N.L.R.B. v. Nueva Engineering, Inc., No. 84-1616

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtBefore SPROUSE and WILKINSON; NORTHROP
Citation761 F.2d 961
Docket NumberNo. 84-1616
Decision Date06 May 1985
Parties119 L.R.R.M. (BNA) 2317, 102 Lab.Cas. P 11,468 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NUEVA ENGINEERING, INC., Respondent.

Page 961

761 F.2d 961
119 L.R.R.M. (BNA) 2317, 102 Lab.Cas. P 11,468
NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
NUEVA ENGINEERING, INC., Respondent.
No. 84-1616.
United States Court of Appeals,
Fourth Circuit.
Argued March 7, 1985.
Decided May 6, 1985.

Page 963

Allen Poppleton, Meryl C. Weiser and Weinberg & Green, Baltimore, Md., for respondent.

Wilford W. Johansen, Acting General Counsel, John E. Higgins, Jr., Deputy General Counsel, Robert E. Allen, Associate General Counsel, Elliott Moore, Deputy Associate General Counsel, and John G. Elligers, Washington, D.C., for petitioner.

Before SPROUSE and WILKINSON, Circuit Judges, and NORTHROP, Senior United States District Judge for the District of Maryland, sitting by designation.

NORTHROP, Senior District Judge.

The National Labor Relations Board petitions for enforcement of its order, 269 N.L.R.B. No. 172, adopting the findings and conclusions of the Administrative Law Judge, that Nueva Engineering, Inc., violated Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1), by threatening, surveilling and interrogating various employees as to union activities, and Section 8(a)(3) and (1), 29 U.S.C. Sec. 158(a)(3), (1), by discharging one employee because of her union activities. Nueva challenges enforcement, arguing that the Board's order is not supported by substantial evidence on the record considered as a whole and that it was improperly denied access to exculpatory material within the Board's investigatory files. We disagree and grant enforcement of the Board's order.

I.

BACKGROUND FACTS

Nueva Engineering, Inc., is a Maryland corporation engaged in the production of electronic circuit boards. During the relevant time period, early August, 1982, Nueva employed approximately 88 employees. Thomas Pozzouli was the Vice President and General Manager. Howard Lee Brown was the production foreman who supervised three departments, including the shipping department.

Beginning the week of August 9, 1982, the union 1 conducted an organizational drive at the Nueva plant in Baltimore. Union leaflets were distributed to the employees, some were posted at the plant and some of the union literature was sent to Nueva officials. There is no question that the literature was designed to encourage employees to join and support the union.

Cecilia Leach, an employee in Nueva's shipping department, was a union proponent.

Page 964

When the union campaign started, Leach signed a union authorization card and assisted the union organizers in the collection of authorization cards. On August 9, 1982, two union organizers met with Leach and four other employees during lunch to discuss the campaign. Leach was the only shipping department employee to attend this meeting.

Nueva strongly opposed the union. On several occasions during the week, foreman Brown, when passing Leach, displayed union literature and made comments such as "pricken union" and "the union is not getting in here." On one occasion, Brown told Leach: "[I]f you don't like working for this company and you are for all the union business, then why don't you work somewhere else because I don't want no f-----g union in here." 2 On at least one occasion, Vice President Pozzouli assembled the employees from the shipping and routing departments and told them that "if the Union was voted in ... the owners of the company would take it back to a prototype shop which meant that the company could be run with eight to ten people." 3 Pozzouli further warned the employees that if the union was selected, "there would be indefinite layoffs whereas right now it would be just temporary layoffs." Pozzouli added that the union was "backed" by criminal elements.

