Ryder Truck Renal v. NLRB ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-2359 & 04-2681
RYDER TRUCK RENTAL, doing business
as RYDER TRANSPORTATION SERVICES,
Petitioner, Cross-Respondent,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent, Cross-Petitioner.
____________
Petition for Review and Cross-Application for Enforcement
of an Order of the National Labor Board Relations Board.
Nos. 25-CA-27551-1 & 25-CA-27705-1
____________
ARGUED DECEMBER 9, 2004—DECIDED MARCH 21, 2005
____________
Before FLAUM, Chief Judge, and BAUER and WILLIAMS,
Circuit Judges.
FLAUM, Chief Judge. Petitioner Ryder Truck Rental
(“Ryder”) seeks review of a decision of the National Labor
Relations Board (“NLRB” or “Board”) holding that Ryder
violated §§ 8(a)(1), 8(a)(3), and 8(a)(4) of the National Labor
Relations Act, 29 U.S.C. §§ 158(a)(1), (a)(3), and (a)(4)
(“NLRA” or “Act”). The NLRB has filed a cross-application
for enforcement of its order. Because the Board’s decision is
2 Nos. 04-2359 & 04-2681
supported by substantial evidence, we deny Ryder’s petition
for review and enforce the Board’s order.
I. Background
On April 17, 2001, the International Association of
Machinists and Aerospace Workers (“Union”) filed a charge
with the NLRB alleging that Ryder violated several provi-
sions of the Act. Among other things, the Union alleged that
Ryder violated §§ 8(a)(1) and (a)(3) of the Act by discharging
employees Timothy Bullman and Allen Feldscher in
retaliation for their support for the Union. This charge was
later amended and consolidated with a separately-filed
charge. An administrative law judge (“ALJ”) heard the con-
solidated case between December 10 and December 13,
2001. On August 1, 2002, the ALJ issued a comprehensive,
55-page decision and order, concluding, in relevant part,
that Ryder had violated § 8(a)(1) of the Act by:
(a) Requesting employees to report to management
employees who in advocating the Machinists “harass”
employees.
(b) Soliciting employee grievances and directly or im-
pliedly promising those grievances would be remedied
if they rejected the Machinists as their collective-bar-
gaining representative.
(c) Threatening employees with the loss of vacation
benefits if they voted for the Machinists, selected the
Machinists as their collective-bargaining representative,
or if Respondent entered into a collective-bargaining
agreement with the Machinists.
(d) Informing employees that bargaining will start at
ground zero like a blank sheet of paper, if its employees
select the Machinists as their collective-bargaining rep-
resentative.
Nos. 04-2359 & 04-2681 3
(e) Creating the impression of surveillance of employ-
ees’ union activities.
(f) Disparaging employees because of their support for
the Machinists.
(g) Threatening employees with discharge because they
provided testimony to the Board.
The ALJ also concluded that Ryder violated §§ 8(a)(1) and
(a)(3) of the Act by discharging Bullman and Feldscher, and
violated §§ 8(a)(1), (a)(3), and (a)(4) of the Act by sus-
pending and issuing a final written warning to employee
Otis Carpenter because he engaged in union activities and
provided an affidavit to the Board.
The ALJ issued an extensive remedial order requiring
Ryder, among other things, to: (i) cease and desist from each
of its labor violations; (ii) reinstate Bullman and Feldscher
and make them whole for any loss of earnings and other
benefits they suffered as a result of the unlawful discrimi-
nation against them; and (iii) provide notice to all employ-
ees of Ryder’s violations of federal labor law and inform
employees of their federal rights.
On April 30, 2004, a panel of the Board affirmed the
ALJ’s findings of fact and conclusions of law and adopted
the recommended order.1
In its petition to this Court, Ryder only seeks review of
the Board’s conclusion that it violated §§ 8(a)(1) and (a)(3)
1
One member of the three-member panel dissented in part, dis-
agreeing with the ALJ’s conclusion that Ryder violated § 8(a)(1)
by instructing employees who felt they were being harassed to file
a written report of that conduct. The dissent also specified that,
although it would adopt the ALJ’s finding that Ryder managers
violated § 8(a)(1) by soliciting employee grievances and promising
to remedy them, it relied only on certain evidence to support this
conclusion. Other than these limited exceptions, the panel
unanimously adopted the ALJ’s opinion.
