N.L.R.B. v. Oklahoma Fixture Co., 95-9509

• Citation: 79 F.3d 1030
• Decision Date: 28 March 1996
• Docket Number: No. 95-9509,95-9509
• Parties: 151 L.R.R.M. (BNA) 2919, 131 Lab.Cas. P 11,552 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. OKLAHOMA FIXTURE COMPANY, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1030

79 F.3d 1030

151 L.R.R.M. (BNA) 2919, 131 Lab.Cas. P 11,552

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. OKLAHOMA FIXTURE COMPANY, Respondent.

No. 95-9509.

United States Court of Appeals, Tenth Circuit.

March 28, 1996.

On Application for Enforcement of an Order of the National Labor Relations Board (NLRB No. 17-CA-16206).

Joseph J. Jablonski Jr., Attorney, National Labor Relations Board, Washington, D.C. (Frederick L. Feinstein, General Counsel, Linda R. Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Charles Donnelly, Supervisory Attorney, National Labor Relations Board, Washington, D.C., with him on the brief), for Petitioner.

Stephen L. Andrew (D. Kevin Ikenberry with him on the brief), of Stephen L. Andrew & Associates, Tulsa, Oklahoma, for Respondent.

Before ANDERSON, KELLY and HENRY, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Petitioner National Labor Relations Board ("NLRB" or "Board") seeks enforcement of its order issued in Oklahoma Fixture Co., 314 N.L.R.B. 958, 1994 WL 475852 (1994), in which it found that Respondent Oklahoma Fixture Company ("OFC") violated Section 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (5). We deny enforcement.

Background

Oklahoma Fixture Company is engaged in the manufacture of custom-designed store fixtures, such as showcases and back islands, for installation in retail establishments. OFC has plants in Tulsa, Oklahoma, and Bowling Green, Kentucky.

In 1991, OFC decided to hire in-house electricians for the first time; previously OFC had subcontracted its electrical wiring needs. After the electricians were hired, the International Brotherhood of Electrical Workers ("Union") filed a petition for election in order to be certified by the NLRB as the electricians' exclusive bargaining agent. The Union was chosen by a 10 to 3 vote.

In January 1992, the Union began collective bargaining with OFC. On May 14, 1992, however, before a contract had been finalized, OFC informed the Union that it was seriously considering a return to subcontracting. OFC explained that it was experiencing some problems with its wiring and thought it might lessen its risks and liability by returning to subcontracting. Another contract negotiation session was scheduled for June 8, 1992, but the parties understood that there would be no further use in contract bargaining if OFC decided to return to subcontracting.

In early June of 1992, OFC made the final decision to subcontract its electrical work at both its Tulsa plant and its non-union Bowling Green plant. On the morning of June 8, 1992, OFC notified the Union of its decision and cancelled the contract bargaining session scheduled for that afternoon. The following day, Tuesday, June 9, 1992, the electricians were terminated but paid through the end of the week. At no time during that week did the Union request bargaining over the effects of the subcontracting decision. In fact, the attorney for the Union admitted at trial not only that no request to bargain over effects was made, but that this case did not involve "effects" but rather the decision to close the electrical part of the business. It was also uncontroverted that the case did not involve the refusal to furnish information since it had been furnished.

In any event, the Union filed an unfair labor practice charge on June 9, 1992, which resulted in the issuance of a complaint against OFC by the NLRB. The complaint alleged that the subcontracting decision and termination of the electricians was motivated by anti-union animus in violation of § 8(a)(3) of the National Labor Relations Act ("Act"); that OFC failed to bargain over the decision to subcontract and the effects of that decision in violation of § 8(a)(5); and that various threats and intimidating remarks were made by OFC supervisors to employees in violation of § 8(a)(1). After a trial, the Administrative Law Judge ("ALJ") concluded that OFC had made the decision to subcontract for legitimate entrepreneurial reasons and not because of anti-union animus. The ALJ also found no § 8(a)(1) violations; held that OFC had no duty to bargain over its subcontracting decision; and determined that effects bargaining was not at issue in the case. Consequently, the ALJ dismissed the complaint in its entirety.

The General Counsel for the NLRB then filed exceptions to the ALJ's decision. The Board upheld the ALJ's decision on all points but three: (1) a statement made by a supervisor to one of the electricians constituted a threat under § 8(a)(1); (2) effects bargaining was at issue, and OFC failed to provide the Union with a meaningful opportunity to bargain over the effects of the subcontracting decision; and (3) the Union had not waived its right to bargain over effects. Oklahoma Fixture Co., 314 N.L.R.B. at 958, 960-61. As a remedy, the Board required that a notice be posted advising employees that OFC had violated the Act, directed OFC to bargain with the Union over the effects of the subcontracting decision, and ordered a limited backpay remedy pursuant to Transmarine Navigation Corp., 170 N.L.R.B. 389 (1968). Oklahoma Fixture Co., 314 N.L.R.B. at 961.

