On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
The opinion of the court was delivered by: Edwards, Senior Circuit Judge:
Before: ROGERS and GRIFFITH, Circuit Judges, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge EDWARDS.
Hawaii Newspaper Guild, Local 39117, Communications Workers of America, AFL-CIO ("the Union") filed charges against Stephens Media, LLC, doing business as the Hawaii Tribune-Herald ("the Company"), alleging that the Company had committed multiple unfair labor practices in violation of the National Labor Relations Act ("the NLRA" or "the Act"). The National Labor Relations Board ("the NLRB" or "the Board") found merit to virtually all of the charges and ordered the Company to undertake certain remedial actions. See Hawaii Tribune-Herald, 356 N.L.R.B. No. 63, at 3-5 (Feb. 14, 2011). The Company seeks review of the Board's Decision and Order; the Board seeks enforcement.
We hereby grant the Board's cross-application for enforcement. Substantial evidence and controlling precedent support the Board's findings, and the Board's well-reasoned decision amply explains its judgment. Only two points merit our amplification.
First, with respect to employee Hunter Bishop, the Board found that the Company violated section 8(a)(3) and (1) of the Act, 29 U.S.C. § 158(a)(3), (1) (2006), by suspending and discharging Bishop for engaging in protected "concerted activities," id. § 157. The Company's objections to that finding and its two justifications for Bishop's termination are unavailing. The Company asserts that, after discharging Bishop, it discovered that he had been deficient in his work productivity. The Board found, and we agree, that the Company's claim is pretextual. The Company also contends that Bishop engaged in disloyal conduct after he was fired. The Board held, however, that Bishop's conduct did not render him "unfit for further service, or a threat to 'efficiency in the plant.'" O'Daniel Oldsmobile, Inc., 179 N.L.R.B. 398, 405 (1969) (citations omitted). We can find no basis to overturn the Board's judgment on this point. Therefore, as the Board held, Bishop is entitled to reinstatement and backpay. We are jurisdictionally barred from considering the Company's arguments that the NLRB committed either legal error in adopting O'Daniel Oldsmobile as the governing standard or factual error in applying that standard. See 29 U.S.C. § 160(e).
Second, with respect to employees Dave Smith, Peter Sur, Christine Loos, and William Ing, the Board found that the Company violated section 8(a)(3) and/or (1) of the Act by interrogating them, suspending Smith and Sur, and discharging Smith for engaging in protected concerted activity. The Company says that the cited employees engaged in unprotected activity when they participated in making a surreptitious audio recording of a conversation between Smith and a member of management. Therefore, according to the Company, the actions taken against the employees did not constitute unfair labor practices. The Board's decision rejecting the Company's claim rests on three grounds: under established Board precedent, there is no per se rule that the making of surreptitious recordings is unprotected activity; the Company had no policy in effect prohibiting audio recordings; and it is undisputed that the recording was not unlawful under state or local law. We defer to the Board's judgment, because it is based on reasoned decisionmaking, supported by substantial evidence, and consistent with controlling precedent.
The Company publishes a newspaper in Hilo, Hawaii. The editor of the newspaper is David Bock, and the publisher is Ted Dixon. The Company's news staff employees are represented by the Union. Employees Koryn Nako, Hunter Bishop, and Dave Smith have served as Union shop stewards.
The circumstances leading to this petition for review and cross-application for enforcement are largely undisputed. We focus on the facts that are relevant to the portions of the Board's Decision and Order that merit amplification. We first address the events relevant to the Company's suspension and discharge of Bishop. We then turn to the events surrounding Smith's making of a secret recording of a conversation with Bock. The facts that are recited below are drawn directly from the Decision and Order of the Board, see Hawaii Tribune-Herald, 356 N.L.R.B. No. 63 (Feb. 14, 2011), and from documents in the record before the court.
1. Bishop's Suspension and Termination
On October 18, 2005, Union representative Ken Nakakura asked to meet with Nako. They initially met outside the Company building, but Nako then brought Nakakura through the employee entrance into the break room, where they were joined by Bishop. Bock and the Company's advertising director, Alice Sledge, entered the break room shortly thereafter. Upon identifying Nakakura as a Union representative, Bock asked who had admitted Nakakura into the building. Nako volunteered that she had done so. Bock stated that it was a violation of the Company's access policy for a Union representative to be in the building without receiving prior management approval. Bock then escorted Nakakura out of the building.