4 Nos. 04-2359 & 04-2681
of the Act by discharging Bullman and Feldscher. Ryder
does not contest the Board’s other conclusions or the cor-
responding portions of its remedial order, and we enforce
the Board’s order with respect to those uncontested issues.
See Rock-Tenn Co. v. NLRB, 69 F.3d 803, 807-08 (7th Cir.
1995). However, the unchallenged violations do not disap-
pear altogether. Id. at 808. “They remain, lending their
aroma to the context in which the contested issues are con-
sidered.” Id. (quoting NLRB v. Shelby Mem’l Hosp. Ass’n, 1
F.3d 550, 567 (7th Cir. 1993)).
We begin with a recitation of the relevant facts. Ryder
is headquartered in Miami, Florida and is engaged nation-
wide in the business of renting, leasing, and servicing com-
mercial vehicles. Ryder maintains three facilities in its
Indianapolis customer business unit: Indianapolis East,
Indianapolis West, and Indianapolis North. Each of the
Indianapolis locations is staffed by, among others, technicians
who perform major repair and maintenance on the trucks,
and service island attendants who fuel, inspect, and perform
minor maintenance. While the employees at Indianapolis
North are represented by Teamsters Local 135, the employ-
ees at the Indianapolis East and West facilities have never
been represented by a union.
A. Bullman’s Organizing Activities
Bullman began working for Ryder as a T-1 technician in
1995, and by November 2000 was promoted to the T-3
level.2 During this period, Bullman became concerned about
the prospect of the Indianapolis West facility converting to
a 24-hour, 7-day work schedule. He also learned that em-
ployees at a unionized Ryder facility in Cincinnati were
2
Technicians are classified on an ascending scale from grade T-1
through T-4.
Nos. 04-2359 & 04-2681 5
earning more per hour than nonunion employees at the
Indianapolis locations. Bullman contacted the Union and
spoke with its business representative, John Silhavy, about
organizing the Indianapolis East and West facilities. Around
the same time, Bullman also e-mailed Ryder’s human re-
sources department in Miami to complain about the conver-
sion to a 24-7 schedule and wrote to Rhae Buckley, the senior
manager of human resources for the region, to complain
about the lower pay of the Indianapolis shops compared to
the Cincinnati shops.
On November 16, 2000, Bullman and Chad Luster, an-
other Ryder employee, met with union representative
Silhavy. Bullman and Luster signed a petition stating:
We believe that only through collective bargaining can
we have a voice in our work place, achieve fair treatment
for all, establish seniority and better benefits, wages
and working conditions. Therefore, this will authorize
the International Association of Machinists and Aero-
space Workers, AFL-CIO to represent me in collective
bargaining with my employer. This will also authorize
the union to use my name for the purpose of organizing
Ryder Transportation Services.
In the following days, Bullman approached fellow Ryder
employees about signing the petition. Some employees
informed Bullman’s supervisor, Richard Woehlke, about
Bullman’s organizing efforts on behalf of the Union. Woehlke
testified that he told these employees “if you feel you are
being harassed then you need to put it in writing and then
come see me.”
B. Ryder’s Response
On December 11, 2000, the Union submitted a petition
for an election among the 32 service attendants and
technicians at the Indianapolis East and West facilities.
Ryder management immediately began devising a strategy
6 Nos. 04-2359 & 04-2681
to respond to the petition. For the following three days,
December 13, 14, and 15, 2000, Buckley met with Bill
Herlihy, regional director of employee-labor relations, and
Roger Cicchini, regional vice-president of operations, to
“identify key participants, [and] set forth [an] action plan
and key issues to be addressed.” During these meetings,
Buckley explained to Cicchini the “dos and don’ts” of con-
ducting a union campaign, which he shorthanded as “TIPS”—
meaning that management cannot threaten, interrogate,
make promises to, or engage in surveillance of employees.
