UNF West, Incorporated v. NLRB

Case: 16-60124 Document: 00513806450 Page: 1 Date Filed: 12/20/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-60124 FILED
December 20, 2016
Lyle W. Cayce
UNF WEST, INCORPORATED, Clerk
Petitioner Cross-Respondent
v.
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
Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.
CARL E. STEWART, Chief Judge:
UNF West, Inc. (“UNF”) petitions for review of a National Labor Relations
Board (“Board”) Decision and Order finding that UNF engaged in unfair labor
practices by (1) interrogating employees about their union activities, (2)
threatening employees with futility regarding their rights to organize and
bargain collectively, and (3) threatening employees with reduction of wages.
The Board cross-applies for enforcement of its Order. UNF’s petition is
DENIED; the Board’s cross-application is GRANTED.
I. Background
UNF is a California corporation involved in distributing natural and
organic foods. It maintains a facility in Moreno Valley, California. The
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International Brotherhood of Teamsters, Local 166 (“Union”) began an
organizing campaign at the Moreno Valley facility in 2012. That same year the
Board conducted a representation election, which the Union lost. The Union
subsequently filed objections based on alleged unfair labor practices, asking
for the result to be set aside. The Regional Director found merit in the Union’s
claims, and the matter was heard before an Administrative Law Judge (“ALJ”).
However, before the ALJ ruled, the Union withdrew its objections to the
election and sought again to be elected as the employees’ representative. The
ALJ eventually rendered his decision, which the Board adopted and the D.C.
Circuit enforced in UNF West, Inc. I, 361 NLRB No. 42 (2014). Meanwhile, the
Board set a new election date for late May, but canceled that election the night
before due to fresh allegations of unfair labor practices on the part of Juan
Negroni (“Negroni”) and Carlos Ortiz (“Ortiz”), Kulture labor consultants who
acted as UNF’s agents. 1
After a hearing, a second ALJ found the conduct of these consultants to have
violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) insofar
as it involved (1) engaging in coercive interrogation with and making threats
of futility to employee Armando Perez Aceves (“Aceves”), (2) doing the same
with respect to employee Lino Contreras (“Contreras”), and (3) threatening a
group of employees with the possibility of a reduction in wages. According to
testimony presented at the hearing, the culpable conduct occurred on three
separate occasions.
First, on May 9, 2014, Aceves attended a meeting with Ortiz, at which
Negroni was also present. Aceves was an open union supporter, but the ALJ
1 Although not specifically stated in the record, it appears from the context of the
references in the witnesses’ testimony, the ALJ’s decision, and the parties’ briefs that
“Kulture” refers to Kulture Consulting, LLC—an organization that offers consulting services
in the field of labor relations.
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found no evidence that this fact was known to UNF. Aceves testified that the
meeting lasted about 40–50 minutes. After the meeting, Aceves testified that
he returned to his work area in the warehouse. Negroni approached Aceves in
the warehouse and asked him, “How are you doing? How do you feel with the
Union?” Aceves replied, “Is this an interrogation? I’m working. Leave me alone.
I’m working. Don’t interrupt me.” Negroni said, “Calm down.” Aceves then
showed Negroni a document entitled “Employee Rights Under the National
Labor Relations Act” because, as Aceves testified, Negroni pressured
employees and spoke ill of the Union. After seeing the document, Negroni said,
“This document doesn’t work here, my brother.” He also said, “Who pays your
check, the company or the Union?” Aceves then asked Negroni, “If the firemen,
the policemen, have [a] union, why are you always talking bad about the
Union?” Negroni stared at Aceves and then left.
With regard to the second incident, Contreras alleged that he had a
conversation with Negroni in the warehouse on May 22, 2014. Negroni
purportedly approached him in an aisle and asked, “What about the Union?”
