N.L.R.B. v. Brookwood Furniture, Div. of U.S. Industries
| Decision Date | 28 March 1983 |
| Docket Number | No. 81-4475,81-4475 |
| Citation | 701 F.2d 452 |
| Parties | 112 L.R.R.M. (BNA) 3392, 96 Lab.Cas. P 14,185 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BROOKWOOD FURNITURE, DIVISION OF U.S. INDUSTRIES, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Elliott Moore, John P. Coyle, Deputy Associate Gen. Counsels, N.L.R.B., Washington, D.C., for petitioner.
Frank M. Holbrook, Emile C. Ott, Jackson, Miss., for respondent.
Application for Enforcement of an Order of the National Labor Relations Board.
Before CLARK, Chief Judge, RUBIN and WILLIAMS, Circuit Judges.
The National Labor Relations Board petitions for enforcement of its order, 258 N.L.R.B. No. 28 (1981), adopting the findings and conclusions of the Administrative Law Judge, 1 that Brookwood Furniture Company, Division of U.S. Industries, violated Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1), by threatening and interrogating various employees as to union activities, and Sections 8(a)(3) and (1), 29 U.S.C. Sec. 158(a)(3), (1), by reprimanding and discharging one employee and by discharging another employee because of their union activities. Brookwood resists 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.
On September 28, 1978, the Upholsterers International Union of North America, AFL-CIO, filed a petition with the Board requesting a representation election at Brookwood's Pontotoc, Mississippi furniture manufacturing plant. Thereafter, on October 19, 1978, an appropriate bargaining unit was certified. 2 The representation election was held on December 1, 1978, resulting in a vote of 334 to 120 against the union.
Following the election, the union filed unfair labor practice charges against Brookwood 3 as well as objections to the election based on the company's pre-election conduct. After investigation, an unfair labor practice complaint issued against Brookwood which was consolidated for hearing with the union's election objections. 4 A hearing was held before the Administrative Law Judge (ALJ) in November and December 1979. 5
On April 14, 1980, the ALJ issued his findings of fact and conclusions of law. The ALJ found, as here relevant, approximately twelve instances of employee interrogation and threats by Brookwood in violation of Section 8(a)(1) of the Act. 6 Additionally, the ALJ held that Brookwood violated Section 8(a)(3), as well as Section 8(a)(1), by discharging employee Jerry Wray and by reprimanding and discharging employee Kawonies McElhenney because of their union activities. 7 The Board, in adopting the ALJ's recommendations, issued a cease and desist order and ordered that employees Wray and McElhenney be reinstated with back pay. Brookwood appeals all but two of the Board's findings of unfair labor practices. 8
As this Court has had frequent occasion to emphasize, our role in reviewing NLRB orders is narrowly limited. The factual determinations, underlying the Board's order, may not be disturbed unless "after full review of the record, we are unable conscientiously to conclude that the evidence supporting the Board's decision is substantial." NLRB v. Mueller Brass Co., 509 F.2d 704, 707 (5th Cir.1975). See Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); NLRB v. Gulf States United Telephone Co., 694 F.2d 92, 95 (5th Cir.1982); Berry Schools v. NLRB, 653 F.2d 966, 969 (5th Cir.1981). As we have similarly explained: "When the board's findings are reasonable and supported by substantial evidence, a court will affirm them, though the court might well have made contrary findings if sitting de novo." Dow Chemical Co. v. NLRB, 660 F.2d 637, 643 (5th Cir.1981). Particularly where, as here, the record is fraught with conflicting testimony, requiring essential credibility determinations to be made, the trier of fact's conclusions must be accorded particular deference. See NLRB v. Gulf States United Telephone Co., supra, 694 F.2d at 96; NLRB v. Southern Plasma Corp., 626 F.2d 1287, 1293 (5th Cir.1980).
