N.L.R.B. v. McCullough Environmental Services, Inc.

• Decision Date: 02 November 1993
• Docket Number: Nos. 92-4459,92-4460,s. 92-4459
• Citation: 5 F.3d 923
• Parties: 144 L.R.R.M. (BNA) 2626, 126 Lab.Cas. P 10,900 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. McCULLOUGH ENVIRONMENTAL SERVICES, INC., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 923

5 F.3d 923

144 L.R.R.M. (BNA) 2626, 126 Lab.Cas. P 10,900

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. McCULLOUGH ENVIRONMENTAL SERVICES, INC., Respondent.

Nos. 92-4459, 92-4460.

United States Court of Appeals Fifth Circuit.

Nov. 2, 1993.

William Baudler, Paul J. Spielberg, Aileen A. Armstrong, Deputy Associate Gen. Counsel, N.L.R.B., Washington, DC, for appellant.

Armin Moeller, Jr., David Thomas, II, Phelps Dunbar, Marks, Claverie & Sims, Jackson, MS, for appellee.

H. Frank Malone, Reg. Director, NLRB, New Orleans, LA, for other interested parties.

Marilyn O'Rourke, Aileen A. Armstrong, Deputy Assoc. Gen. Counsel, NLRB, Washington, DC, for appellant in No. 92-4460.

Samuel Morris, Morris & Laurenzi, Memphis, TN, for intervenor, Teamsters Local 891.

Application for Enforcement of an Order of the National Labor Relations Board.

Before REAVLEY, SMITH, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

We review two decisions of the National Labor Relations Board ("NLRB"): In number 92-4459, the NLRB petitions for enforcement of its order, 306 NLRB No. 71, which found that McCullough Environmental Services, Inc. ("McCullough") engaged in various unfair labor practices in violation of the National Labor Relations Act, 29 U.S.C. Secs. 151 et seq. (1988). In number 92-4460, the NLRB petitions for enforcement of its order, 306 NLRB No. 107, which found that McCullough violated the Act by refusing to bargain with the certified exclusive bargaining representative of its employees. After reviewing the record, we enforce the order in part in number 92-4459 and decline to enforce the order in number 92-4460.

I No. 92-4459

McCullough operates the Jackson, Mississippi wastewater treatment facility under a contract with the city of Jackson. The International Brotherhood of Teamsters, Local 891, AFL-CIO ("the union") began a campaign to organize employees at the Jackson facility in 1989. The union won a representation election and became the exclusive bargaining representative for employees at the Jackson facility. Several months after winning the election, the union filed a complaint with the NLRB, alleging that McCullough engaged in multiple unfair labor practices. The NLRB, adopting the majority of the conclusions of its ALJ, found that McCullough violated Sec. 8(a)(1) of the Act by: (1) coercively interrogating its employees concerning their union activities, (2) creating the impression that the union activities of its employees were under surveillance, (3) threatening employees who supported the union with reduced work hours, more onerous working conditions, and other reprisals, and (4) promulgating and enforcing an overly restrictive ban on union solicitation. The NLRB also found that McCullough violated Secs. 8(a)(1) and (3) by: (1) discriminatorily implementing a new work rule regarding the signing of disciplinary warnings, and (2) reprimanding and discharging three employees, Richard Harris, L.C. Spann, and Lonnie Collins, out of anti-union animus. The NLRB finally found that McCullough violated Secs. 8(a)(1), (3), and (4) by issuing retaliatory reprimands to a fourth employee, James Varnado, because he supported the union and participated in the NLRB's proceedings against McCullough.

The NLRB issued an order requiring McCullough to cease and desist from the unfair labor practices. The order also required McCullough to offer reinstatement to three discharged employees and reimburse them for any losses they suffered. Additionally, the order directed McCullough to rescind the reprimands issued to Harris, Collins, Spann, and Varnado, rescind the discriminatory rule changes regarding solicitation and the signing of reprimands, and inform its employees of such.

A

In reviewing the NLRB's factual findings, we must determine whether they are supported by substantial evidence on the record considered as a whole. NLRB v. Delta Gas, Inc., 840 F.2d 309, 311 (5th Cir.1988). We must consider the totality of the evidence, including "that which fairly detracts from the Board's decision." Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951). While we may not reject the "Board's choice between two fairly conflicting views [of the evidence]," Id. at 488-91, 71 S.Ct. at 465-66, we are "not left to the sheer acceptance of the Board's conclusions." NLRB v. Mini-Togs, Inc., 980 F.2d 1027, 1032 (5th Cir.1993). We will enforce the NLRB's order only if "we are able conscientiously to conclude that the evidence supporting the Board's determination is substantial." Id.

