American Crane Corp v. NLRB ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
AMERICAN CRANE CORPORATION,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent,
No. 98-2660
INTERNATIONAL BROTHERHOOD OF
BOILERMAKERS, IRON SHIP BUILDERS,
BLACKSMITHS, FORGERS AND HELPERS,
AFL-CIO,
Intervenor.
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v. No. 98-2775
AMERICAN CRANE CORPORATION,
Respondent.
On Petition for Review and Cross-Application for
Enforcement of an Order of the National Labor Relations Board.
(11-CA-16292, 11-CA-16583, 11-CA-16763, 11-CA-17235)
Argued: December 2, 1999
Decided: January 24, 2000
Before TRAXLER and KING, Circuit Judges,
and Margaret B. SEYMOUR, United States District Judge
for the District of South Carolina, sitting by designation.
_________________________________________________________________
Petition for review denied and cross-application for enforcement
granted by unpublished opinion. Judge King wrote the opinion, in
which Judge Seymour joined. Judge Traxler wrote an opinion concur-
ring in part and dissenting in part.
_________________________________________________________________
COUNSEL
ARGUED: Gary Alan Reeve, LAW OFFICE OF MOWERY &
YOUELL, Worthington, Ohio, for American Crane. Jill Ann Griffin,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Board. Mark Aloysius Kistler, BLAKE & UHLIG, Kansas City, Kan-
sas, for Intervenor. ON BRIEF: Spencer Martin Youell, LAW
OFFICE OF MOWERY & YOUELL, Worthington, Ohio; Jack W.
Burtch, Jr., MCSWEENEY, BURTCH & CRUMP, P.C., Richmond,
Virginia, for American Crane. Frederick L. Feinstein, General Coun-
sel, Linda Sher, Associate General Counsel, John D. Burgoyne, Act-
ing Deputy Associate General Counsel, Frederick C. Havard,
Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for Board. Michael T. Manley, BLAKE &
UHLIG, Kansas City, Kansas, for Intervenor.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
KING, Circuit Judge:
American Crane Corporation petitions for review of the September
30, 1998 Decision and Order of the National Labor Relations Board
("NLRB" or "Board"), affirming the findings of an Administrative
Law Judge ("ALJ") that American Crane violated the National Labor
Relations Act ("NLRA" or "Act") by engaging in myriad unfair labor
practices. The Board cross-applies for enforcement of its Decision
and Order. For the reasons that follow, we deny American Crane's
2
petition for review and grant the Board's cross-application for
enforcement.
I.
The employees of American Crane's manufacturing facility in Wil-
mington, North Carolina, voted on October 12, 1994 to accept repre-
sentation by the International Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers & Helpers, AFL-CIO (the "Union").
Between November 18, 1994 and October 23, 1996, the Union filed
four charges with the NLRB, alleging that American Crane had com-
mitted a host of unfair labor practices during a twenty-five month
period commencing in the weeks prior to the representation election
and continuing through September 1996. These charges resulted in
the issuance of complaints by the Board on April 4, 1996 and Novem-
ber 29, 1996.1
The matter was assigned to an ALJ, who, during eight days of hear-
ings, considered the testimony of more than two dozen witnesses and
received into evidence scores of exhibits. The ALJ subsequently
issued a Decision on June 24, 1997, concluding that American Crane
had violated several provisions of Section 8(a) of the NLRA.
The ALJ found seven independent violations of Section 8(a)(1) of
the Act, which proscribes "interfer[ing] with, restrain[ing], or coerc-
[ing] employees" who attempt to exercise their rights to self-organize
_________________________________________________________________
1 The NLRB acted pursuant to the authority granted it by the Act,
which provides, in pertinent part:
Whenever it is charged that any person has engaged in or is
engaging in any . . . unfair labor practice, the Board . . . shall
have power to issue and cause to be served upon such person a
complaint stating the charges in that respect, and containing a
notice of hearing before the Board or a member thereof . . . .
29 U.S.C. § 160(b). The Union was granted leave to intervene in the pro-
ceedings. See id. ("In the discretion of the member, agent, or agency con-
ducting the hearing or the Board, any other person may be allowed to
intervene in the said proceeding and to present testimony."); 29 C.F.R.
§ 102.29 (1998) (detailing the administrative process regarding motions
to intervene).