In contrast, the legal effect ascribed to a given set of facts by the Board is subject to somewhat greater, although still limited, scrutiny on review. "The NLRB's resolution of such questions is to be upheld if reasonable, consistent with the Act, and based on findings supported by substantial evidence." NLRB v. L.B. Priester & Son, Inc., 669 F.2d 355, 359 (5th Cir.1982). Thus, while we may not abdicate our responsibility to conduct a thorough review, pursuant to the NLRA, of the reasonableness of the legal implications which the Board draws, neither may we overturn the Board's attribution of legal effect to a given set of facts unless we are convinced of the Board's error. After all, "Congress has, in the first instance, entrusted the detailed implementation of the NLRA to the Board, which has deliberately been given considerable leeway in applying its expertise to the myriad factual situations that come before it daily." NLRB v. Southwestern Bell Telephone Co., 694 F.2d 974, 976 (5th Cir.1982).
We turn now to the case at hand. We have examined the voluminous record before the Board upon which it found a dozen violations of Section 8(a)(1), out of the twenty-odd violations originally alleged and argued. We have conducted this review with an eye towards the entire period of disputed conduct preceding and following the representation election. Only upon this broad backdrop can the Board's specific findings of fact and their legal effects be assessed. After conducting this examination, utilizing the standards of review set out above, we cannot find error in the Board's conclusion that Section 8(a)(1) had been violated by Brookwood's employee interrogation and threats.
We summarize the circumstances giving rise to the Board's conclusion of Section 8(a)(1) violations, as found by the ALJ and supported by substantial evidence on the record as a whole. 9 We include a listing of those specific events giving rise to violations.
In late July or early August, 1978, the union began its organizational drive at Brookwood.
1. In late August, Terry Chewe, the company's Assistant Personnel Manager and Safety Director, asked to speak with button installer McElhenney at the latter's work station; McElhenney was a known and active, early adherent to the union. When McElhenney asked whether the discussion concerned the union, Chewe responded that he wanted to talk about a petition McElhenney had circulated 10 and which had been signed by over half of the Cushion Department employees, the department in which McElhenney worked. Chewe told McElhenney that his circulation and submission of the petition demonstrated a "negative attitude" which would hinder his advancement at Brookwood, adding that McElhenney had great potential if he would change his attitude. Then Chewe asked: "What about a Union?" McElhenney responded: "I am in the process of organizing something to that effect here."
2. On August 30, Cliff Hamblin, supervisor of Brookwood's Upholstery, Packing, and Supply Departments, called C.W. Ivy, a Supply Department employee, into his office for a job evaluation interview. Once this was completed, Hamblin asked Ivy what he thought of the union. When Ivy responded that he did not know, Hamblin further questioned what motivated employees to unionize--more money, better jobs or something else. Hamblin remarked that if the union could live up to its promises he himself would support the union. Then Hamblin warned Ivy that if the latter repeated these comments, he would deny them.
3. On September 6, Supervisor Hamblin approached upholsterer Jimmy Lessel at Lessel's work station, and said: "I heard a rumor that a Union is trying to come in." After Lessel denied knowledge of any union efforts, Hamblin stated that he had "gotten into trouble" over a union a few years before when working for his previous employer, and concluded with the observation that he saw nothing a union could accomplish at Brookwood.
4. Towards the end of September, line foreman Ronnie Wise approached upholsterer Jerry Wray at Wray's work station and stated he had heard that Wray was "tied up" in the union. After Wray denied his involvement with the union, Wise responded that he knew Wray was "fixing to get his ass in trouble."
The union filed its petition for a representation election on September 28th.
5. Shortly thereafter, Supervisor Hamblin approached Upholstery Department employee Albert Gordon, and asked if Gordon knew who was soliciting signatures on union authorization cards. Gordon denied any knowledge. 11
6. In early October, Hamblin asked Joe Dixon, a leadman in the Packing Department, to go with him to inspect some cartons. Hamblin then told Dixon that, because he was a leadman, he could not "afford" to vote for the union.
The union mailed the company a letter, on October 25, identifying fifteen employees as members of the union's in-plant organizing committee. The list included five individuals--McElhenney, Wray, Dixon, Charlie Swords, and Loretta Washington--involved in the unfair labor practice violations found by the Board.
During the last three weeks of November, company President Tracy Buse delivered to his employees a series of three different speeches opposed to the union. These speeches were given in a conference room adjacent to the personnel office to groups of 30 to 45 employees and on company time. 12 The three different presentations were repeated seven or eight times each, to ensure that each employee heard each speech once. After the conclusion of each speech, company supervisors interviewed employees to ascertain their reactions.
7. On several...
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