Joseph Chevrolet, Inc. v. National Labor Relations Board

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0038n.06
Filed: January 12, 2006
Nos. 04-2536/05-1089
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOSEPH CHEVROLET, INC., a Michigan )
corporation, )
)
Petitioner/Cross-Respondent, )
)
v. ) ON PETITION FOR REVIEW OF AN
) ORDER OF THE NATIONAL LABOR
NATIONAL LABOR RELATIONS BOARD, ) RELATIONS BOARD
)
Respondent/Cross-Petitioner. )
Before: NELSON, DAUGHTREY, and SUTTON, Circuit Judges.
PER CURIAM. Joseph Chevrolet, Inc., an automobile dealership in Millington,
Michigan, petitions for review of a decision of the National Labor Relations Board (NLRB).
The Board concluded in its ruling that Joseph Chevrolet had committed various unfair labor
practices by singling out certain employees for discipline or harassment solely because of
the workers’ union sympathies. The NLRB also petitions the court for enforcement of the
Board’s order. In light of the evidence presented before the administrative law judge in this
matter, and in light of the deferential nature of this court’s review of the administrative
decision, we deny Joseph Chevrolet’s petition for review and grant the Board’s petition for
enforcement.
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Joseph Chevrolet v. NLRB
FACTUAL AND PROCEDURAL BACKGROUND
In March 2001, the NLRB certified Local 324 of the International Union of Operating
Engineers as the collective bargaining representative for approximately 14 automotive
technicians working at the Joseph Chevrolet dealership, and the union and the employer
signed a collective bargaining agreement intended to govern employer-employee relations
at the dealership from May 23, 2001, until May 23, 2002. Prior to the expiration of the
collective bargaining agreement’s one-year term, the union sought to reopen negotiations
on the contract, and one of the union members, Gary St. Charles, petitioned the Board to
decertify the union altogether. Even though bargaining sessions began on April 15, 2002,
with an eye toward reaching a new agreement, a decertification election was held on April
30 of that year. The election produced a significant number of challenged ballots, and it
was not until August 9, 2002, that all challenges to the balloting were resolved and a tally
of the valid votes resulted in the decertification of the union as the exclusive bargaining
agent of the affected employees.
Unfortunately, between the time bargaining for a new contract began on April 15 and
the August 9 date of the decertification decision, numerous instances of alleged
harassment against pro-union employees occurred. Several of those disputes formed the
basis of this appellate proceeding. One, for example, involved the discharge of a union
steward named Tony Amend, who was a master mechanic with approximately 15 years’
experience, and who was accused of fraudulently over-billing for a repair to a customer’s
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vehicle. Amend was initially suspended from work but returned to the dealership to assist
in setting up a picket line at the dealership. At that point, he was informed by a member
of Joseph Chevrolet’s management that he had been permanently discharged from
employment with the dealership and that the company would seek to have his technician’s
license revoked. That same day, two other employees who had been active union
supporters, Larry Stevens and Mike Cooper, were laid off from work, purportedly because
of an anticipated business slowdown due to the picketing. Both Stevens and Cooper were
master technicians, yet they were selected for layoff despite the fact that the company had
recently hired four new employees who were still on probation.
Amend, despite his termination, continued to represent the local in its negotiations
with the company for a new collective bargaining agreement. At a bargaining session on
June 12, after Amend inquired about the possibility of returning to work, Joe Hood, the
company owner, pointed his finger at Amend and made a statement variously reported as:
“You lost your job right here at this bargaining table,” “You fucked up your job because
you’re sitting at the other side of that table,” or “Your job got fucked up at the bargaining
table.” Al Booth, one of the union negotiators present at the time, was so surprised by the
remark that he noted on an envelope that he had with him, “Joe Hood 6-12-02 (Job got
fucked up at bargaining table).”
These and other incidents of harassment led the administrative law judge to
conclude that Joseph Chevrolet violated the provisions of §§ 8(a)(1) and (3) of the National
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Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (3). The Board affirmed the administrative
law judge’s decision in all respects, with one member dissenting, and the administrative
judge’s order that the company cease and desist from certain unfair labor practices and
take affirmative action to effectuate the policies of the National Labor Relations Act, 29
U.S.C. § 157. The company now petitions for review and the Board petitions for
enforcement of its order.
DISCUSSION
Pursuant to the express language of § 7 of the National Labor Relations Act,
employees are guaranteed the right to organize and bargain collectively for their mutual aid
or protection. Moreover, § 8 of the Act makes it an unfair labor practice for an employer
to interfere with those rights or to discourage membership in any labor organization “by
discrimination in regard to hire or tenure of employment or any term or condition of
employment.” 29 U.S.C. §§ 158(a)(1) and (3). The threshold test for determining whether
an employment decision constitutes an unfair labor practice is whether the determination
was motivated by anti-union animus. See NLRB v. Cook Family Foods, Ltd., 47 F.3d 809,
816 (6th Cir. 1995). The Board bears the initial burden of showing, by a preponderance
of the evidence, that the employer’s decision was motivated by the employee’s exercise
of rights protected by the Act. See NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 401
(1983); Cook Family Foods, Ltd., 47 F.3d at 816. If such a showing is made, the burden
of persuasion shifts to the employer to establish, also by a preponderance of the evidence,
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the affirmative defense that the same employment decision would have been made even
in the absence of any protected labor activity. See W.F. Bolin Co. v. NLRB, 70 F.3d 863,
870 (6th Cir. 1995). See also Dir., Office of Workers’ Comp. Programs v. Greenwich
Collieries, 512 U.S. 267, 278 (1994).
Board findings with respect to questions of law are then reviewed by this court de
novo, while the Board’s findings of fact are upheld if supported by substantial evidence on
the record. See 29 U.S.C. §§ 160(e) and (f). “Substantial evidence” has been defined as
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Opportunity Homes, Inc. v. NLRB, 101 F.3d 1515, 1518 (6th Cir. 1996)
(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “Deference to the
Board’s factual findings is particularly appropriate where the ‘record is fraught with
conflicting testimony and essential credibility determinations have been made.’” Tony Scott
Trucking, Inc. v. NLRB, 821 F.2d 312, 315 (6th Cir. 1987) (quoting NLRB v. Nueva Eng’g,
Inc., 761 F.2d 961, 965 (4th Cir. 1985)).
In attacking the Board’s decision in this matter, Joseph Chevrolet insists that the
Board failed to establish that any of the company’s alleged unfair labor practices were
undertaken with anti-union animus. Consequently, the petitioner argues that the agency
decision must be reversed. However, our review of decisions of the NLRB is extremely
limited. As long as factual determinations of the Board are supported by substantial
evidence on the record, and as long as inferences drawn by the Board from those facts are
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reasonable, we may not overturn a Board decision, even if we believe that a contrary
decision is also supportable. In this case, we conclude that the findings of fact and legal
conclusions of the Board are supported by the record and by the applicable law. We
therefore DENY Joseph Chevrolet’s petition for review and GRANT the Board’s application
for enforcement of its order.
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