3
and collectively bargain. 29 U.S.C. § 158(a)(1). With respect to the
termination of two employees, the suspension of a third, and warnings
and unfavorable evaluations given a fourth, the ALJ found that Amer-
ican Crane had violated both Sections 8(a)(1) and 8(a)(3) of the Act,
the latter barring "discrimination in regard to hire or tenure of
employment or any term or condition of employment to. . . discour-
age membership in any labor organization." 29 U.S.C. § 158(a)(3).2
American Crane timely filed exceptions with the Board. See 29
U.S.C. § 160(c); 29 C.F.R. § 102.46 (1998). The company objected
to the ALJ's findings that it had committed unfair labor practices in
four specific instances: (1) that, prior to the representation election,
the company had coercively interrogated employees Freddie Clem-
mons and Cleatus Brown regarding their union activities; (2) that it
had warned, suspended, and ultimately discharged Clemmons because
of his association with the Union; (3) that the company had disci-
plined Brown and given him unfavorable performance evaluations on
account of his Union ties; and (4) that it had discharged employee
Johnny Thompson as a result of his Union affiliation.3
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2 The Board considers any violation of Section 8(a)(3) to be a concur-
rent violation of Section 8(a)(1), and we have endorsed this approach.
See Robertshaw Controls Co., Acro Div. v. NLRB, 386 F.2d 377, 383
(4th Cir. 1967) ("Any act which violates § 8(a)(3) necessarily violates
§ 8(a)(1) . . . .").
The ALJ also found that discipline imposed by a company supervisor
against the fourth employee was motivated, at least in part, by the
employee's testimony in the proceedings below. The supervisor's actions
therefore violated Section 8(a)(4) of the Act, which forbids employers
from "discharg[ing] or otherwise discriminat[ing] against an employee
because he has filed charges or given testimony under this subchapter[.]"
29 U.S.C. § 158(a)(4).
Lastly, the ALJ found that American Crane had, on several occasions,
refused to bargain with the Union concerning certain policy changes and
employment actions, in contravention of Sections 8(a)(1) and 8(a)(5).
Section 8(a)(5) of the Act requires that an employer collectively bargain
with "the representatives of his employees." 29 U.S.C. § 158(a)(5). On
appeal to the Board, however, the Union and the company jointly moved
to withdraw the refusal-to-bargain allegations; that motion was granted.
3 In its brief before this Court, American Crane challenges numerous
findings of unfair labor practices to which it filed no exceptions with the
4
A panel of the Board issued a Decision and Order affirming nearly
all of the ALJ's findings. American Crane Corp. , 326 N.L.R.B. No.
153 (Sept. 30, 1998). The Board ordered American Crane to cease
and desist from coercively interrogating its employees about their
Union activities; to reinstate Clemmons and Thompson with backpay;
and to expunge from its personnel records all references to the
adverse employment actions taken against Clemmons, Brown, and
Thompson.
American Crane now petitions us for review of the Board's Deci-
sion and Order. See 29 U.S.C. § 160(f) (providing for review in the
court of appeals for "the circuit wherein the unfair labor practice . . .
was alleged to have been engaged in . . . ."). The Board has filed a
cross-application for enforcement of the same. See 29 U.S.C.
§ 160(e).
II.
Familiar principles guide our examination of the NLRB's Decision
and Order. The Board's findings regarding questions of historical fact
are conclusive if, viewed in the context of the entire record, they are
supported by substantial evidence. 29 U.S.C. § 160(e), (f). Whether
the circumstances of a particular case constitute an unfair labor prac-
tice under Section 8 of the Act generally presents a mixed question
of law and fact, and the Board's conclusions in this respect must like-
wise be upheld if "supported by substantial evidence based upon the
record as a whole." Sam's Club v. NLRB, 173 F.3d 233, 239 (4th Cir.
1999) (citations omitted). Even if the Board's determinations are con-
trary to the greater weight of the evidence, they may not be over-
turned if "it would have been possible for a reasonable jury to reach
_________________________________________________________________
Board. Our review of these findings is foreclosed by Section 10(e) of the
Act, which provides that "[n]o objection that has not been urged before
the Board . . . shall be considered by the court[of appeals], unless the
failure or neglect to urge such objection shall be excused because of
extraordinary circumstances." 29 U.S.C. § 160(e); accord, Eastern Omni
Constructors, Inc. v. NLRB, 170 F.3d 418, 425 (4th Cir. 1999) (citation
omitted). American Crane does not contend that extraordinary circum-
stances excuse its failure to initially bring to the Board's attention the
additional issues it has presented for our review.
