Tenneco Automotive, Inc. v. National Labor Relations Board , 716 F.3d 640 ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 20, 2012 Decided May 28, 2013
No. 11-1314
TENNECO AUTOMOTIVE, INC.,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
LOCAL 660, INTERNATIONAL UNION, UNITED AUTOMOBILE,
AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, UAW,
INTERVENOR
Consolidated with 11-1353
On Petition for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board
Gregory J. Utken argued the cause for petitioner. With
him on the briefs was Brian R. Garrison.
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Glenn M. Taubman was on the brief for amicus curiae
Lonnie Tremain in support of petitioner.
Greg P. Lauro, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the brief
were John H. Ferguson, Associate General Counsel, Linda
Dreeben, Deputy Associate General Counsel, Jill A. Griffin,
Supervisory Attorney, and Jeffrey Burritt, Attorney.
Stephen A. Yokich argued the cause and filed the brief for
intervenor. Barbara J. Hillman entered an appearance.
Before: ROGERS and TATEL, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: This case arises from a
protracted labor dispute between Tenneco Automotive, Inc.
(“Tenneco” or “Company”) and Local 660, International
Union, United Automobile, Aerospace, and Agricultural
Implement Workers of America, UAW (“Union”). Tenneco
designs, manufactures, and sells automotive products. From
1945 until December 4, 2006, Tenneco recognized the Union
as the exclusive bargaining agent for a unit of production and
maintenance employees at the Company’s Grass Lake,
Michigan facility. In 2004, Union and Company
representatives pursued negotiations in an effort to reach a
new collective bargaining agreement to replace the one that
expired on May 12, 2004. Negotiations failed, however, and
the Union called a strike on April 26, 2005. Tenneco
continued operations by hiring permanent replacements, using
employees who decided not to participate in the strike, and
contracting out work to another employer.
Relations between the parties soured during the strike and
a number of incidents arose that brought the parties before the
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National Labor Relations Board (“NLRB” or “Board”). The
Union filed unfair labor practice charges with the Board on
February 1 and 15, 2006. On February 10, 2006, some
bargaining unit employees filed a decertification petition with
the Board. That petition was held in abeyance pending
resolution of the Union’s unfair labor practice charges.
However, on December 4, 2006, a substantial majority of the
unit employees presented another petition for decertification
to the Company. Based on this second decertification petition,
Tenneco gave notice that it would no longer recognize the
Union as the employees’ bargaining agent.
In the matter before the Board, the NLRB’s General
Counsel sought to prove that Tenneco had committed multiple
violations of Section 8 of the National Labor Relations Act
(“Act”), 29 U.S.C. § 158, including, inter alia: Section 8(a)(1)
for directing employees not to say or do anything that could
“evoke a response” from other employees; Sections 8(a)(1)
and (3) for disciplining employee Joseph Helton because of
his pro-Union Activities; and Sections 8(a)(1) and (5) for
refusing to provide the Union with information regarding the
possible installation of video cameras in the workplace,
unilaterally promulgating a rule requiring supervisory
approval prior to the posting of signs, letters, or printed
material at the Company’s facility, and withdrawing
recognition of the Union. The Administrative Law Judge
(“ALJ”) found that some of Tenneco’s challenged conduct
violated the Act, but rejected many of the claims advanced by
the NLRB’s General Counsel. See Tenneco Auto., Inc., 2008
WL 1786082 (Apr. 16, 2008). Most significantly, the ALJ
concluded the employees’ disaffection with the Union was not
attributable to Tenneco’s unfair labor practices and, therefore,
the Company’s withdrawal of recognition was lawful as of
December 4, 2006. Id. (citing Master Slack Corp., 271
N.L.R.B. 78 (1984)). The General Counsel and the Union
filed exceptions to the ALJ’s findings, and the Board ruled for
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the Union on all unfair labor practice charges. With regard to
the withdrawal of recognition, the Board held “that certain of
the[] unfair labor practices tainted the [employees’] petition
[for decertification], and that the withdrawal of recognition
was therefore unlawful.” Tenneco Auto., Inc., 357 N.L.R.B.
