N.L.R.B. v. Norbar, Inc.
| Decision Date | 16 January 1985 |
| Docket Number | No. 83-5807,83-5807 |
| Citation | 752 F.2d 235 |
| Parties | 118 L.R.R.M. (BNA) 2588, 102 Lab.Cas. P 11,311 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NORBAR, INC., Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Elliott Moore, Lawrence Blatnik (argued), Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., for petitioner.
J. Michael Fischer (argued), Ennis & Roberts, Cincinnati, Ohio, for respondent.
Before STEWART, Associate Justice (Retired), * LIVELY, Chief Judge, and WELLFORD, Circuit Judge.
This case is before the court pursuant to Section 10(e) of the National Labor Relations Act (the "Act"), 29 U.S.C. Sec. 160(e). Petitioner, the National Labor Relations Board (the "Board"), seeks enforcement of its decision finding respondent, Norbar, Inc. ("Norbar"), in violation of sections 8(a)(1) and 8(a)(3) of the Act, 29 U.S.C. Secs. 158(a)(1) and (3). That decision is reported at 267 N.L.R.B. 148. Jurisdiction is properly invoked in this court since the alleged unfair labor practices took place in Sharonville, Ohio, a suburb of Cincinnati.
Norbar is engaged in the business of transporting bulk mail by truck for the United States Postal Service. Norbar operates out of Sharonville, Ohio. This company, along with two related companies engaged in the same type of business, 1 is owned by a single parent company, Hartco. David A. Hartman is the owner of Hartco, and was the president and chief executive of Norbar at all times relevant to the instant action.
In February 1980, Hartman decided to take direct control over Norbar in an effort to increase the company's profitability. At this time, Hartman sent memos to each of the respective companies he owned, including Norbar, explaining the company's present financial condition and stating the improvements that he expected. One of the main reasons for the company's financial problems, Hartman concluded, was the failure of management to compel compliance with established policies. This failure resulted in poor driving habits, increased fuel consumption, increased accidents, and a failure to make timely deliveries.
To correct the company's problems, Hartman decided to strictly enforce company policy. This was communicated to the employees; not only verbally, but through Hartman's actions. In 1980, Norbar began with 48 employees at its Cincinnati terminal. During the first eight months of 1980, 29 of these employees were terminated or quit. Norbar hired 28 employees during this same time period, 12 of whom were either terminated or quit. 2
Sometime in March 1980, Norbar's employees began meeting to discuss the undesirable working conditions at the Cincinnati terminal. There was also some discussion of union representation at this time. As a result of these discussions, several employees, including Charles Burge, Lloyd Tucker, Howard Baumer, Jeffrey Snodgrass, and Phillip Seitz, attended union meetings and signed authorization cards. Snodgrass, Burge and Seitz also solicited other employees to sign union cards. In April 1980, the union (Truck Drivers, Chauffeurs, and Helpers Local Union No. 100, affiliated with Teamsters) filed a representation petition seeking certification as bargaining representative for the employees. On May 19 and 21, 1980, an election was held, with the union prevailing by a vote of 26 to 9. On May 30, 1980, the Board certified the union to represent the company's employees. A contract was finally negotiated in October 1980.
The charges of unfair labor practices under section 8(a)(3) of the Act center around the discharge of several different employees in the year following the union elections. The charge under section 8(a)(1) stems from facts tending to establish company threats made immediately prior to the election. As to the discharges, five separate events took place involving six different employees. Michael Green, a serviceman for Norbar, was discharged in November 1980, as was Jeffrey Snodgrass, a driving instructor. Phillip Seitz, a driver for Norbar, was allegedly discharged in April or May 1981. 3 Charles Burge and Howard Baumer, drivers for Norbar, were both discharged as the result of an incident occurring in June 1980. Lloyd Tucker, a driver for Norbar, was also discharged in June 1980.
Various unfair labor practice charges were filed between June 30, 1980 and May 21, 1981. After a hearing the Administrative Law Judge (ALJ) found that Norbar had violated on a number of occasions section 8(a)(1) of the Act by threatening employees prior to the election. Also, the ALJ found that Norbar had violated section 8(a)(3) by discharging each of the previously mentioned employees. This decision was rendered on September 29, 1981.
