United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS May 15, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk
No. 02-60319
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
VERSUS
ALBIS PLASTICS,
Respondent.
Application for Enforcement of an Order of the National Labor Relations Board (16-A-19615)
Before GARWOOD, JOLLY and HIGGINBOTHAM, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:*
The National Labor Relations Board (“NLRB”) seeks enforcement
of its decision and order finding various violations of the labor
laws on the part of Albis Plastics (“Albis”). The dispute in this
case arises from various unrelated infractions committed by Albis
during the course of an attempt by United Steelworkers of America
(“USW”) to organize the employees of Albis in 1998. The election
was never held because the USW filed charges with the NLRB. The
* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. ALJ found that Albis had committed unfair labor practices,
including violations of section 8(a)(1) for unlawful interrogation
of an employee; a violation of Section 8(a)(1) and (3) for taking
an employee’s protected activities into account as a negative
factor in evaluating that employee; and a violation of section
8(a)(1) for threatening employees with the loss of a scheduled wage
increase if the union won the election. The Board reversed some of
the ALJ’s findings of violations and ordered Albis to cease and
desist from continuing the practices found, rescind one of the
employee appraisals found to be violative of the labor laws by the
ALJ, and post a notice to employees reflecting employees’ rights
and the obligations of Albis not to infringe those rights. Albis
declined to comply with the order and the NLRB filed the present
application for enforcement.
I
In reviewing petitions for enforcement of NLRB decisions and
orders, this court reviews questions of law de novo, but defers to
the legal conclusions of the Board if reasonably grounded in the
law and not inconsistent with the Act. With respect to mixed
questions of law and fact, this court will sustain the Board's
application of legal interpretation to facts if it is supported by
substantial evidence based upon the record considered as a whole.
Similarly, the Board's factual determinations must be upheld if
supported by substantial evidence. Tellepsen Pipeline Services Co.
2 v. N.L.R.B., 320 F.3d 554, 559-60 (5th Cir. 2003).
II
The ALJ found, and Board affirmed, that Albis unlawfully
interrogated an employee about her union activities in violation
of Section 8(a)(1). Albis asserts that the ALJ erred in his
credibility determination because he relied on the uncalled witness
rule. Although Albis urges that this rule is outdated, this court
has recently affirmed the use of the rule by the NLRB and the ALJ’s
credibility determination must be upheld. Tellepsen, 320 F.3d at
562 (stating that “under NLRB precedent, the failure to call an
available witness likely to have knowledge about a particular
matter gives rise to an inference that such testimony would be
adverse to the party’s position and consistent with the opposing
party,” citing NLRB v. E-Systems Inc., 103 F.3d 435, 439 (5th Cir.
1997)). Thus, despite conflicting testimony, after reviewing the
entirety of the circumstances, we cannot say that the conclusion of
the ALJ is unsupported by substantial evidence.
The second issue involves disciplinary actions against
employee William Hall by his supervisor Bob LaVigne for alleged
harassment by Hall of fellow employees. The General Counsel
alleged an 8(a)(1) violation for a threat made by LaVigne against
Hall, and a separate violation of 8(a)(1) and (3) for a negative
performance review of Hall by LaVigne, both unlawful because they
were responses to what the General Counsel considered and the Board
found to be protected activities. The ALJ concluded that the
3 “harassment” referred to by LaVigne -- repeated discussions about
the union with co-workers -- was not the kind of harassment “in
which one person repeatedly bothers another in an unwelcome manner
over a period of time,” but was in fact “simply union activity”.
The ALJ concluded that Albis had violated Section 8(a)(1) because
LaVigne's warnings could be understood only as a veiled threat of
discipline if Mr. Hall continued to engage in protected activity.
Applying the burden-shifting analysis of Wright Line, 251 N.L.R.B.
1083 (1980), enf'd. 662 F.2d 899 (1st Cir. 1981), however, the
Board found that, with respect to one evaluation of Hall, Albis had
presented evidence that it would have disciplined Hall even in the
absence of union activities, dismissed these allegations, and
revised the Order and Notice accordingly. After reviewing the
record and the findings of the ALJ and Board, we conclude that the
other violations upheld by the Board are supported by substantial
evidence and cannot be reversed.
