N.L.R.B. v. Del Rey Tortilleria, Inc.

• Decision Date: 02 April 1986
• Docket Number: No. 85-1199,85-1199
• Citation: 787 F.2d 1118
• Parties: 122 L.R.R.M. (BNA) 2111, 104 Lab.Cas. P 11,833 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DEL REY TORTILLERIA, INC., Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1118

787 F.2d 1118

122 L.R.R.M. (BNA) 2111, 104 Lab.Cas. P 11,833

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DEL REY TORTILLERIA, INC., Respondent.

No. 85-1199.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 7, 1986.

Decided April 2, 1986.

Joseph Oertel, Dep. Assoc. Gen. Counsel N.L.R.B., Washington, D.C., for petitioner.

Irving M. Geslewitz, Adams, Fox, Adelstein & Rosen, Chicago, Ill., for respondent.

Before WOOD and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

RIPPLE, Circuit Judge.

The National Labor Relations Board (NLRB or the Board) petitions this court to enforce an order ¹ requiring respondent, Del Rey Tortilleria, Inc. (the Company), to cease and desist from interfering with its employees' exercise of their rights under section 7 of the National Labor Relations Act ² (the Act) and to offer reinstatement to former employees discharged in violation of the Act. We enforce the order.

I

The following statement of the facts is derived from the findings of fact contained in the Decision of the Administrative Law Judge (ALJ's Decision): ³ The Company is a family-owned corporation which operates retail and wholesale facilities on 18th and 27th Streets in the Pilsen or Little Village area of southwest Chicago. During the relevant period, the Company, which produces tortillas and related Mexican food products, employed some seventy unskilled workers at the 27th Street facility and approximately forty unskilled employees at its 18th Street factory. Nearly all of the employees are of Mexican descent. Some are undocumented aliens. Most are poorly-educated immigrants with little working knowledge of English who work for minimum wage.

In the summer of 1982, Refugio Martinez, the Company's vice-president and chief operating officer, was away in Mexico on business. In his absence, his step-daughters were left in charge: Dorothy de la Torre managed the 27th Street facility with the assistance of supervisor Pilar Ramirez; Yolanda Carreon managed the 18th Street operation. In late September, Luis Maldonado and several other employees asked Mrs. de la Torre to establish a regularly-scheduled break time to replace the arbitrary system then in operation. She replied that the employees were a "bunch of pigs" and that, because they made a "mess of the lunchroom," she would not give them a regular break. These employees were then sent home prior to the end of their shifts. Thereafter, Mr. Maldonado contacted Local 76 of the International Ladies' Garment Workers Union (Union).

On or about October 1, 1982, one of the Union's organizing directors, Rudolfo Lozano, began an organizational drive at both of the Company's facilities. Mr. Lozano stood on the sidewalk outside of the plants and spoke to employees entering and leaving the plants. He also held organizational meetings at a local community center. At these meetings, blank authorization cards were given to employees for distribution and signed cards were collected. After a meeting at the community center on October 6, the organizational drive began in earnest. On October 13, two days before the Union filed its representation petition, Mr. Lozano sent a telegram to Mrs. de la Torre. The telegram informed her that the Union was involved in an organizing drive and told her that "our organizing committee consists of the following employees--Luis Maldonado, Enelida Diaz, and Jose Luis Arriaga."

Certain subsequent actions of the Company, which are detailed infra, were alleged by the Union to be unfair labor practices designed to thwart the organizational effort. Charges were filed by the Union on October 14. The Board, adopting the findings of the ALJ, decided that the Company had violated both sections 8(a)(1) and (3) of the Act. 29 U.S.C. Secs. 158(a)(1), (3) (1984).

The Board issued an order requiring the Company to cease and desist from engaging in the activities underlying the unfair labor practices, to reinstate the three employees discharged in violation of the Act, and to post remedial notices.

II

A

Our review of Board orders is limited. "Factual findings supported by substantial evidence in the record as a whole are conclusive." NLRB v. Jarm Enterprises, Inc., 785 F.2d 195, 199 (7th Cir.1986) (quoting International Union of Operating Engineers v. NLRB, 755 F.2d 78, 81 (7th Cir.1985)); see 29 U.S.C. Sec. 160(e) (1984); Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951). Substantial evidence has been described as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed.2d 126 (1938). In determining whether there is substantial evidence in support of the Board's position, we must be satisfied--based on our independent review of the record--that the result is "justified by a fair estimate of the worth of the testimony of witnesses or [the Board's] informed judgment on matters within its special competence...." Universal Camera, 340 U.S. at 489-90, 71 S.Ct. at 465.