Negroni went on to say, “I have heard that the Union is making a lot of
promises.” After Contreras denied this and suggested that Negroni and his
colleagues were “making false promises” and “[l]ying to people and threatening
them,” Negroni allegedly said “I hope the company won’t hear what you’re
saying.” In response, Contreras showed him the same document that Aceves
had shown Negroni two weeks prior, which prompted Negroni to admonish
that the document was “useless,” as “[t]he company ha[d] its own policies.”
As to the third incident, on May 16, 2014, UNF called Contreras to attend
an employee meeting in the human resources department at which Ortiz gave
a slide presentation. Contreras testified that Ortiz began the meeting by
speaking ill of the Union, whereupon Contreras interjected with the following:
“I have heard from the warehouse that you guys are saying that if the Union
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wins, the Company’s going to reduce the wages of all the employees.” Ortiz
responded, “Lino, we put that message on the projector so everybody could see
it. Lino, of course, if the Union wins, the Company could reduce your wages.”
Contreras responded, “But that’s illegal.” Ortiz responded again, “Lino, who
pays your salary? The Company, right? Therefore, the Company has the right
to reduce your salary.” Employee Juan Urquiza, also present at the meeting,
corroborated this version of events, testifying that in response to questioning
by Contreras, Ortiz said, “If the Union won and they would represent [you] , .
. the company could lower [your] wages, salaries . . . because the company pays
[your] salaries.”
The Board considered and affirmed the ALJ’s rulings and adopted his
recommended Order. UNF then filed the instant petition with this court.
II. Standard of Review
We will affirm the Board’s findings of fact if they are “supported by
substantial evidence on the record, considered as a whole.” Poly-Am., Inc. v.
NLRB, 260 F.3d 465, 476 (5th Cir. 2001). “Substantial evidence is that which
is relevant and sufficient for a reasonable mind to accept as adequate to
support a conclusion. It is more than a mere scintilla, and less than a
preponderance.” El Paso Elec. Co. v. NLRB, 681 F.3d 651, 656 (5th Cir. 2012)
(emphasis omitted) (quoting Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir.
1993)). Although the reviewing court is “obligated to consider evidence that
detracts from the Board’s finding,” Asarco, Inc. v. NLRB, 86 F.3d 1401, 1406
(5th Cir. 1996), the ALJ’s decision stands “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.”
Standard Fittings Co. v. NLRB, 845 F.2d 1311, 1314 (5th Cir. 1988). The ALJ’s
credibility choices bind this court “unless one of the following factors exists: (1)
the credibility choice is unreasonable, (2) the choice contradicts other findings,
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(3) the choice is based upon inadequate reasons or no reason, or (4) the ALJ
failed to justify his choice.” Asarco, 86 F.3d at 1406.
Challenges to legal conclusions are reviewed de novo, id., while procedural
and evidentiary rulings are reviewed for abuse of discretion. Marathon
LeTourneau Co., Longview Div. v. NLRB, 699 F.2d 248, 254 (5th Cir. 1983).
III. Discussion
The NLRA functions to regulate conduct attending organizational activities
in the workplace in a manner that balances between protecting the rights of
employees, employers, and “to a lesser extent, . . . the union.” 2 Section 7 of the
NLRA grants employees a wide range of rights to organize themselves, to “form
join, or assist labor organizations,” to engage in collective bargaining via their
chosen representatives, “to engage in concerted activities” to further collective
bargaining or “other mutual aid or protection,” or to refrain from these
activities. 29 U.S.C. § 157 (2015). Section 8(a)(1) functions to protect employees
in the exercise of these rights, and it outlaws as “unfair labor practices” any
employer activities that “interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in [Section 7].” 29 U.S.C. § 158 (a)(1). In this
case, the alleged unfair labor practices take the form of (1) a threat to reduce
wages, (2) threats of futility regarding exercise of Section 7 rights, and (3)
coercive interrogation of employees.