Exceptions were duly filed to the ALJ's decision, and the NLRB concluded that with respect to the 8(a)(1) violation and the 8(a)(3) violations in connection with the discharges of Green and Seitz, the ALJ was correct. With regard to the discharges of the other four employees, however, the Board found no violations of section 8(a)(3) occurred. Rather, the Board found that in regard to these discharges the ALJ had improperly drawn an adverse inference against Norbar from the failure of a former employee to testify, and also incorrectly assessed the facts in a number of instances. The Board thus concluded that a violation of section 8(a)(1) was established, and also separate violations of section 8(a)(3) were demonstrated by the discharges of Green and Seitz only. Norbar, on appeal, claims that the ALJ's original decision was so tainted with error and bias that the entire award should be set aside, and also that there is not substantial evidence to support the Board's decision.
Section 7 of the Act, 29 U.S.C. Sec. 157, guarantees to employees "the right to self-organization, to form, join or assist labor organizations ... and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." Section 8(a)(1) in turn makes it an unfair labor practice for an employer "to interfer with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7." Section 8(a)(3) prohibits employer "discrimination in regard to hire or tenure of employment or any term or condition of employment to ... discourage membership in any labor organization." To establish a violation of Section 8(a)(1), it is generally sufficient to show that an employer's conduct tends to interfere with the employees' exercise of their Section 7 rights. See, e.g., Propak Corp. v. NLRB, 578 F.2d 169 (6th Cir.1978). At the same time, to establish a violation of section 8(a)(3) () it is generally sufficient to show a discharge of an employee for engaging in union activities. See, e.g., NLRB v. Comgeneral Corp., 684 F.2d 367 (6th Cir.1982).
The ALJ found a violation of section 8(a)(1) and the Board agreed. This finding rested on evidence of company threats, coercion, and a general air of surveillance established by Norbar. In early May 1980, Terminal Manager Jack Flora called Tucker into his office, and in the presence of Carol Schafer, Flora's secretary, asked Tucker how he felt about the union. Flora also informed Tucker that he knew who the organizers of the union were, and stated that if the union were elected it could result in the employees being "out of work." Flora finally threatened to personally terminate Tucker if he were ever caught speeding.
Also in May 1980, Shop Foreman Gary Hardin called Snodgrass into the drivers' lounge, and informed Snodgrass that he knew who started "this g..d... union." Hardin continued by stating that he was going to get rid of "every one of those g..d... troublemakers." Again in May 1980, Flora called Seitz into his office and insinuated that if the union was ever to strike, the employees would be out of work. Several other incidents occurred immediately prior to the election where employees were asked how they felt about the union.
In mid-May 1980, Larry Walton, an employee of Norbar's, filed a claim for unemployment benefits as a result of his not being assigned work. Subsequent to this, Walton was informed by Carol Schafer (recently promoted to Terminal Manager) that it was not a good idea to apply for benefits, and that he should withdraw the application. Finally, an incident occurred where Hardin approached Baumer and asked him if he had been using Hardin's name for union business. Before Baumer could respond, Hardin threatened to "punch [Baumer] in the nose" if he had. As a result of this incident, Baumer filed charges with the Board, subsequent to which Hardin requested that Baumer withdraw them. Based on these findings, there was evidence to support the conclusion that Norbar violated section 8(a)(1) of the Act.
The issue of whether a section 8(a)(1) violation has taken place is a question of fact for the Board, which must be sustained if supported by substantial evidence. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Union Carbide Corp. v. NLRB, 714 F.2d 657, 660 (6th Cir.1983). In the present case, there was direct testimony tending to establish all of the foregoing incidents, none of which was contradicted. 4 Norbar's sole attack is that this evidence was erroneously found to be credible by the ALJ. It is well-settled that it is "the function of the ALJ to resolve credibility problems." NLRB v. Downslope Industries, Inc., 676 F.2d 1114, 1116 (6th Cir.1982). "This court will not normally disturb the credibility assessments of the Board or the Administrative Law Judge who has observed the demeanor of the witnesses." NLRB v. Magnetics International, Inc., 699 F.2d 806, 813 (6th Cir.1983). We find that the foregoing facts as found by the ALJ are supported by substantial evidence and support the conclusion that Norbar violated section 8(a)(1) of the Act. 5
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