The managers devised an extensive campaign schedule con-
sisting of daily meetings between managers and employees
in the shop. At these meetings, managers sought to explain
the company’s view that a union was not necessary and that
they should give new regional general manager Michael
Campanale a chance.3
Adhering to this campaign schedule, Ryder managers met
with employees almost daily until January 19, 2001, the
planned election date. On December 19, 20, and 21, 2000,
Buckley and Herlihy met with all six shifts of employees
subject to the petition. Herlihy and Buckley also met with
local management, including customer service manager
David Toneges and Woehlke, and explained to them the
“TIPS limitations.”
The regional managers met with certain employees on an
individual basis and kept track of the employees’ positions
toward the Union. On December 18, vice-president Cicchini
met with Bullman. Cicchini acknowledged that there was a
lot of commotion related to the Union and asked about
Bullman’s concerns. Bullman complained about the pay-
ment system, and Cicchini responded that he understood
3
Campanale assumed the position of general manager of the
Indianapolis customer business unit in November 2000 after trans-
ferring from another Ryder facility.
Nos. 04-2359 & 04-2681 7
the employees’ concerns and that things would work out for
the better. Shortly thereafter, Bullman was called into
another meeting with Herlihy and Buckley. During this
meeting, Bullman revealed that he intended to vote for the
Union because he believed employees needed a union to get
a “fair shake.”
On December 28 or 29, 2000, Toneges received an e-mail
with an attachment entitled “Manager Communications Kit,”
announcing the adoption of the company’s new nationwide
vacation plan. The plan, which was to become effective
January 1, 2001, reduced the amount of time necessary to
acquire three weeks of vacation and allowed employees a
one-time opportunity to transfer unused vacation days from
the old vacation plan to the new one. The kit contained the
following eligibility requirement: “All full-time and part-
time employees in the U.S. are eligible, except for those em-
ployees operating under a collective bargaining agreement.”
On January 3 and 4, 2001, regional managers Herlihy
and Buckley returned to Indianapolis to meet again with
each of the employees. The managers told employees about
the new vacation plan and stated that it applied to all em-
ployees except those covered by a collective bargaining agree-
ment. At one of the meetings, Herlihy said that employees
would receive the new vacation benefits only if they voted
against the Union and did not have a collective bargaining
agreement. He also stated: “once you elect a Union you have
nothing, you have no benefits, this is what you got, nothing”
and held up a blank sheet of paper.
During these meetings, management showed a video that
attributed trucking industry deregulation and the failure of
trucking businesses to unions. At one of the meetings,
Bullman raised his hand to challenge the claims in the
video. Campanale also addressed the employees and asked
to be given a chance as the new general manager. He prom-
ised that if employees voted against the Union, he would
8 Nos. 04-2359 & 04-2681
make everything right after the vote. At the end of the
meeting, Herlihy again held up a blank sheet of paper and
said, “remember, guys, this is what you get, blank.” He also
said that if the employees voted for the Union, they would
not receive the extra vacation days under the new vacation
plan.
During the first week in January, Toneges posted a copy
of the company’s new vacation plan, including the eligibility
requirement. Prior to the election scheduled for January 19,
2001, Woehlke held meetings at the Indianapolis West
facility where he informed employees that collective
bargaining units were not covered by the new vacation pol-
icy. When Bullman later applied for his vacation days,
Woehlke told him that although Bullman had some extra
vacation time, he would only receive it if he voted against
the Union.
On January 5, 2001, Ryder’s Miami headquarters sent an
urgent e-mail to all officers and directors informing them
that the company’s recently announced vacation policy con-
tained an error and was under review, and that the “one-
time transition component of the vacation program is being
modified.” The memo directed managers to halt all activity
related to the vacation program, including the scheduling of
vacation time for 2001, pending further instruction. Al-
though this e-mail was distributed to Buckley and Herlihy
and forwarded to Toneges within the week, no regional or
local manager notified employees that the vacation policy
was under review. On January 17, Toneges received an e-
mail with an attached memo stating that the information
employees had received about vacation was incorrect and
“too good to be true.” Toneges was instructed to post the
memo immediately, but he did not do so, nor did he inform
employees that the new vacation policy was being modified.
The memo was posted only after January 19, the date on
which the election was scheduled.
