N.L.R.B. v. Grand Canyon Min. Co.

• Decision Date: 27 June 1997
• Docket Number: 96-2089,Nos. 96-1990,s. 96-1990
• Citation: 116 F.3d 1039
• Parties: 155 L.R.R.M. (BNA) 2691, 134 Lab.Cas. P 10,027 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GRAND CANYON MINING COMPANY, Respondent. GRAND CANYON MINING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1039

116 F.3d 1039

155 L.R.R.M. (BNA) 2691, 134 Lab.Cas. P 10,027

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GRAND CANYON MINING COMPANY, Respondent.

GRAND CANYON MINING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 96-1990, 96-2089.

United States Court of Appeals, Fourth Circuit.

Argued May 7, 1997.

Decided June 27, 1997.

ARGUED: Jeffrey Lawrence Horowitz, National Labor Relations Board, Washington, DC, for Petitioner. Matthew Woodruff Sawchak, Smith, Helms, Mulliss & Moore, L.L.P., Raleigh, NC, for Respondent. ON BRIEF: Frederick L. Feinstein, General Counsel, Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Howard E. Perlstein, Deputy Assistant General Counsel, National Labor Relations Board, Washington, DC, for Petitioner. George J. Oliver, Smith, Helms, Mulliss & Moore, L.L.P., Raleigh, NC, for Respondent.

Before MURNAGHAN and MOTZ, Circuit Judges, and STAMP, Chief United States District Judge for the Northern District of West Virginia, sitting by designation.

Order enforced by published opinion. Judge MURNAGHAN wrote the opinion, in which Judge MOTZ and Chief Judge STAMP joined.

OPINION

MURNAGHAN, Circuit Judge:

The National Labor Relations Board (the "Board") found that Grand Canyon Mining Company ("Grand Canyon") violated sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (the "Act"), 29 U.S.C.A. § 158(a)(1), (3) (West 1973 & Supp.1997), by making several threats and coercive statements to its employees when they attempted to unionize and by discharging and constructively discharging two of its employees in retaliation for their unionizing activities. The Board has petitioned for enforcement of its order, and Grand Canyon has cross-petitioned for review of the Board's order. For the reasons stated below, we enforce the Board's order in full.

I.

Rapoca Energy Company owns the mine at issue in the instant case, and it leased its coal mining rights to Sam Blankenship in October 1990. Blankenship then assigned his mining rights to Grand Canyon. Gary Horn owns and operates Grand Canyon. Horn employs several people in supervisory positions. Bill Sawyers works as Grand Canyon's superintendent, and he is responsible for running the mine. Elmer McCoy, Jr. and Larry Addair work as the foremen of sections one and two of the mine, respectively, and they are responsible for overseeing the day-to-day operations of their sections. Doug Wright no longer works for Grand Canyon, but at the time at issue in the instant case, he worked as a supervisor in section two of the mine. Tim Woods works as a miner, but he also occasionally works as a short-time fill-in supervisor for Wright.

In July 1991, Grand Canyon began mining coal out of section one of the mine. When Grand Canyon began mining section two in late 1991, problems soon developed. The coal seam in section two is smaller and has a lower overall quality than the coal in section one, and section two is not structurally sound. Those problems caused Grand Canyon to shut down operations in section two periodically. In June 1992, Grand Canyon closed section two for six months. In June 1993, it closed the section for two weeks. Each time, Grand Canyon laid off employees during the shutdown.

Ron Casteel worked as a roof bolter for Grand Canyon. In September 1993, he decided to try and unionize the mine, and he began talking to his fellow employees. The employees held meetings regarding possible unionization on October 31, 1993 and November 7, 1993. As a result of those meetings, several employees signed cards that authorized the United Mine Workers of America (the "UMWA") to represent them. Larry French, a roof bolter, attended both meetings and signed an authorization card. On December 17, 1993, the UMWA delivered a union election petition to Grand Canyon owner Gary Horn.

Several Grand Canyon employees claim that various Grand Canyon supervisors made threats throughout November 1993 that Grand Canyon would close the mine if the employees supported the union, made threats that Grand Canyon would lay off any employee that supported the union, and gave the impression that Grand Canyon was conducting surveillance of union activities. On November 16, 1993, Grand Canyon transferred Casteel, the union organizer, from section one to section two of the mine. Five days later, Grand Canyon shut down section two and laid off most of its section two employees, including Casteel (the "November 1993 layoff"). On February 22, 1994, supervisor Woods accused Larry French of being a union instigator. Three days later, Grand Canyon transferred French from the day shift in section one to the night shift. French protested because he depended on his brother for transportation, and his brother worked on the day shift at Grand Canyon. Nonetheless, Grand Canyon transferred French to the night shift, and French subsequently quit his job.