The finding that gives this Court the most pause is the
conclusion that Albis violated Section 8(a)(1) by threatening to
withhold a scheduled wage increase. The facts are fairly clear and
uncontested. The company introduced a scheduled pay progression
and performance pay system that established a scale of target
salaries for each position based on the years worked and skill of
the employee. Before the particulars of a scheduled wage increase
were finalized, the Union posted a flyer, stating “[c]urrent wages,
4 benefits and practices are frozen at the status quo until a new
contract is negotiated. (See other side of this leaflet for an
expert legal opinion).” The “expert legal opinion”, an attached
letter from a Union attorney, stated that “[o]nce a majority of
employees designates a union as their bargaining agent, an employer
may not change any existing terms and conditions of employment
without the consent of the union membership.”
The language in the flyer that wages would be frozen
apparently caused employees to ask management whether the scheduled
wage increases would in fact occur if the union was selected. The
ALJ found that Albis’ general manager of operations, James Craig,
at employee meetings, told employees that if the union won the
election, wages would be frozen at the status quo. The credited
testimony of Mr. Craig established that “he also told employees
that the company planned to go ahead with pay increases it had
scheduled for January 1999, but then, picking up a union campaign
flyer, said that the company had to be careful. To that, he added
the statement that if the union won the election, the wages would
be frozen.” The ALJ concluded that “[t]his statement is not a
correct explanation of an employer’s duty under the labor law” and
that the “obvious effect of these statements is to present
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United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS May 15, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk
No. 02-60319
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
VERSUS
ALBIS PLASTICS,
Respondent.
Application for Enforcement of an Order of the National Labor Relations Board (16-A-19615)
Before GARWOOD, JOLLY and HIGGINBOTHAM, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:*
The National Labor Relations Board (“NLRB”) seeks enforcement
of its decision and order finding various violations of the labor
laws on the part of Albis Plastics (“Albis”). The dispute in this
case arises from various unrelated infractions committed by Albis
during the course of an attempt by United Steelworkers of America
(“USW”) to organize the employees of Albis in 1998. The election
was never held because the USW filed charges with the NLRB. The
* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. ALJ found that Albis had committed unfair labor practices,
including violations of section 8(a)(1) for unlawful interrogation
of an employee; a violation of Section 8(a)(1) and (3) for taking
an employee’s protected activities into account as a negative
factor in evaluating that employee; and a violation of section
8(a)(1) for threatening employees with the loss of a scheduled wage
increase if the union won the election. The Board reversed some of
the ALJ’s findings of violations and ordered Albis to cease and
desist from continuing the practices found, rescind one of the
employee appraisals found to be violative of the labor laws by the
ALJ, and post a notice to employees reflecting employees’ rights
and the obligations of Albis not to infringe those rights. Albis
declined to comply with the order and the NLRB filed the present
application for enforcement.
I
In reviewing petitions for enforcement of NLRB decisions and
orders, this court reviews questions of law de novo, but defers to
the legal conclusions of the Board if reasonably grounded in the
law and not inconsistent with the Act. With respect to mixed
questions of law and fact, this court will sustain the Board's
application of legal interpretation to facts if it is supported by
substantial evidence based upon the record considered as a whole.
Similarly, the Board's factual determinations must be upheld if
supported by substantial evidence. Tellepsen Pipeline Services Co.
2 v. N.L.R.B., 320 F.3d 554, 559-60 (5th Cir. 2003).
II
The ALJ found, and Board affirmed, that Albis unlawfully
interrogated an employee about her union activities in violation
of Section 8(a)(1). Albis asserts that the ALJ erred in his
credibility determination because he relied on the uncalled witness
rule. Although Albis urges that this rule is outdated, this court
has recently affirmed the use of the rule by the NLRB and the ALJ’s
credibility determination must be upheld. Tellepsen, 320 F.3d at
562 (stating that “under NLRB precedent, the failure to call an
available witness likely to have knowledge about a particular
matter gives rise to an inference that such testimony would be
adverse to the party’s position and consistent with the opposing
party,” citing NLRB v. E-Systems Inc., 103 F.3d 435, 439 (5th Cir.
1997)). Thus, despite conflicting testimony, after reviewing the
entirety of the circumstances, we cannot say that the conclusion of
the ALJ is unsupported by substantial evidence.
The second issue involves disciplinary actions against
employee William Hall by his supervisor Bob LaVigne for alleged
harassment by Hall of fellow employees. The General Counsel
alleged an 8(a)(1) violation for a threat made by LaVigne against
Hall, and a separate violation of 8(a)(1) and (3) for a negative
performance review of Hall by LaVigne, both unlawful because they
were responses to what the General Counsel considered and the Board
found to be protected activities. The ALJ concluded that the
3 “harassment” referred to by LaVigne -- repeated discussions about
the union with co-workers -- was not the kind of harassment “in
which one person repeatedly bothers another in an unwelcome manner
over a period of time,” but was in fact “simply union activity”.