A. Threats to Reduce Wages
The ALJ determined (1) that Ortiz’s statement—that UNF could reduce
employees’ wages because it pays those wages—came before the slide
presentation and included no mention of collective bargaining, and (2) that
even if the later slide presentation referenced collective bargaining, the earlier
2 1 ABA SECTION OF LABOR & EMPLOYMENT LAW, THE DEVELOPING LABOR LAW 81
(John E. Higgins, Jr., et al. eds., 6th ed. 2012).
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statement without that reference was never specifically corrected. Accordingly,
Ortiz’s statement could be reasonably interpreted as conveying a threat that
UNF would unilaterally reduce wages should the Union win the election.
On appeal, UNF contends that because (1) the slide presentation began by
defining collective bargaining as the subject of the meeting and (2) Ortiz read
slides describing collective bargaining in an objective manner and specifically
disclaimed authority to make threats, the slides should establish that Ortiz’s
statements were made in the context of collective bargaining.
The alleged threats to reduce wages at the May 16, 2014 meeting violate
Section 8(a)(1) “if, under the totality of the circumstances, ‘the employees could
[have] reasonably conclude[d] that the employer [was] threatening economic
reprisals if they support[ed] the Union.’” TRW-United Greenfield Div. v. NLRB,
637 F.2d 410, 418 (5th Cir. 1981) (quoting Hendrix Mfg. Co. v. NLRB, 321 F.2d
100, 105 (5th Cir. 1963)). Employers are “free only to tell ‘what [they]
reasonably believe[ ] will be the likely economic consequences of unionization
that are outside [their] control,’ and not ‘threats of economic reprisal to be
taken solely on [their] own volition.’” NLRB v. Gissel Packing Co., 395 U.S.
575, 619 (1969) (quoting NLRB v. River Togs, Inc., 382 F.2d 198, 202 (2d Cir.
1967)). Although employers can communicate “general views about unionism”
or “specific views about a particular union,” TRW, Inc. v. NLRB, 654 F.2d 307,
313 (5th Cir. 1981), statements that carry “any implication that an employer
may or may not take action solely on his own initiative for reasons unrelated
to economic necessities and known only to him,” are considered impermissible
threats of retaliation. Gissel, 395 U.S. at 618.
Cases applying this rule to statements regarding reductions in wages or
benefits have found that such a statement is not a threat of reprisal where it
“was made in a context . . . indicat[ing] . . . that bargaining is a process in which
each side makes its own proposals, that it requires mutual agreement, and
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where existing benefits may be traded away.” Histacount Corp., 278 NLRB
681, 689 (1986). But if the statement in its context “fail[s] to include any
reference to the collective-bargaining process or to any economic necessities or
other objective facts as a basis for its prediction that wages might be reduced,”
then it is impermissible, because it implies that an employer may act on its
own initiative, unilaterally, and for its own reasons. President Riverboat
Casinos of Mo., Inc., 329 NLRB 77, 77 (1999).
We agree with the Board and the ALJ that Ortiz’s statements constitute a
threat to reduce wages in violation of Section 8(a)(1). Our review of the record
evidence shows that the context existing contemporaneously with or
immediately prior to Ortiz’s statements was devoid of reference to the give and
take of collective bargaining. This is because the only statements objectively
characterizing collective bargaining began at the second slide of the
presentation, and according to testimony credited by the ALJ, Ortiz’s
problematic statements were made before he began reading the slides. In the
absence of prior or contemporaneous context indicating that collective
bargaining is a give-and-take process, Ortiz’s admonition that “of course, if the
Union wins, the Company could reduce your wages,” along with “Lino, who
pays your salary? . . . The Company, right? Therefore, the Company has the
right to reduce your salary” reasonably implied that UNF could unilaterally
lower wages for any reason it chose. See id. at 77; Gissel, 395 U.S. at 618.
