Sec. Walls, LLC v. Nat'l Labor Relations Bd.

80 F.4th 1277

SECURITY WALLS, LLC, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 22-11339

United States Court of Appeals, Eleventh Circuit

Filed: September 5, 2023

Petitions for Review of a Decision of the National Labor Relations Board, Agency No. 15-CA-255865

Milton Douglas Jones, Law Offices of Milton D. Jones, Hampton, GA, for Petitioner.

Ruth E. Burdick, Jennifier Abruzzo, Mark E. Arbesfeld, Jared David Cantor, Peter Sung Ohr, Milakshmi V. Rajapakse, National Labor Relations Board Division of Legal Counsel, Washington, DC, Deputy Associate Solicitor, U.S. Department of Labor Office of the Solicitor, Washington, DC, for Respondent.

Before Branch and Luck, Circuit Judges, and Smith,^* District Judge.

Branch, Circuit Judge:

The National Labor Relations Board (the "NLRB" or "the Board") determined that Security Walls, LLC ("Security Walls"), unlawfully fired an employee for activity protected under the National Labor Relations Act ("NLRA"). Security Walls now petitions this Court for review of the Board's decision, arguing that the employee's activity was not protected because he did not utilize the union's grievance process first and because his activity was inconsistent with the collective bargaining agreement then in place. The Board filed a cross-petition for enforcement of its order. After careful review and with the benefit of oral argument, we conclude that the employee's activity was protected. Accordingly, we grant the Board's application for enforcement and deny Security Walls's petition for review.

I. Factual Background

Since 2017, Security Walls has provided security services for the National Aeronautics and Space Administration ("NASA") at the Michoud Assembly Facility ("Michoud") in New Orleans, Louisiana. The company employs approximately 40 security officers, whose responsibilities include controlling entry and access to Michoud and other on-site buildings and responding to calls for service and emergencies. The International Union, Security, Police and Fire Professionals of America ("the union") represents the officers at Michoud, and a collective bargaining agreement covered the employees from October 1, 2017, to September 30, 2020.

In January 2018, Security Walls hired Randall Kelley to work as a security officer. Before Kelley started work at Michoud, he attended a mandatory training. During his training, Security Walls paid Kelley the hourly rate for trainees, which was lower than the rate for on-duty officers. After the training ended, Kelley noticed that Security Walls continued to pay him at the trainee rate in his first paycheck as an on-duty officer—which resulted in underpayment of almost $700—and failed to reimburse him for mileage and other out-of-pocket expenses incurred during the training. After discussing these issues with other coworkers, he discovered that another newly hired officer, Mandie Lockwood, had been similarly underpaid and unreimbursed.

With Lockwood's support, Kelley reported the underpayment and reimbursement issues to Captain Henry Conravey and Chief Jules Perrie, Security Walls's on-site managers. After several weeks passed without a resolution, Kelley, with Lockwood's encouragement, contacted Security Walls's corporate human resources department directly. Within hours, Kelley and Lockwood each received a wire transfer for their missing wages. But despite continuing to ask for Conravey's assistance, Kelley did not receive his missing training reimbursements. Eventually, Kelley asked Conravey if he should contact human resources directly about the issue. Conravey replied that Kelley would be "suspended on the spot" if he called "corporate" again without Conravey's permission.

The bungled payments were just the beginning of the issues that Kelley encountered during his employment. Consistent with the collective bargaining agreement between Security Walls and the union, Security Walls selected officers for mandatory overtime in reverse order of seniority, proceeding systematically through the entire seniority list and only returning to the bottom after every officer worked an overtime assignment. In April 2018, Lieutenant Jordan Robinson began supervising the second shift—which is the shift Kelley worked. Instead of assigning overtime from the spot on the seniority list where the prior supervisor had left off, Robinson started at the bottom of the list so that officers with the lowest seniority had to work overtime twice.

Kelley and other adversely affected officers discussed the situation, and, with the officers' support, Kelley spoke to Robinson about the inequitable assignment of overtime. In response, Robinson chastised Kelley for talking to others "behind his back."

