*

 District Judge of the Western District of Louisiana, sitting by designation.

Revised February 11, 2000

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________________

No. 98-60653

________________________

NEW ORLEANS COLD STORAGE & WAREHOUSE CO., LTD.,

 Petitioner-Cross-Respondent,

-vsNATIONAL LABOR RELATIONS BOARD,

 Respondent-Cross-Petitioner.

_____________________________________________________

Petition for Review & Cross Petition For Enforcement

of an Order of the National Labor Relations Board

______________________________________________________

January 24, 2000

Before POLITZ and STEWART, Circuit Judges, and LITTLE, District Judge.*

LITTLE, District Judge:

This case was brought by New Orleans Cold Storage & Warehouse Co., Ltd. (“NOCS”) to

overrule the National Labor Relation Board’s (“the Board”) determination that NOCS violated

Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (“the Act”). For the following

reasons, we AFFIRM. 
2

I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

NOCS operatesstorage warehousesfor chilled and frozen cargo in several citiesin the United

States. Nelson Pierre, the charging party in this matter, began working at NOCS’ New Orleans

Nashville Avenue location in 1982. When he joined NOCS, Pierre worked as a lift driver in the

freezer. In 1983, he moved to a position on the dock. In 1986, Pierre transferred once more to the

chill rooms. While in this position, Pierre received three warnings, one for tardiness, one for

mishandling an order, and another for missing four and a half days of work. In June 1992, while still

employed in the chill rooms, Pierre filed a grievance with Local Teamsters Union No. 270 (“the

union”) over a warning he had received for allegedly mishandling the produce order.

Pierre again changed jobs in April 1993, becoming a warehouse porter. On 28 December

1993, Pierre filed a grievance with the union asserting that NOCS had not paid himfor overtime work

he had done over the past four months. Also on 28 December, NOCS informed Pierre that his work

schedule would change from noon to 8 p.m., to 2:00 a.m. to 10:00 a.m., because of congestion on

the docks. Pierre then filed another grievance protesting his change in hours and requesting to be

reassigned to the produce department. This request was denied. On 1 February 1994, NOCS issued

a warning and suspended Pierre for missing a day of work. Pierre filed two grievances with the union

on that day asserting that there was a reasonable explanation for his one-day absence and therefore

the warning and suspension were not warranted. Pierre was ultimately discharged from his position
1 Prior to 1985, NOCS divided its employees into several job categories with different rates of pay, including

warehousemen, checkers, and lift truck drivers. In 1985, pursuant to a collective bargaining agreement, NOCS dispensed with the

separate classifications and the Union agreed that all workers would be classified as checker/lift operators (“CLTs”). 

2

 While working in the freezer in 1983, Pierre experienced physical problems including diarrhea, excessive sweating,

and nausea. 

3

as a checker/lift operator (“CLT”)1porter on 8 February 1994. Pierre filed an unfair labor practice

charge and grievance seeking reinstatement shortly thereafter. The matter was then submitted to an

arbitrator pursuant to the collective bargaining agreement between NOCS and the union. 

The arbitrator ruled that Pierre’s discharge should be converted to a suspension and ordered

Pierre be returned to employment without any loss ofseniority. Union Business Agent Robert Louis

(“Louis”) then contacted Gary Escoffier (“Escoffier”), NOCS’ Chief Executive Officer, to discuss

Pierre’s reinstatement. Escoffier told Louis that Pierre would be reassigned to the freezer so

Escoffier could “keep an eye” on him. Pierre protested his reassignment to the freezer when Louis

notified him that he had been assigned to a position as freezer CLT because of the health problems

he had experienced while working in the freezer in 1982.2 Louis again spoke with Escoffier about

finding another position for Pierre, but Escoffier insisted that Pierre return to the freezer. Louis

advised Pierre that he had been given an ultimatum either to work in the freezer or remain at home

and therefore his best course of action wasto accept this position and file a grievance with the union.

Pierre returned to work and filed a grievance. 