On August 16, 1982, the same day of Pozzouli's speech, the union organizers scheduled an employee meeting to be held after work at the local high school. Notices announcing the meeting were posted in the plant. It was admitted that Nueva received a copy of the meeting notice. Sometime during the day, the meeting was cancelled and word was circulated among the employees. After work that day, employee Charles O'Neill drove fellow employees Cheryl Langrehr and Nola Coleman home on a road that passed the high school where the union meeting had been scheduled. As they passed the school, they noticed Brown and another Nueva supervisor driving about in the school parking lot. The two supervisors then drove out of the school parking lot and followed the employees to Coleman's home. The next day, employee Coleman informed Brown that she "didn't appreciate being followed home," and Brown apologized for upsetting her. Several days later, O'Neill asked Brown why he had followed the employees home after work. Brown told O'Neill that he was "trying to find the union meeting." Foreman Brown explained to O'Neill that when no one appeared at the school, he followed the employees because he thought they were "going to another location where the meeting would be held."

Earlier in the month of August, 1982, Nueva made a business decision to implement a general layoff of employees. In accordance with Nueva's regular practice, each foreman used his own discretion in choosing employees for layoff. On August 16, 1982, the day the first union meeting was scheduled, foreman Brown, the supervisor of the shipping department, chose employee Leach for layoff. At that time, she was the most senior of the four shipping department employees and had recently been awarded two merit wage increases.

Finally, in late August, Brown and employee O'Neill were talking in Vice President Pozzouli's office. Brown first told O'Neill that he "did not like unions" and then asked O'Neill how he felt about unions. O'Neill told Brown that he supported the union. Brown replied that if the employees voted for union representation, the "alternative would be to go into a proto shop and institute a big layoff."

Based on the foregoing facts, the Board found, in agreement with the ALJ, that Nueva violated Section 8(a)(1) of the National

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Labor Relations Act (the "Act"), 29 U.S.C. Sec. 158(a)(1), by threatening employees with a work force reduction if they selected a union as their bargaining representative, by interrogating an employee and by engaging in surveillance of employees thought to be engaged in union activities. The Board also found, in agreement with the ALJ, that Nueva violated Section 8(a)(3) and (1) of the Act, 29 U.S.C. Sec. 158(a)(3) and (1), by laying off employee Leach because of her union activity. The Board's order requires Nueva to cease and desist from these unfair labor practices and from "in any like or related manner" interfering with, restraining or coercing employees in the exercise of rights guaranteed by the Act. Affirmatively, the Board's order requires Nueva to make Leach whole for any loss of earnings suffered by reason of the discrimination against her, to expunge from its records any reference to her layoff, and to post an appropriate notice. 4

II.

SECTION 8(a)(1) VIOLATIONS

Section 8(a)(1) makes it an unfair labor practice for an employer to interfere with, restrain or coerce employees in the free exercise of their Section 7 rights. Section 7, 29 U.S.C. Sec. 157, guarantees employees the right "to form, join, or assist labor organizations ... and to engage in other concerted activities for the purpose of collective bargaining...." In evaluating an employer's conduct under section 8(a)(1), "[t]he test is not whether the language or acts were coercive in actual fact, but whether the conduct in question had a reasonable tendency in the totality of the circumstances to intimidate." Corrie Corp. v. NLRB, 375 F.2d 149, 153 (4th Cir.1967). See NLRB v. Brookwood Furniture, 701 F.2d 452, 459 (5th Cir.1983). Thus, the employer's conduct must be assessed within the totality of circumstances surrounding each occurrence at issue. In NLRB v. Gissel Packing Co., 395 U.S. 575, 617, 89 S.Ct. 1918, 1941, 23 L.Ed.2d 547 (1969), the Supreme Court expressed a now familiar rule on section 8(a)(1) coercion:

Any assessment of the precise scope of employee expression, of course, must be made in the context of its labor relations setting. Thus, an employer's rights cannot outweigh the equal rights of the employees to associate freely, as those rights are embodied in Sec. 7 and protected by Sec. 8(a)(1) and the proviso to Sec. 8(c). And any balancing of those rights must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear.