Second, Ortiz’s later statements, which consisted of his reading the slide
presentation text word for word, did not even address the earlier implication
that UNF could unilaterally reduce wages. While only contemporaneous or
earlier contextual factors can influence a statement’s reasonable import for the
listener at the time that the statement was uttered, see TRW, 654 F.2d at 313(noting that “language used by the parties involved in a union representation
campaign . . . must be considered in light of the circumstances existing when
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such language was spoken” (emphasis added)), additional comments can be
made to clarify, expand, or otherwise alter the context and reasonable import
of that statement. See Plastronics, Inc., 233 NLRB 155, 156 (1977) (noting that
“statements are not objectionable when additional communication to the
employees” establishes that reductions in wages will come only as a result of
“the normal give and take of collective bargaining,” thus dispelling any
misimpressions). However, any remedial statements must be, inter alia,
specific in nature to the coercive conduct. Passavant Mem’l Area Hosp., 237
NLRB 138, 138 (1978); accord Teksid Aluminum Foundry, Inc., 311 NLRB 711,
711 n.2 (1993). In this case, the content of the slides that Ortiz read—stating
that “bargaining starts from where you are now and you can gain, stay the
same, or you can lose,” and that “as a result of bargaining, you may end up
with more than you have today, the same as you have today, or less than you
have today”—fails to specifically address the earlier implication that UNF
could unilaterally lower wages if the Union carried the election. Accordingly,
we conclude that the ALJ’s holding is not in error. 3 Asarco, 86 F.3d at 1406.
B. Threats of Futility
The ALJ found that Negroni’s May 9th statement in relation to the
document listing employee rights that Aceves handed to him “doesn’t work
here” clearly conveyed that Section 7 rights, “including the right to form a
union, did not apply to [UNF] and it was therefore useless for Aceves to
attempt to organize with his coworkers and . . . join the Union.” The ALJ also
3 UNF also argues that Ortiz’s use of “could”—as opposed to “would”—in reference to
wage reduction establishes the permissibility of his statements. We find this view
unpersuasive. Telling employees that UNF could choose to lower wages at its option—i.e.,
regardless of Union exception—no more objectively and accurately represents the give and
take of collective bargaining negotiations than would a more direct statement of UNF’s
unilateral intention to reduce wages in the event of unionization. See President Riverboat
Casinos of Mo., 329 NLRB 77, 77 (1999).
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found that Negroni’s May 22nd statement to Contreras that the document
detailing employee rights was “useless” because “[t]he Company has its own
policies” communicated the same message.
On petition for review, UNF argues principally that neither of the
statements that the ALJ found to be threats of futility was accompanied by a
threat to take action to ensure futility, and so they do not run afoul of Section
8(a)(1) under this court’s precedent. We disagree.
Threats of futility include “remarks concerning the futility of electing a
union,” NLRB v. Laredo Coca Cola Bottling Co., 613 F.2d 1338, 1341 (5th Cir.
1980), or those that communicate a message to “employees that selection of a
union would be an ‘exercise in futility.’” 4 While the Board proscribes such
remarks where they “were clearly intended to and had the effect of conveying
to the employees the futility of their support of the Union,” Wellstream Corp.,
313 NLRB 698, 706 (1994), “this Court has only found comments to be unlawful
statements about futility when accompanied by a threat or implication that
the employer will take some action to render union support futile.” Brown &
Root, Inc. v. NLRB, 333 F.3d 628, 634 (5th Cir. 2003) (emphasis added).
Accordingly, we review the record for affirmative evidence that (1) remarks
were made concerning the futility of exercising unionization rights and (2)
those remarks were conjoined with a threat or implication that UNF would act
to ensure the futility of union organization. See Brown & Root, Inc., 333 F.3d
at 634.
Because our review reveals such evidence, we agree with the Board and the
ALJ that Negroni’s statements constituted threats of futility in violation of
Section 8(a)(1). Regarding the conversation with Aceves, a UNF
4 DEVELOPING LABOR LAW, supra note 2, at 150; see also NLRB v. Varo, Inc., 425 F.2d
293, 299 (5th Cir. 1970).
