Vemco, Inc. v. N.L.R.B.
| Decision Date | 22 March 1996 |
| Docket Number | 94-6500,Nos. 94-6378,s. 94-6378 |
| Citation | 79 F.3d 526 |
| Parties | 151 L.R.R.M. (BNA) 2811, 131 Lab.Cas. P 11,524 VEMCO, INC., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner. |
| Court | U.S. Court of Appeals — Sixth Circuit |
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
Peter J. Kok and Elizabeth M. McIntyre (argued and briefed), Miller, Johnson, Snell & Cumminskey, Grand Rapids, MI, for Petitioner/Cross-Respondent.
Joseph Oertel (argued), Aileen A. Armstrong, Deputy Asso. Gen. Counsel, Charles P. Donnelly, Jr. (briefed), National Labor Relations Board, Appellate Court Branch, Washington, DC, for Respondent/Cross-Petioner.
Before JONES, NORRIS, and MOORE, Circuit Judges.
Vemco, Inc., petitions this court to set aside an order of the National Labor Relations Board (the "Board") that affirmed the decision of the administrative law judge (the "ALJ") who determined that the company had violated § 8(a) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1988) (the "NLRA"), in two respects: (1) by instituting an overly broad rule restricting the distribution of union materials and (2) by disciplining a group of employees who left a job site because of allegedly unsafe working conditions. The Board seeks enforcement of its order. For the reasons outlined below, we set aside the Board's order on both issues. 1
Section 10(b) of the NLRA provides that a person charging an unfair labor practice must do so within six months of the alleged infraction. 29 U.S.C. § 160(b). In the proceedings below, the ALJ rejected an argument advanced by Vemco that the six-month window for bringing unfair labor charges precluded review of the allegation concerning its policy governing the distribution of union material.
We recognize that the date upon which the alleged violation of the NLRA occurred represents a factual finding and, as such, is conclusive "if supported by substantial evidence on the record considered as a whole." 29 U.S.C. § 160(e); NLRB v. Mead Corp., 73 F.3d 74, 78 (6th Cir.1996). This court may not supplant a finding merely by identifying an alternative conclusion that could be supported by substantial evidence. Arkansas v. Oklahoma, 503 U.S. 91, 113, 112 S.Ct. 1046, 1060, 117 L.Ed.2d 239 (1992). Nonetheless, a reviewing court serves as more than a rubber stamp for agency determinations, even when credibility assessments are at issue. YHA, Inc. v. NLRB, 2 F.3d 168, 172 (6th Cir.1993) (citing Krispy Kreme Doughnut Corp. v. NLRB, 732 F.2d 1288, 1290 (6th Cir.1984)). Where, as here, witnesses' versions of events are at odds, we must examine credibility determinations with care. Id. This is particularly necessary where, as here, the factfinder has not provided a reason for a credibility assessment and the record, viewed as a whole, strongly supports an alternative conclusion.
Anna McMurtry worked in Vemco's assembly department. According to her testimony, she handed out copies of a document related to the certification of the United Auto Workers in the locker area of the company. She also placed copies in the break room. As a result of her actions, she was called to the office of David Maxwell, Vemco's human resources manager, who told her that she could not hand out the documents on company property. 2
McMurtry testified that this exchange occurred on December 6, 1991; Maxwell testified that it took place on November 20. In addition to this testimony, the ALJ also considered a contemporaneous note 3 of the conversation made by Maxwell and dated November 20. The date is critical because it determines whether McMurtry's subsequent charge of an unfair labor practice complied with the six-month period imposed by § 10(b).
The ALJ elected to credit McMurtry's testimony as to the December 6 date without addressing the substantial evidence favoring November 20. Furthermore, the ALJ cited Maxwell's note to corroborate the substance of the exchange with McMurtry and yet chose to discount its date. During her testimony McMurtry conceded that she had lied to Maxwell with respect to her conduct. While she was not under oath at the time, past instances of untruthfulness are relevant in assessing a witness' credibility. Nonetheless, the Board chose to affirm the ALJ's factual finding in these terms:
In adopting the judge's crediting employee Anna McMurtry's testimony that she was directed not to distribute copies of the November 13, 1991 Certification of Representative on company property on December 6, 1991, we have carefully reviewed the record, including the memorandum prepared by Human Resources Manager David Maxwell dated November 20, 1991, and find that the Respondent's evidence is insufficient to overcome the judge's credibility resolution in light of the other evidence supporting that finding, particularly McMurtry's consistent position that these events took place on December 6.
We disagree with the Board, since the record evidence cannot be said to lend itself to a "credibility resolution." The record as a whole does not include substantial evidence in support of both sides to the date controversy. If each side were supported by substantial evidence, then we would be obliged to affirm the factual finding of the ALJ and the Board in this matter. YHA, 2 F.3d at 172. However, in view of McMurtry's virtually unsupported testimony, the existence of a contemporaneous note of the conversation, the authenticity of which has not been called into doubt, and McMurtry's acknowledgement of untruthfulness, it is inescapable that substantial evidence supports the existence of only one factual scenario: that the incident occurred on November 20, 1991. 4
Accordingly, the charge of an unfair labor practice stemming from this incident is barred by § 160(b). 5
The second issue presented for review concerns disciplinary action taken by Vemco against several employees after they left a job site in the early morning hours of Monday, April 20, 1992. The previous Friday happened to be Good Friday, a company holiday on which operations at the plant ceased. When the employees who were disciplined arrived for work as scheduled at 5 a.m. on Monday, they found that the work area was inaccessible because racks, boxes, and other items from the adjacent area had been moved into it so that work crews could take advantage of the long weekend to paint the floor.
Finding themselves unable to work, the group considered what to do. The ALJ found that Kimberly Lucas, who was filling in as temporary spokesperson for the group, "led the discussion and was effectively in charge of what occurred." Although he discounted much of her testimony, the ALJ decided to "credit testimony to the effect that it was impossible to work, that the area was unsafe, and that employees should all go home." Eventually, nine employees left the plant. After a company inquiry, each was disciplined for this decision. 6
For the purposes of analysis, we shall assume, as did the ALJ, that it was "literally impossible" for these employees to do their assigned jobs when they arrived at work on April 20. Section 7 of the NLRA grants employees the right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. § 157; Manimark Corp. v. NLRB, 7 F.3d 547, 549 (6th Cir.1993). It is an unfair labor practice to interfere with this right. Before we can find an employer in violation of this provision, it must be established that the action taken by the employees was both concerted and protected in the sense that they were acting for the purpose of collective bargaining or other mutual aid. In addition, the Board must show "that the...
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