5
the [same] conclusion." Allentown Mack Sales & Serv., Inc. v. NLRB,
522 U.S. 359, 366-67 (1998).
A.
The Board adopted the ALJ's finding that American Crane had
coercively interrogated Clemmons and Brown regarding their Union
activities. In reviewing the Board's conclusion to ensure that it is sup-
ported by substantial evidence, we do not inquire whether the compa-
ny's actions actually resulted in coercion. Instead, we need only
ascertain whether the language or conduct at issue had a reasonable
tendency to coerce or intimidate the targeted employees from exercis-
ing the rights accorded them by Section 7 of the Act.4 Eastern Omni
Constructors, Inc. v. NLRB, 170 F.3d 418, 423 (4th Cir. 1999) (cita-
tions omitted). If, considering the totality of the circumstances, it can
be said that American Crane's questioning of Clemmons and Brown
reasonably tended toward coercion or intimidation, then we must
uphold the Board's decision that the company committed an unfair
labor practice prohibited by Section 8(a)(1). Id.
1.
In mid-August 1994, Clemmons was selected by his peers to con-
tact the Union. The primary purpose of this overture was to obtain
signature cards for distribution to the employees, in the hopes of
authorizing a representation election.
Not long thereafter, Clemmons, who worked in the tool room of
the machine shop, was approached by Frank Moelter, the machine
shop supervisor. As the two men conversed in isolation, Moelter
related that he had heard that Clemmons was going to organize a
union. In response, Clemmons maintained that he had not yet decided.
The ALJ found Moelter's solicitation of the extent of Clemmons's
union involvement to be coercive. We have previously explained that
a variety of factors may be relevant to a determination of coercive-
_________________________________________________________________
4 Section 7 guarantees employees, inter alia, the right to self-organize
and to form, join, or assist labor organizations. 29 U.S.C. § 157.
6
ness, "including the history of employer hostility to the union, the
nature of information sought, the identity of the questioner, and the
place and method of the questioning." NLRB v. Nueva Engineering,
Inc., 761 F.2d 961, 966 (4th Cir. 1985) (citation omitted).
In Nueva Engineering, we upheld the Board's decision that the
respondent employer had coercively interrogated an employee regard-
ing his sentiments about unions in general. We concluded that sub-
stantial evidence supported the Board's finding of coerciveness in
light of (1) the employer's stated opposition to its employees' attempt
to organize; (2) the exchange having occurred in the office of the
vice-president, initiated by a production foreman with the power to
hire and fire; with (3) no explanation to the employee of the purpose
behind the questioning; and (4) no assurances against retaliation. Id.5
The third and fourth factors underlying our decision in Nueva
Engineering are, as the ALJ noted, also evidenced in this case.
Moelter's reasons for attempting to ascertain Clemmons's intentions
were left unexplained,6 and Moelter offered no assurances that Clem-
mons could confide in him without fear of reprisal. Indeed, Clem-
mons's guarded response -- equivocal and of dubious accuracy --
suggests a tinge of trepidation as to the potential consequences of
confessing his association with the Union. It turned out, of course,
that Clemmons's apparent concern was not without foundation, see
Section II.B.1., infra.
There are some factual distinctions, certainly, between Nueva
_________________________________________________________________
5 We noted also the presence of an aggravating factor, i.e., the supervi-
sor's contemporaneous statement to the employee that mass layoffs
would occur in the event that the organizing campaign succeeded. We
observed that "[t]his open threat of reprisal for union activity underscores
the coercive nature of [the supervisor's] interrogation." Nueva
Engineering, 761 F.2d at 966.
6 American Crane does not contend that either Moelter's questioning of
Clemmons, or that of Jack Yow with regard to Cleatus Brown, see Sec-
tion II.A.2., infra, was prompted by a"legitimate business justification"
that would require us to balance the employer's interest in obtaining the
information against the interest of the employees in the non-infringement
of their Section 7 rights. See generally Eastern Omni, 170 F.3d at 423.
7
Engineering and the case at bar. The interrogation at issue here took
place in a production area, rather than in an executive's office, and
it is unclear whether Moelter had the power to fire Clemmons.