The following month, officer Emanual Rahman stopped a vehicle from entering Michoud because the adult occupants appeared to be intoxicated and two unrestrained children were in the backseat. Rahman reported the incident over the radio, and Robinson, Kelley, and another officer, Thomas Benasco, reported to the scene. Robinson directed Rahman to escort the vehicle off the property and not to detain it or contact the occupants. Kelley and Benasco questioned Robinson's directive. They attempted to persuade Robinson that they had a duty to prevent the vehicle from returning to the road. Kelley expressed concern about the adults' impaired condition and the presence of the unrestrained children. When Robinson asked, Benasco said that he agreed with Kelley.

Becoming agitated, Robinson punched his fist into his hand and yelled and cursed at Rahman, Kelley, and Benasco. Then, before leaving, Robinson said that "nobody better talk shit about me when I leave here" and "[don't] let me find out that anyone's talking behind my back." Despite Robinson's instructions, the three officers discussed his behavior and agreed that it should be brought to management's attention. The next morning, Kelley reported the incident to Conravey, Robinson's superior, and Conravey said that he would take care of it.

The next issue Kelley encountered involved his post. Officers at Michoud hold either stationary or mobile posts. When assigned to a stationary post, officers are required to stay within a designated building or area. When assigned to a mobile post, officers use company-owned vehicles to patrol larger areas. Although supervisors create post assignments for each officer daily, it is common for officers to trade assignments.

It was well known that Kelley disliked stationary posts and preferred a mobile post. On June 6, 2018, while Kelley was assigned to a mobile post, he initiated a traffic stop and arrested a FedEx driver. Shortly afterward, Robinson informed Kelley that NASA was investigating the incident and that Kelley was restricted to a stationary post until the investigation was complete. After about a week had passed without NASA reaching out about the incident, Kelley asked Robinson for more information. Robinson replied that FedEx, not NASA, was conducting the investigation and that Kelley could return to mobile patrol on July 1.

Later that day, when Kelley was discussing his post restriction with a union representative, Robinson approached Kelley. He accused Kelley of "talk[ing] shit behind his back" and suggested that they go to a back office and have a conversation. The men squared off and exchanged words until another officer intervened and separated them.¹

Kelley immediately reported the incident to Chief Perrie. During their conversation, Chief Perrie explained that Kelley had never been under investigation and that Robinson simply wanted to "ground" Kelley for 30 days because Robinson "got tired of hearing [Kelley's] name come up."

The following day, Security Walls suspended Kelley for two days without pay for purportedly violating the collective bargaining agreement by initiating a verbal altercation with Robinson. Security Walls had never previously disciplined any employee for initiating a verbal altercation, fighting, or any other disruptive behavior, despite instances of such conduct occurring.

Additionally, during the summer of 2018, officers heard rumors that Security Walls was considering a schedule change in which officers would move from five-day workweeks with eight-hour shifts to three-day workweeks with twelve-hour shifts. Concerned, Kelley created a written analysis that showed how the potential change would dramatically reduce the income of dayshift officers compared to nightshift officers. Kelley shared his analysis with other officers, who also expressed concern over the disparate impact of the schedule change.

Then on July 9, 2018, Kelley emailed Security Walls's owner Juanita Walls and expressed concerns over a workplace atmosphere of threats, intimidation, and retaliation. He also complained about the potential shift to twelve-hour workdays. Walls responded that she would have her newly hired program manager, Brenda Hunter, look into the issue.

Kelley and Benasco met with Hunter a few weeks later, and Kelley shared his analysis about the potential schedule change. Kelley also complained about Chief Perrie and purported supervisory incompetence at Michoud. Shortly after the meeting, Robinson issued Kelley a verbal warning for calling off work without proper documentation.²

On July 20, 2018, Kelley was assigned to "Post 3," which was a mobile patrol. At the time, based on the officers' on-the-job training, it was typical for officers to perform building checks inside Building 101. When officers working Post 3 checked Building 101, they would note that they did so on their daily patrol activity reports, which they provided to their supervisors.

Around 3:15 p.m., Kelley picked up Benasco and drove to Building 101. Once there, Kelley and Benasco joined three other on-duty officers in the building's lobby, and all of the officers used their personal cell phones in the lobby. Around 4:00 p.m., Robinson approached the officers and directed them to return to their respective...