No. 84, 2011 WL 4590190, at *9 (Aug. 26, 2011). Tenneco
now petitions this court for review, and the Board cross-
petitions for enforcement of its order.
We grant Tenneco’s petition for review with respect to
the charge relating to the Company’s withdrawal of
recognition. On the record before the court, there is no
substantial evidence that the Company’s unfair labor practices
“significantly contribute[d]” to the employees’ petition for
decertification. See Williams Enters., Inc. v. NLRB, 956 F.2d
1226, 1234 (D.C. Cir. 1992). However, with respect to the
remaining disputed unfair labor practice charges, we grant the
Board’s cross-application for enforcement. Although the
Company has raised vigorous challenges to the Board’s
holdings, we find substantial evidence to support the Board’s
determinations that Tenneco’s conduct violated Sections
8(a)(1), (3), and (5) of the Act. See Bally’s Park Place, Inc. v.
NLRB, 646 F.3d 929, 935 (D.C. Cir. 2011) (“[T]he Board is to
be reversed only when the record is so compelling that no
reasonable factfinder could fail to find to the contrary.”).
I. Background
A. Facts
Tenneco has a prototype engineering facility at Grass
Lake, Michigan, where the Union represented between thirty
and forty employees. On April 26, 2005, following failed
collective bargaining negotiations, the Union commenced an
economic strike. Some employees resigned from the Union
and chose not to strike. The Union excused one unit
employee, Joseph Helton, and allowed him to continue
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working during the strike. Ten employees resigned from the
Union and crossed the picket line during the strike. As the
strike continued, Tenneco hired sixteen permanent
replacements for strikers.
On August 29, 2005, Union Representative James Walker
was informed that Tenneco planned to install video cameras
in its test lab due to alleged incidents of tampering with
Company property. The Union contended that installation of
video devices in the workplace is a mandatory subject of
bargaining and requested documentation of the alleged
tampering so that it could bargain effectively. Tenneco never
responded and ultimately decided against the installation of
video cameras.
On January 19, 2006, while the strike was still ongoing,
Helton wore a tee shirt to work displaying the slogan, “Thou
Shall Not Scab.” Company Supervisor Dan Eggleston told
Helton to change his shirt because, he believed, some
employees would not like the message. Instead, Helton
covered the word “scab” with a piece of tape on which he had
written the word “steal,” so that the slogan read, “Thou Shall
Not Steal.” Eggleston objected to this message and told
Helton to tape over the word “steal.” Helton taped over
“steal” and wrote the words “be a low life” on the new piece
of tape. Eggleston again objected, and ordered Helton to tape
over the slogan and leave it blank. After further discussion,
Helton and Eggleston agreed that Helton should go home for
the day. The next day, Helton received a written reprimand
for wearing the “scab” slogan on his shirt and then altering
the message to “goad fellow employees inappropriately and
unnecessarily.” Br. for NLRB at 9.
On January 27, 2006, Walker requested information
about the persons hired as striker replacements, including
their home addresses. Tenneco declined to provide the
addresses because of concerns that the Union might use the
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information to harass or intimidate the replacement workers at
their homes. Tenneco sent a letter reminding the Union that it
already had multiple means of communicating directly with
replacements by posting notices on the Union bulletin board
and by having the Union President, Vice President, and
Steward (all of whom were working in the Company facility)
interact with the replacements before and after working hours
and during breaks. The Union later explained that, because
the replacements were permanent employees and thus
members of the unit, it needed the contact information to be
able to communicate with these employees about working
conditions, collective bargaining proposals, grievances, and
other representational matters. Walker claimed that “mailing
addresses are the only practical way for the Union to
communicate with these bargaining unit members in a private
fashion that cannot be monitored by Tenneco.” Br. for NLRB
at 10.