Discussion

Although we ordinarily review questions of law de novo, the Board's construction of the National Labor Relations Act is entitled to considerable deference. Intermountain Rural Elec. Ass'n v. NLRB, 984 F.2d 1562, 1566 (10th Cir.1993). The Board's findings of fact are upheld if they are supported by substantial evidence in the record as a whole. Id.; 29 U.S.C. § 160(e). "Substantial evidence" is evidence that a reasonable mind might accept as adequate to support a conclusion. Intermountain, 984 F.2d at 1566.

I. Section 8(a)(1)

The Board, contrary to the decision of the ALJ, found that OFC threatened electrician Richard Gill ("Gill") with discharge in violation of § 8(a)(1) of the Act. Oklahoma Fixture Co., 314 N.L.R.B. at 958. In February 1992, Gill asked Superintendent Jerry Wallace ("Wallace") about health insurance contributions. When Wallace failed to respond to his inquiries, Gill spoke to fellow employee Ray Creel ("Creel") about the situation but did not contact the person in charge of the company's insurance program. Creel in turn contacted Union business agent Tom Quigley ("Quigley"), though Gill himself never actually spoke with a Union agent. Quigley eventually called Vice President Mark Cavins ("Cavins") about Gill's insurance. According to Gill, sometime thereafter, Supervisor Bob Fields mentioned to him that Cavins was angry at him because Cavins had been "chewed out" by Quigley over the insurance situation and warned him to stay out of Cavins' way. Creel testified that he heard this Fields-Gill conversation and that Fields said that Cavins was mad because "[h]e didn't like anybody from ... outside [the company] calling in about [Gill's] benefits or anything." Cavins testified that Quigley called him regarding Gill's insurance, but according to Cavins, the conversation was pleasant and that he was not angered by it, though he wondered why Quigley, an outside source, called him. Cavins explained that such calls were frequent from representatives of other Unions but surprising from Quigley because the electricians were still non-union at the time.

The ALJ found Gill's testimony "so amorphous and nebulous" that it was not clear that the threat was intended to discourage Union activity. The Board disagreed, finding that Gill's testimony clearly established that Fields warned Gill that a vice president of OFC wanted to fire him because the Union interceded regarding his insurance issue, which would discourage Gill from seeking the assistance of the Union.

It is well settled that an employer violates § 8(a)(1) by threatening employees with reprisal for engaging in union activity. See McLane/Western, Inc. v. NLRB, 723 F.2d 1454, 1456 (10th Cir.1983). The test for a violation of § 8(a)(1) is whether the employer engaged in conduct which reasonably tends to interfere with, restrain or coerce employees in the free exercise of their rights under § 7. Lear Siegler Inc. v. NLRB, 890 F.2d 1573, 1580 (10th Cir.1989).

Although the Board is entitled to deference in its findings of fact, its findings must still be supported by substantial evidence in the record as a whole. Intermountain, 984 F.2d at 1566. "[E]vidence may properly be considered less substantial when the NLRB's administrative law judge, who has observed the witnesses and lived with the case, has drawn conclusions different from those reached by the NLRB." Monfort, Inc. v. NLRB, 965 F.2d 1538, 1541 (10th Cir.1992) (internal quotations omitted). While the Board may draw permissible inferences from credible testimony, NLRB v. Gold Spot Dairy, Inc., 417 F.2d 761, 762 (10th Cir.1969), the Board cannot postulate findings unsupported by any evidence. In this case, there is absolutely no evidence in the record that Cavins' alleged threat against Gill was motivated by anti-Union animus in any way. At most the evidence suggests that Cavins may not have liked "outsiders" meddling in his company's affairs. The only suggestion that this dialog was motivated by anti-Union animus appears as argument by counsel for the Board, not in the form of testimony. In the absence of any evidence of anti-Union intent, under the facts of this case we cannot presume any improper motive.

II. Effects Bargaining

The Board determined that the subcontracting decision itself was outside the scope of mandatory bargaining under the Act, and OFC's failure to bargain over that decision did not violate § 8(a)(5) or (1) of the Act. Oklahoma Fixture Co., 314 N.L.R.B. at 959-60; see First Nat'l Maintenance Corp. v. NLRB, 452 U.S. 666, 686, 101 S.Ct. 2573, 2584, 69 L.Ed.2d 318 (1981) (holding that a company is not required to bargain over the decision to shut down part of its business for purely economic reasons). However, the Board found that OFC was...