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representative’s remark that “this document doesn’t work here” in reference to
a document detailing inter alia, employee rights to (1) organize; (2) form, join,
or assist a Union; (3) bargain collectively; (4) discuss wages and benefits; and
(5) improve working conditions, suggests that such rights are not enforceable
by employees of UNF. This statement thus communicates the futility of
exercising these rights. See Wellstream, 313 NLRB at 706. Moreover, Negroni’s
reminder of who pays Aceves’s check constitutes a threat or implication that
UNF could take some action to ensure the futility of unionization. The
reference to Aceves’s check highlights Aceves’s economic dependence on his
employer, and tells Aceves that the employer is in sole control of the results
and achievements of unionization. Combined with the earlier statement
regarding the disutility of the employee rights document, this paycheck
reference can be reasonably understood to mean that UNF could take action to
ensure futility by lowering wages, by firing employees, or by disregarding
employee rights—including their rights to bargain and discuss wages.
Regarding Contreras, Negroni’s comments that the employee rights
document in Contreras’s possession (the same document Aceves showed
Negroni) was “useless” because “[t]he company has its own policies,” coupled
with Negroni’s earlier comment that “I hope the company won’t hear what
you’re saying” constituted a threat of futility. First, Negroni’s comment on the
uselessness of the employee rights document signifies that attempts to exercise
employee rights are futile because UNF has its own policies. See Wellstream,
313 NLRB at 706. Second, the full context of Negroni’s remarks establishes
the presence of an accompanying threat to ensure futility. See Brown & Root,
Inc., 333 F.3d at 634. This conclusion depends on the aggregation of two
aspects of the conversation: (1) the statement regarding UNF’s policies, which
signals that UNF is in full control of anything going on inside the facility; and
(2) Negroni’s statement prior to the remarks concerning futility, which implied
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consequences for Negroni’s expression of discontent with UNF’s actions and so
imparts information regarding UNF’s disposition to punish. To join an
assertion of control with a disposition to punish is to combine a threat of
punishment with a statement of capability. Combine this further with a
remark of futility, and the jurisprudential requirements are met.
The difficulty is the timing of the comments to be combined. The actual
threat communicating disposition to punish came before the subject matter
prompting the remarks of futility and before the comments asserting unilateral
control. Accordingly, one might claim that these statements are disconnected,
and that the threat does not accompany the remark of futility. However, this
view would seem to ignore the requirement that threats of futility, just like
other violations of Section 8(a)(1), are to be examined according to their full
context. See Whirlpool Corp., 337 NLRB 726, 730–31 (2002) (describing legal
principles generally applicable to § 8(a)(1) violations); Rossmore House, 269
NLRB 1176, 1177 (1984) (“To fall within the ambit of § 8(a)(1), either the words
themselves or the context in which they are used must suggest an element of
coercion or interference.”(emphasis added)). A threat communicating a
disposition to punish in one part of a conversation does not simply evaporate
as regards another part of the conversation transpiring mere moments later.
Because the threat was already part of the context surrounding the remarks
of futility, Negroni’s comments to Contreras constituted a threat of futility. See
Rossmore House, 269 NLRB at 1177; Brown & Root, Inc., 333 F.3d at 634. For
the above reasons, we conclude that the ALJ’s holding on this issue was not in
error. Asarco, 86 F.3d at 1406.
C. Coercive Interrogation
The ALJ found that both the May 9th and May 22nd conversations
between Negroni and employees Aceves and Contreras, respectively,
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constituted coercive interrogations. The ALJ concluded that the “entire [May
9th] conversation established” the interrogation’s coerciveness because: (1)
Aceves was questioned by a UNF agent charged with combatting the Union’s
organizing campaign shortly before an election; (2) there was no evidence that
Aceves engaged in open Union activity at the workplace or that Negroni was
aware of the degree of Aceves’s Union involvement; (3) the conversation
between Negroni and Aceves was neither casual, friendly, nor joking (Aceves
told Negroni, “Leave me alone”); and (4) Negroni issued “an employer’s
ultimate threat, that it controlled Aceves’s employment.” As for the May 22nd
conversation, the ALJ found that its entire context established coerciveness
based on the information sought by Negroni’s questioning and his statement
that UNF would not want to hear what Contreras was saying, implying
adverse consequences for Contreras.
