N.L.R.B. v. Joy Recovery Technology Corp., 97-2001

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation134 F.3d 1307
Docket NumberNo. 97-2001,97-2001
Parties157 L.R.R.M. (BNA) 2321, 134 Lab.Cas. P 10,111 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. JOY RECOVERY TECHNOLOGY CORP., Respondent.
Decision Date26 January 1998

Elizabeth Kinney, National Labor Relations Board, Region 13, Chicago, IL, Aileen A. Armstrong, William M. Bernstein (argued), National Labor Relations Board, Appellate Court, Enforcement Litigation, Washington, DC, for Petitioner.

John J. Toomey, Arnold & Kadjan, Chicago, IL, Donald W. Anderson (argued), Daniel V. Kinsella, Burditt & Radzius, Chicago, IL, for Respondent.

Before KANNE, ROVNER, and EVANS, Circuit Judges.

EVANS, Circuit Judge.

The National Labor Relations Board seeks enforcement of its order requiring the Joy Recovery Technology Corporation to reinstate its transportation department and to bargain with Local 673 of the International Brotherhood of Teamsters.

The NLRB determined that Joy violated Section 8(a)(1) of the Labor Management Relations Act (29 U.S.C. § 158(a)(1)) by interrogating employees, soliciting surveillance of union activities, and threatening employees with layoff if they selected the union as their bargaining representative; that the company violated Section 8(a)(3)(i) of the Act by the discriminatory discipline of employee Edward Kizior for union activity and the unlawful closing of its transportation department and the termination of the employees, all at its facility in Aurora, Illinois. The Board ordered the company to cease and desist from the unfair labor practices, to reestablish its transportation department as it previously existed, to reinstate employees unlawfully terminated, to expunge from its files references to the unlawful suspensions, and to post copies of a remedial notice. In addition, the Board entered a bargaining order, pursuant to NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969).

Joy is involved in the reclamation and recycling of scrap wire and other materials for Ameritech, its only customer. Ameritech retains title to the scrap up to the point of resale. Up until the events of this case, Joy maintained a transportation department and transported the scrap using its own employees and equipment, as well as contracting with independent carriers. The transportation department had nine employees.

In late May 1994 transportation department driver Ed Kizior contacted Robert "Ace" Warren, a Teamsters representative, to find out about obtaining union representation. Kizior arranged for a meeting between Warren and the employees on July 9, 1994. The employees, who were present, signed union authorization cards, and on July 11 the union filed a petition seeking certification. On July 13 Joy received formal notice that the petition had been filed.

On August 5 Kizior received a written warning stating that he and employee Jose Lopez had taken a company truck without prior authorization and that he would be suspended for 3 days without pay. He claims the use of the truck was authorized to take Lopez to his drivers license exam.

By August 11 Joy distributed a memo to employees saying that the transportation department had caused financial losses to the company, that it would be closed, and that the company would rely on contracts with common carriers, effective August 22. On August 12 the company wrote the union, informing it of the above and that it would be notifying its drivers of the decision to terminate their employment.

The Board found that during July--the time when the employees were meeting with union representatives--the company engaged in inappropriate conversations with employees. Company manager Mark Matza asked employee Michael Watson which employees had signed union cards. Watson said he did not know. Matza reportedly told Watson that "[s]omething is going to have to be done" because he did not want it [apparently referring to the union] to "spread throughout the whole plant." During mid-July company supervisor Roberto Baltazar asked Lopez (the employee involved in the truck incident) if he knew anything about the union and which employees had signed union cards. Lopez lied and said he did not. Baltazar also wanted to know if anyone had asked Lopez to sign a card and whether he knew who the head of the union was. Baltazar reportedly told Lopez that they did not need a union at the company.