These minor differences, however, are of little moment. The salient
facts are that (1) like the employee in Nueva Engineering, Clemmons
was isolated from his peers during the questioning; and (2) Moelter,
like the production foreman in Nueva Engineering , directly super-
vised the subject of his interrogation and was substantially involved
in disciplining the employees under his charge. It hardly strains cre-
dulity to posit that an isolated employee is more vulnerable to coer-
cion than one in the company of his compatriots, or that employees
would be particularly anxious not to incur the wrath of the one person
who, day in and day out, twirls the key to their job security.
Although it had not openly declared its hostility to the Union in the
manner of the employer in Nueva Engineering, see, e.g., supra note
5, American Crane was nonetheless strongly opposed to the efforts of
its employees to organize. On cross-examination before the ALJ,
Moelter was asked whether he understood the company's position to
be that "it did not want the Union to win the election." Moelter
responded, "Definitely." In an environment where the employer was
cognizant of an employee's organizational efforts prior to those plans
beginning to bear fruit, it seems a fair inference that the employee
was similarly aware of his employer's predilection for keeping its
workplace union-free.
And, to be sure, Clemmons was not just any employee; he had been
specifically chosen by his co-workers to seek out the Union's assis-
tance. If the employees' attempt to organize could possibly be
thwarted through coercion or intimidation, there was surely no more
inviting target than Clemmons. Moreover, the nature of the informa-
tion sought by Moelter was not merely Clemmons's stance on unions
generally, as was the case with the interrogation at issue in Nueva
Engineering, but whether Clemmons personally was going to orga-
nize a union. Moelter's question went right to the heart of the rights
protected by Section 7 of the Act, see supra note 3, and thus was
inherently more likely to coerce or intimidate than a more indirect
line of inquiry.
8
We recognize that reasonable minds could differ as to the potential
coercive effect of Moelter's query.7 It is, however, precisely because
of this uncertainty that we must defer to the Board's "specialized
experience" with regard to resolving these sorts of questions. Eastern
Omni, 170 F.3d at 423 (quoting NLRB v. Grand Canyon Mining Co.,
116 F.3d 1039, 1044 (4th Cir. 1997)) (internal citation omitted). We
therefore conclude that, in light of all the circumstances surrounding
Moelter's interrogation of Clemmons, the Board's finding of a Sec-
tion 8(a)(1) violation is supported by substantial evidence.
2.
About a week before the representation election, in the wake of a
number of incidents that gave rise to findings of unfair labor practices
by American Crane, see supra notes 2 and 3, and Section II.B.1. infra,
supervisor Jack Yow approached Brown while both men were in the
restroom. Yow asked where Brown's Union button was. Brown, who
had not yet openly declared his position on the Union, retorted that
the answer was none of Yow's business.
The ALJ found Yow's interrogation to have a reasonable tendency
to coerce or intimidate, and we agree. Against the backdrop of an
increasingly tense and hostile unionization campaign, Yow isolated
Brown and questioned him point-blank as to his Union loyalties. Yow
did not explain why he wanted this information, and he offered no
assurances that Brown could answer truthfully without fearing repri-
sal. We hold that, under these circumstances, substantial evidence
_________________________________________________________________
7 Indeed, the Board itself could not unanimously agree that Moelter had
engaged in unlawful interrogation. See American Crane Corp., 326
NLRB No. 153, at 1 n.3 (Member Hurtgen's observation that Moelter's
question, at most, "may arguably have created an impression of surveil-
lance"). Even were we to accept Member Hurtgen's characterization of
Moelter's actions, however, we have previously noted that "an employer
violates section 8(a)(1) of the Act if it gives employees the impression
that it is conducting surveillance of their union activities." NLRB v.
Grand Canyon Mining Co., 116 F.3d 1039, 1045 (4th Cir. 1997) (cita-
tions omitted).
9
supports the Board's finding that Yow's inquiry violated Section
8(a)(1) of the Act.8
B.
We next consider whether substantial evidence likewise supports
the Board's determination that American Crane's discipline of Clem-
mons, Brown, and Thompson -- pursuant to which Clemmons and
Thompson were discharged -- was motivated by the company's
desire to discourage its employees from belonging to the Union. The
ALJ found that American Crane's animus toward the Union and its
adherents caused the company to treat Clemmons, Brown, and
Thompson more harshly than it treated (or would have treated) other
employees whose support for the Union was less discernible or non-
existent.
To prove a discrimination violation under Section 8(a)(3) of the
Act, the Board's General Counsel must first demonstrate by a prepon-
derance of the evidence that (1) the employee had been engaged in
protected activity; (2) of which the employer was aware; and (3) such
activity was a substantial or motivating reason for the employer's
decision to alter the employee's terms or conditions of employment.
