Bloomington-Normal Seating Co. v. N.L.R.B.
| Decision Date | 05 February 2004 |
| Docket Number | No. 03-2929.,No. 03-3101.,03-2929.,03-3101. |
| Citation | 357 F.3d 692 |
| Parties | BLOOMINGTON-NORMAL SEATING CO., Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Gary A. Wincek (argued), Laner, Muchin, Dumbrow, Becker, Levin & Tominberg, Chicago, IL, for Petitioner.
Will J. Vance, National Labor Relations Board, Peoria, IL, Aileen Armstrong, Arthur F. Rosenfeld (argued), National Labor Relations Board, Washington, D.C.
Before FLAUM, Chief Judge, and POSNER and RIPPLE, Circuit Judges.
In 2003, the National Labor Relations Board ("NLRB") concluded that Bloomington-Normal Seating Company ("the company") had violated the National Labor Relations Act by threatening to discharge an employee if he became a member of a labor organization and by requesting that employees report the solicitation of union authorization cards. The company now appeals. For the reasons stated herein, we reject the company's arguments and grant enforcement of the NLRB's order.
Bloomington-Normal Seating Company manufactures seats for automobiles. In September 2001, the Local 362 of the Laborers' International Union of North America, AFL-CIO ("the union"), began attempting to represent the company's production and maintenance employees. Prior to this time, there had been no union activity at the company.
On September 5, 2001, supervisor Mark Overfelt noticed employee Russell Sears reading a newspaper. According to the company, Overfelt casually asked Sears what he was reading and when Sears responded, "nothing," Overfelt left. According to Sears, Overfelt approached him, asked him if he was reading the Union News, and then grabbed the paper away from him. Sears testified that Overfelt then told him that if he was trying to start a union he would be "canned."
Sears' version of events was partially confirmed by the testimony of his co-worker and aunt, Shirley Halsey. Halsey testified that on the day Sears brought the Union News to work, she saw Overfelt approach Sears and attempt to grab the paper out of his hands. She then saw Overfelt talk to Sears for a few minutes, but by the time she was near enough to hear the two speaking, the conversation had ended.
Later that day, the company held a meeting to address the employees' unionization efforts. At the meeting, a production manager read a prepared speech which stated in part, "if you are threatened or harassed about signing a union card, I hope you will let us know about it." There is no evidence that any employee ever informed the company that he or she felt threatened or harassed by the union or by other employees.
The union subsequently filed unfair labor practice charges against the company. The Administrative Law Judge ("ALJ") concluded that Overfelt had threatened Sears with discharge if he attempted to unionize. The ALJ also found that the company's speech was an effort to encourage workers to inform the company when other employees were soliciting union support. The NLRB adopted the ALJ's findings and concluded that the company committed unfair labor practices in violation of Section 8(a) of the National Labor Relations Act ("NLRA"). The company now appeals. The NLRB cross-appeals and asks this Court to enforce the NLRB's order that the company cease and desist from engaging in unfair labor practices.
We will enforce the NLRB's order if its factual findings are supported by substantial evidence and its conclusions have a reasonable basis in the law. See Dilling Mech. Contractors, Inc. v. NLRB, 107 F.3d 521, 523-24 (7th Cir.1997). This standard requires only that the NLRB produce relevant evidence sufficient for a reasonable person to accept the NLRB's conclusion. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951). We owe particular deference to the NLRB's determinations regarding witness credibility, which we do not disturb absent extraordinary circumstances such as "clear bias by the ALJ, utter disregard of uncontroverted sworn testimony, or acceptance of testimony that on its face is incredible." See NLRB v. Gerig's Dump Trucking, Inc., 137 F.3d 936, 941 (7th Cir.1998).
The company first challenges the NLRB's finding that Overfelt threatened Sears with discharge if Sears engaged in union activities.1 The company argues that the ALJ did not properly assess the credibility of the witnesses because the ALJ did not compare the witnesses' demeanors. The company further argues that Halsey was obviously an incredible witness because she claimed to see Sears and Overfelt but not to hear the conversation between them. Finally, the company contends that even if we grant substantial deference to the ALJ's findings, we should not uphold them because the ALJ relied entirely upon the presumption that current employees who testify against their employer are likely to be truthful.
We conclude that these arguments are without merit. First, the ALJ did assess the credibility of the witnesses when he commented that Sears and Halsey had credible demeanors. Despite the company's arguments to the contrary at oral argument, the ALJ was not required to list the physical characteristics of the witnesses that led to the conclusion that they were credible. Second, the fact that Halsey testified that she could see Overfelt and Sears without hearing them does not make her an incredible witness. The record shows that Halsey has poor hearing and has undergone surgery on both ears. Even if Halsey had perfect hearing, it is not unbelievable that one might be able to see people talking but not be able to hear the conversation. Finally, the ALJ did not rely entirely upon the presumption that current employees testify truthfully against their employers. The ALJ specifically noted that there is no such presumption, but stated that the testimony of current employees is likely to be reliable because the employees are testifying adversely to their pecuniary interests. This is in accord with Flexsteel Industries, Inc., 316 N.L.R.B. 745 (1995), which held that a "witness' status as a current employee may be a significant factor" in determining the credibility of the witness. Moreover, in addition to their status as employees, the ALJ also discussed the witnesses' demeanors and lack of motive to lie when deciding to credit their testimony.
Essentially, the company asks us to reweigh the evidence and reach our own conclusions regarding whether Overfelt or Sears and Halsey should be believed. This is not the proper standard of review. See J.C. Penney Co., Inc. v. NLRB, 123 F.3d 988, 993 (7th Cir.1997) (). We therefore conclude that substantial evidence supports the NLRB's finding that Overfelt threatened Sears with discharge if he aided the union.
The company next challenges the NLRB's finding that the company violated the NLRA by encouraging employees to inform on those who were unionizing.2 The NLRB's finding was based upon the company's speech to employees, which stated in part: "if you are threatened or harassed about signing a union card, I hope you will let us know about it." The company argues that this speech was not made to discourage unionization, and urges us...
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