Once back at work on 11 July1994, Pierre askedRickeyCalligan (“Calligan”), the warehouse

manager, why he was not reinstated to his prior position. The manager informed Pierre that he was

not given his old job back because Escoffier had decided he was filing too many grievances. Upon

hisreinstatement, Pierre began receiving oral and writtenwarningsfor various alleged transgressions.
3 The ALJ determined that NOCS normally did not time stamp the receiving records, and only did so in Pierre’s case

because of his grievance writing.

4

First, on 15 July 1994, Calligan warned Pierre orally and in writing about a mistake he made on a

receiving tally. This oral warning was a departure from routine company policy that allows CLTs to

correct tally’s themselves, or after being advised by a company secretary who catches tally

discrepancies. Further, normally CLTs are only given warnings for mistakes that cause monetary loss.

On 8 August, Calligan filed a written warning after purportedly Pierre took too long to unload an

order, even though Pierre apparently was legitimately delayed in completing his job. Calligan

attached a receiving record with two time stampsreflecting the time Pierre had been given the unload

order, and the time he finished the job. The ALJ found that time stamping also was not typical

company practice.3 The ALJ also found that Pierre never received notice of this warning. Again on

10 August, Calligan wrote two warningsto Pierre, one for failing to fill in the number of pallets used

in shipping an order, and another for allowing a driver from another company to take pallets without

paying for them. Pierre also received a warning on that day for taking too long to unload a container.

NOCS held a step-one grievance meeting regarding the grievance Pierre had filed on 11 July

protesting hisreinstatement to the freezer. Escoffier told Pierre that the arbitrator only reinstated him

because he felt sorry for him and again told Pierre that he was writing too many grievances. Pierre

responded that he would stop filing grievances if NOCS would stop issuing warningsto him. Finally

on 31 August 1994, NOCS terminated Pierre, referring generally to his numerous warnings and a

“history of poor workmanship.” Pierre filed another grievance upon termination. 
4

 Based on the 1985 agreement between the union and NOCS reclassifying all workers as CLTs, the arbitrator ruled that

NOCS had no separate job of porter, and he could therefore not reinstate Pierre to such a position because it did not exist.

5

This case came before the Board upon filing of an unfair labor practice complaint by the

General Counsel of the Board, following an investigation of unfair labor practice charges filed by

Pierre. On 21 December 1994, the Acting Regional Director for Region 15 issued an order to show

cause why the issue concerning the position to which Pierre should have been reinstated should not

be resubmitted to the arbitrator. The arbitrator issued a supplemental decision on 31 July 1995

finding that it was beyond his power to reinstate Pierre to any one position,since NOCS had only one

job category, that of CLT, and there was no classification of “porter.”4 

On 25 October 1994, Pierre filed a charge against NOCS alleging that NOCS discharged him

in ret aliation for filing grievances. Pierre filed a first amended complaint on 25 November 1994

repeating the allegations in his original charge and adding that NOCS failed to reinstate Pierre to the

position as porter. Finally on 11 September 1996, Pierre filed a second amended charge, contending

that NOCS threatened unspecified reprisals against Pierre. NOCS then moved for dismissal of the

retaliation charge. NOCS argued that this allegation was time barred by Section 10(b) of the National

Labor Relations Act (“the Act”), 29 U.S.C. § 160(b)(1994), because Pierre did not set forth the

charge alleging violation of Section 8 of the Act, 29 U.S.C. § 158(a)(1),(3) (1994), until 11

September 1996. After a full hearing, the administrative law judge (“ALJ”) issued a decision and

recommended order denying NOCS’ motion to dismiss and finding that NOCS had violated Sections

8(a)(1) and 8(a)(3) of the Act. The ALJ also rejected NOCS’ argument that any of Pierre’s charges

are time barred by Section 10(b). The Board affirmed the ALJ’s finding.
6

II. 

STANDARD OF REVIEW

This court must uphold the Board’s decision if it is reasonable and supported by substantial

evidence. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S. Ct. 456, 464, 95 L.Ed.

456 (1951);NLRBv. ThermonHeat Tracing Servs., 143 F.3d 181, 185 (5thCir. 1998); Trencor, Inc.

v. NLRB, 110 F.3d 268, 269 (5th Cir. 1997). The Board’s decision is supported by substantial

evidence if it is based on “such relevant evidence as a reasonable mind would accept to support a

conclusion." UniversalCamera, 340 U.S. at 477, 71 S.Ct. at 459; Thermon Heat Tracing Serv., 143

F.3d at 185.