On January 27, 2006, after ten months of striking, the
Union made an unconditional offer to have the striking
employees return to work. The first four strikers returned on
February 6, 2006, and Company Manager, Mark Kortz, held a
meeting with all employees at the start of the shift. The work
force then consisted of permanent striker replacements,
returning strikers, and employees who had previously
abandoned the strike. During his presentation, Kortz
instructed the employees to refrain from inciting tensions. He
amplified by saying that employees should “not . . . engage in
taunting, verbal or physical threats, or in other conduct that is
confrontational or meant to evoke a response from a co-
worker.” Tenneco Auto., Inc., 2011 WL 4590190, at *7. Kortz
also instructed employees not to post items in their work areas
without approval. He made no reference to postings on
bulletin boards. Following the February 6, 2006 meeting,
Union officers posted items on bulletin boards, including
notices of Union meetings, and employees also continued to
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post items on the employee bulletin board. Union officers also
communicated directly with the striker replacements without
interference.
On December 4, 2006, an employee presented Tenneco
with a petition signed by seventy-seven percent of the
employees (twenty-four out of the thirty-one bargaining unit
employees) asking Tenneco to withdraw recognition from the
Union. After verifying the signatures on the petition, Tenneco
notified the Union that it had received the petition and that it
was withdrawing recognition of the Union.
B. Proceedings Below
After the Union filed unfair labor practice charges, the
Board’s Regional Director issued a consolidated complaint
against Tenneco on July 31, 2007. The complaint alleged that
Tenneco, throughout the course of the strike and upon its
withdrawal of Union recognition, had committed multiple
violations of Sections 8(a)(1), (3), and (5) of the Act. 29
U.S.C. § 158(a)(1), (3), (5).
In October, 2007, a three-day hearing was held before an
ALJ. The ALJ found that Tenneco’s denial of the Union’s
request for the replacement workers’ home addresses was
permissible; that the discipline of Helton over the tee shirt
incident did not constitute an unfair labor practice; that
Kortz’s instruction not to “evoke a response” was reasonable;
that Kortz did not create a new posting rule without first
consulting with the Union; and that, while Tenneco’s denial
of the Union’s request for information about the installation
of security cameras violated the Act, “under the
circumstances,” the violation was “very close to de minimus
[sic],” because the cameras were never installed. Tenneco
Auto., Inc., 2008 WL 1786082. The ALJ credited several
other allegations of unfair labor practices that were not
discussed by the Board and are not before this court. Most
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significantly, the ALJ concluded that Tenneco’s withdrawal
of Union recognition on December 4, 2006, was lawful. The
ALJ predicated his decision on an application of “the Master
Slack analytical framework [for] determining whether there is
[a] causal relationship between the unfair labor practices and
the employees’ disaffection with the Union.” Id. (relying on
Master Slack, 271 N.L.R.B. at 84). In the ALJ’s view, such a
causal relationship was lacking.
On August 26, 2011, the Board rejected most of the
ALJ’s proposed findings. The Board agreed with the ALJ that
Tenneco’s failure to respond to the Union’s request for
information about the proposed installation of a security
camera was an unfair labor practice; however, the Board
rejected the ALJ’s characterization of that violation as de
minimis because the request was still relevant at the time it
was made. Tenneco Auto., Inc., 2011 WL 4590190, at *2. The
Board found that Tenneco’s failure to provide the replacement
workers’ home addresses violated the Act because there was
no “clear and present danger” that the Union would misuse
the information. Id. at *3-4. The Board also found that
Tenneco’s discipline of Helton for the tee shirt incident
violated the Act because “Helton’s protected conduct was a
motivating factor in the Respondent’s decision to issue the
discipline, and . . . the evidence fails to show that the
Respondent would have disciplined Helton in the absence of
his protected activity.” Id. at *4-6.
The Board also held that Kortz’s direction to employees
not to say or do anything that could “evoke a response”
constituted another violation of the Act. The majority opinion
for the Board noted:
The dissent suggests that the only reasonable
interpretation of Kortz’s statement is as a directive
against threatening conduct not protected by the Act. In
so doing, however, it ignores the fact that the statement
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was made in the context of Kortz describing the work
force in terms of strike status—those who crossed the
picket line, permanent replacements, and reinstated
strikers. Given this context, and absent any reference to
unprotected employee conduct, it is simply not
reasonable to conclude that employees would narrowly
interpret the statement to exclude all Section 7 activity.
