NLRB v. Albis Plastics ( 2003 )


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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    opinion should not be published and is not precedent except under the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.
    7