A. The Board’s Decision not to Defer to Arbitrator

NOCS argues that the Board erred by refusing to defer to the arbitrator’s supplemental

decision concluding that he was without the power to rei nstate Pierre to any one position at the

company because NOCS had only one job classification - that of CLT. This court reviews the

Board’s decision not to defer to an arbitrator only for abuse of discretion. See NLRB v. Ryder/P.I.E.

Nationwide Inc., 810 F.2d 502, 506 (5th Cir. 1987). In deciding whether deferral is appropriate, this

court applies the four-part test set forth in Spielberg Manufacturing Co., 112 NLRB 1080, 1082

(1955). The Board will defer to the arbitrator’s decision if the arbitration proceeding was fair and

regular, all parties agreed to be bound, the arbitration decision was not clearly repugnant to the

purposes and policies of the Board, and the arbitrator considered the unfair labor practice issue. See

id.; see also NLRB v. Magna Corp., 734 F.2d 1057, 1063 (5th Cir. 1984)(applying Spielberg). The
5 Under Section 7 of the National Labor Relations Act, employees have “the right to self-organization, to form, join or

assist labor organizations . . . and or engage in . . . concerted activities for the purpose of collective bargaining or other mutual air

or protection . . . .” 

7

arbitrator is deemed to have considered the unfair labor practice issue if: “(1) the contractual issue

is factually parallel to the unfair labor practice issue and (2) the arbitrator was presented generally

with the facts relevant to resolving the unfair labor practice issue.” Ryder/P.I.E. Nationwide, 810

F.2d at 506 (citing Olin Corp., 268 N.L.R.B. 573, 574 (1984)).

The ALJ was correct in noting that the arbitrator’s award did not address the same question

as that before the Board -- whether Pierre was discriminatorily reinstated because he engaged in

activity protected under Section 7 of the Act. 29 U.S.C. § 157 (1994).5 The only issue before the

arbitrator was whether Pierre should be reinstated after his discharge in February 1994 and whether

the collective bargaining agreement required NOCS to assign Pierre to specific duties. The arbitrator

did not consider whether Pierre was discriminatorily reinstated and later discharged in retaliation for

his grievance writing activity in violation of Section 8(a)(1) and 8(a)(3), the main issues before the

Board, and therefore did not meet the fourth prong of the Spielberg test. See Ryder/P.I.E.

Nationwide, 810 F.2d at 506 (finding that the Board’srefusal to defer to arbitrator was proper in case

where arbitrator considered whether discharge was proper under the collective bargaining agreement

whereas the Board dealt with the issue of whether employee was discharged for grievance filing

activity). Accordingly, we find that the Board did not abuse its discretion in refusing to defer to the

arbitrator’s decision regarding Pierre’s reinstatement. 

B. Section 8(a)(1) Violation
6

 NOCS argues that we should use the Redd-I three-step analysis in order to determine whether the amended charge is

closely related to the timely filed charge. See Redd-I, Inc., 290 NLRB 1115 (1988). The Redd-I test is, however, “a more rigorous

enquiry than the law of this Circuit demands.” See Texas World Serv., Co. v. NLRB, 928 F.2d 1426, 1437 n. 10 (5th Cir.

1991).

8

Under Section 8(a)(1) of the Act, an employer may not “interfere with, restrain, or coerce an

employee in the exercise” of his Section 7 rights. 29 U.S.C. § 158 (a)(1). NOCS challenges the

Board’sfinding that it violated Section 8(a)(1) by threatening employees who file grievances on two

separate grounds. First, NOCS contends that the Board erred in affirming the ALJ’s determination

that Pierre’s second amended charge was timely filed. Section 10(b) of the Act prohibits the Board

from considering charges based on facts that occurred more than six months prior to the time of

filing. 29 U.S.C. § 160(b). A charging party may file an amended charge, but such charges are

considered untimely unlessthe amended charge is closely related to the allegationsin the timely-filed

charge. See Texas World Serv. Co. v. NLRB, 928 F.2d 1426, 1436-37 (5th Cir. 1991); NLRB v.

