Convenience Food Systems, Inc. v. National Labor Relations Board ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 31, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-60301
CONVENIENCE FOOD SYSTEMS, INC., d/b/a CFS NORTH AMERICA
Petitioner-Cross-Respondent,
versus
NATIONAL LABOR RELATIONS BOARD,
Respondent-Cross-Petitioner.
--------------------
On Petition for Review and Cross-Application for Enforcement of
an Order of the National Labor Relations Board
(16-CA-22135)
--------------------
Before WIENER, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
Convenience Food Systems, Inc., (“CFS”) challenges the order
of the National Labor Relation Board (“NLRB”) that affirmed the
findings and holdings of an Administrative Law Judge (“ALJ”) that
CFS violated sections 8(a)(1) and 8(a)(3) of the National Labor
Relations Act (the “Act”).2 After hearing testimony from several
employees of CFS, the ALJ determined that CFS had violated section
8(a)(1) by coercively interrogating employees about their and other
*
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this opinion should not be published and is not precedent except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.
2
29 U.S.C. § 158(a)(1), (a)(3).
employees’ union activities, threatening an employee with trouble
or termination in retaliation for union activities, and maintaining
a policy of prohibiting employees’ discussion of wages. The ALJ
also concluded that CFS had violated sections 8(a)(1) and (3) by
reprimanding and discharging two employees because of their
discussions about unionizing and other concerted, protected
activities. The ALJ ordered CFS to reinstate the discharged
employees with backpay, discontinue any policies that prohibited
employees from talking about wages or other working conditions, and
post a notice informing employees of their rights under federal
labor laws.
Before the NLRB, CFS challenged the ALJ’s findings,
conclusions, and order. The NLRB affirmed the ALJ’s findings,
rulings, and conclusions and adopted the recommended order with
minor modifications to the proposed notice. CFS now appeals to us
the NLRB’s determinations that CFS violated the Act and the NLRB’s
order of reinstatement of the two discharged employees; the NLRB
cross-petitions for enforcement of its order. We have jurisdiction
over the NLRB’s final decision and order under 29 U.S.C. § 160(e)
and (f).
We review the NLRB’s conclusions of law de novo but defer to
its legal conclusions if they are reasonably grounded in the law
and not inconsistent with the Act.3 The NLRB’s factual
3
Tellepsen Pipeline Servs. Co. v. NLRB, 320 F.3d 554, 559
(5th Cir. 2003).
2
determinations and its application of its legal conclusions to the
facts of the case must be upheld if they are supported by
substantial evidence on the record considered as a whole.4 The
substantial evidence standard of review is deferential: We must
affirm the NLRB’s decision “if a reasonable person could have found
what the ALJ found, even if the appellate court might have reached
a different conclusion had the matter been presented to it in the
first instance.”5
On issues of credibility, we are bound by the determinations
of the ALJ unless “(1) the credibility choice is unreasonable, (2)
the choice contradicts other findings, (3) the choice is based upon
inadequate reasons or no reason, or (4) the ALJ failed to justify
his choice.”6 “Absent extraordinary circumstances, a reviewing
court does not substitute its view of credibility for that of the
ALJ or weigh the credibility of one witness against another and
search for contradictory inferences.”7 If the record is “fraught
with conflicting testimony, requiring essential credibility
determinations to be made, the trier of fact’s conclusions must be
4
Id.5
Valmont Indus., Inc. v. NLRB, 244 F.3d 454, 463 (5th Cir.
2001)(citing Standard Fittings Co. v. NLRB, 845 F.2d 1311, 1314
(5th Cir. 1988)).
6
Asarco, Inc. v. NLRB, 86 F.3d 1401, 1406 (5th Cir. 1996)
(citing NLRB v. Motorola, Inc., 991 F.2d 278, 282 (5th Cir.
1993)).
7
Valmont Indus., 244 F.3d at 464.
3
accorded particular deference.”8
In this case, CFS asks us in essence to re-weigh the evidence
and re-evaluate the ALJ’s credibility choices. After a close
review of the administrative record, we conclude that the ALJ’s
determinations are supported by substantial evidence and that she
supported her credibility choices with adequate reasons, which
choices are neither unreasonable nor unjustified. We therefore
affirm the NLRB’s affirmance of the ALJ’s conclusions that CFS
violated sections 8(a)(1) and (a)(3) of the Act.
We also affirm the NLRB’s order requiring CFS to reinstate the
two discharged employees. It is true that, if the purposes or
policies of the Act would not be furthered by reinstatement, denial
of this remedy would be appropriate.9 Likewise, if reinstatement
could be construed as an invitation to employees to continue
misconduct, we would decline to enforce this remedy.10 After
reviewing the credited evidence, however, we cannot conclude that
the discharged employees engaged in misconduct or that
reinstatement would not further the policies and purposes of the
Act. We therefore hold their reinstatements appropriate. The
rulings of the NLRB are, in all respects, ordered
8
NLRB v. Brookwood Furniture, Div. of U.S. Indus., 701 F.2d
452, 456 (5th Cir. 1983).
9
See NLRB v. Brookshire Grocery Co., 919 F.2d 359, 364 (5th
Cir. 1990).
10
Id. at 365.
4
ENFORCED.
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