The UMWA filed two separate charges against Grand Canyon with the Board. On July 21, 1994, the Board's General Counsel issued a consolidated complaint. An administrative law judge ("ALJ") held hearings on October 19 and 20, 1994 and issued a decision on April 17, 1995. The ALJ dismissed several of the claims that the General Counsel had alleged. However, the ALJ found that Grand Canyon violated sections 8(a)(1) and 8(a)(3) of the Act by making threats of closure, by giving the impression of union surveillance, by stating that it laid off two workers because of their union sympathies, by transferring and subsequently laying off Ron Casteel, and by constructively discharging Larry French. The ALJ's recommended order requires Grand Canyon to cease and desist from the unfair labor practices found and from otherwise interfering with, restraining, or coercing employees in the exercise of their rights to unionize. The order also directs Grand Canyon to rescind the unlawful transfer and layoff of Casteel and the unlawful constructive discharge of French. It further directs Grand Canyon to offer Casteel and French full reinstatement to their former positions, or to substantially similar positions if their former jobs no longer exist, to make them whole for any losses resulting from the unlawful activity, and to expunge Casteel's and French's records of all references to the transfer, layoff, and constructive discharge. Finally, the order requires Grand Canyon to post an appropriate notice regarding its foregoing responsibilities.

The Board affirmed the ALJ's findings and conclusions, and it adopted the ALJ's order. The Board now applies for enforcement of its order against Grand Canyon, and Grand Canyon cross-petitions for review of that order.

II.

We must affirm the Board's factual findings as long as they are supported by "substantial evidence on the record as a whole." Vance v. NLRB, 71 F.3d 486, 489 (4th Cir.1995). "Substantial evidence" means:

"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." It is "more than a scintilla but less than a preponderance." Although a reviewing court accords "due deference" to the Board's factual findings under the substantial evidence standard of review, the court does not "mechanically accept[ ]" those findings.

Id. at 489-90 (alteration in original) (citations omitted). We "may not 'displace the Board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.' " NLRB v. Walton Mfg. Co., 369 U.S. 404, 405, 82 S.Ct. 853, 854, 7 L.Ed.2d 829 (1962) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464-65, 95 L.Ed. 456 (1951)). See also NLRB v. Daniel Constr. Co., 731 F.2d 191, 193 (4th Cir.1984) ("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 instance."). We must affirm the Board's application of the law to those facts as long as its application is "reasonable and consistent with the [Act]." Vance, 71 F.3d at 490.

III.

Section 7 of the Act, 29 U.S.C.A. § 157 (West 1973), guarantees employees "the right to self-organization, to form, join, or assist labor organizations." Section 8(a)(1) of the Act, 29 U.S.C.A. § 158(a)(1) (West 1973 & Supp.1997), implements that guarantee and makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of [their section 7] rights." To establish a violation of section 8(a)(1), the Board's General Counsel must establish that, under all of the circumstances, the employer's conduct may reasonably tend to coerce or intimidate employees. See Standard-Coosa-Thatcher Carpet Yarn Div., Inc. v. NLRB, 691 F.2d 1133, 1137 (4th Cir.1982); NLRB v. P.B. & S. Chem. Co., 567 F.2d 1263, 1267 (4th Cir.1977). Whether particular conduct is coercive is a "question essentially for the specialized experience of the NLRB." Daniel Constr. Co. v. NLRB, 341 F.2d 805, 811 (4th Cir.1965).

A.

We have clearly held that an employer violates section 8(a)(1) if it threatens to close its business if its employees support a union. See NLRB v. Nueva Eng'g, Inc., 761 F.2d 961, 966 (4th Cir.1985). In the instant case, the Board found that supervisor Wright and foreman Addair told various employees on at least two different occasions that Grand Canyon would close the mine if the employees supported the UMWA.

Substantial evidence supports the Board's finding that supervisor Wright made such a statement. The unrebutted testimony at the administrative hearing established that in mid-November 1993, supervisor Wright told a group of employees that Grand Canyon would close the mine if they supported the UMWA. Troy Salyers, a Grand Canyon employee, testified to a conversation that he and his fellow employees Mike Richardson and Eddie Fuller had with...