Nos. 04-2359 & 04-2681 9
On January 17, 2001, two days before the scheduled elec-
tion, Ryder held a luncheon meeting for its employees at
a local Marriott hotel. Employees were paid for their
attendance and received a free lunch. Management did not
mention the pending modification of the vacation policy at
this meeting even though it was aware of the planned
changes. Rather, management announced the date of the
election and stated that everyone needed to vote, regardless
of how he intended to vote. Herlihy remarked that an
employee could still vote against the Union even if he had
signed a union card. He also said that the employees should
trust the company and give it a chance. Bullman challenged
Herlihy, asking how he could ask the employees to trust
management when he had provided inconsistent informa-
tion about seniority to different employees. Herlihy re-
sponded using profanities and accused Bullman of lying by
calling in sick and then going out to knock on doors to drum
up support for the Union.
Before January 19, Bullman and Silhavy agreed that the
Union should withdraw its election petition, based at least
in part on the sentiment of some employees that they should
give the company an opportunity to deliver on its new vaca-
tion policy. The Union withdrew the petition on January 18,
2001, the day before the scheduled election.
On March 5, 2001, Silhavy sent a mailing to employees
raising questions about the latest modification to the com-
pany’s vacation plan and soliciting their signatures on an-
other petition for an election.
C. Bullman’s Termination
On March 27, 2001 Bullman was assigned to a main-
tenance job on a Thermal King refrigerated truck for cus-
tomer Dixon Fish. Bullman performed various tasks listed
in the maintenance schedule, including replacing the oil
filter. He then completed various tasks listed on the pre-
10 Nos. 04-2359 & 04-2681
ventive maintenance worksheet, checking off the appropri-
ate lines to indicate that he had performed each of the
tasks. Bullman checked off the lines indicating that he had
restarted the refrigeration unit and inspected it for pressure
and leaks even though he had not done so.
The next night, Bullman was told by the technician in
charge that the Dixon Fish refrigeration unit had leaked
because he had installed the wrong oil filter. Bullman
informed his supervisor that he had made this mistake.
A few weeks later, on April 11, upon reporting to work,
Toneges summoned Bullman to the conference room and
asked if he knew anything about an oil leak in a Dixon Fish
truck. Bullman replied that he had mistakenly put the wrong
filter on the unit. When pressed by Toneges, Bullman
admitted that he had falsified the preventive maintenance
sheet, indicating that he had checked the vehicle after
changing the oil filter, when in fact he had not. Toneges told
Bullman that he was being discharged for falsifying
company documents and presented him with a termination
letter. Bullman refused to sign the document. He accused
Toneges of firing him for his union activities.
Bullman testified that after they discharged him, Toneges
and Woehlke directed him to follow them through the lunch-
room and the shop where employees were working. As they
walked, Woehlke mimicked Bullman’s gait and the way he
swung his arms. Bullman asked Woehlke to leave him alone
and let him go home. Woehlke replied that he was a Ryder
employee and Bullman was not and that as long as they
were on Ryder grounds, Woehlke could do whatever he
wanted to Bullman. A minor physical confrontation took
place before Bullman departed.
Toneges testified that Bullman had been discharged for
falsifying the preventive maintenance report in violation of
Ryder’s corporate guidelines. Toneges specifically pointed to
the policy listed under “Embezzlement, Theft, Fraud, and
Non-Monetary Irregularities,” which prohibited conduct in-
Nos. 04-2359 & 04-2681 11
cluding “falsification of any reports submitted to financial
or operational management.” Buckley and Cicchini were not
involved in the decision to discharge Bullman, but both
testified that they would have recommended the discharge.
D. Feldscher’s Union Position
On December 18, 2000, during one of his pre-election
visits to the Indianapolis West facility, Cicchini met one-on-
one with employee Allen Feldscher, a service attendant who
had been employed by Ryder since 1979. Cicchini identified
himself, explained that the Union had filed a petition, and
said that he wanted to speak to the employees because he
did not want them to “go union.” Cicchini asked Feldscher
about his problems with the company. Feldscher responded
that the evaluation system was unfair and was used to
prevent employees from receiving a raise. He also com-
plained about being disciplined in May 2000 because he
took leave to deal with his wife’s illness. Cicchini took notes
during the meeting. He indicated that he agreed with
Feldscher and said that management could work out the
problems without a union.
