N.L.R.B. v. Transpersonnel, Inc.

• Decision Date: 13 November 2003
• Docket Number: No. 02-2414.,No. 02-2344.,02-2344.,02-2414.
• Citation: 349 F.3d 175
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TRANSPERSONNEL, INCORPORATED, Respondent. Transpersonnel, Incorporated, Petitioner, v. National Labor Relations Board, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

349 F.3d 175

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TRANSPERSONNEL, INCORPORATED, Respondent.

Transpersonnel, Incorporated, Petitioner, v. National Labor Relations Board, Respondent.

No. 02-2344.

No. 02-2414.

United States Court of Appeals, Fourth Circuit.

Argued: June 5, 2003.

Decided: November 13, 2003.

COPYRIGHT MATERIAL OMITTED

ARGUED:

Donald Christopher Lauderdale, Haynsworth, Baldwin, Johnson & Greaves, L.L.C., Greenville, South Carolina, for Transpersonnel. Ruth Elizabeth Burdick, National Labor Relations Board, Washington, D.C., for Board.

ON BRIEF:

Arthur R. Rosenfeld, General, Counsel, John E. Higgins, Jr., John E. Higgins, Jr., Deputy General, Counsel, John H. Ferguson, Associate General

Counsel, Aileen A. Armstrong, Deputy Associate General, Counsel, Margaret A. Gaines, Supervisory Attorney, National Labor Relations Board, Washington, D.C., for Board.

Before WILKINSON, LUTTIG, and SHEDD, Circuit Judges.

Application for enforcement granted in part and denied in part, and cross-petition for review granted in part and denied in part by published opinion. Judge SHEDD wrote the opinion. Judge LUTTIG wrote an opinion concurring in part and dissenting in part. Judge WILKINSON wrote a dissenting opinion.

OPINION

SHEDD, Circuit Judge:

This case is before the Court on the application for enforcement filed by the National Labor Relations Board (the Board) and the cross-petition for review filed by the employer, Transpersonnel, Inc.

The Board determined that Transpersonnel violated § 8(a)(1), 29 U.S.C. § 158(a)(1), of the National Labor Relations Act (the NLRA or the Act) by unlawfully soliciting nine of its employees to sign anti-union statements. It also ruled that Transpersonnel violated § 8(a)(1) and § 8(a)(5), 29 U.S.C. § 158(a)(5), of the Act by withdrawing recognition from the General Drivers, Warehousemen and Helpers, Local 28, affiliated with International Brotherhood of Teamsters, AFL-CIO (the Union).

We conclude that substantial evidence supports a finding that Transpersonnel unlawfully solicited only two — not nine — of its employees. We also conclude that substantial evidence does not support the Board's finding that Transpersonnel unlawfully withdrew recognition of the Union. Therefore, we grant in part and deny in part the Board's application for enforcement, and we grant in part and deny in part Transpersonnel's cross-petition for review.

I.

As found by the Board,¹ Transpersonnel leases long-haul truck drivers to, among other customers, the Kohler Company in Spartanburg, South Carolina. Starting in 1993, the Union was the bargaining representative of the Transpersonnel employees at Kohler under a collective bargaining agreement. That collective bargaining agreement expired in September 1996. In February 1997, at least ten Transpersonnel employees working at Kohler commenced an economic strike. Two employees, Raymond Wray and Grant Crow, did not strike. It is undisputed that Wray did not support the Union.

By April 1997, Transpersonnel began hiring replacement drivers. It held an orientation meeting with the replacement drivers and Wray on April 6 at the Holiday Inn in Spartanburg. During that meeting, the employees circulated among themselves a piece of Holiday Inn stationery with handwriting at the top that stated "No Union." All six of the replacement drivers and Wray — a total of seven employees² — signed the document, which was later handed to a Transpersonnel official during a break in the meeting.

Over the next few weeks, Transpersonnel claims it obtained statements from five other employees who indicated they did not want to be represented by the Union. Combining these five statements with the seven signatures obtained at the April 6 meeting, Transpersonnel asserted that twelve employees in the unit did not want Union representation. On May 9, Transpersonnel informed the Union that it had "received objective evidence that [the Union] no longer represents a majority of our employees." J.A. 291. Based on this information, Transpersonnel withdrew recognition from the Union.

In August 1997, the Board's General Counsel issued a complaint, alleging that Transpersonnel unlawfully solicited an unspecified number of employees to sign anti-union statements and unlawfully withdrew recognition of the Union. In May 1998, the ALJ decided that Transpersonnel unlawfully solicited nine employees and unlawfully withdrew recognition of the Union. The Board adopted the ALJ's recommended order in September 2001.

II.

