding about the warning, this court enforces the parts of the Board's order addressing that violation. See NLRB v. Bolivar-Tees, Inc., 551 F.3d 722, 727 (8th Cir. 2008) ("The Board is entitled to summary enforcement of the uncontested portions of its order."). As for the contested parts of the order, this court enforces them "if the Board has correctly applied the law and its factual findings are supported by substantial evidence on the record as a whole, even if we might have reached a different decision had the matter been before us de novo." ConAgra Foods, Inc. v. NLRB, 813 F.3d 1079, 1084 (8th Cir. 2016). This court "defer[s] to the Board's interpretation of the [Act] so long as it is rational and consistent with that law," but reviews de novo all other legal conclusions. Cellular Sales of Mo., LLC v. NLRB, 824 F.3d 772, 775 (8th Cir. 2016) (internal quotation marks omitted).

         II.

         Tschiggfrie contests the Board's finding it fired Galle for union activity in violation of section 8(a)(1) and (3). Tschiggfrie argues it fired him for misusing its Wi-Fi and sleeping on the job. "Although an employer violates Section 8(a)(1) and (3) of the Act if it discharges an employee for engaging in protected activities, 'employers retain the right to discharge workers for any number of other reasons unrelated to the employee's union activities.'" Nichols Aluminum, LLC v. NLRB, 797 F.3d 548, 554 (8th Cir. 2015), quoting NLRB v. Transportation Mgmt. Corp., 462 U.S. 393, 394 (1983).

         "The so called Wright Line analysis is applied when an employer articulates a facially legitimate reason for its termination decision, but that motive is disputed." NLRB v. RELCO Locomotives, Inc., 734 F.3d 764, 780 (8th Cir. 2013), citing Wright Line, 251 NLRB 1083 (1980). The Wright Line analysis is a burden-shifting framework:

[T]he Board's General Counsel must prove "that the employee's protected conduct was a substantial or motivating factor in the adverse action." . . . If, and only if, the General Counsel meets that burden, the burden shifts to the employer to exonerate itself by showing that it would have taken the same action for a legitimate, ...

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