Managers Herlihy and Buckley also met with Feldscher
individually to discuss the new company vacation policy.
Herlihy brought a folder containing notes with Feldscher’s
name on it. In addition to discussing the vacation policy, the
managers and Feldscher reviewed the disciplinary action
taken against Feldscher for being late when he had taken
his wife to the emergency room. Feldscher told Herlihy and
Buckley that he thought the employees needed a third party
to represent their interests. Buckley responded that
management was not that “hard-nosed” and that some
changes were going to be made—for example, employees
were going to be evaluated every six months instead of every
year.
12 Nos. 04-2359 & 04-2681
During the last week of January 2001, after the Union
withdrew its election petition, Feldscher heard that Ryder
was going to make changes to the new vacation program
that had been promised to employees. Feldscher told fellow
employees that he was dissatisfied with the modifications
to the vacation program and planned to raise the issue at
the safety meeting scheduled for February 20, 2001.
E. Feldscher’s Termination
Feldscher testified that on February 11, 2001 he was
changing tires on a truck when a screw fell out of his pre-
scription safety glasses. At that moment, Woehlke entered
the shop and saw him working without his safety glasses in
violation of company policy. Upon seeing Woehlke,
Feldscher immediately put on a spare pair of safety glasses
from another employee’s toolbox.
Feldscher had violated the safety glasses policy several
times before. On February 3, 2000, he was written up for
two separate incidents of failing to wear safety glasses. The
report stated: “Employee needs to be reminded every day to
put on safety glasses. . . . If this keeps up employee will be
terminated.” On May 24, 2000, Feldscher received a “Notice
of Safety Violation” for two more conduct violations, one of
which was for failure to wear safety glasses on that date.
This notice resulted in a three-day suspension and stated:
“This is the last warning. Next time will be termination of
employment.” Despite this admonition, Feldscher again was
found without safety glasses several times between May 24,
2000 and February 11, 2001. In each instance, he was given
only a verbal warning.
At Feldscher’s request, on February 11, the day of the last
safety glasses violation, Woehlke agreed to meet with
Feldscher to provide him with his evaluation and annual
review. During that meeting, Woehlke asked Feldscher why
he had not been wearing his safety glasses earlier.
Nos. 04-2359 & 04-2681 13
Feldscher explained that the screw had fallen out, that the
driver was waiting for the truck, and that he decided to
complete the job because he was almost finished. Feldscher
showed Woehlke his broken glasses. Woehlke told Feldscher
that the company was enforcing its rule on the wearing of
safety glasses, and that he needed to have safety glasses at
all times.
Woehlke then returned to Feldscher’s evaluation and re-
view. He told Feldscher that he wanted to move him to the
third shift so he could gain more experience and possibly be
promoted from a service attendant to a T-1 technician.
Woehlke told Feldscher that he needed to improve his com-
pliance with the safety glasses requirement, and that he
needed to work on his punctuality. He also told Feldscher
that he was receiving a raise of one dollar an hour and that,
if he could improve on the deficiencies noted, he would prob-
ably receive another raise within six months. Feldscher’s
safety rating was “fully competent,” a two-category im-
provement from his 2000 evaluation. His work habit rating
also improved from 2.3 out of 5 to 2.6, and his overall rating
improved from 2.46 to 2.72.
When Feldscher reported to work the next day, however,
Woehlke and Toneges summoned him to the office and told
Feldscher that his employment was being terminated.
Feldscher signed the notice of termination under protest.
Toneges testified that he decided to discharge Feldscher
because, in the course of reviewing Feldscher’s personnel
file and speaking to Woehlke, he learned for the first time
that Feldscher had been previously suspended for violating
the safety glasses policy and that he had since been warned
about other violations. On February 12, the same day he
terminated Feldscher, Toneges issued written warnings to
three other employees at Indianapolis East for violating the
safety glasses policy a few days earlier.
14 Nos. 04-2359 & 04-2681
F. Carpenter
Otis Carpenter began working for Ryder in 1978 and spent
more than twenty years as a union steward on behalf of
Teamsters Local 135 at the Indianapolis North facility.