International Union of Operating Eng'rs, 460 F.2d 589, 596 (5th Cir. 1972). 

To determine whether an allegation is closely related to a timely filed charge, the complaint

“‘need be close enough onlyto negate the possibilitythat the Board is proceeding on its own initiative

rather than pursuant to a charge... .’" Texas World Serv., 928 F.2d at 1437 (citing NLRB v. Central

Power & Light Co., 425 F.2d 1318, 1321 n. 3 (5th Cir.1970)).6 In this case, Pierre filed the initial

charge with the Board in October 1994,shortly after being discharged. The initial charge alleges that

NOCS discriminated against himas a result of his grievance filing activity. The first amended charge,

filed on 25 November 1994, alleges that NOCS failed to reinstate Pierre as porter because he was

filing too many grievances. The second amended charge, although not filed until 11 September 1994,
9

also contendsthat Pierre wasthreatened as a result of filing grievances. There is no question that the

second amended charge arises out ofthe same course of conduct asthe two timely-filed charges; that

is, Pierre’s frequent grievance filing. We conclude that the Board reasonably found that Pierre’s

second amended charge, alleging that NOCS’ manager unlawfully threatened to retaliate against

Pierre in violation of Section 8(a)(1), wassufficiently related to the allegationsin the two timelyfiled

charges of unlawful discrimination. We therefore treat the second amended charge as relating back

to the timely filed charges and consider those allegations in reaching our decision in this case.

In the alternative, NOCS asserts that even if the second amended charge was timely filed, it

still did not violate Section 8(a)(1). Under Section 8(a)(1), it is illegal to threaten an employee who

engages in a protected activity. The basic thrust of the ALJ’s finding is that by not reinstating Pierre

to his former position because he was filing too many grievances, NOCS threatened employees who

dared to file grievances by suggesting that any employee who did report NOCS to the union would

be moved to a less desirable job. NOCS claims that the ALJ improperly credited Pierre’s testimony

that Calligan had threatened employees with unspecified reprisals. We must give great deference to

the ALJ’s credibility determinations. See NLRB v. Delta Gas, Inc., 840 F.2d 309, 311 (5th Cir.

1988) (noting that the Board’s credibility determinations are entitled to deference unless “inherently

unreasonable or self-contradictory”); NLRB v. Laredo Packing Co., 730 F.2d 405, 408 (5th Cir.

1984). When Pierre asked Calligan why he had been reinstated to the freezer, Calligan remarked that

his assignment to the freezer was due to hisfrequent grievance writing. The ALJ had the opportunity

to view and question witnesses, and we therefore give credence to his conclusion that NOCS

threatened unspecified reprisals against its employees when Calligan informed Pierre that he could
10

not get his porter job back because he was filing to many grievances. Escoffier’s statement to Pierre

on 16 August 1994 that “he didn’t win anything” and that he was “writing too many grievances” also

tends to support the ALJ’s finding that NOCS’ threatened unspecified reprisals against Pierre. 

Alternatively, NOCS argues that this statement does not rise to the level of an actionable

threat because NOCS was under a binding order to reinstate Pierre and therefore had no authority

to refuse to reinstate him. Again, this court must affirm the Board’s decision that an employer’s

actions violate Section 8(a)(1) if there is substantial evidence taken on the record as a whole

supporting the Board’sfinding. See NRLB v. Great WesternCoca Cola Bottling Co., 740 F.2d 398,

404 (5thCir. 1984). Contrary to NOCS’ contention that no reasonable employee would believe that

NOCS would carry out any threat because of the binding nature of the arbitrator’s ruling, we agree

with the Board that once confronted by the statement that his grievance filing had caused him to be

relegated to an undesirable position, any reasonable employee might infer that such behavior was

being threatened, punished, and discouraged. See Selkirk Metalbestos, North America, Eljer Mfg.,

Inc. v. NLRB, 116 F.3d 782, 788 (5th Cir. 1997) (citing NLRB v. Brookwood Furniture, Div. of

U.S. Indus., 701 F.2d 452, 459 (5th Cir. 1983))(“An unlawful threat is established if, under the

totalityofthe circumstances, an employee could reasonablyconclude that the employeristhreatening

economic reprisalsif the employee supportsthe union.”). We find that it was reasonable for the ALJ

and the Board to conclude that Calligan’s and Escoffier’s separate statements to Pierre that he was

filing too many grievances would tend to interfere with the employee’s protected right under Section

7 to file grievances as provided under the collective-bargaining agreement regardless of the binding

arbitration order requiring NOCS to reinstate Pierre. 
7 Specifically, NOCS arguesthat thisissue wasresolved at step one of the grievance procedure and Pierre failed to comply

with the terms of the two-step internal resolution process before filing a charge with the Board. 