Sam's Club, 173 F.3d at 242. Once the requisite showing has been
made, the burden shifts to the employer to produce evidence of a
legitimate business motive, i.e., that it would have taken the same
action even if the affected employee had not been engaged in pro-
tected activity. Id. at 242-43.
If the employer meets its burden of production, no violation of Sec-
tion 8(a)(3) may be found unless, in light of all the evidence, the Gen-
eral Counsel establishes by a preponderance thereof"that union
_________________________________________________________________
8 American Crane's attempt to characterize Moelter's and Yow's inter-
rogation as "casual" or "sporadic" are unavailing. The responses of
Clemmons and Brown indicate that they perceived the questioning to be
anything but a "casual comment made within the free flow of conversa-
tion between workers and supervisors." J.C. Penney Co., Inc. v. NLRB,
123 F.3d 988, 994 (7th Cir. 1997) (citation omitted). Moreover, it merely
states the obvious to note that a "sporadic" violation of Section 8(a)(1)
is nonetheless a violation.
10
antipathy did actually play a part in the decision." Id. at 243 (quoting
NLRB v. Instrument Corp., 714 F.2d 324, 327 (4th Cir. 1983)). That
the employer's stated reasons for its actions are shown to be pretex-
tual is not enough, standing alone, to permit the finding of a violation;
the General Counsel must affirmatively adduce evidence of sufficient
substance to support a rational conclusion that anti-union animus
more likely than not factored into the employer's decision. Sam's
Club, 173 F.3d at 243 (citing Instrument Corp.).
1.
Clemmons was suspended and eventually terminated for allegedly
threatening co-worker Russel Luhm during the first of a series of con-
frontations between the two on September 28, 1994, two weeks
before the representation election. Clemmons, as we have noted,
began the campaign to organize American Crane's employees, and
the company was aware of his leadership status.
With regard to the incident involving Luhm and Clemmons, the
ALJ found that (1) the two men engaged in several heated exchanges,
during which each provoked the other with various belligerent com-
ments; (2) Luhm aggressively initiated physical contact with Clem-
mons in the bathroom, bumping into Clemmons's chest so that
Clemmons had to move his head back; (3) Luhm instigated a subse-
quent verbal altercation in the toolroom; and (4) Clemmons promptly
reported the matter, indicating his preference to Moelter that further
conflict be avoided.9 Plainly, Luhm was at least as culpable as Clem-
mons for the entire unfortunate episode, yet only Clemmons was dis-
charged. Indeed, Luhm was not disciplined at all.
Why the discrepancy? The evidence gives rise to a strong inference
that Clemmons was treated differently because his views concerning
the Union were different from Luhm's. During his initial confronta-
tion with Clemmons, Luhm looked pointedly at Clemmons's Union
button and said, "Bull." A few moments later, Luhm told Clemmons,
"You better watch it, buddy, because the Company's got ways of
dealing with people like you."
_________________________________________________________________
9 More precisely, Clemmons told Moelter, "If you don't get Russ off
my back, I'm going to have to knock him on his ass."
11
It did not take long for "the Company" to make a prophet of Luhm.
American Crane suspended Clemmons soon after the incident, and it
discharged him on October 7, scant days before the election. At the
hearing below, the company could offer only the flimsiest justifica-
tion for its actions. Carol Davis, the company's Human Resources
Manager, testified that Clemmons was suspended for being "upset
with Mr. Luhm in the bathroom because [Luhm] was calling his
Mother a name." The ensuing termination was apparently based on
Clemmons's failure to deny Moelter's attribution to him of certain
statements, perceived to be threatening, that Clemmons supposedly
made during the bathroom confrontation.
When pressed, however, Davis could not point to any particular
statement that Clemmons might have made that would have justified
his termination. In fact, Davis could not recall any specific statement
attributed to Clemmons by Moelter. All that Davis could say is that
Clemmons "threatened" Luhm by "call[ing] him names, curs[ing] at
him."10 Asked if she were aware of anyone at American Crane having
previously been fired for using profanity, Davis responded in the neg-
ative.
Davis did mention that American Crane had, from time to time, ter-
minated certain employees for engaging in aggressive behavior
toward others. All of these instances, however, involved far more
serious conduct than that at issue here. In one case, an employee had
thrown a sharp wedge at a supervisor. On another occasion, an
employee had actually wielded a knife against a co-worker. A third
incident involved an employee who had interfered with a colleague's
job performance, and who had made specific threats of bodily harm.