UNF’s primary objection to the ALJ’s analysis of this issue is that it failed
to apply all of the Bourne factors. 5 UNF asserts that some of those that were
not applied would have weighed in its favor. UNF asserts that the ALJ’s
treatment of the factors is legal error preventing enforcement. We disagree.
Interrogation of employees is illegal when “the words themselves or the
context in which they are used . . . suggest an element of coercion or
interference.” Rossmore House, 269 NLRB at 1177. The presence of such an
element is ascertained by examining the totality of the circumstances, an
analysis guided by the application of several factors: (1) the background, or
history of employer hostility and discrimination; (2) the nature of the
information the questioner seeks; (3) the rank of the questioner in the company
hierarchy; (4) the place and manner of the interrogation; (5) the truthfulness
of the employee’s reply; (6) whether the employer had a valid purpose in
5 Bourne v. NLRB, 332 F.2d 47, 49 (2d Cir. 1964).
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obtaining the information sought about the union; (7) whether a valid purpose,
if existent, was communicated to the employee; and (8) whether the employer
assured the employee that no reprisals would be forthcoming should he or she
support the union. NLRB v. Brookwood Furniture, 701 F.2d 452, 460–61 (5th
Cir. 1983); accord Paceco v. NLRB, 601 F.2d 180, 183 (5th Cir. 1979); TRW-
United, 637 F.2d at 416; see also Bourne v. NLRB, 332 F.2d 47, 49 (2d Cir.
1964).
The Bourne factors are analytical guiding lights—not a mandate for
formalistic analysis. See Sturgis Newport Business Forms, Inc. v. NLRB, 563
F.2d 1252, 1256 (5th Cir. 1977) (noting that “a proper evaluation of the
evidence goes beyond examining a list of factors and then comparing the
number that favor the employer to the number that favor the union,” since
“[i]ntimidation may occur even if all factors cut in favor of the employer”). Both
the NLRB and this circuit have repeatedly stressed that “[n]o single factor is
determinative and ‘coercive interrogation may still be found . . . even if all the
above enumerated factors operate in the employer’s favor.’” Tellepsen Pipeline
Servs. Co. v. NLRB, 320 F.3d 554, 561 (5th Cir. 2003) (quoting McCullough
Envtl. Servs., Inc., 5 F.3d 923, 928 (5th Cir. 1993)); accord TRW-United, 637
F.2d at 416 (noting that the list of factors “is not exhaustive . . . and coercion
may occur even if all of these factors operate in favor of the employer”).
Moreover, it is important to note that the inquiry relates to potentiality, and
not to actuality—that is, “the test is whether the questioning tends to be
coercive, not whether the employees are in fact coerced.” NLRB v. Varo, Inc.,
425 F.2d, 293, 298 (5th Cir. 1970).
Our review of the record evidence indicates that the Board and ALJ properly
concluded that Negroni’s conduct on May 9th and May 22nd constituted
coercive interrogation in violation of Section 8(a)(1). There is no requirement
that an ALJ apply all the factors to every situation, and coerciveness can be
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found even where no enumerated factors favor the Board. See, e.g., Tellepsen
Pipeline, 320 F.3d at 561. If not all are required, then a failure to apply them
all cannot be legal error, and although it is true that the Board’s opinion must
provide an appellate court with a basis to determine whether these factors
were applied and “evaluate the substantiality of the evidence to support each
factor,” Paceco, 601 F.2d at 183, the Board’s discussion of facts relevant to the
factors it did apply in this case met that requirement.