11

C. Section 8(a)(3) Violations

NOCS also asserts that the Board erred in affirming the ALJ’s decision that NOCS violated

Section 8(a)(3) by reinstating him to a more onerous position and by ultimately terminating him.

Section 8(a)(3) of the Act makes it unlawful for an employer to discriminate against employees with

respect to terms or tenure of employment for the purpo se of discouraging membership in a labor

organization. See Thermon Heat Tracing Servs., 143 F.3d at 186. Section 8(a)(3) also “prohibits

an employer fromretaliating against an employee for engaging in union or other protected activities.”

Delta Gas, 840 F.2d at 311. NOCS contends that this court is barred from even hearing this dispute

because Pierre failed to comply with the terms of the grievance procedure set forth in the collective

bargaining agreement between NOCS and the union.7 We disagree with this position. Section 10(a)

of the Act provides that the Board’s power to prohibit unfair labor practices is not “affected by any

other means of adjudication that has been established by agreement, law, or otherwise.” 29 U.S.C.

§ 160(a). NOCS’ internal grievance procedure therefore has no bearing on the Board’s independent

decision as to whether NOCS violated Section 8(a)(3) of the Act.

We also affirm the Board’s finding that NOCS violated Section 8(a)(3) by discriminatorily

reinstating Pierre to the more onerous position as freezer CLT, by issuing warnings to him, and by

discharging himin retaliation for his grievance filing activities. In reviewing the Board’s decision, we

must give great deference to the credibility determinations made by the ALJ and the Board “‘even

if we might reach a contrary result were we deciding the case de novo.’” Thermon Heat Tracing
8We agree with the ALJ’s characterization of the freezer position as more onerousthan the position of porter. The freezer

position required frequent exposure to freezing temperatures that necessitated that the employ ee wear special clothing while

working in that position. This was especially true in Pierre’s case since he had previously experienced physical problems while

working in the freezer. It, therefore, was reasonable for the ALJ to conclude that the freezer position was less desirable than that

of porter.

12

Servs., 143 F.3d at 185 (quoting NLRB v. Turner Tool & Joint Rebuilders Corp., 670 F.2d 637, 641

(5th Cir. 1982)); see also Ryder/P.I.E. Nationwide, 810 F.2d at 507 (stating that the court must give

great deference to the Board’s credibility assessment). We conclude that the Board’s findings

were reasonable in light of the record taken as a whole. Filing grievances pursuant to a collectivebargaining agreement is a protected activity under Section 8(a)(3). See NLRB v. CityDisposal Sys.,

Inc., 465 U.S. 822, 836, 104 S.Ct. 1505, 1513, 79 L.Ed.2d 839 (1984); Ryder/P.I.E. Nationwide,

810 F.2d at 507 n.3. Further, an employer violates Section 8(a)(3) by taking adverse employment

action against an employee in retaliation for his union activities or sympathies. See Marshall Durbin

Poultry Co. v. NLRB, 39 F.3d 1312, 1318 (5th Cir. 1994). According to the facts as elicited by the

ALJ, Calligan and Escoffier both explicitly stated Pierre was put into the freezer position rather than

being allowed to return to his old job after the arbitrator reinstated him because he filed too many

grievances.8 It therefore was reasonable for the ALJ and the Board to conclude that NOCS’ actions

of reinstating Pierre to the more onerous position in the freezer and ultimately discharging him

resulted from his frequent grievance writing.

NOCS’ assertion that it would have fired Pierre even in the absence of his grievance writing

activity because of his poor work performance also is unavailing. We find that the Board’s

conclusion that NOCS failed to meet the Wright Line burden to show that it would have discharged

Pierre even in the absence of his grievance writing activity is supported by substantial evidence. See
13

Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980), enf’d 662 F.2d 899 (1st Cir.