In short, American Crane's "business justification" for discharging
Clemmons was woefully inadequate, and it in no way served to rebut
the compelling circumstantial case that the company took advantage
of a timely opportunity to rid itself of a principal Union organizer.11
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10 Moelter likewise could identify no specific statement that might have
led to Clemmons's discharge. He agreed with Davis, however, that the
decision was based on what Clemmons said to Luhm in the bathroom
and not on what Clemmons later told Moelter. See supra note 9.
11 The Board is, of course, entitled to infer the employer's discrimina-
tory motive from all the evidence, both direct and circumstantial. Grand
Canyon Mining Co., 116 F.3d at 1047 (citing Nueva Engineering).
12
We therefore uphold, as supported by substantial evidence, the
Board's finding that the company's suspension and termination of
Clemmons violated Section 8(a)(3) of the Act.
2.
Brown, who worked in the receiving department, was given a writ-
ten warning on October 19, 1994, for failing to properly store crane
parts in their designated areas. Brown's supervisor, Inez Crisp, testi-
fied that her inability to locate the misplaced components had resulted
in delayed shipments and the temporary reassignment of work crews.
The representation election had been conducted only one week prior
to Brown's warning; on the day of the election, Brown had worn a
Union button in the presence of supervisors Crisp and Yow.
The ALJ found that Brown had been given no prior notice of any
alleged deficiency in his job performance. Indeed, in the wake of a
nine-part evaluation by Crisp in 1993, Brown received highly positive
scores in three categories, and was only graded below average in two.
By contrast, following another evaluation in August 1996, Brown was
deemed significantly above average in only one category; he received
below-average scores in six of the remaining eight categories, includ-
ing three in which he was accorded the lowest possible rating. About
a month after this latter evaluation, on September 25, 1996, Crisp
issued Brown a "final counseling," alleging, among other things, that
Brown had been insubordinate.
The ALJ determined that the various warnings and the poor evalua-
tion were motivated by Crisp's anti-Union animus, which the ALJ
described as "intense in nature."12 At the hearing, Crisp could provide
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12 The ALJ found that Crisp had enforced American Crane's "no solici-
tation" rule against an employee (Zachary Givens) who had discussed the
Union on company time, while those who had violated the rule in ways
unrelated to the organization of company employees had gone unpun-
ished. Thereafter, just prior to the election, Crisp transferred Givens to
the shipping department for the purpose of isolating him from the other
employees. Crisp was also responsible for evaluating Givens, whose
scores -- like Brown's -- plummeted once his Union sentiments became
known.
13
no credible, objective evidence sufficient to support a conclusion that
Brown was incompetent or had misbehaved. In light of American
Crane's failure to adequately justify its treatment of Brown, we hold
that substantial evidence supports the Board's finding of a Section
8(a)(3) violation.
3.
Thompson, the group leader of the assembly department, was dis-
charged in the aftermath of an incident involving his supervisor, Jerry
Strickland. Thompson testified that he left work early on July 14,
1995, after he became upset with Strickland. The two had conversed
twice briefly concerning work matters, and, according to Thompson,
Strickland had insinuated that Thompson had been dishonest.
Thompson informed Strickland that he was leaving, and that
Strickland could charge him with a personal day or an "early out."
Strickland did not respond, and he remained silent even as Thompson
exited past him a few minutes later. Thompson was suspended and
ultimately discharged for being absent without authorization, and for
insubordination.
The record reveals that Thompson wore a Union button before the
election and for three weeks thereafter, and that he played an instru-
mental role in a prior unsuccessful organizing campaign. Thompson
had begun to again wear his Union button in the weeks prior to the
July 14, 1995 incident.
Employees at American Crane are entitled to four personal days
and four "late ins" and/or "early outs" per year. Although the com-
pany took the position in Thompson's case that any personal time had
_________________________________________________________________
According to the ALJ, Crisp's testimony during the hearing was "con-
tradictory" (of itself), and her demeanor rendered her a less credible wit-
ness. We must, of course, accept the ALJ's assessment of a witness's
credibility absent "exceptional circumstances" that would lead us to con-
clude it is without logical foundation. See Sam's Club, 173 F.3d at 240.