For both scenarios, the ALJ specifically mentioned the Bourne factors and
based his decision on a number of facts relevant to them in consideration of the
totality of the circumstances, including (1) the background, namely that these
incidents occurred “shortly before an election”; (2) the identity of the questioner
as a UNF agent “charged with combatting the Union’s organizing campaign”;
(3) the nature of Aceves’s responses to questioning, concluding that these
indicated that the conversation was not friendly or joking; (4) the place and
method of the interrogation, noting that the questions Negroni asked were
accompanied by a threat referencing Aceves’s economic dependence. Indeed,
the presence of a threat implies the absence of a free choice, and accordingly,
“interrogation accompanied by threats has been held to interfere with an
election even though only one percent of the employees were threatened.” 6 For
the reasons stated, we see no basis upon which to disturb the ALJ’s finding on
coerciveness. 7
6DEVELOPING LABOR LAW, supra note 2, at 182; see also Super Thrift Mkts., Inc., 233
NLRB 409, 409 (1977) (noting that one can reasonably expect coercive statements made to a
small number of employees in election campaigns to be disseminated to others).
7 UNF also claims that Negroni’s statements to Aceves and Contreras are too
ambiguous to violate the NLRA, highlighting what it perceives as a lack of evidence to
support the ALJ’s finding that Negroni’s statements had a threatening aspect. As this
contention relates to inferences drawn from the evidence as to the meaning of words in
context and what meaning employees took from those words, whether statements have a
threatening quality is a factual question (as opposed to whether statements violated the
NLRA, which would be a legal question). See, e.g., Louisville Chair Co., 146 NLRB 1380, 1381
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D. Remaining Objections
UNF also raises three other objections to the Board and ALJ’s decision, all
of which we conclude to be without merit.
First, UNF objects that the Board and ALJ erred by refusing to allow Ortiz
to testify in Spanish while allowing the General Counsel’s witnesses to do so.
Evaluations regarding the competence of a witness to testify in English and
the corresponding “need for an interpreter [are] within the discretion of the
[ALJ].” Meat Packers Int’l, 225 NLRB 294 n.8 (1978). Ortiz is fluent in English,
and a significant part of his job involves translating between English and
Spanish. He displayed no apparent difficulty testifying in English, and review
of the transcript uncovers no evidence of his confusion or misunderstanding.
Moreover, the ALJ’s decision to withhold an interpreter was subject to revision
if Ortiz began to display linguistic difficulty—which he did not. We conclude
that the ALJ reasonably exercised his discretion in requiring Ortiz to testify in
English. See Marathon LeTourneau Co., 699 F.2d at 254.
Second, UNF objects that the Board and ALJ erred by ordering the
extraordinary remedy of public notice reading. Because “[t]he particular means
by which the effects of unfair labor practices are to be expunged are matters
for the Board[,] not the courts to determine,” Va. Elec. & Power Co. v. NLRB,
319 U.S. 533, 539 (1943) (quotation marks omitted), administrative remedial
choices “stand unless it can be shown that the order is a patent attempt to
achieve ends other than those which can fairly be said to effectuate the policies
(1964) (finding the record too conflicted to support treating statement that employee would
“have to walk the chalk line” or “was going out” as a threat); Bomber Bait Co. Inc., 210 NLRB
673, 674 (1974) (finding the record rendered statement “won’t be there long enough” too
ambiguous to support finding of violation). Accordingly, this court will defer to the ALJ’s
reasonable inferences drawn from the record if there is substantial evidence to support them.
Standard Fittings Co., 845 F.2d at 1314. Considering the evidence before him, the ALJ found
that the statements were threatening. Based on our review of the record, we conclude that
this was a reasonable inference to draw.
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of the Act.” Id. at 540; accord J.P. Stevens & Co. v. NLRB, 417 F.2d 533, 537
(5th Cir. 1969). Public notice reading in particular is designed to “ensure that
the important information set forth in the notice is disseminated to all
employees, including those who do not consult the [employer’s] bulletin
boards.” Excel Case Ready, 334 NLRB 4, 5 (2001). This court has previously
noted that “[f]or repeated violations persisted in despite intervening
declarations of illegality, the Board is warranted in impliedly concluding that
such conduct has created a chill atmosphere of fear and, further, in recognizing
that the reading requirement is an effective but moderate way to let in a
warming wind of information and, more important, reassurance.” J.P. Stevens
& Co., 417 F.2d at 540.