Our review of the Board's findings of section 8(a)(1) violations is, of course, limited. "If the findings of the Board have substantial support in the record as a whole, our inquiry ends and its order must be enforced even though we might have reached a different result had we heard the evidence in the first place." NLRB v. Daniel Constr. Co., 731 F.2d 191, 193 (4th Cir.1984), citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); NLRB v. Kiawah Island Co., Ltd., 650 F.2d 485, 489 (4th Cir.1981). This is particularly true where, as here, the record is fraught with conflicting testimony and essential credibility determinations have been made. NLRB v. Air Products and Chemicals, Inc., 717 F.2d 141, 145 (4th Cir.1983); Dubin-Haskell Lining Corp. v. NLRB, 375 F.2d 568, 571 (4th Cir.1967), cert. denied, 393 U.S. 824, 89 S.Ct. 83, 21 L.Ed.2d 95 (1968). With...

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    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
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    ...if made, violated the Act. See NLRB v. Grand Canyon Mining Co., 116 F.3d 1039, Page 254 1044 (4th Cir.1997); NLRB v. Nueva Engineering, 761 F.2d 961, 966 (4th Cir. 1985). The only issue is the factual one: whether the threats were made. Burris and Adgerson each testified that they were; Har......
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    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • September 16, 1997
    ..."the record is fraught with conflicting testimony and essential credibility determinations have been made." NLRB v. Nueva Eng'g, Inc., 761 F.2d 961, 965 (4th Cir.1985) (citing NLRB v. Air Prods. and Chems., Inc., 717 F.2d 141, 145 (4th Cir.1983); Dubin-Haskell Lining Corp. v. NLRB, 375 F.2d......
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    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
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    ...is fraught with conflicting testimony and essential credibility determinations have been made.'") (quoting NLRB v. Nueva Eng'g, Inc., 761 F.2d 961, 965 (4th Cir.1985)). Therefore, this court cannot set aside, in favor of its own interpretation, NLRB findings that are supported by substantia......
  • Intertape Polymer Corp. v. Nat'l Labor Relations Bd., Nos. 14–1517
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • September 8, 2015
    ...if “the conduct in question had a reasonable tendency in the totality of the circumstances to intimidate.” NLRB v. Nueva Eng'g, Inc., 761 F.2d 961, 965 (4th Cir.1985).However, “[t]he prohibition set forth in § 8(a)(1) is limited by [the protection granted by] § 8(c).” J.P. Stevens & Co. v. ......
  • Request a trial to view additional results
63 cases
  • Sam's Club, a Div. of Wal-Mart Stores, Inc. v. N.L.R.B., WAL-MART
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • April 9, 1999
    ...if made, violated the Act. See NLRB v. Grand Canyon Mining Co., 116 F.3d 1039, Page 254 1044 (4th Cir.1997); NLRB v. Nueva Engineering, 761 F.2d 961, 966 (4th Cir. 1985). The only issue is the factual one: whether the threats were made. Burris and Adgerson each testified that they were; Har......
  • Be-Lo Stores v. N.L.R.B., BE-LO
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • September 16, 1997
    ..."the record is fraught with conflicting testimony and essential credibility determinations have been made." NLRB v. Nueva Eng'g, Inc., 761 F.2d 961, 965 (4th Cir.1985) (citing NLRB v. Air Prods. and Chems., Inc., 717 F.2d 141, 145 (4th Cir.1983); Dubin-Haskell Lining Corp. v. NLRB, 375 F.2d......
  • Dayton Newspapers, Inc. v. N.L.R.B., No. 03-1981.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • March 23, 2005
    ...is fraught with conflicting testimony and essential credibility determinations have been made.'") (quoting NLRB v. Nueva Eng'g, Inc., 761 F.2d 961, 965 (4th Cir.1985)). Therefore, this court cannot set aside, in favor of its own interpretation, NLRB findings that are supported by substantia......
  • Intertape Polymer Corp. v. Nat'l Labor Relations Bd., Nos. 14–1517
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • September 8, 2015
    ...if “the conduct in question had a reasonable tendency in the totality of the circumstances to intimidate.” NLRB v. Nueva Eng'g, Inc., 761 F.2d 961, 965 (4th Cir.1985).However, “[t]he prohibition set forth in § 8(a)(1) is limited by [the protection granted by] § 8(c).” J.P. Stevens & Co. v. ......
  • Request a trial to view additional results

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