Id. at *8 (referring to 29 U.S.C. § 157, which protects the
right of employees “to engage in other concerted activities for
the purpose of collective bargaining”). The Board further held
that Kortz’s announcement about the posting of signs in the
workplace violated the Act because Tenneco’s “longstanding
practice allowed employees to freely post materials without
obtaining prior approval,” and thus “Kortz’s announcement
declared a substantial change to this past practice.” Id. at *8.
In light of these findings, the Board concluded that
Tenneco improperly withdrew recognition of the Union. The
Board rejected the ALJ’s application of Master Slack and
concluded “that certain of the[] unfair labor practices
[committed by Tenneco] tainted the petition” for
decertification. Id. at 9. Because the Board found that the
employer’s illegal conduct was responsible for the
employees’ disaffection with the Union, it held that the
withdrawal was unlawful. Id. at 9-10.
Tenneco now petitions this court for review of the
Board’s decision and the NLRB and the Union have cross-
applied for enforcement.
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II. Analysis
A. Standard of Review
“As we have noted many times before, our role in
reviewing an NLRB decision is limited. We must uphold the
judgment of the Board unless, upon reviewing the record as a
whole, we conclude that the Board’s findings are not
supported by substantial evidence, or that the Board acted
arbitrarily or otherwise erred in applying established law to
the facts of the case.” Wayneview Care Ctr. v. NLRB, 664
F.3d 341, 348 (D.C. Cir. 2011). We owe “substantial
deference” to inferences drawn by the Board from the factual
record. Halle Enters., Inc. v. NLRB, 247 F.3d 268, 271 (D.C.
Cir. 2001). “When the Board concludes that a violation of the
[Act] has occurred, we must uphold that finding unless it has
no rational basis or is unsupported by substantial evidence. It
is not necessary that we agree that the Board reached the best
outcome in order to sustain its decisions. The Board’s
findings of fact are conclusive when supported by substantial
evidence on the record considered as a whole.” Bally’s Park
Place, 646 F.3d at 935 (citations and quotations omitted).
Furthermore, substantial evidence review does not
change when the Board disagrees with the ALJ. Local 702,
IBEW v. NLRB, 215 F.3d 11, 15 (D.C. Cir. 2000). In such
situations, the Supreme Court has instructed that an ALJ’s
findings should not be given “more weight than in reason and
in the light of judicial experience they deserve.” Universal
Camera Corp. v. NLRB, 340 U.S. 474, 496 (1951). This
means “that evidence supporting a conclusion may be less
substantial when an impartial, experienced [ALJ] who has
observed the witnesses and lived with the case has drawn
conclusions different from the Board’s than when [the ALJ
and the agency have] reached the same conclusion.” Id.
However, an ALJ’s findings “are to be considered along with
the consistency and inherent probability of testimony,” and
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the significance of the findings will depend “largely on the
importance of credibility in the particular case.” Id. When the
Board and ALJ disagree, the Board’s obligation is to “make
clear the basis of its disagreement.” Local 702, IBEW, 215
F.3d at 15. “[S]ince the Board is the agency entrusted by
Congress with the responsibility for making findings under
the statute, it is not precluded from reaching a result contrary
to that of the [ALJ] when there is substantial evidence in
support of each result, and is free to substitute its judgment
for the [ALJ]’s.” Id.
The obligation of the reviewing court is to assess the
“whole record,” meaning that our analysis must consider not
only the evidence supporting the Board’s decision but also
“whatever in the record fairly detracts from its weight.”
Universal Camera Corp., 340 U.S. at 488; see also CitiSteel
USA, Inc. v. NLRB, 53 F.3d 350, 354 (D.C. Cir. 1995). A
reviewing court must “ask whether a reasonable mind might
accept a particular evidentiary record as adequate to support a
conclusion.” Dickinson v. Zurko, 527 U.S. 150, 162 (1999).
