DTR Industries, Inc. v. National Labor Relations Board

297 F. App'x 487
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 20, 2008
Docket07-2139, 07-2324
StatusUnpublished
Cited by5 cases

This text of 297 F. App'x 487 (DTR Industries, Inc. 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.

Bluebook
DTR Industries, Inc. v. National Labor Relations Board, 297 F. App'x 487 (6th Cir. 2008).

Opinions

OPINION

KAREN NELSON MOORE, Circuit Judge.

The National Labor Relations Board (“NLRB”) concluded that the Petitioner, DTR Industries, Inc. (“DTR”), violated the National Labor Relations Act (“NLRA”) when attempting to dissuade its employees from unionizing. DTR seeks review of two parts of the NLRB’s order. First, DTR asserts that Executive Coordinator Thomas King’s (“King’s”) statements to employees were objective predictions, not threats of layoffs should employees unionize. Second, DTR argues that the NLRB incorrectly credited employee Daniel Gahman’s (“Gahman’s”) testimony when concluding that DTR threatened to discipline Gahman for his pro-union activities and gave Gah-man the impression that DTR was surveil-[489]*489ling his union activities. The NLRB filed a cross-application for enforcement of the order. For the following reasons, we ENFORCE the NLRB’s order.

I. BACKGROUND

A. Factual Background

DTR manufactures hose and rubber anti-vibration products for use in automobiles. DTR employs approximately 800 individuals at its Bluffton, Ohio facility. DTR is a “just in time” operation, manufacturing only the quantity purchased by a buyer and not producing excess parts for inventory. Joint Appendix (“J.A.”) at 508-09 (Dee. 18, 2003, NLRB Hr’g Tr., King Test, at 467:4-468:20). Additionally, DTR is a sole-source supplier for three-fourths of its customers, with those customers relying entirely upon DTR for the production of a given product.

In summer 2002, some DTR employees began a union-organizing campaign. Gah-man, a union supporter, was involved in that effort to obtain union representation. Shortly after the organizing campaign began, DTR management made its disapproval of his activities clear to Gahman. In early August, Gahman’s supervisor told Gahman that he was required to attend a meeting with King and several other supervisors. King, DTR’s Executive Coordinator, reports directly to DTR’s president, COO, Chairman, and CEO. King is responsible for DTR’s human resources and had been with DTR for over a decade as of 2003.

According to Gahman’s testimony, at the meeting King informed Gahman that King was aware of Gahman’s support of unionization and knew Gahman attended union meetings. In addition, King made it clear that he knew about several things that Gahman had mentioned at a union meeting the night before; King’s knowledge left Gahman feeling spied upon and feeling as though he “was being betrayed by the UAW.” J.A. at 223 (Dec. 17, 2003, NLRB Hr’g Tr., Gahman Test, at 183:9). Specifically, King accused Gahman of sharpening a knife for an employee in exchange for the employee signing a union card. But Gahman explained that he sharpened the knife as a favor for the employee while explaining the benefits of unionization. Next, King said that he had heard that Gahman refused to install a fan for an employee who did not support the union. Gahman, however, responded by stating he installed fans whenever there was a work order. Gahman testified that at the conclusion of the meeting King stated that if he continued to hear about Gahman’s union support, King would discipline Gahman for the knife and fan incidents. Gahman said that he would discontinue his union support and “that there won’t be no further problems.” J.A. at 223 (Gahman Test, at 183:22-23).

After the meeting with Gahman, DTR continued to make its disapproval of unionization clear to its employees. King’s public comments regarding the effects of unionization are the primary focus of this case. DTR conducts monthly President Associates (“PA”) meetings where management discusses company issues with its employees. On August 29, 2002, King used one of those PA meetings to address the possible effects of unionization. Although there is no transcript or recording of King’s statements, the administrative law judge (“ALJ”) and the NLRB credited the testimony of several employees who heard King’s comments. DTR employee James Lehman (“Lehman”) testified that King stated that the employees “had the right to choose whether we want[ed] third party representation or not but there was some facts he thought we needed to know.” J.A. at 72 (Dec. 16, 2003, NLRB Hr’g Tr., Lehman Test, at 33:8-10).

[490]*490Rita McVetta (“McVetta”), another DTR employee, testified on direct examination that King explained DTR’s status as a sole-source supplier. According to McVet-ta, King stated “that if we got [a] Union into the plant that they wouldn’t probably do business with us and we wouldn’t have jobs.” J.A. at 54 (Dec. 16, 2003, NLRB Hr’g Tr., McVetta Test, at 15:22-24). On cross examination, McVetta stated that King made it clear at the PA meeting that “[i]f we had a Union in there[,] customers would not want to deal with us because of the Union.” J.A. at 63 (McVetta Test, at 24:13-14). On cross examination, Lehman corroborated McVetta’s recollection of the PA meeting; according to Lehman, King stated “that if Honda or Toyota or any other customer became concerned about reliability of DTR’s production flow, ... those customers would look for other sources.” J.A. at 76 (Lehman Test, at 37:6-8). Lehman’s impression was that King wanted employees to know that unionization might threaten DTR’s reliability, lead to a loss of business, and ultimately force job cuts.

Gahman also testified about King’s comments at the PA meeting. On direct examination Gahman summarized King’s statements:

[King] explained to us that we had a sole supplier deal going with some of our customers where we were the only company that made particular parts for them, and said that if the UAW was to get into DTR that we would lose that sole supplier status be-, because the companies would no longer feel confident with us being their only supplier because the UAW would make us more unreliable.

And so they would allow other companies, you know, to compete with us for some of the parts that we were making. And he stated that if that happened it would result in layoffs and DTR had never laid anyone off he said [ ], in the time that they’d been a company, but if the UAW came there that that policy would, would have to change.

J.A. at 225 (Gahman Test, at 185:3-15). On cross-examination, Gahman stated that King expressed his concern “about action the customers might take” should DTR become unionized. J.A. at 275 (Gahman Test, at 235:13-14).

Subsequent to these events, DTR terminated Gahman for submitting a false sample for a drug test. DTR conducts random drug tests of its employees, and company policy dictates that DTR terminate any employee who returns a fraudulent sample. In September 2002, Gahman was selected for drug testing; the first sample he provided was brown-colored and undersized, so it was discarded, and DTR requested that Gahman produce another. Gahman’s second sample was a bright col- or and was not warm enough, but the lab sealed and kept the sample. DTR requested that Gahman provide a third sample before a witness at the hospital, and this sample tested positive for marijuana. The second sample was tested and the lab concluded that the sample was “not consistent with normal human urine.” J.A. at 6 (NLRB Order at 6).

B. Procedural Background

On the basis of these and other incidents, the union filed charges with the NLRB against DTR on September 30, 2002.1 After a three-day trial, on April 9, [491]*4912004, the ALJ issued an opinion holding that DTR violated 29 U.S.C.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
297 F. App'x 487, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dtr-industries-inc-v-national-labor-relations-board-ca6-2008.