Carpenter provided an affidavit to the Board in support of
the Union’s charge in which he stated that he had overheard
Toneges threatening to get rid of union activist Bullman.
On June 5, 2001, Carpenter represented an employee in
a disciplinary meeting in which the employee received a
warning for taking more than five sick days. At the meet-
ing, Woehlke questioned whether the employee had been
legitimately sick, and Carpenter accused Woehlke of ignor-
ing a recent event in which fumes were dispersed through-
out the shop during the cleaning of a tanker truck.
Carpenter told Woehlke that he was in trouble with the
NLRB and said: “When we go into arbitration, I am going
to take these papers and I am going to roll them up and I
am going to stick them in your ass and break them off.”
Woehlke testified that he felt threatened by this remark.
The following day, June 6, Carpenter attended a grievance
meeting to protest the company’s accounting of his sick days.
Following the meeting, Toneges said that the company
intended to reduce vacation time that employees could carry
over from the prior year. Carpenter replied, “We have a
contract,” and Toneges told him he “wasn’t going to last [too]
long around there making testimony to [the] NLRB.”
On June 8, Campanale telephoned Carpenter and told him
he was being suspended indefinitely. Later, Campanale told
Carpenter’s union representative that he was suspended for
the remarks he had made to Woehlke during the June 5
grievance meeting. At the end of the second week of the
suspension, Campanale called Carpenter and told him he
could return to work with full back pay. When Carpenter
returned to work the next day, however, Toneges gave him
a “zero tolerance” warning letter charging him with creating
Nos. 04-2359 & 04-2681 15
a hostile work environment by making a member of man-
agement feel uncomfortable. The letter also threatened
Carpenter with further disciplinary action, up to and in-
cluding termination, if he repeated that conduct. Carpenter
received full back pay for his suspension.
II. Discussion
The National Labor Relations Act protects employees’
rights “to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or
other mutual aid or protection . . . .” 29 U.S.C. § 157. The
NLRB found that Ryder violated §§ 8(a)(1), 8(a)(3), and
8(a)(4) of the Act.
Section 8 provides in pertinent part:
(a) Unfair labor practices by employer
It shall be an unfair labor practice for an employer —
(1) to interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed in section 157 of
this title;
***
(3) by discrimination in regard to hire or tenure of
employment or any term or condition of employment to
encourage or discourage membership in any labor
organization . . .
(4) to discharge or otherwise discriminate against an
employee because he has filed charges or given testi-
mony under this subchapter.
29 U.S.C. § 158(a).
This Court has jurisdiction to review applications for
enforcement and petitions for review of Board decisions pur-
16 Nos. 04-2359 & 04-2681
suant to §§ 10(e) and (f) of the NLRA, 29 U.S.C. §§ 160(e),
(f). We will enforce the NLRB’s order if its factual findings
are supported by substantial evidence and its conclusions
have a reasonable basis in the law. Bloomington-Normal
Seating Co. v. NLRB, 357 F.3d 692, 694 (7th Cir. 2004). The
substantial evidence test “requires not the degree of
evidence which satisfies the court that the requisite fact
exists, but merely the degree that could satisfy the reason-
able fact finder.” ATC Vancom of Cal. v. NLRB, 370 F.3d
692, 695 (7th Cir. 2004) (quoting Allentown Mack Sales &
Serv., Inc. v. NLRB, 522 U.S. 359, 377 (1998)) (emphasis in
original). We owe particular deference to the Board’s
credibility determinations, which we will disturb only in
extraordinary circumstances. SCA Tissue N. Am. v. NLRB,
371 F.3d 983, 988 (7th Cir. 2004).
We apply a similarly deferential standard in determining
whether the Board’s legal conclusions have a reasonable
basis in law. Int’l Union of Operating Eng’rs v. NLRB, 325
F.3d 818, 828 (7th Cir. 2003). We must uphold the Board’s
legal conclusions unless they are irrational or inconsistent
with the NLRA. ATC Vancom, 370 F.3d at 695. Where the
Board adopts the ALJ’s findings of facts and conclusions of
law, it is the ALJ’s determinations that we review.4 SCA
Tissue, 371 F.3d at 988.