The ALJ concluded that Albis had violated Section 8(a)(1) because
LaVigne's warnings could be understood only as a veiled threat of
discipline if Mr. Hall continued to engage in protected activity.
Applying the burden-shifting analysis of Wright Line, 251 N.L.R.B.
1083 (1980), enf'd. 662 F.2d 899 (1st Cir. 1981), however, the
Board found that, with respect to one evaluation of Hall, Albis had
presented evidence that it would have disciplined Hall even in the
absence of union activities, dismissed these allegations, and
revised the Order and Notice accordingly. After reviewing the
record and the findings of the ALJ and Board, we conclude that the
other violations upheld by the Board are supported by substantial
evidence and cannot be reversed.
The finding that gives this Court the most pause is the
conclusion that Albis violated Section 8(a)(1) by threatening to
withhold a scheduled wage increase. The facts are fairly clear and
uncontested. The company introduced a scheduled pay progression
and performance pay system that established a scale of target
salaries for each position based on the years worked and skill of
the employee. Before the particulars of a scheduled wage increase
were finalized, the Union posted a flyer, stating “[c]urrent wages,
4 benefits and practices are frozen at the status quo until a new
contract is negotiated. (See other side of this leaflet for an
expert legal opinion).” The “expert legal opinion”, an attached
letter from a Union attorney, stated that “[o]nce a majority of
employees designates a union as their bargaining agent, an employer
may not change any existing terms and conditions of employment
without the consent of the union membership.”
The language in the flyer that wages would be frozen
apparently caused employees to ask management whether the scheduled
wage increases would in fact occur if the union was selected. The
ALJ found that Albis’ general manager of operations, James Craig,
at employee meetings, told employees that if the union won the
election, wages would be frozen at the status quo. The credited
testimony of Mr. Craig established that “he also told employees
that the company planned to go ahead with pay increases it had
scheduled for January 1999, but then, picking up a union campaign
flyer, said that the company had to be careful. To that, he added
the statement that if the union won the election, the wages would
be frozen.” The ALJ concluded that “[t]his statement is not a
correct explanation of an employer’s duty under the labor law” and
that the “obvious effect of these statements is to present
employees with the apparent choice of a wage increase if they did
not select the union or a wage freeze if they did.” Thus, the ALJ
concluded and the Board affirmed, that the statement interfered
with, restrained, and coerced employees in the exercise of their
5 Section 7 rights, in violation of Section 8(a)(1).
Albis argues that it was stuck between a rock and a hard
place. On the one hand, it had a scheduled wage increase which it
planned to implement. On the other hand, Albis argues that because
the wage increase was not firmly scheduled or finalized, as the
effective date and individual amounts of the wage increase were not
yet set, Albis risked incurring an unfair labor charge if it went
forward. Given the position set forth in the union flyer, Albis
argues that Craig’s statements were a good faith effort to avoid
the problem.
Although we might have made a different choice had the matter
been before us de novo, because Craig apparently was responding to
employees’ questions about an ambiguous union flyer, we must
sustain the findings of the Board if they are supported by
substantial evidence on the record as a whole. See NLRB v. Delta
Gas, Inc., 840 F.2d 309, 310 (5th Cir. 1988). In the light of the
established practice of Albis to give regularly scheduled pay
increases, as well as its announced intention to grant the January
1999 wage increase at issue here, it is plausible that employees
would interpret Craig’s statements as a threat that the cost of
voting for the union would be to abrogate for an indefinite period
of time the existing policy of regular wage increases. As such,
the comments, as interpreted by the ALJ and Board, represent a
violation of the clear stricture not to change benefits, for better
or worse. See, e.g., NLRB v. Dothan Eagle, Inc., 434 F.3d 93, 98
6 (5th Cir. 1970) (“whenever the employer by promises or by a course
of conduct has made a particular benefit part of the established
wage or compensation system, then he is not at liberty unilaterally
to change this benefit either for better or worse during the union
campaign or during the period of collective bargaining.”). We must
conclude that there is substantial evidence to sustain the holding
that Craig’s statements violated Section 8(a)(1).
III
In sum, because we cannot say that the Board’s findings are
unsupported by substantial evidence, the application for
enforcement of the Board’s order is GRANTED.
ENFORCEMENT GRANTED.