In addition, the Board found that manager Matza discussed the transportation department with Julia Chandler, a dispatcher for the department. Matza told Chandler that he was interested in knowing who had contacted the union. He asked if it was Kizior, but Chandler refused to say. Matza then asked if it was Dave Woodard, who, Matza said, had previously mentioned "getting a union in there." Matza asked Chandler whether there was anything that the company could offer the employees to "make them not seek representation." He also asked her where the union meetings were held, who attended them, and whether she could obtain copies of union literature. Incredibly, he asked her to take a tape recorder into a meeting to surreptitiously record it. Matza asked Chandler's opinion of closing the transportation department. This was the first time she had heard anything about closing the department, and she asked if the union had anything to do with the company's having the idea to close it. He said that the union "did play a major part" in the decision.

Other findings include that general manager Simon Pawlenko also discussed the union with Chandler, telling her he thought she had brought the union in. He subsequently told her to use more outside carriers for transporting scrap to Joy's facilities.

The company had always used some outside carriers, and maintaining its transportation department had been troublesome because the operation was small and inefficient. In fact, Ameritech complained about the transportation services Joy provided. On July 29, 1994, Ameritech wrote to Matza and pointed out that there had been dissatisfaction with scrap pickups and that Ameritech would continue to allow Joy to handle the transportation of scrap for 30 days, but if by September 1 there was not significant improvement, Ameritech would put into place alternative transportation processes.

Sometime in late 1993 or early 1994, before the union activity began, the company talked with James Bowman about the problems in the department, and he was hired to do a study. There is a dispute as to the purpose of the study. The employees who testified at the hearing in this matter said that when Bowman spoke with them, he asked questions regarding how to improve the department. Joy, on the other hand, said he was hired to do a distribution study to determine alternatives to the department. The NLRB found that the original purpose of hiring Bowman was to study how to improve the department; the company wanted to continue to transport some of the materials itself to avoid making it easy for Ameritech to send materials elsewhere. Nevertheless, the company used the Bowman study to justify a decision to close the department.

Our review of the NLRB's order is limited. We uphold the factual findings if they are supported by substantial evidence in the record as a whole and we uphold the legal conclusions if they have a reasonable basis in the law. NLRB v. P*I*E Nationwide, Inc., 923 F.2d 506 (7th Cir.1991). We affirm the Board's findings if they are supported by substantial evidence, even if we might have made a different finding. Central Transport, Inc. v. NLRB, 997 F.2d 1180 (7th Cir.1993). As to credibility determinations when there are two conflicting versions of the same incident, the ALJ's credibility determinations are entitled to deference. We avoid redetermining credibility "on the basis of a cold record." Carry Companies of Illinois, Inc. v. NLRB, 30 F.3d 922, 928 (7th Cir.1994).

In fact, in this case, the principal attack the company makes on the decision of the NLRB relates to the credibility findings of the ALJ. The company contends that this particular ALJ is biased; that he always uses the same words in his decisions--the company calls it a "mantra"; and that he has never seen an unfair labor practice claim he did not like. A similar attack was made before the Board. Joy presented an analysis of how often the ALJ involved in this case credited General Counsel's witnesses rather than employer witnesses and contended that the ALJ was 4.6 times more likely to credit the former rather than employer witnesses. However, Joy is careful to make no representations regarding the reliability of the study except that its best efforts were used in compiling the information. That the study is clearly and admittedly unscientific undermines its usefulness. More importantly, as the NLRB points out, Joy analyzed cases in which the respondent was a company but did not include any cases in which a union was the respondent. What may be true is that the ALJ may have in the past believed the NLRB's witnesses more often than a respondent's witnesses, whether that respondent was a company or a union. Given that we have no reason to believe that the NLRB brings cases without making its own determination as to whose story is credible, that result may not be much more surprising than that the conviction rate of U.S. Attorneys is vastly higher than the acquittal rate of defense attorneys, a comparison which, we believe, underlines the danger in our crediting statistical studies of credibility determinations.

The primary point here is, however, that generally decisions are most appropriately reviewed carefully and on their own merits. And that is what the Board did in this case. It looked at the record and concluded that the credibility findings were entitled to deference. We agree. It is not true, as Joy contends, that the ALJ simply made blanket statements regarding credibility. The ALJ in this case was...

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