Buckeye Electric Co. v. National Labor Relations Board

116 F. App'x 709
CourtCourt of Appeals for the Sixth Circuit
DecidedNovember 30, 2004
Docket03-1892, 03-2088
StatusUnpublished

This text of 116 F. App'x 709 (Buckeye Electric Co. v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Buckeye Electric Co. v. National Labor Relations Board, 116 F. App'x 709 (6th Cir. 2004).

Opinion

COLE, Circuit Judge.

Petitioner-Appellant Buckeye Electric Co. seeks review of the National Labor Relations Board’s (“NLRB” or “Board”) determination that Buckeye Electric violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (“NLRA”). The NLRB cross-appeals for enforcement. On appeal, Petitioner argues that the NLRB erred in determining that there was substantial evidence that the company threatened one of its former employees with more onerous working conditions because of his support for the union, and also erred in finding substantial evidence of discriminatory discharge based on the employee’s support of, and membership in, the union. Because we find that there was substantial evidence of a threat of more onerous working conditions and discriminatory discharge based on union membership, we AFFIRM the decision of the NLRB and GRANT enforcement of its order.

I. BACKGROUND

Tim McCoy worked as an electrician for Buckeye Electric (“Buckeye”), a construction contracting company. McCoy commuted to Columbus for work, a trip that was approximately 100 miles each way. On September 7, 2001, McCoy joined Local 1105 of the International Brotherhood of Electrical Workers (“IBEW”). Although the union did not have a job for McCoy at that time, the union told him to keep his job with Buckeye until it found a position for him.

On September 10, 2001, McCoy informed his supervisor at Buckeye, Scott Whitaker, that he had joined the union. McCoy explained that he would be “leaving soon” but that he would continue to work as he had in the past. He also told his project manager about his union membership. McCoy’s project manager requested that he inform Rick Smythe, the company vice-president. McCoy testified that when he informed Rick Smythe of his union membership, Smythe said to him, “So, now you are going to start paying to *711 go to work.” Smythe also told McCoy that he could work through the end of the week at which point he had to leave the company.

According to McCoy, on September 11, 2001, Dick Smythe, the company president, told him that he could work for the company for as long as he wanted. McCoy thanked Smythe, explaining that he needed the job because it provided health insurance for his family. In contrast, Dick Smythe testified that he had told McCoy that he could stay one more week. Both McCoy and Smythe said that Whitaker witnessed this exchange. However, Whitaker claimed he did not hear that portion of the discussion.

Later that day, Whitaker told McCoy that Dick Smythe came to the Columbus worksite to tell McCoy that he would be working in Dayton, a change that would have added three hours to his daily commute. Whitaker explained that the purpose of the change was to induce McCoy to quit. On September 20, Whitaker and McCoy had another conversation about Dick Smythe’s desire to send McCoy to Dayton. At that time, Whitaker told McCoy that Smythe always sent workers to Dayton “when he finds out somebody’s in the IBEW.” This conversation was tape-recorded. At no point did anyone actually tell McCoy he would have to work in Dayton.

On September 12, McCoy received union stickers and guides to pass out to other workers. He placed the stickers on his hardhat, which he left in Whitaker’s office. Dick Smythe testified that he knew about the stickers. On September 17, the union faxed the nonunion salting form to Buckeye, identifying McCoy as a union member. On September 20, McCoy passed out the union guides during a Iunchbreak.

Later in the day on the 20th, Rick Smythe informed McCoy that his last day would be September 21. Smythe told McCoy that he had given two weeks notice and that this termination was the company’s response. McCoy tamed in his keys and left.

The NLRB held a hearing and concluded that Buckeye violated Section 8(a)(1) of the NLRA by threatening McCoy with more onerous working conditions, as well as Section 8(a)(3) and (1) by discharging McCoy based on his union support and membership. 28 U.S.C. § 158(a)(1); 28 U.S.C. § 158(a)(3). The NLRB affirmed. This appeal followed.

II. ANALYSIS

A. There was Substantial Evidence that Buckeye Threatened McCoy with More Onerous Working Conditions.

The NLRB found that Buckeye violated section 8(a)(1) of the NLRA by threatening McCoy with more onerous working conditions. We review the NLRB’s findings of fact for substantial evidence. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 487-88, 71 S.Ct. 456, 95 L.Ed. 456 (1951). So long as there is substantial evidence, we do not reverse the Board even if we would reach a different conclusion were we to review de novo. Id.; see also Torbitt & Castleman, Inc. v. N.L.R.B., 123 F.3d 899, 906 (6th Cir.1997) (holding that evidence that a statement is a threat should not be set aside because a “different inference or conclusion may seem more plausible”).

The NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations----” 29 U.S.C. § 157. Section 8(a)(1) makes it an unfair labor practice “to interfere with, restrain, or coerce employees in the exercise of [those] rights....” 29 U.S.C. § 158(a)(1). An employer violates Section 8(a)(1) by threatening more onerous working conditions because an employee supports a un *712 ion. Chefs Pantry, Inc. v. N.L.R.B., 654 F.2d 458, 459 (6th Cir.1981).

In this case, there was substantial evidence to support the Board’s finding. McCoy testified that Whitaker told him that Dick Smythe planned to transfer him to Dayton in the hope that McCoy would quit. Whitaker did not deny that this conversation took place. Petitioner argues that since no one actually told McCoy that he would have to work in Dayton we must reverse the Board’s finding. We disagree. The statute does not require actual action, only a threat. Whitaker’s statement alone constituted a threat.

It was not unreasonable for the Board to believe McCoy’s testimony on this point. The NLRB makes credibility determinations which this Court may overturn' only if “inherently unreasonable or self-contradictory.” Wright Tool Co. v. N.L.R.B., 854 F.2d 812, 815 n. 1 (6th Cir.1988). The NLRB credited McCoy’s testimony that Whitaker had told him Dick Smythe planned to transfer him to Dayton. Whitaker did not deny this testimony and there is no contradictory evidence on this point. Although Dick Smythe testified that he did not plan to send McCoy to Dayton, our analysis is unchanged.

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