We can discern no reason to disregard the ALJ's credibility determina-
tions in this case.
14
to be prearranged, there was evidence that the company's practice
was to the contrary. According to the employee handbook, workers
were only required to give the company one hour's notice of a per-
sonal day, and there is no indication that American Crane had the dis-
cretion to deny such a demand. This interpretation of the policy was
verified by employee testimony, and no less an authority than the
company's manufacturing manager acknowledged previous instances
of employees not being disciplined in spite of "telling" their supervi-
sors that they were leaving.
Even if Thompson's absence could be classified as unauthorized,
it was conceded below that an employee would not be discharged
until the third such offense. Davis herself testified that a first unautho-
rized absence would result only in "verbal counseling" of the
employee by the designated supervisor.
Thompson could not have been legitimately terminated for the rea-
sons proffered by American Crane. He was not subject to discharge
for a single unauthorized absence, and, contrary to the company's
assertions, there was no evidence that he was insubordinate in any
way toward Strickland. The ALJ reached the only conclusion that he
could under these circumstances: Thompson was discharged because
he supported the Union -- a plain violation of Section 8(a)(3) of the
Act.
III.
In light of the preceding discussion, we deny American Crane's
petition for review. We grant, in its entirety, the Board's cross-
application for enforcement of its September 30, 1998 Decision and
Order.
PETITION FOR REVIEW DENIED, AND CROSS-
APPLICATION FOR ENFORCEMENT GRANTED
TRAXLER, Circuit Judge, concurring in part and dissenting in part:
Although I agree that the majority of the Board's findings are sup-
ported by substantial evidence, I believe the Board erred in finding
15
that Moelter's statements to Clemmons amounted to unlawful interro-
gation in violation of § 8(a)(1), and in finding that American Crane
terminated Thompson because of his union activities in violation of
§ 8(a)(3). Thus, I respectfully dissent from the portions of the major-
ity opinion which uphold these findings.
To establish a violation of § 8(a)(1), there must be substantial evi-
dence that "the conduct in question had a reasonable tendency in the
totality of the circumstances to intimidate," even if not "coercive in
actual fact." NLRB v. Nueva Eng'g Inc., 761 F.2d 961, 965 (4th Cir.
1985) (internal quotation marks omitted). Thus, it is not unlawful for
a supervisor to question or interrogate employees"about their union
sentiments . . .[,] provided such questioning is not coercive." Id. To
determine whether a particular incident is coercive, the court "must
consider a variety of factors including the history of employer hostil-
ity to the union, the nature of information sought, the identity of the
questioner, and the place and method of the questioning." Id. at 966.
In Nueva, a high-ranking supervisor asked an employee during the
pendency of a campaign whether he supported the union. When the
employee responded in the affirmative and attempted to explain his
position, the supervisor interjected that unionization would result in
a "big layoff." Id. at 966. Several facts were recited as supportive of
the determination that the questioning was coercive. It took place
after the supervisor had followed the employee and two others home
from a cancelled union meeting, and after the vice-president of the
company had made a speech reflecting open hostility towards the
union. Additionally, it occurred in the company vice-president's
office, with no explanation of its purpose or assurance against repri-
sal.
According to Clemmons, he was selected to contact the Union in
mid-August 1994. The alleged "interrogation" by Moelter occurred
within a week or two, and consisted of a single statement: "that he
[Moelter] had heard that Clemmons was going to organize the
Union." J.A. 1458. When Clemmons responded that he had not yet
decided, the conversation ended. While true that Moelter did not
explain the purpose of his statement to Clemmons nor expressly state
that no retaliation would occur, the similarities to Nueva thereafter
end. American Crane (unlike the employer in Nueva), although
16
opposed to unionization, had not instituted an anti-union campaign or
otherwise exhibited hostility to the Union when the conversation took
place. Furthermore, in my view, the conversation did not take place
in isolation. Clemmons testified that it occurred while the men were
standing by the toolroom door, in the middle of the machine shop.
There is no evidence that anyone heard Moelter's statement to Clem-
mons, but it indisputably occurred in the area where both men
worked. Clemmons was not removed from his work environment to
be "interrogated" about his union sympathies or his intentions. And,
in my view, the natural and informal nature of the surroundings seem
compatible with the absence of any formal statement of purpose or
need for an assurance against retaliation on the part of Moelter.