After a collective bargaining agreement expires, under the law applicable to this case, an employer may not withdraw recognition of a union unless the employer shows either that (1) the union did not in fact enjoy majority support, or (2) the employer had a good-faith doubt, founded on a sufficient objective basis, of the union's majority support. Pirelli Cable Corp. v. N.L.R.B., 141 F.3d 503, 520 (4th Cir.1998). The Board concluded that Transpersonnel failed to make either showing.

In making this determination, the Board found that there were as few as twenty-two employees in the Transpersonnel bargaining unit on May 9 — ten strikers who supported the Union and twelve drivers who did not strike.³ Of these twelve drivers who did not strike, the Board decided that Transpersonnel improperly solicited anti-union statements from nine — the six replacement drivers who signed the "No Union" document during the April 6 meeting and three others who provided statements in the weeks following the April 6 meeting: Crow, Johnny Emerson, and Bradley Forkey. Therefore, although Transpersonnel claimed that it could rely on all twelve of the anti-union statements it received from the nonstriking employees, the Board concluded that Transpersonnel could rely on the anti-union declarations of only three of the twenty-two unit employees: Wray, Dean Hefner, and Franklin Harris. Accordingly, the Board concluded that Transpersonnel violated §§ 8(a)(1) and 8(a)(5) when it withdrew recognition of the Union.

III.

We must affirm the Board's factual findings if they are "supported by substantial evidence on the record considered as a whole." 29 U.S.C. § 160(e); Medeco Security Locks, Inc. v. N.L.R.B., 142 F.3d 733, 742 (4th Cir.1998). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Diesel Co. v. N.L.R.B., 263 F.3d 345, 351 (4th Cir.2001) (internal quotation omitted). If substantial evidence exists, we must uphold the Board's decision "even though we might have reached a different result had we heard the evidence in the first instance." N.L.R.B. v. Daniel Construction Co., 731 F.2d 191, 193 (4th Cir.1984).

IV.

The Board found that Transpersonnel violated § 8(a)(1) by improperly soliciting nine employees to provide anti-union statements. These nine are the six replacement drivers who attended the April 6 meeting, plus Crow, Emerson, and Forkey.

The test for a § 8(a)(1) violation is whether, "under all of the circumstances, the employer's conduct may reasonably tend to coerce or intimidate employees." N.L.R.B. v. Grand Canyon Mining Co., 116 F.3d 1039, 1044 (4th Cir.1997) (internal quotation omitted). It does not matter whether the particular conduct by the employer was actually coercive. Consolidated Diesel, 263 F.3d at 352. Instead, the relevant inquiry is "whether the conduct in question had a reasonable tendency in the totality of circumstances to intimidate." Equitable Gas Co. v. N.L.R.B., 966 F.2d 861, 866 (4th Cir.1992) (internal quotation omitted). Whether particular conduct tends to coerce or intimidate is a question essentially left to the specialized experience of the Board, and we must show respect for the Board's findings. Consolidated Diesel, 263 F.3d at 352. Nevertheless, a reviewing court is empowered to set aside a Board's decision when the court cannot conscientiously find substantial evidence to support the Board's decision, when viewing the record as a whole including the body of evidence opposed to the Board's view. Weirton Steel v. N.L.R.B., 689 F.2d 504, 507 (4th Cir.1982).

A. April 6 Meeting

Transpersonnel scheduled an orientation meeting at the Spartanburg Holiday Inn for its newly hired replacement drivers. Wray, one of the two drivers who refused to join the strike, also attended the meeting. Thomas Husvar, Transpersonnel's Regional Manager, led the meeting.

Husvar and Wray parked next to each other in the hotel parking lot and walked to the meeting together. Wray said to Husvar: "Tom, I don't want union representation. I don't think the people want union representation. What do we have to do?" J.A. 147-48. Husvar responded: "Those are very good questions. Why don't you ask those questions in the meeting... because I think everybody has the right to know ... what their rights are." J.A. 148.

During the meeting, Wray repeated his question. In response, Husvar told the employees that they had the right to decide whether they wanted Union representation, that Transpersonnel could not influence their decision, and that if they did not want Union representation then Transpersonnel would need some sort of documentation evidencing their preference.

While the meeting proceeded, the employees circulated a piece of Holiday Inn stationery with the handwritten notation "No Union" at the top. All of the six replacement drivers and Wray signed the document. Husvar did not circulate the document, nor did he know that the employees were circulating it. One of the employees handed the note to another Transpersonnel manager during a break in the meeting and the document was eventually given to Husvar when the meeting resumed.

After the "No Union" document was handed to Husvar, one of the replacement drivers asked, "[W]hat do we do now?" J.A. 150. Husvar told the group that Transpersonnel could not do anything about the Union until a majority of the employees indicated that they did not want Union...