It is incontrovertible that UNF is a repeat violator of Section 8(a)(1). In
2014, in the same Moreno Valley facility, an ALJ found UNF to have (1) made
threats of futility, (2) made threats to reduce benefits, and (3) coercively
interrogated employees. UNF West, Inc. I, 367 NLRB at *2. The instant case
thus represents the second round of the same problematic conduct in the same
facility, in the context of the same unionization campaign—only with new
characters. Accordingly, the Board’s choice of remedy was not a patent attempt
to extend itself beyond the policies of the Act. See Va. Elec. & Power Co., 319
U.S. at 540.
Finally, UNF objects that the Board and ALJ erred by refusing to allow it
to present testimony that established that there was a petition to ask the
Union to withdraw, that proffered witnesses had signed the petition, and that
those witnesses had never heard Ortiz or Negroni make any of the allegedly
problematic statements to Aceves or Contreras or to them individually. The
ALJ enjoys wide discretion to exclude irrelevant or otherwise inadmissible
evidence. See Marathon LeTourneau Co., 699 F.2d at 254. The Board conducts
its proceedings in accordance with the Federal Rules of Evidence, so far as
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possible. Id. at 253. Under the Rules, evidence is relevant only if it has a
tendency to make a fact of consequence more or less probable. Fed. R. Evid.
401. Additionally, testimony is admissible only where there is evidence to show
the witness has personal knowledge of the matter to which she testifies. Fed.
R. Evid. 602.
Neither the petition expressing the opinion of some employees about the
Union nor the proffered testimony regarding each witness’s individual lack of
experience with the labor consultants is probative of what happened to Aceves
or Contreras. Moreover, there is no evidence that these witnesses were in a
position to observe Aceves, Contreras, Ortiz, or Negroni at key moments—
thus, the witnesses seemingly lacked personal knowledge from which to testify
about the interactions between these individuals. Lastly, despite UNF’s claims
to the contrary, whether Union support was in fact chilled by an Section 8(a)(1)
violation—i.e., whether the problematic conduct in fact coerced anyone or
interfered with a campaign—is inconsequential in an 8(a)(1) case, 8 and so
cannot serve as a predicate to establish the relevance of evidence. Fed. R. Evid.
401 (noting that evidence must relate to a fact of consequence). Thus, the ALJ
did not abuse his discretion in excluding the proffered evidence. 9 See Marathon
LeTourneau Co., 699 F.2d at 254.
8 See, e.g., TRW-United, 637 F.2d at 419 (discussing what threatened employees could
reasonably conclude as the litmus test for a Section 8(a)(1) violation); cf. Super Thrift Mkts.,
Inc., 238 NLRB at 409.
9 UNF also raises a number of challenges to the ALJ’s evidentiary findings and
credibility determinations. UNF argues that there is no substantial evidence on the record to
support that any of the three allegedly problematic incidents occurred at all. However, the
record is almost entirely composed of testimony, and there is no question that testimonial
evidence exists to support each of the ALJ’s findings. Accordingly, the essence of UNF’s
objections as to the occurrence of certain events is that its witnesses—who deny the
occurrence of those events—are more credible than the Board’s witnesses, who UNF claims
are unreliable. As discussed above, the ALJ’s credibility determinations are binding on this
court except in very rare instances. Asarco, 86 F.3d at 1406. Here, the ALJ’s credibility
findings, which were based on witness demeanor and extent of contradiction or corroboration,
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IV. Conclusion
For the aforementioned reasons, UNF West’s petition is DENIED. The
Board’s cross-application for enforcement is GRANTED.
were eminently reasonable. Thus, we decline to disturb either those determinations or any
factual findings based upon them. Id.18