168 F.3d 270 (6th Cir. 1999), 97-5833, V & S ProGalv, Inc. v. N.L.R.B.

Docket Nº:97-5833, 97-5919.
Citation:168 F.3d 270
Party Name:V & S ProGALV, INC., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
Case Date:February 19, 1999
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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168 F.3d 270 (6th Cir. 1999)

V & S ProGALV, INC., Petitioner/Cross-Respondent,


NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.

Nos. 97-5833, 97-5919.

United States Court of Appeals, Sixth Circuit

February 19, 1999

Argued June 16, 1998.

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Andrew C. Smith (argued and briefed), Thomas B. Langlas (briefed), Vorys, Sater, Seymour & Pease, Columbus, OH, for Petitioner/Cross-Respondent.

Aileen A. Armstrong, Dep. Asso. Gen. Counsel (briefed), Charles P. Donnelly, Jr. (briefed), Vincent J. Falvo, Jr. (argued and briefed), National Labor Relations Board, Appellate Court Branch, Washington, DC, for Respondent/Cross-Petitioner.

Before: WELLFORD, MOORE, and CLAY, Circuit Judges.

CLAY, J., delivered the opinion of the court, in which MOORE, J., joined. WELLFORD, J. (pp. 286-89), delivered a separate opinion concurring in part and dissenting in part.


CLAY, Circuit Judge.

V & S ProGalv, Inc. ("ProGalv"), Petitioner and Cross-Respondent, a custom steel galvanizing company located in Columbus, Ohio, petitions this Court for review of the May 30, 1997, decision of the National Labor Relations Board ("the Board"), Respondent and Cross-Petitioner, finding that ProGalv interfered with the statutory rights of ProGalv's employees in violation of § 8(a)(1), (2), and (5) of the National Labor Relations Act ("the Act"), 29 U.S.C. §§ 141 et seq. The Board cross-applies for enforcement of its order. Because we find that there is substantial evidence to support the Board's findings of fact and that there are no errors of law in the decision, ProGalv's petition for review is DENIED and the Board's Order is ENFORCED.


Procedural History

Administrative Law Judge Lawrence W. Cullen ("the ALJ"), presided over a hearing in cases numbered 17-CA-18223, 17-CA-18273-2, 17-CA-18319, and 17-CA-18401-2, from March 4 to March 6, 1996 which were filed by the Board against ProGalv following

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an investigation of unfair labor practice charges alleged by Shopmen's Local Union No. 620 of the International Association of Bridge, Structural and Ornamental Iron Workers ("the Union"). On November 25, 1996, the ALJ issued his decision finding that ProGalv had violated § 8(a)(1),(2) and (5) of the Act. Thereafter, pursuant to § 102.46 of the Board's Rules and Regulations, ProGalv submitted its Exceptions and Memorandum in Support of its Exceptions to the ALJ's decision. The Board affirmed the ALJ's recommended order, as modified. On June 30, 1997, ProGalv filed this petition to Review and Set Aside the May 30, 1997, Order, and on July 28, 1997, the Board filed this Cross-Application for Enforcement of the Board's Order.


ProGalv was formed in 1992 to provide custom steel galvanizing for customers located in the Southwestern part of the United States. Shortly after its formation, ProGalv purchased an Oklahoma manufacturing facility previously operated by Union Metal Corporation ("Union Metal"). At that time, ProGalv agreed to assume the existing Collective Bargaining Agreement ("CBA") between Union Metal and Shopman's Local Union 467 of the International Association of Bridge, Structural & Ornamental Ironworkers, subject to certain modifications. 1

The CBA expired at the end of June of 1995. In the Spring of 1995, Keith Griggs (a company leadman) who reported directly to Johnnie Kelley 2 (company president) each day for instructions, found an envelope in his truck in the company parking lot, with the words "National Labor Relations Board" on it. Inside the envelope was a piece of paper that said, "I no longer want Local 620 [the Union] to represent me," with spaces for employees to sign. Griggs showed the paper to Kelley, asked Kelley if he had put it in Griggs' truck, and Kelley responded in the negative and that he could not talk about it or he would get in trouble. However, Kelley told Griggs to see if he could get some employees to sign the petition. Some employees signed the petition, Griggs showed it to Kelley, and Kelley instructed Griggs to try and get more signatures.

