Tschiggfrie Properties, Ltd. Petitioner
National Labor Relations Board Respondent Tschiggfrie Properties, Ltd. Respondent
National Labor Relations Board Petitioner
Submitted: May 15, 2018
BENTON, KELLY, and STRAS, Circuit Judges.
BENTON, Circuit Judge.
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.
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
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
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
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.
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).
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).
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
[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,