Ona Corp. v. N.L.R.B.

Citation729 F.2d 713
Decision Date09 April 1984
Docket NumberNo. 82-7308,82-7308
Parties115 L.R.R.M. (BNA) 3665, 100 Lab.Cas. P 10,945, 15 Fed. R. Evid. Serv. 1122 ONA CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Intervenor. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Ona Corporation, Intervenor.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

John J. Coleman, Jr., Braxton Schell, Jr., William Michael Warren, Birmingham, Ala., for Ona Corporation.

James D. Fagan, Jr., Atlanta, Ga., for UAW.

Elliott Moore, Deputy Associate Gen. Counsel, Div. of Enforcement Litigation, N.L.R.B., Washington, D.C., Elaine Patrick, Washington, D.C., for N.L.R.B.

Petitions for Review of an Order of The National Labor Relations Board.

Before TJOFLAT and FAY, Circuit Judges, and WISDOM *, Senior Circuit Judge.

FAY, Circuit Judge:

This case arises out of a hotly contested effort by the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America ("UAW") Ona brought a petition to review and set aside the bargaining order issued by the Board alleging that it was based on an erroneous finding that a majority of employees authorized the union to represent them. The UAW filed a petition seeking review of the Board's finding that Dorothy Wilson's discharge did not violate Sec. 8(a)(3) of the Act. The Board filed a cross-application for enforcement of its order. Since we conclude that the union did not have the card majority which is a prerequisite for a Gissel II bargaining order, 4 we vacate that portion of the Board's order which requires the company to bargain with the union without an election and remand the case for proceedings consistent with this opinion. We enforce that portion of the Board's order which found that Dorothy Wilson had not been unlawfully discharged.

                to organize the maintenance and production employees of Ona Corporation.  The Administrative Law Judge ("ALJ") found that Ona had repeatedly violated Section 8(a)(1) 1 of the National Labor Relations Act ("the Act") during the union campaign and that it also had violated Section 8(a)(3) 2 of the Act by discharging employee Dorothy Wilson.  The ALJ concluded that the employer's violations made a fair election unlikely and that 281 of 552 employees in the bargaining unit had signed union authorization cards so he ordered the company to recognize and bargain with the UAW without an election.    NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969).  The National Labor Relations Board ("the Board") issued an order on May 28, 1982, affirming the ALJ's findings that Ona had violated Sec. 8(a)(1) of the Act but reversing his finding that Dorothy Wilson had been unlawfully discharged. 3   The Board agreed with the ALJ that the union had obtained a card majority and that the unfair labor practices engaged in by the company would preclude the possibility of a fair election so it adopted the ALJ's bargaining order
                
I. PROCEDURAL BACKGROUND

Ona, a corporation located in Huntsville, Alabama, manufactures small gasoline engines and generators for use in recreational vehicles. In early April, 1979, the UAW began the third union organizational effort at Ona within three years by soliciting authorization cards from Ona's approximately 560 employees. On April 27, 1979, the UAW, based on a card majority, filed a petition with the Board's Regional Office seeking a representation election in a unit of the Company's production and maintenance employees. The election was scheduled for June 22, 1979.

Prior to the election, the UAW filed unfair labor practice charges with the Board's Regional Office, alleging that the Company The ALJ heard testimony on all three cases intermittently from January 7, 1980, until March 18, 1980. In his decision and recommended order he found that the company had repeatedly violated Section 8(a)(1) during the union campaign, that it had violated Sections 8(a)(3) and 8(a)(1) by discharging employee Dorothy Wilson and that the union's ballot challenges had no merit. He recommended that the union's objections to the election be sustained and that the company be ordered to bargain with the union based on the authorization card majority the union had obtained.

had violated Section 8(a)(1) and (3) of the Act, 29 U.S.C. Sec. 158(a)(1) and (3) (1976), on numerous occasions during the election campaign. Nevertheless, the election was held as scheduled. Following the election, the UAW challenged the votes of thirty-three employees and filed objections to the election. The objections were essentially identical to its pending unfair labor practice charges. The unfair labor practice charges, ballot challenges and election objections were consolidated for hearing before an Administrative Law Judge.

