National Labor Relations Board v. General Fabrications
| Decision Date | 05 May 2000 |
| Docket Number | Nos. 99-6133,No. 33,33,s. 99-6133 |
| Parties | (6th Cir. 2000) National Labor Relations Board, Petitioner, Sheet Metal Workers' International Association of Northern Ohio Local Unionntervenor, v. General Fabrications Corporation, Respondent. ; 00-1108 Argued: |
| Court | U.S. Court of Appeals — Sixth Circuit |
Aileen A. Armstrong, Frederick C. Havard, John Arbab, John D. Burgoyne, Andrew J. Krafts, NATIONAL LABOR RELATIONS BOARD, APPELLATE COURT BRANCH, Washington, D.C., for Petitioner.
Richard P. James, Michelle T. Sullivan, ALLOTTA & FARLEY, Toledo, Ohio, Craig Becker, Chicago, Illinois, for Intervenor.
Timothy C. McCarthy, SHUMAKER, LOOP & KENDRICK, Toledo, Ohio, for Respondent.
Before: ENGEL, JONES, and COLE, Circuit Judges.
The National Labor Relations Board (NLRB or Board) petitions for enforcement of two orders against General Fabrications Corporation ("Company"). First, the NLRB petitions for enforcement of a bargaining order against General Fabrications, which was issued after a finding that the Company violated §§ 8(a)(1), (3) and (5) of the National Labor Relations Act ( NLRA), 49 Stat. 452, 453, as amended, 29 U.S.C. §§ 158(a)(1), (3) and (5), by dismissing and laying off employees and by statements made by management during and after a union organizing campaign by the Sheet Metal Workers' International Local 33 (Union). Second, the NLRB petitions for enforcement of an order against General Fabrications finding that the Company violated §§ 8(a)(1) and (5) of the NLRA by refusing to bargain with the Union. We ENFORCE both of the Board's orders.
Company president and owner Charles Boraski founded General Fabrications, a small company that manufactures and installs industrial equipment, in 1982. As of October 1997, the Company employed 31 non-supervisory employees at its Sandusky, Ohio facility. At that time, in Plant One, about eight employees made components, such as electrical panels and oven panels, which were then assembled in Plant Two, where about sixteen employees worked and where the main management offices were located. The remaining employees spent their time in the field installing and maintaining the Company's equipment.
In October 1997, employee Frank Mikolay contacted the Union. The first union meeting was held on October 29, 1997 by union organizer Matt Oakes. Five employees - Mikolay, Ed Collins, James Roberts, Davin Jones, and Chris Wade - attended and signed union authorization cards. A sixth employee - Terry Trushell - attended but did not sign an authorization card. The employees were given union flyers to distribute at their workplace. On October 31, a second union meeting was held. Seven employees who had not attended the first meeting - Bryan Cloud, John Johnson, Ron Fields, Jeremiah Pitts, Gerald Rahm, Bill Harvey, and Bill Montgomery - attended, signed union authorization cards, and were given union literature.
Within a week of the first union meeting, the Company took action against six employees. On October 30, Jones, who had attended the first union meeting, was terminated, allegedly for absenteeism. On November 3, Collins and Roberts, who at the time were building oven panels, were permanently laid off, allegedly due to the cost of producing these panels. On November 4, Mikolay's table was moved closer to his supervisor's office. Mikolay was also subjected to isolation and monitoring.
Also on November 4, General Fabrications held a company-wide meeting. At the meeting, which Mikolay taped, Boraski stated that he was receiving threats and that the work orders that he had would not be made in Sandusky because he would not succumb to these threats. Robert Garba, the company's general manager, spoke after Boraski, stating that whether or not the company shut down depended on how "reliable" employees were1. Later that same day, Cloud, an electrician's helper, and Johnson, an electrician, were laid off, allegedly because of a lack of work for these employees.
On November 17, the employees who had been discharged or laid off formed a picket line in front of the Company. Mikolay, Jeremiah Pitts, Gerald Rahm, and Ron Fields visited these men on the picket line. Ron Fields was laid off on December 2, 1997, leaving only one electrician, Thomas Searcy, at the Company. Fields was recalled in February 1998 when Searcy quit.
By December 4, 1997, the Union had obtained authorization cards from 18 of the 31 unit employees. The Union requested voluntary recognition from the Company. When the Company rejected the request, the Union filed a petition for representation with the NLRB.