In June of 1995, ProGalv and the Union met to negotiate a new CBA; however, negotiations were unsuccessful, and Union representative David Turnbull advised the employees to strike. Several employees returned to work during the first two weeks of the strike. Some of the employees were concerned that the Union might impose fines against them for crossing the picket line. Upon Kelley's advice, these employees inquired about the imposition of such fines, and were told by the Board's General Counsel that such fines could be imposed.

Thereafter, Kelley told Griggs and another leadman, Clifford Wallen, that they should try to circulate another petition to oust the Union. Griggs and Wallen did so, but failed to achieve the requisite number of signatures, and so they circulated another petition on Kelley's instruction. By mid-July, Griggs and Wallen had collected signatures from eighteen of ProGalv's production employees on three separate petitions, and delivered them to Kelley. On July 27, 1995, ProGalv's attorneys sent a letter to the Union advising it that the employees no longer wanted representation. On July 31, the Union sent a revised bargaining proposal to ProGalv; however, ProGalv reaffirmed its withdrawal of Union recognition and did not respond to further communications.

Kelley discussed the formation of an "in-house" union to discuss various workplace issues with the management. Kelley agreed to the formation of such a committee, told Griggs as to how many members the committee should consist, and as to how they should be chosen. Chief Executive Officer Harvey Morgan replaced Kelley in terms of handling the day-to-day operations. Morgan met with the in-house committee, but discontinued doing

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so after the Union filed unfair labor practice charges with the Board.

Griggs and Wallen reported to Morgan that some of the employees were thinking of bringing the Union back, and Morgan responded by threatening to close down the plant if such an event occurred. Thereafter, Griggs provided the Board with an affidavit in connection with the Board's investigation, and when he returned from providing the affidavit, Morgan asked Griggs if he had "fun" talking to the Board.


ProGalv argues that the Board's order should be set aside inasmuch as there was not substantial evidence presented to support a finding that it violated §§ 8(a)(1),(2) and (5) of the Act. The scope of this Court's review of the Board's findings is limited:

A reviewing court may not disturb the Board's findings of fact where there is substantial evidence on the record considered as a whole to support the Board's findings. The Board's findings must be set aside when the record demonstrates that the Board's decision is not "justified by a fair estimate of the worth of the testimony of witnesses" or by the Board's "informed judgment on matters within its special competence or both." When there is conflict in the testimony, "it is the Board's function to resolve questions of fact and credibility," and thus this court ordinarily will not disturb credibility evaluations by an ALJ who observed the witnesses' demeanor.

The Board's application of the law to particular facts is also reviewed under the substantial evidence standard, and the Board's reasonable inferences may not be displaced on review even though the court might justifiably have reached a different conclusion had the matter been before it de novo. Evidence is considered substantial if it is adequate, in a reasonable mind, to uphold the decision. The appellate court should consider the evidence contrary to the Board's conclusions, but may not conduct a de novo review of the record.

If the Board errs in determining the proper legal standard, the appellate court may refuse enforcement on the grounds that the order has "no reasonable basis in law."

Turnbull Cone Baking Co. of Tenn. v. NLRB, 778 F.2d 292, 295 (6th Cir.1985) (emphasis added; citations omitted).

I. Violation of Section 8(a)(1)

ProGalv first argues that substantial evidence was not presented to support the Board's finding that it violated § 8(a)(1) of the Act. We disagree.

Section 7 of the Act guarantees employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C.A. § 157 (West 1998). Section 8(a)(1) of the Act implements those guarantees by making it an unfair practice to "interfere with, restrain, or coerce employees in the exercise of" their § 7 rights. 29 U.S.C.A. § 158(a)(1) (West 1998).

In NLRB v. Okun Bros. Shoe Store, Inc., 825 F.2d 102, 105-06 (6th Cir.1987) (citations omitted), this Court stated that:

The test for determining whether an employer has violated section 8(a)(1) is whether the employer's conduct tends to be coercive or tends to interfere with the employees' exercise of their rights. In making this determination, the Board considers the total context in which the challenged conduct occurs and is justified in viewing the issue from the standpoint of its impact upon the employees. This assessment should take into account "the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear."

In this case, the Board found that ProGalv violated § 8(a)(1) of the Act by:


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