1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982), approved in NLRB v.

Transportation Management Corp., 462 U.S. 393, 103 S. Ct. 2469, 76 L.Ed.2d 667 (1983). Under

Wright Line, the General Counsel bears the burden of proving that the employee’s exercise of a

protected activity was a substantial motivating factor in the employer’s decision to discipline or

discharge the employee. SeeWright Line, 251 NLRBat 1089;see also Ryder/P.I.E. Nationwide, 810

F.2d at 507 (applying Wright Line). If the Board succeeds in its burden, the burden shifts to the

employer to prove that it would have discharged or disciplined the employee even in the absence of

the employee’s protected activity. See Thermon Heat Tracing Servs., 143 F.3d at 187 (applying

Wright Line). 

The Board found, in agreement with the ALJ, that NOCS’ purported reason for firing

Pierre -- that he was too slow in his duties -- was mere pretext, and therefore NOCS did not sustain

its burden under Wright Line. Discharging an employee for reasons that usually are not enforced is

a violation of Section 8(a)(3). See, e.g., Marathon LeTourneau Co. v. NLRB, 699 F.2d 248, 252

(5th Cir. 1983)(holding that enforcing a disciplinary rule unevenly violates the Act). The ALJ gave

an in-depth factual analysis recounting the ways in which NOCS enforced certain procedures and

rules against Pierre, in contrast to typical company procedure. This included time stamping his

receiving records and writing a warning for a mistake in pallet tallies contrary to normal company

policy that allowed employees to fix mistakes on their own or after being notified by a company

secretary. We find that it was reasonable for the Board to conclude that NOCS would not have

discharged Pierre had he not exercised his Section 7 right to file grievances against his employer.
9 NOCS also asserts that the receiving records relied upon by the ALJ in his determination were inadmissible hearsay

evidence. NOCS disputes the application of the ‘business records exception” in Fed. R. Ev. 803(6) because no foundation was laid

for the receiving records. Rule 803(6) provides that “‘[a]ny person in a position to attest to the authenticity of the records is

competent to lay the foundation for the admissibility of the records; he need not have been the preparer of the record, nor must he

personally attest to the accuracy of the information contained in the records.’" Wilson v. Zapata Off-Shore Shoe Co., 939 F.2d 260,

272 (5th Cir. 1991)(quoting Rosenberg v. Collins, 624 F.2d 659, 665 (5th Cir.1980)). 

We reject NOCS’ hearsay argument. At the hearing before the ALJ, Calligan himself testified that Pierre’s discharge

was due in part to Pierre’s mistakes in tallying pallets and his untimely completion of unloading duties as shown in the receiving

records. The “‘primary emphasis of rule 803(6) is on the reliability or trustworthiness of the records sought to be introduced.’"

United States v. Duncan, 919 F.2d 981, 986 (5th Cir. 1990)(quoting United States v. Veytia-Bravo, 603 F.2d 1187, 1189 (5th

Cir.1979)). It is hard for this court to accept NOCS’ argument that the receiving records are not reliable when the company itself

wants us to believe that it based its decision to fire Pierre upon the mistakes shown in the records. We therefore conclude that the

ALJ properly considered the receiving records in his determination. 

14

NOCS failed to carry its burden of proof established under Wright Line. Accordingly, we enforce

the Board’s finding that NOCS violated Section 8(a)(3) of the Act.

III.

For the foregoing reasons, we AFFIRM the Board’s order requiring NOCS to cease and

desist from threatening retaliation against employees who exercise their rights under the collective

bargaining agreement and assigning more onerous jobsto employees who exercise such rights. We

also affirm the Board’s order mandating that NOCS reinstate Pierre to the position of CLT

performing the duties of porter, that the company make Pierre whole for any loss of earnings and

other benefits suffered as a result of NOCS’ discriminatory actions, and that NOCS remove any

negative work performance references associated with this matter from his employee file.9 As such,

the Board's cross-petition for enforcement is granted and the order is hereby ENFORCED.

 

AFFIRMED