During the campaign leading up to the union election, Boraski held several Company meetings. Gerald Rahm, a unit employee, testified at a later hearing that Boraski told employees that they would be forced to work for less than they already had. Further, Pitts testified that Boraski told the employees that negotiations would start from ground zero, and the employees would work under the rate he set. In addition, Company literature distributed during the campaign stated that employees, if unionized, would have to follow Company rules "to the letter."
Thirty-one ballots were cast in the representation election held on January 20, 1998. The union lost by one vote: 14 - 13. Four ballots were challenged. The Company challenged the ballots of Davin Jones, James Roberts, and Ed Collins; the Union challenged the ballot of Kyle Perkins, alleging that Perkins was a supervisor and, therefore, not an eligible unit member.
On May 6, 1998,2 a consolidated complaint was issued that alleged various violations of Section 8(a)(1) of the NLRA,3 violations of Section 8(a)(3) of the NLRA4 for discrimination against two employees and the dismissal of five employees, and violations of Sections 8(a)(3) and 8(a)(4)5 for the suspension and termination of a sixth employee. The complaint also alleged a violation of Section 8(a)(5) of the NLRA6 for the Company's failure to recognize the Union. The Union requested that the remedy include a bargaining order.
After a hearing, an administrative law judge ("ALJ"), in a detailed decision issued September 17, 1998, found numerous violations of the NLRA, some of which relied on credibility determinations. The ALJ found that (1) the Company violated Sections 8(a)(1) and 8(a)(3) of the NLRA by discharging Jones, permanently laying off Collins and Roberts, laying off Johnson, Cloud, and Fields, and suspending Mikolay; (2) the Company violated Section 8(a)(1) of the NLRA by its actions during the union campaign, such as threatening loss of jobs and plant closure, and harassing employees who supported the union; and (3) the Company violated Sections 8(a)(1) and 8(a)(5) of the NLRA by refusing to recognize and bargain with the union since December 4, 1997. The ALJ found that a bargaining order was an appropriate remedy.
The Board, in an order issued August 5, 1999, found that the Company had committed the unfair labor practices found by the ALJ. The Board upheld the ALJ's credibility determinations, the ALJ's findings of fact, and conclusions of law. Further, the Board ordered that the Company engage in bargaining with the Union. The NLRB applied for enforcement of the Board order in this court (Case No. 99-6133).
Following the Board's decision, the four contested election ballots were opened. Counting these ballots, the union won the election by a vote of 16-15. A certification of representation was issued on August 13, 1999. In order to challenge the inclusion of the three former employees in the election tally, the Company refused to bargain with the Union, and a resulting unfair labor practice charge was filed against the Company. The NLRB moved for summary judgment against the Company on this charge, which the Board granted on December 30, 1999. The NLRB petitioned this court for enforcement of its order. This case (Case No. 00-1108) was consolidated with the case already pending for our consideration.
The findings of the Board or its ALJ will not be disturbed by this court if they are supported by substantial evidence. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 491 (1951). Substantial evidence exists when, on the record as a whole, evidence is "adequate, in a reasonable mind, to uphold the [Board's] decision." Turnbull Cone Baking Co. v. NLRB, 778 F.2d 292, 295 (6th Cir. 1985). This court must review evidence in the record that runs contrary to the Board's decision. See NLRB v. Pentre Elec., Inc., 998 F.2d 363, 368 (6th Cir. 1993). It is, however, the "Board's function to resolve questions of fact and credibility." Roadway Express Inc. v. NLRB, 831 F.2d 1285, 1289 (6th Cir. 1987) (quoting NLRB v. Baja's Place, 733 F.2d 416, 421 (6th Cir. 1984)). We, therefore, "ordinarily will not disturb credibility evaluations by an ALJ who observed the witnesses' demeanor." Roadway Express, 831 F.2d at 1289. This is particularly true "where the 'record is fraught with conflicting testimony and essential credibility determinations have been made.'" ITT Automotive v. NLRB, 188 F.3d 375, 384 (6th Cir. 1999) (quoting Tony Scott Trucking, Inc. v. NLRB, 821 F.2d 312, 315 (6th Cir. 1987)). Finally, we must uphold the Board's findings if supported by substantial evidence even if "the court would justifiably have made a different choice had the matter been before it de novo." Universal Camera, 340 U.S. at 487-88.
In deciding § 8(a)(3) cases in which the employee was allegedly retaliated against for his union...
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