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Southern Bakeries, LLC v. National Labor Relations Board

United States Court of Appeals, Eighth Circuit

September 11, 2019

Southern Bakeries, LLC Petitioner/Cross-Respondent
v.
National Labor Relations Board Respondent/Cross-Petitioner

          Submitted: April 17, 2019

          Review of a Decision and Order of the National Labor Relations Board

          Before LOKEN, WOLLMAN, and STRAS, Circuit Judges.

          LOKEN, CIRCUIT JUDGE.

         After an evidentiary hearing, a National Labor Relations Board Administrative Law Judge (ALJ) determined that Southern Bakeries, LLC, (i) violated Sections 8(a)(1) and (3) of the National Labor Relations Act (NLRA) by relying on a prior unlawful discipline in disciplining and terminating Lorraine Marks Briggs, and designating her "not for rehire"; and (ii) violated Section 8(a)(1) by directing Cheryl Muldew not to discuss her discipline with other employees and then telling her she was being discharged in part for doing so. See 29 U.S.C. § 158(a)(1) and (3). Southern Bakeries appealed those rulings to the Board, which substantially affirmed the ALJ's decision. Southern Bakeries petitions to set aside the Board's Decision and Order; the General Counsel cross-petitions to enforce the Order. Applying the well-established deferential standard of review, we enforce the Board's Order in part.

         I. Marks Briggs.

         A. Background.

         Southern Bakeries acquired a commercial bakery in Hope, Arkansas in 2005, retaining most employees and recognizing the existing union. Beginning in 2009, employees filed three decertification petitions with the Board, expressing dissatisfaction with the union. Each time, the union responded with unfair labor practice charges, and no election was held. The protracted dispute resulted in Southern Bakeries withdrawing recognition of the union in July 2013, and the Board's General Counsel filing a complaint charging Southern Bakeries with numerous unfair labor practices. Among the charges was that the company violated Sections 8(a)(1) and (3) on May 30, 2013 when it issued a "final written warning and suspension" to Marks Briggs, a long-time employee and active union supporter, after she left her production line to use the restroom without giving proper notice.

         Marks Biggs testified at a February 2014 hearing attended by Rickey Ledbetter, Southern Bakeries' vice-president and general manager. The ALJ issued his decision in July 2014, concluding the General Counsel proved that union animus was a substantial or motivating factor in Marks Briggs's discipline, and that Southern Bakeries failed to prove it would have taken the same action even in the absence of her protected union activity.[1] The ALJ's proposed remedy included: "Within 14 days from the date of the Board's Order, remove from [Southern Bakeries'] files any reference to the unlawful disciplinary investigations, written warning . . . and suspension concerning Marks [Briggs and] . . . notify [her] that such discipline will not be used against [her] in any way." Southern Bakeries, LLC, No. 15-CA-101311, slip op. at 34, 2014 WL 35673206 at p.25 (N.L.R.B. July 17, 2014).

         Southern Bakeries appealed this ruling to the Board and then to this court. The Board upheld this part of the ALJ's decision, including the above-quoted remedy, in August 2016. Southern Bakeries, LLC, 364 NLRB No. 64, 2016 WL 4157598 at *10 (2016). We affirmed this portion of the Board's order in September 2017, concluding there was sufficient evidence to support the Board's conclusion that Marks Briggs's discipline was motivated by union animus. Southern Bakeries, LLC v. N.L.R.B., 871 F.3d 811, 825 (8th Cir. 2017).

         In October 2015, there was still no recognized union at the Southern Bakeries facility. On October 8, the newly hired bread line production manager, Tony Hagood, saw Marks Briggs pick up and eat a piece of topping off a loaf of apple bread coming down the line. Hagood had advised employees shortly after he was hired that this type of "grazing" would no longer be tolerated, as it was contrary to food safety law and practice. Hagood submitted a disciplinary action form to the human resources department describing Marks Briggs's violation of this rule. HR manager Eric McNiel, newly hired on October 12, consulted with Ledbetter, who informed McNiel of Marks Briggs's 2013 final written warning. The two decided to issue her a "Last Chance Agreement," the functional equivalent of a final written warning. The October 16, 2015 Last Chance Agreement stated:

After a management review of the facts surrounding the incident and your previous record for rule violations, your behavior does call for immediate discharge; however, management has considered all extenuating circumstances, including 24 years of service. Management believes a "Last Chance Agreement" is more appropriate.

         In January 2016, Southern Bakeries met with each bread line employee, including Marks Briggs, to discuss the tone of interpersonal relationships in the workplace; each employee signed a form acknowledging receipt of a copy of facility rules and the policy against harassment. On February 8, with the bread line stopped, Marks Briggs left her work station without informing a supervisor and walked to a wash stand in another area. She walked close by another employee and their shoulders bumped. The other employee complained that Marks Briggs bumped her on purpose and joked about it when she returned to her work station. Marks Briggs claimed the other employee bumped into her. McNiel interviewed the involved parties. On February 19, McNiel and Hagood presented Marks Briggs a termination notice stating she was being discharged for leaving her work area without permission, provoking a fight or creating a hostile or unpleasant workplace, and disobeying a supervisor's instruction (the January 2016 meeting). The notice further stated:

A review of your work history includes two (2) final warnings "Last Chance Agreements" regarding your violation[s] . . . on May 30, 2013 and . . . on October 16, 2015 . . . . After a management review of the facts surrounding the incidents . . . and taking into account the "Last Chance Agreements" given to you on May 30, 2013 . . . and October 17, 2015 ...

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