B. Insubstantial Challenges Raised by the Company
As noted above, the parties’ dispute has narrowed to six
contested issues. Those issues are whether the Company
committed unfair labor practices when (1) it disciplined
employee Joseph Helton because of his pro-Union activities;
(2) refused to provide the Union with the home addresses of
the striker-replacement employees; (3) refused to provide the
Union with information regarding the planned installation of
video cameras in the workplace; (4) directed employees not to
say or do anything that could “evoke a response” from other
employees; (5) unilaterally promulgated a rule requiring
supervisory approval prior to the posting of material at the
Company’s facility; and (6) withdrew recognition of the
Union. We grant the Board’s cross-petition for enforcement
as to the first five charges. The Board’s decision on these
12
matters speaks for itself and needs no amplification by the
court. See W.C. McQuaide, Inc. v. NLRB, 133 F.3d 47, 49
(D.C. Cir. 1998) (noting that there is no reason for the court to
address certain disputed matters when “the company’s . . .
challenges are met by sufficient evidence in the record to
support the Board's findings”).
After careful review of the record and the parties’
arguments, we uphold the Board’s findings that:
[Tenneco] violated Section 8(a)(1) of the Act by directing
employees to refrain from saying anything to each other
that might be deemed offensive or evoke a response from
another employee. [Tenneco] violated Section 8(a)(3) and
(1) of the Act by issuing a written warning to employee
Joseph Helton because of his support for and activities on
behalf of the Union. [Tenneco] violated Section 8(a)(5)
and (1) of the Act by (a) Failing and refusing to furnish
the Union with requested information regarding the
planned installation of video cameras . . . . (c) Failing and
refusing to furnish the Union with requested information
concerning the home addresses of the . . . permanent
replacement employees. . . . (e) Promulgating a rule
requiring supervisory approval prior to the posting of
signs, letters, or printed material . . . .
Tenneco Auto., Inc., 2011 WL 4590190, at *11. These
findings are supported by substantial evidence and are
consistent with established precedent.
We now turn to the Board’s finding that Tenneco
committed an unfair labor practice when it withdrew
recognition of the Union. Because, for the reasons indicated
below, we find no substantial evidence to support this charge,
we grant the Company’s petition for review.
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C. Tenneco’s Withdrawal of Union Recognition
When an employer has objective evidence that a union
has lost majority support, such as “a petition signed by a
majority of the employees in the bargaining unit,” it may
unilaterally withdraw recognition. Highlands Hosp. Corp. v.
NLRB, 508 F.3d 28, 31 (D.C. Cir. 2007) (quoting Levitz
Furniture Co. of the Pac., 333 N.L.R.B. 717, 725 (2001)). But
an employer may not rely on an employee petition “when the
employer’s unfair labor practices significantly contribute to
the loss of majority status by undercutting the employees’
support of the union.” Williams Enters., 956 F.2d at 1234.
The Board has explained that “not every unfair labor
practice will taint evidence of a union’s subsequent loss of
majority support.” Lexus of Concord, Inc., 343 N.L.R.B. 851,
852 (2004). Thus, the Board has the burden of adducing
substantial evidence to support its finding that an employer’s
unfair labor practices have “significantly contributed” to the
erosion of a union’s majority support. See Quazite Div. of
Morrison Molded Fiberglass Co. v. NLRB, 87 F.3d 493, 496
(D.C. Cir. 1996). In Master Slack, the Board set out a four-
factor test to determine whether “the unfair labor practices . . .
have caused the employee disaffection [with the Union] or at
least had a meaningful impact in bringing about that
disaffection.” 271 N.L.R.B. at 84. The Board’s four-factor
test, which we have endorsed, includes consideration of:
(1) The length of time between the unfair labor practices
and the employee petition; (2) the nature of the unfair
labor practices, including whether they are of a nature
that would cause a detrimental or lasting effect on the
employees; (3) the tendency of the unfair labor practices
to cause employee disaffection with the union; and
(4) the effect of the unlawful conduct on the employees’
morale, organizational activities, and membership in the
union.
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Williams Enters., 956 F.2d at 1236 (citing Master Slack, 271
N.L.R.B. at 84)).
Both the ALJ and the Board applied the Master Slack
factors and arrived at opposite conclusions. However, the
Board’s judgment is infirm because it disregards material
evidence that belies any causal relationship between the
Company’s unfair labor practices and the employees’ petition
for decertification. Recognizing that “[t]he substantiality of
evidence must take into account whatever in the record fairly
detracts from its weight,” Universal Camera Corp., 340 U.S.
at 488, we conclude that on the record before us the Board’s
determination is not supported by substantial evidence.