To establish a prima facie case of discrimination, the
General Counsel—the entity responsible for prosecuting
complaints before the Board—bears the burden of showing
that: (1) the employee engaged in a protected activity; (2)
the decisionmaker knew it; and (3) the employer acted
because of anti-union animus. Id. If the General Counsel
succeeds, the company must either rebut that evidence or
4
Unless otherwise stated, the factual findings and legal conclu-
sions we refer to herein are those made by the ALJ and adopted
by the Board.
Nos. 04-2359 & 04-2681 17
mount an affirmative defense that the company would have
taken the same action despite the employee’s protected
activities. Id. (citing Wright Line, a Division of Wright Line,
Inc., 251 NLRB 1083 (1980), approved by NLRB v. Transp.
Mgmt. Corp., 462 U.S. 393 (1983)).
Ryder asks this Court to deny enforcement of the portion
of the Board’s order requiring Ryder to reinstate Bullman
and Feldscher with back pay. Ryder concedes that the
General Counsel established a prima facie case of discri-
mination with respect to Bullman but contends that it suf-
ficiently rebutted that evidence by showing that it discharged
Bullman because he knowingly falsified an operational
report, not because of his union activity. With respect to
Feldscher, Ryder asserts that the General Counsel failed to
establish a prima facie case of discrimination because the
manager who terminated Feldscher was unaware of his pur-
ported union activity. In any event, Ryder contends that it
presented sufficient evidence that it terminated Feldscher
because of his repeated violation of the company’s safety
policy. We consider each of Ryder’s contentions in turn.
A. Bullman
The ALJ determined that the General Counsel made out
a prima facie case that Bullman’s discharge was caused by
his participation in union activity. Bullman was a leading
union activist, and Ryder does not contest that management
was well aware of his activities. The ALJ further concluded
that Ryder failed to demonstrate that it would have termi-
nated Bullman absent his union activity. In making this
determination, the ALJ discredited Ryder’s asserted reliance
on its corporate guidelines. He reasoned that the particular
provision cited by Ryder was directed at transgressions
involving “stealing, or manipulating [one’s] position with
the company for personal gain.” The provision mentioned
violations such as “conversion to cash of any checks made
18 Nos. 04-2359 & 04-2681
payable to the company,” “accepting, soliciting, or giving
gifts, gratuities, or any other personal benefit or favor from
or to suppliers,” and “misstatement of travel or expense
reports,” and the ALJ found that this provision was not
meant to apply to an employee who made a misstatement
on a preventive maintenance report. Significantly, he found
that two key Ryder witnesses, Buckley and Cicchini, were
not credible, as they “exhibited a willingness to say what-
ever they felt was necessary to advance Respondent’s cause
at the proceeding.”5 The ALJ also credited Bullman’s testi-
mony that managers paraded him in front of the other
employees and mocked him as he was escorted out of the
facility as further evidence of the company’s anti-union
animus.
Ryder contends that these findings do not constitute sub-
stantial evidence that Ryder terminated Bullman because
of his union activity. We are unpersuaded. The ALJ found
management’s testimony to be unworthy of credence, and
we find no extraordinary reason to disturb this finding. The
ALJ’s factual findings were rational and sufficient to per-
suade a reasonable fact finder that Ryder would not have
discharged Bullman but for his union activism. In fact,
short of a “smoking gun” admission by a manager that
Ryder fired Bullman because of his organizing activities, we
are unaware what more the General Counsel could have
done to reveal Ryder’s true motivation. The General
Counsel has never disputed that Bullman violated company
policy by falsifying the preventive maintenance report, but
argues that terminating his employment for this single vio-
5
Earlier in his decision, the ALJ noted that he did not find
Toneges to be a credible witness, observing that his testimony at
the hearing concerning Herlihy’s comments at the pre-election
meeting contradicted his earlier affidavit. The ALJ was unper-
suaded by Toneges’s efforts at the hearing to distance himself
from his earlier affidavit.