Finally, I find it significant, albeit not dispositive, that Clemmons did
not testify that Moelter's statement sounded threatening or intimidat-
ing. The ALJ acknowledged the absence of any evidence that Clem-
mons in fact felt coerced or intimidated by Moelter, and noted that the
conversation "did not take place in an intimidating setting." J.A. 1459.
For these reasons, I believe the ALJ and the Board failed to give
appropriate effect to the "totality of the circumstances" approach we
endorsed in Nueva. Rather, the ALJ appears to have premised his
finding on the erroneous belief that "[t]he test is the nature and timing
of the interrogation" alone, J.A. 1459, concluding that Moelter's state-
ment constituted a violation because it was made"just before the
beginning of a union campaign" without an explanation of its purpose
or an assurance against reprisal, id. Contrary to our holding in Nueva,
I believe this approach renders the "[q]uestioning or interrogation of
employees about their union sentiments . . . per se unlawful," and
gives no consideration to whether the questioning was or was not
intimidating or coercive or whether it could reasonably be interpreted
as such. Nueva, 761 F.2d at 965. Hence, I fear the end result is not
a fair evaluation of a question or statement in the full context in which
it occurs, but an approach which will impose a violation upon the
employer for any question asked by a supervisor about the union in
the work environment.
I likewise find insufficient evidence to support the Board's finding
that Thompson was terminated because of his union activity in viola-
tion of § 8(a)(3). Thompson was hired by American Crane in Febru-
ary 1985. The union election in which he participated as a principal
17
employee was an unsuccessful one which occurred in 1989. Thomp-
son played no such principal role in the successful October 1994 elec-
tion, apparently limiting his involvement to wearing a union button
for a few weeks before and after this latter election. Additionally, the
incident leading to Thompson's termination occurred over nine
months after this election.
The only recent union activity on the part of Thompson was that
he began to wear his union button in early July because the supervi-
sors "`started watching the men a little closer.'" J.A. 1467. This activ-
ity, in turn, coincided with American Crane's July 5, 1995 promotion
of Strickland, who had also been first employed in 1985, to supervisor
of the assembly department. Eight days later, Strickland and Thomp-
son had two disagreements regarding work-related matters. In
response, Thompson told Strickland "that he was pushing the employ-
ees too hard, that they were getting the work done, and that if this did
not stop it would turn around on Strickland and`bite him in the ass.'"
J.A. at 1467. Thompson then told Strickland that he was leaving, and
walked off the job. Strickland neither granted Thompson permission
to leave, nor attempted to prohibit his doing so, and Thompson was
subsequently discharged for walking off the job and for insubordina-
tion.
The majority upholds the Board's decision that Thompson was ter-
minated as a result of his union activities -- relying primarily upon
American Crane's allowance of four personal days and four "late ins"
and/or "early outs" per year, testimony that employees had previously
taken "early outs" without express permission, and American Crane's
progressive discipline policy which would call for a verbal warning
for a first such unauthorized absence. While the ALJ relied upon a
similar basis to find a violation, the Board specifically declined to
"pass on whether Thompson violated company policy on `early-outs'
on July 14, 1995," concluding instead that a violation of § 8(a)(1) was
established because Strickland "remained silent when Thompson
informed him that he was taking the remainder of July 14 as a per-
sonal or vacation day, [thereby] impliedly[giving] Thompson permis-
sion to leave." J.A. 1455.
Under either rationale, I believe the evidence is insufficient to sup-
port a finding that American Crane violated its employee handbook
18
policy, or that Strickland's silence in the face of Thompson's threat
constituted acquiescence to the latter's walking off the job; and both
ignore Thompson's insubordination as a reason for his dismissal.
More importantly, however, I believe that the evidence is woefully
inadequate to support a conclusion that Strickland's behavior was
motivated by Thompson's union activities, or that American Crane
utilized the walk-off incident as a ruse for firing Thompson for such
activities. The Board infers such a discriminatory intent based upon
Thompson's principal participation in an unsuccessful union election
which occurred ten years before his termination, which led to no
adverse employment actions in the aftermath, and his minor participa-
tion in a successful union election which occurred nine months before
his termination. And Thompson's brief period of wearing the union
button in early-July also seems too slim a reed upon which to rest
such an inference. There being, in my view, insufficient evidence that
Thompson's union "activity was a substantial or motivating reason"
for American Crane's decision to terminate him, see Sam's Club v.
NLRB, 173 F.3d 233, 242 (4th Cir. 1999), I respectfully dissent.
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