Both Ona and General Counsel filed exceptions to the ALJ's decision. On May 28, 1982, the Board entered its decision reversing the ALJ's findings that the company unlawfully discharged Dorothy Wilson and that the company unlawfully prohibited an employee from distributing union insignia. The Board adopted, without comment or analysis, the remainder of the ALJ's recommended order.

On June 17, 1982, the UAW filed a motion to sever the representation case from the unfair labor practice case and requesting that the now-valid challenged ballots be counted. On June 22, 1982, Ona filed a motion for reconsideration and reopening of the record so that the Board could accept evidence of changes in circumstances at Ona since the 1979 election. The Board denied Ona's motion but granted the UAW's motion and the remaining ballots were opened and counted. The final tally consisted of 192 votes for and 203 votes against the UAW. Since the Board found merit in the union's objections to the election, it set the election aside and ordered the company to bargain with the UAW.

On September 20, 1982, the UAW sought review of the Board's order upholding the discharge of Dorothy Wilson in the District of Columbia Circuit Court of Appeals. On September 27, 1982, Ona filed its petition for review of the Board's bargaining order. Ona does not contest the Board's findings that certain conduct of its employees violated Section 8(a)(1) of the Act. Instead it contends that the union did not possess authentic valid authorization cards from a majority of the employees as of April 19, 1979, and that the Board therefore erred in issuing a Gissel II bargaining order. The District of Columbia Circuit Court of Appeals transferred its case to this court and both cases were consolidated in this appeal. The Board then filed a cross-application for enforcement of its order.

II. THE STANDARD OF REVIEW

The Board is charged with the responsibility for ensuring that the Act's underlying goal of industrial peace through employee free choice is achieved, 5 a responsibility Ona is challenging the Board's factual findings that a majority of the employees signed valid authorization cards. Our review of the Board's findings of fact is limited to a determination of whether or not the findings are supported by substantial evidence on the record considered as a whole. 29 U.S.C. Sec. 160(e) (1976); Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951); Weather Tamer, Inc. v. NLRB, 676 F.2d 483, 487 (11th Cir.1982). In this case, the Board's factual findings were based on credibility choices made by the ALJ. Since the ALJ has an opportunity to hear the testimony and view the witnesses he is ordinarily in the best position to make a credibility determination. NLRB v. Florida Medical Center, Inc., 576 F.2d 666, 671 (5th Cir.1978). Thus, as a general rule courts are bound by the credibility choices of the ALJ, even if they "might have made different findings had the matter been before [them] ... de novo." Gulf States Manufacturers, Inc. v. NLRB, 579 F.2d 1298, 1329 (5th Cir.1978). 6

                which it could not discharge if it did not receive our respect for its judgment.  Thus, the remedy chosen by the Board must "be given special respect by reviewing courts."    NLRB v. Gissel, 395 U.S. at 612 n. 32, 89 S.Ct. at 1939 n. 32.  Nevertheless, this court is an independent appellate court and does not function simply as the Board's enforcement arm.  It is our responsibility to examine carefully both the Board's findings and its reasoning, to assure that the Board has considered the factors which are relevant to its choice of remedy and has chosen a remedy that effectuates the purposes of the Act.    See, e.g., NLRB v. Brown, 380 U.S. 278, 291-2, 85 S.Ct. 980, 988, 13 L.Ed.2d 839 (1965)
                

However, the Fifth Circuit has delineated certain situations in which the court will not be bound by the ALJ's credibility determinations. NLRB v. Jacob E. Decker & Sons, 569 F.2d 357, 364 (5th Cir.1978). First, the ALJ's credibility finding will be disregarded if it is inherently unreasonable or self-contradictory. Chromalloy Mining and Minerals, Alaska Division v. NLRB, 620 F.2d 1120 (5th Cir.1980); NLRB v. Florida Medical Center, 576 F.2d at 671. Second, the reviewing court is "not compelled to respect" credibility choices "based on an inadequate reason, or no reason at all". NLRB v. Moore Business Forms, Inc., 574 F.2d 835, 843 (5th Cir.1978). With these considerations in mind we turn to our explanation of our conclusions in this case.

III. THE BARGAINING ORDER

The National Labor Relations Act provides that a labor organization designated by a majority of the employees in an appropriate bargaining unit shall be the exclusive bargaining agent for those employees. 7 But an employer is under no In NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), the Supreme Court established the guidelines that the Board must follow before...

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