First, it is highly significant that ten months passed
between the last credited unfair labor practice and the
submission of the employees’ petition for decertification.
“The length of time between the unfair labor practices and the
withdrawal of recognition” is the first of the four Master
Slack factors, 271 N.L.R.B. at 84, and it is obviously an
important consideration. This temporal factor typically is
counted as weighty only when it involves a matter of days or
weeks. See, e.g., Bunting Bearings Corp., 349 N.L.R.B. 1070,
1072 (2007) (eight to fifteen days was “close temporal
proximity”); Miller Waste Mills, Inc., 334 N.L.R.B. 466, 468
(2001) (“close temporal proximity” when unfair labor
practices occurred two to six weeks before petition for
withdrawal). However, a lapse of months fails to support, and
typically weighs against, a finding of close temporal
proximity. See, e.g., Garden Ridge Mgmt., Inc., 347 N.L.R.B.
131, 134 (2006) (five-month delay weighed against finding
that unfair labor practices caused employee sentiment against
Union); Lexus of Concord, Inc., 343 N.L.R.B. at 852 (no
temporal proximity when lapse was three months). Here, even
the NLRB admitted in its decision that ten months is “a
relatively long period.” Tenneco Automotive, Inc., 2011 WL
15
4590190, at *10. The Board maintained, however, that “the
nature of some of the violations would tend to have a lasting
detrimental effect on the employees’ view of the Union,”
particularly Tenneco’s refusal to provide the addresses of the
replacement workers. Id. In the Board’s view, this and other
unfair labor practices “depriv[ed] the Union of opportunities
to meaningfully address any lingering feelings of disconnect
that would naturally exist in the aftermath of a contentious
and divisive strike.” Id. But for reasons explained below, the
cited conduct did not constitute the type of unfair labor
practices that the Board has historically characterized as
“detrimental or lasting.”
The second Master Slack factor is “the nature of the
illegal acts, including the possibility of their detrimental or
lasting effect on employees.” 271 N.L.R.B. at 84. The third
factor is “any possible tendency to cause employee
disaffection from the union.” Id. These factors obviously are
related because unfair labor practices that have a lasting
effects on employees are likely to be serious enough to cause
disaffection with a union. The NLRB relied on four alleged
unfair labor practices to show these adverse consequences:
Tenneco’s refusal to provide the Union with the addresses of
replacement employees; Kortz’s admonition to employees to
avoid having discussions that could “evoke a response”; the
requirement that employees obtain supervisor permission
before posting materials in the Company facility; and
Tenneco’s discipline of union advocate Helton. See Tenneco
Auto., Inc., 2011 WL 4590190, at *9-10. No violation of the
Act is insignificant; but these violations were hardly
“hallmark violations that were highly coercive and likely to
remain in the memories of employees for a long time.” Goya
Foods of Fla., 347 N.L.R.B. 1118, 1121 (2006).
The Board has consistently held that the types of
violations that have detrimental and lasting effects are those
16
involving coercive conduct such as discharge, withholding
benefits, and threats to shutdown the company operation. See,
e.g., id. at 1121-22 (discharging three union adherents and
suspending another were “hallmark violations”); JLL Rest.,
Inc., 347 N.L.R.B. 192, 193 (2006) (threatening employees
with closure and job loss); Beverly Health and Rehab. Serv.,
Inc., 346 N.L.R.B. 1319, 1328-29 (2006) (discharging active
union supporter and unilaterally changing hours and
vacation); Overnite Transp. Co., 333 N.L.R.B. 1392, 1394
(2001) (hallmark violations included “the granting of an
unprecedented wage increase, as well as threats that
employees would lose their jobs and that the Employer would
close if the employees selected the Union”). The unfair labor
practices alleged in this case do not rise to these levels.
This court has agreed with the Board that “the unilateral
implementation of changes in working conditions has the
tendency to undermine confidence in the employees’ chosen
collective-bargaining agent.” Vincent Indus. Plastics, Inc. v.