The determinations of the Board in this case are based on the findings of the ALJ. These findings are all based on his resolution of conflicting testimonial evidence. The Company argues that the ALJ was biased in favor of the Union. This argument is founded on the fact that the ALJ credited the testimony of the Board's witnesses more often than he credited the testimony of the Company's witnesses. However, we agree with the Board's position that, "[t]here is no basis for finding that bias and partiality existed merely because an administrative law judge resolved important factual conflicts in favor of the General Counsel's witnesses." Penn Color, Inc., 261 N.L.R.B. 395, 395 (1982). Further, "[t]here is nothing inherently arbitrary ... in believing one side's witnesses and not the other's." Conair Corp. v. NLRB, 721 F.2d 1355, 1367-68 (D.C.Cir.1983). Moreover, it has long been the law in this circuit that a reviewing court "must accept the Board's credibility findings unless the party challenging the credibility determinations establishes 'exceptional circumstances.' " NLRB v. Harrison Steel Castings Co., 728 F.2d 831, 836 n. 9 (7th Cir.1984); see Medline Industries, Inc. v. NLRB, 593 F.2d 788, 795 (7th Cir.1979); Electri-Flex Co. v. NLRB, 570 F.2d 1327, 1331-32 (7th Cir.), cert. denied, 439 U.S. 911, 99 S.Ct. 280, 58 L.Ed.2d 256 (1978).

The Company appears to argue that exceptional circumstances exist in this case. It seemingly contends that, since many of the General Counsel's witnesses were former Company employees whose terminations had been challenged as unfair labor practices, the testimony of these witnesses is too untrustworthy to constitute the substantial evidence necessary to support the Board's findings. See Midwest Stock Exchange, Inc. v. NLRB, 635 F.2d 1255, 1265 (7th Cir.1980). According to the Midwest court, a reviewing court may "disregard [the ALJ's] credibility determinations where we find them to be unreasonable, self-contradictory or based on inadequate reasoning." Id. However, that is not the situation in this case. The ALJ's task here was not an easy one. Apart from the Company's witnesses, most of the witnesses spoke only Spanish. Therefore, their testimony was taken through an interpreter, and it is clear that the language barrier complicated the hearing process. As the ALJ himself noted, "the interpreters who were called upon to render translations to and from the colloquial Mexican Spanish were not well suited to their tasks." ALJ's Decision at 3 n. 6. In this case, the ALJ very competently monitored the translation process. He tried to ensure not only that the witnesses understood the

                questions they were asked but also that the translators understood the nuances of the questions and that the witnesses' answers were accurately interpreted.  The ALJ alone had the opportunity to hear the testimony and observe the witnesses' demeanor;  thus, he was best suited to assess credibility and to resolve conflicts in testimony.    Portable Electric Tools, Inc. v. NLRB, 309 F.2d 423, 426-27 (7th Cir.1962).  There are minor conflicts between testimony at the hearing and the affidavits.  However, these minor discrepancies are substantially overcome by the balance of the testimony and consideration of the language problem
                

B

It is against this backdrop that we must evaluate the Board's findings. Section 8(a)(1) of the Act provides that it is an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title." 29 U.S.C. Sec. 158(a)(1) (1984). In this case, the Board found that fifteen discrete acts of the Company interfered with the organizational rights of the employees. The Company does not argue that any challenged conduct, if it actually occurred, would be permissible under the Act. Rather, it argues that the ALJ improperly credited the testimony of the Union and that the ALJ's findings are not supported by substantial evidence on the record viewed as a whole. In essence, the Company argues that the alleged acts never occurred.

The ALJ credited the testimony of several employees that the Company, on three separate occasions, promised them raises if they would abandon the Union. ⁴ Additionally, on October 17, Luis Maldonado had two conversations with Mrs. Ramirez, the 27th Street plant supervisor, regarding the Union. In the first, Mrs. Ramirez promised that, if the employees would renounce the Union, Mrs. de la Torre would pay them for any time they had lost. In the second, Mr. Maldonado was told that, if he would get rid of the Union, the Company would give him a check in any amount. ⁵

The ALJ also found the Company guilty of conducting several coercive interrogations. It was found that, at the October 13 meeting, employee Enelida Diaz was subjected to...