When findings of fact rest upon credibility determinations, we defer to the NLRB's findings and will overturn them only in rare circumstances. Centre Property Management v. NLRB, 807 F.2d 1264, 1268 (5th Cir.1987). However, if a credibility determination is unreasonable, contradicts other findings of fact, or is "based on an inadequate reason, or no reason at all," we will not uphold it. NLRB v. Moore Business Forms, Inc., 574 F.2d 835, 843 (5th Cir.1978); NLRB v. Laredo Packing Co., 730 F.2d 405, 408 (5th Cir.1984). Where the NLRB fails to justify its credibility choices, we are free to review the record and independently reach our own conclusions. NLRB v. Motorola, Inc., 991 F.2d 278, 282 (5th Cir.1993).

The NLRB found that McCullough committed unfair labor practices under Sec. 8(a)(1) of the National Labor Relations Act. This section states that it shall be an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed" by Sec. 7 of the Act. 29 U.S.C. Sec. 158(a)(1) (1988). Section 7 provides:

Employees shall have 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. Sec. 157.

The NLRB concluded that McCullough supervisor Robert Bunyard interrogated two employees, Tommy Wash and L.C. Spann, about their union activities, in violation of Sec. 8(a)(1). In addition, the NLRB found that Bunyard's remarks to Spann created the impression that McCullough had engaged in the surveillance of employees' activities, a second and independent violation of Sec. 8(a)(1). Questioning employees about union association or affiliation is unlawful under Sec. 8(a)(1) only if, considering the totality of the circumstances, "the interrogation tends to coerce employees in the exercise of their Section 7 rights." NLRB v. Brookwood Furniture, Div. of U.S. Indus., 701 F.2d 452, 460 (5th Cir.1983). If interrogation is coercive in nature, it makes no difference that employees are not actually coerced. NLRB v. Great Western Coca-Cola Bottling Co., 740 F.2d 398, 404 (5th Cir.1984). We consider the following factors, first announced in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir.1964), in determining whether interrogation tends to be coercive:

1) the history of the employer's attitude toward its employees; 2) the nature of the information sought; 3) the rank of the questioner in the employer's hierarchy; 4) the place and manner of the conversation; 5) the truthfulness of the employee's reply; 6) whether the employer had a valid purpose for obtaining the information sought about the union; 7) whether a valid purpose, if existent, was communicated to the employee; and 8) whether the employer assured the employee that no reprisals should be forthcoming should he or she support the union.

Brookwood, 701 F.2d at 460-61. However, "coercive interrogation may still be found to have occurred even if all the above enumerated factors operate in the employer's favor." Id. at 461. Where the NLRB's finding that an employer engaged in coercive interrogation is supported by substantial evidence, we will not disturb it. Id. at 461. ¹

Wash testified that about a month before the union election, he attended an employee meeting conducted by Robert Maines, the plant manager. At this meeting, Maines informed the employees that McCullough opposed the union. As Wash left the meeting, Bunyard yelled to him, "Hey, union man. Hey, union man." At that time, Wash had not informed any supervisors that he supported the union, and did not respond to Bunyard. Spann testified that he had several conversations with Bunyard about the union. In a conversation occurring three weeks before the election, Bunyard told Spann that he did not know if Spann "had anything to do with the union or not, but he was aware that Richard Harris[, one of Spann's co-workers, previously] was employed by G.E., and they had a big union over there, and he believed that Richard Harris was probably the big man." Bunyard, on the other hand, testified that he never spoke to employees about the union after he became a supervisor. ² The ALJ credited the testimony of Spann and Wash over that of Bunyard. Because the ALJ's credibility determination is not unreasonable, we defer to it. ³ Centre Property, 807 F.2d at 1268.

Although Bunyard's remarks to Wash and Spann were not couched as questions, the NLRB properly found that the remarks were calculated to elicit responses from Wash and Spann about their union affiliations or sentiments, thus constituting interrogation. See NLRB v. Laredo Coca Cola Bottling Co., 613 F.2d 1338, 1342 (5th Cir.) (finding that invitations to employees to disclose their union activities and sympathies constitute interrogation), cert. denied, 449 U.S. 889, 101 S.Ct. 246, 66 L.Ed.2d 115 (1980). We must now determine whether the remarks were coercive.

Considering the Bourne factors enumerated above, we note that both Bunyard and Maines, the plant manager, had expressed their anti-union views to employees; Bunyard's remarks were calculated to seek the identity of those employees who favored the union and of union leaders; Bunyard was Spann's immediate supervisor, although h...