When Bock returned, he asked to speak with Nako. As they were preparing to leave the break room, another employee, Sharon Maeda, asked Bishop if someone should accompany Nako. Nako signaled her approval by looking to Bishop and saying "okay." Hawaii Tribune-Herald, 356 N.L.R.B. No. 63, at 7. Bishop followed Bock and Nako, prompting Bock to tell Bishop that the discussion did not involve him. Bishop then inquired whether the meeting could result in a disciplinary action - apparently attempting to ascertain whether Nako was entitled to bring a witness to the meeting under NLRB v. J. Weingarten, Inc. See 420 U.S. 251 (1975) (holding that an employer commits an unfair labor practice by compelling an employee to attend an investigatory meeting that could lead to discipline without allowing the employee to bring a union witness). Bock replied that he would be having a discussion with Nako. Bishop asked one or two more times whether the meeting could lead to discipline, and Bock stated that the meeting was none of Bishop's business. Bishop eventually withdrew, telling Nako from about twenty feet away that he would be available, if she needed him.
The testimony before the Administrative Law Judge ("ALJ") indicates that, during this confrontation, Bishop spoke in a "moderately loud," "elevated," or "strong projecting" voice. Hawaii Tribune-Herald, 356 N.L.R.B. No. 63, at 9. At no point, however, did Bishop yell, threaten Bock, or use profanity. Id. at 8-9, 20. Indeed, the ALJ and NLRB expressly discredited witnesses who testified that Bishop shouted or became excessively angry. See id. at 9; see also id. at 1 n.2.
Company officials questioned Nako several times about admitting Nakakura into the building and about Bishop's confrontation with Bock. The Company also prepared a statement documenting Nako's version of the confrontation between Bock and Bishop, which she signed on October 19. On October 26, Nako received a warning for admitting Nakakura into the building without receiving management's prior approval.
Meanwhile, on October 19, Bock summoned Bishop to Bock's office, where Bock suspended Bishop indefinitely, without pay. Bock explained that Bishop's conduct in trying to prevent Bock from meeting with Nako had been unacceptable. Bock also referenced Bishop's disciplinary record. Bock sent Bishop a termination letter several days later, which stated: "[W]e are discharging you because of your misconduct on October 18, 2005. You were disrespectful of supervisory authority, insubordinate and disruptive of my efforts to have a conversation with one of our employees." Letter from David Bock to Hunter Bishop (Oct. 27, 2005), reprinted in II Joint App. ("J.A.") 870. After the Company discharged Bishop, employees wore buttons at work indicating their support for him. In response, the Company circulated a memo prohibiting employees from wearing these buttons during work hours. See Letter from Ted E. Dixon (Nov. 1, 2005), II. J.A. 880.
The Union filed grievances to challenge the disciplinary actions taken against Bishop and Nako. On several occasions in October and November 2005, the Union requested information and documents relevant to these grievances, including Bishop's personnel file, witness lists, Nako's signed statement, and copies of company policies. The Company failed to give the Union Bishop's personnel file until early 2006, and it consistently refused to provide other requested documents.
In December 2005, Bishop attended a public event at the Hilo campus of the University of Hawaii. There, he spoke critically about the Company, claiming that it had failed adequately to staff the newsroom and that he had considered starting a rival newspaper.
In February 2006, Bock sent another letter to Bishop. According to the Board, [the] letter cited additional reasons for Bishop's discharge including poor productivity and participation in a forum at the University of Hawaii-Hilo where Bishop allegedly made disparaging, defamatory, disloyal remarks about the Hawaii Tribune-Herald. In the letter, Bock claim[ed] he failed to compile Bishop's productivity numbers at the time of his termination on October 27, 2005, and that a later review of the number of stories Bishop produced shows he failed to meet productivity standards. According to Bock, Bishop was producing .81 stories per day and the standard was one story per day. Bishop had previously been counseled about his low productivity in May 2002 and September 2003, he received a warning for low production in October 2003 and was suspended for low production on May 6, 2004.
Hawaii Tribune-Herald, 356 N.L.R.B. No. 63, at 10. Bishop made additional critical statements about the Company on his blog in April and September of 2007. See id. at 9-10.
On March 3, 2006, employee Jason Armstrong asked Smith to serve as a witness to a meeting during which Armstrong expected to receive a warning from Bock. See id. at 10. Smith tried to accompany Armstrong to the meeting, but Bock refused to allow Smith to attend. Bock also told Smith that they needed to meet privately later that day.
Smith expected that he too would receive a warning from Bock and that Bock would not allow him to bring a union witness to their meeting. Smith believed that, under the Supreme Court's Weingarten decision, he was entitled to have a witness attend the meeting with him. Smith called the Union administrator, Wayne Cahill, who advised Smith to take notes during the meeting. After talking with Cahill, however, Smith discussed the situation with three other bargaining unit employees: Peter Sur, Christine Loos, and William Ing. They concluded that, rather than take notes, Smith should surreptitiously record his conversation with Bock using Sur's voice recorder. The Company did not have any policy at the time regarding the making of secret audio recordings, see id. at 15, nor was there any local or state law prohibiting the making of such recordings, see HAW. REV. ...