NLRB, 209 F.3d 727, 738 (D.C. Cir. 2000). However, to be
considered “hallmark violations,” such unilateral changes
must normally involve the “issues that lead employees to seek
union representation,” particularly employee earnings. Goya
Foods, 347 N.L.R.B. at 1122; see also M & M Auto. Grp.,
Inc., 342 N.L.R.B. 1244, 1247 (2004) (taint found where the
employer’s “unilateral changes involved the important, bread-
and-butter issues of wage increases and promotions for which
employees seek and gain union representation”). Considered
against this standard, the unilateral changes in workplace
policy cited by the Board – a new rule regarding the posting
of materials in the workplace and an admonition to avoid
having hostile discussions that could “evoke a response” from
other employees – did not risk having a “detrimental or
lasting effect on employees.” Master Slack, 271 N.L.R.B. at
84. Indeed, the record makes it clear that both employees and
Union officials continued to post notices on bulletin boards
17
without first obtaining permission from the Company; and
Union officials freely talked with unit employees about work
conditions and Union activities without interference from the
Company.
Nor did the discipline of Helton rise to the level of
“detrimental or lasting.” Helton received only a mild
reprimand in the form of written counseling. And this was the
only disciplinary action recorded prior to the Company’s
withdrawal of Union recognition. See Tenneco Auto., Inc.,
2008 WL 1786082.
Likewise, there is no substantial evidence that Tenneco’s
failure to supply the replacements’ home addresses had
detrimental effects of the sort that the Board has described in
cases involving “hallmark violations.” Union officials worked
in the Company facility, the bargaining unit was relatively
small, and Union officials had routine and easy access to all
unit employees. This access did not excuse the Company’s
failure to provide the Union with the addresses of the striker
replacements, but there is nothing in the record to indicate
that the Company’s failure resulted in “detrimental or lasting”
effects sufficient to cause a large majority of the employees to
sign a decertification petition.
The Board also failed to establish by substantial evidence
that the alleged unfair labor practices in this case actually
prevented communications between the employees and the
Union. Thus, the Board fails to satisfy the fourth Master Slack
factor by articulating what, if any, effect “the unlawful
conduct [had] on employees morale, organizational activities,
and membership in the union.” 271 N.L.R.B. at 84. The Board
claims that the alleged unfair labor practices were particularly
problematic because they “illustrate[] the [Company’s]
hostility toward the free expression of employee views about
union matters, and show[] a determination to prevent the
occurrence of protected prounion speech in its workplace.”
18
Tenneco Auto., Inc., 2011 WL 4590190, at *10. But the
evidence does not support this claim. The Union introduced
testimony that “the Company’s new rules effectively stifled
both the Union’s and the employees’ ability to discuss union
related matters.” Tenneco Auto., Inc., 2008 WL 1786082.
However, the ALJ discredited this testimony and found as a
factual matter that between the bulletin board and direct
conversations, “the Union had ample opportunity to present to
the replacements its side of the strike, the need for union
representation, and the progress of the negotiations that were
ongoing.” Id. Indeed, the ALJ found that “the returning
strikers could and did speak amicably and about union matters
with some of the replacement workers while at work.” Id. The
Board never rejected the ALJ’s credibility determinations
regarding this testimony.
We do not hold that “hallmark violations” are always
necessary to satisfy Master Slack. Nor do we mean to hold
that an employer’s interference with communications between
a union and unit employees cannot have a detrimental or
lasting effect on employees. Rather, we simply hold that, on
this record, there is no substantial evidence to support the
Board’s finding of a causal relationship between the
Company’s unfair labor practices and the employees’ petition
for decertification.
In addition, the Board’s assessment of the facts leading
up to the withdrawal petition is self-contradictory. At one
point in its opinion, the Board asserts that the Company’s
conduct “significantly interfered with protected speech among
its employees.” Tenneco Auto., Inc., 2011 WL 4590190, at
*10. Yet, elsewhere the Board explained that “the record
reveals that at least some replacement employees were on
friendly terms with the union officials who were reinstated
after the strike.” Id. at 3. Given the small size of the company
facility (which facilitated communications between the Union
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and unit employees) and the failure of the Board to address
the ALJ’s finding that the employees had ample opportunity
to communicate with and about the Union, the Board has not
met its burden under the substantial evidence standard to
prove a causal connection.
