VALMONT - [Found by ISYS HTML Document 99-60439-cv0.HTM...

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Sheet1 Page 1 [Found by ISYS] HTML Document: 99-60439-cv0.HTM Previous Document Next Document First Hit Back to Results New Query UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 99-60439 VALMONT INDUSTRIES, INC., Petitioner-Cross-Respondent,VERSUS NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner. Appeals from the National Labor Relations Board Before WIENER, and STEWART, Circuit Judges 1) ROSENTHAL, District Judge: Valmont Industries, Inc. petitions for review of the National Labor Relations Board's Decision and Order finding unfair labor practices. The Board cross-petitions for enforcement of its Order. The Board's Order affirmed the decision of an administrative law judge that Valmont violated sections 8(a)(1) and (a)(3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (a)(3), by giving two employees written warnings motivated by antiunion animus written warning to another for asking a coworker if he had signed a union card, in violation of the company's no-solicitation policy warning a fourth employee for distributing union literature, also in violation of the no-solicitation policy.(2) One member of the Board dissented in part, finding insufficient evidence that the first two warnings were motivated by antiunion animus and concluding that because the discharged employee had violated a valid no-solicitation rule, he was properly fired. This court has carefully reviewed the record as a whole. See Asarco, Inc. v. NLRB, 86 F.3d 1401 (5th Cir. 1996). Based on the facts disclosed in the record, and on the deferential review the law requires this court to apply, this court grants enforcement as to part of the Board's Order and denies it in part. Specifically, we conclude that the record provides substantial evidence that Valmont violated sections 8(a)(3) and (a)(1) by issuing a written warning to the employee who asked her coworker if he had signed a union card and violated section 8(a)(1) by issuing an oral warning to the employee who distributed leaflets. We also conclude that substantial evidence supports the finding that Valmont violated section 8( a)(1) by firing the employee for violating the no-solicitation rule. We grant enforcement of the Board's Order with respect to these findings. However,
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Sheet1 Page 2 we do not find that substantial evidence supports the finding that Valmont violated sections 8(a)(3) and (a)(1) by issuing the first two written warnings. Nor do we find substantial evidence to support the finding that the firing or the oral warning violated section 8(a)(3). We deny enforcement of the Board's Order with respect to these findings and remand to the Board to modify its Order in conformity with this opinion. I. Background Petitioner, Valmont Industries, Inc., manufactures steel poles at a plant in Brenham, Texas. The United Steelworkers of America, AFL-CIO, CLC (the " Union") supervised an unsuccessful organizational campaign among Valmont's employees, ultimately losing an NLRB-conducted election in September 1996.
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