Nos. 04-2359 & 04-2681 19
lation was disproportionate to the offense and was not the
true reason for the discharge. The ALJ pointed to substantial
evidence in the record to support the General Counsel’s
version of events. For example, he observed that Ryder had
never discharged another employee for falsifying a preven-
tive maintenance report. The ALJ also credited Bullman’s
testimony that Woehlke had actually instructed employees
to falsify documents by claiming that they had performed
certain maintenance tasks which they had not done in order
to charge customers more. We find that Bullman’s falsifica-
tion of the preventive maintenance report in this instance
“furnished the excuse rather than the reason” for the dis-
charge. SCA Tissue, 371 F.3d at 991-92 (quoting NLRB v.
Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir. 1965)).
The Board’s order reinstating Bullman with full benefits is
well-founded and shall be enforced.
B. Feldscher
Ryder contends that Toneges, the individual who made
the decision to terminate Feldscher’s employment, was un-
aware of any union activity by Feldscher at the time he made
that decision. The ALJ’s finding to the contrary, however,
was supported by substantial testimony and reasonable
credibility determinations. First of all, Toneges admitted
that he kept a list of employees indicating how he expected
each to vote and that he discussed his list with the other
managers on more than one occasion. Moreover, the ALJ
credited Feldscher’s testimony about his meetings with
Ryder managers Cicchini, Buckley, and Herlihy in which he
told them that he believed the employees needed a third
party to represent them. The ALJ also explicitly discredited
the testimony of managers Buckley, Woehlke, and Toneges
that they thought Feldscher was against the Union. Given
the relatively small size of the bargaining unit at issue (32
employees), management’s significant efforts to keep track
20 Nos. 04-2359 & 04-2681
of employees’ positions regarding the Union, and Feldscher’s
statements to his coworkers shortly before his discharge
that he planned to challenge the company’s broken promises
on its vacation policy, the ALJ and the Board reasonably
concluded that Toneges was aware of Feldscher’s views re-
garding the Union. Substantial evidence supports the finding
that Ryder “terminated Feldscher as part of an effort to pre-
vent the Union from resurfacing at its Indianapolis facili-
ties.”
The ALJ also found Feldscher’s termination on February
12, 2001 for violating safety policy difficult to reconcile with
the positive evaluation he had received the previous day.
During this evaluation, Woehlke—after discussing the
safety glasses incident earlier that day—gave Feldscher a
markedly improved safety rating and overall improvement,
including a raise and the possibility of another promotion in
six months. The ALJ concluded, therefore, that the General
Counsel had established a prima facie case of unlawful
discharge and shifted the burden to Ryder to demonstrate
that it would have taken the same action in the absence of
Feldscher’s union activities.
The ALJ reasonably concluded that Ryder failed to meet
this burden. Based on the vacillating testimony of several
Ryder managers, he found that Ryder had no fixed policy on
how to treat employees with respect to safety glasses
violations. In general, the ALJ concluded that the testimony
of Ryder’s witnesses was marked by internal inconsistencies
as well as conflicting stories between witnesses. For
example, although Toneges testified that Feldscher was
found without his glasses several times after his suspension,
he could not explain why Feldscher continued to receive
only verbal warnings. Toneges also could not account for the
lack of documentation of these warnings in Feldscher’s
personnel file when he testified that it was customary to
document verbal warnings. The ALJ disbelieved Toneges’s
testimony that he was unaware that Feldscher’s glasses had
Nos. 04-2359 & 04-2681 21
been broken on February 11. He also found much of
Buckley’s testimony incredible, particularly his testimony
that Feldscher called him the day before the discharge and
told him that he had been suspended and admitted he prob-
ably should have been terminated. Nor did the ALJ believe
Buckley’s testimony that he had recommended termination
for another employee for not wearing safety glasses, as there
were no records to corroborate this claim.
Ryder has not provided us with an extraordinary basis for
overturning the ALJ’s credibility determinations but rather
asks us to reweigh the evidence and reach our own conclu-
sions. We may not do so under the applicable standard of
review. See Bloomington-Normal, 357 F.3d at 695 (“It is not
our place to engage in our own fact finding or supplant the
Board’s reasonable conclusions even though we would
justifiably have made a different choice had the matter been
before us de novo.”). We conclude that substantial evidence
supports the NLRB’s finding that Ryder discharged
Feldscher because of his support for the Union, and we do
not disturb its decision.
III. Conclusion
We DENY the petition for review and ENFORCE the Board’s
order.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-21-05