Finally, it is noteworthy that the ALJ heard and credited
testimony from nine of the petition-signing employees that
“the Company had done nothing to influence their decision.”
Tenneco Auto., Inc., 2008 WL 1786082. We understand that
such testimony is not necessarily dispositive because it may
be nothing more than the product of employer intimidation.
Nevertheless, such testimony must be assessed on a case-by-
case basis, especially when an ALJ has made credibility
findings. See Universal Camera Corp., 340 U.S. at 496 (“The
significance of [the ALJ’s] report, of course, depends largely
on the importance of credibility in the particular case.”). The
Board is free to reject the ALJ’s determinations, but it must
“make clear the basis of its disagreement.” Local 702, IBEW,
215 F.3d at 15. After listening to the employees’ testimony,
the ALJ found that
the General Counsel did not establish that the [petition]
signers’ disaffection with the Union was attributable to
the [unfair labor practice] allegations that had been
pending for over a year. In point of fact, it would be my
finding and conclusion that the [unfair labor practices] in
this case had essentially nothing to do with the signers’
decision to petition for withdrawal of recognition of the
Union. . . . [A]s I observed and heard them, [the
employees’] morale as such was elevated based on their
decision to disassociate from the Union.
Tenneco Auto., Inc., 2008 WL 1786082. The Board, in turn,
simply ignored the signing employees’ testimony without any
explanation. Because the Board never explained any basis for
disagreement with the ALJ’s findings, we have taken the
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findings into account in assessing whether there is substantial
evidence to support the Board’s judgment.
The foregoing considerations, in combination, forcefully
contradict the Board’s errant conclusion – based on a
shortsighted assessment of the evidence – that Tenneco
violated the Act when it withdrew recognition of the Union.
Considering the whole record, we think it apparent that
substantial evidence does not support the Board’s finding that
Tenneco’s conduct tainted the decision of the employees’ to
sign a petition for decertification.
D. The Board’s Affirmative Bargaining Order
The Board ordered Tenneco to, inter alia, “recognize
and, on request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in the
bargaining unit.” Tenneco Auto., Inc., 2011 WL 4590190, at
*12. The Board determined “that an affirmative bargaining
order is warranted in this case as a remedy for the
[Company’s] unlawful withdrawal of recognition.” Id. Before
this court, the Board argues that “Tenneco failed to challenge
this bargaining order before the Board, and therefore the
Court lacks jurisdiction to consider Tenneco’s challenge to
the remedy now.” Br. for NLRB at 58 (citing Section 10(e) of
the Act, 29 U.S.C. § 160(e)). We disagree.
Before the Board, Tenneco clearly opposed the unfair
labor practice charge based on its alleged withdrawal of
recognition. And the Company preserved this challenge in its
petition for review in this court. The Board’s decision makes
it clear that the sole basis for the Board’s bargaining order is
Tenneco’s alleged “unlawful withdrawal of recognition.”
Because we have found that no substantial evidence supports
the Board’s finding of an unfair labor practice, there is no
longer any basis for the bargaining order. Obviously, the
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sanction for an unfair labor practice cannot survive once the
Board’s finding of an unfair labor practice has been reversed.
III. Conclusion
With respect to its withdrawal of recognition, we grant
Tenneco’s petition for review and deny the Board’s cross-
application for enforcement. The Board’s decision regarding
the withdrawal of recognition is reversed and the
accompanying bargaining order is vacated.
Tenneco does not contest the Board’s findings that it
violated Section 8(a)(5) and (1) of the Act by refusing to
provide the Union with requested information concerning
Joseph Helton’s discipline and work performed by an outside
contractor during the strike, and refusing to process Steven
Prysianzy’s grievance to the third step. We therefore grant the
Board’s request for summary enforcement of its Order with
respect to these violations. With respect to the other unfair
labor practice charges at issue in this case, we deny Tenneco’s
petition for review and grant the Board’s cross-application for
enforcement.