The opinion
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0129n.06
Filed: February 12, 2009
No. 08-1892
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
NATIONAL LABOR RELATIONS BOARD, )
)
Petitioner,
)
v. )
) ON PETITION FOR ENFORCEMENT
SOLARTEC, INC., AND SEKELY OF AN ORDER OF THE NATIONAL
)
INDUSTRIES, INC., LABOR RELATIONS BOARD
)
)
Respondents.
)
Before: DAUGHTREY, ROGERS, and KETHLEDGE, Circuit Judges.
PER CURIAM. The National Labor Relations Board seeks enforcement of a
Board order awarding back pay by respondent Solartec, Inc.,1 to Robert Stallsmith, who
the Board found had been discharged in violation of Sections 8(a)(1) and 8(a)(3) of the
National Labor Relations Act. Due to the length of time that has elapsed since
Stallsmith’s termination and the original Board hearing, and given Stallsmith’s advanced
1
A stipulation entered into by the parties defers the issue of whether Solartec, Inc.,
and Sekely Industries, Inc., constitute a single employer. See Solartec, Inc., 352 N.L.R.B.
331, 332 (2008). Thus, this issue is not before the Court. Sekely Industries ceased
operations in early 2007. Brief of Respondent-Appellant at 3.
No. 08-1892
NLRB v. Solartec, Inc.
age, we granted expedited review of this case on motion from the Board. For the
reasons set out below, we order enforcement of the Board’s order.
Robert Stallsmith was a employed as a large-machine department leader at
Solartec’s production facility in Salem, Ohio, which manufactured stamping dies used in
the automobile industry. He was discharged on July 10, 2000, in retaliation for his support
of an organizing drive conducted by the United Automobile, Aerospace, and Agricultural
Implement Workers of America (UAW), Region 2B. Because the employer conceded that
Stallsmith was fired for his union sympathy, the question addressed by the administrative
law judge was whether or not Stallsmith was a managerial employee. If Stallsmith were
a managerial employee, as the employer contends, the company was “at liberty to demand
absolute loyalty” from him in an organizing drive and, thus, was free to discharge him for
his union support. See Florida Power & Light Co. v. IBEW, 417 U.S. 790, 812 (1974).
However, if Stallsmith were a non-managerial employee, his discharge violated sections
8(a)(1) and 8(a)(3) of the National Labor Relations Act, which makes it an unfair labor
practice to “interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 157 of this title,” or to discourage union membership “by
discrimination in regard to hire or tenure of employment or any term or condition of
employment to encourage or discourage membership in any labor organization.” 29 U.S.C.
§§ 158(a)(1), (a)(3).
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No. 08-1892
NLRB v. Solartec, Inc.
The administrative law judge concluded that Stallsmith was a non-managerial
employee and therefore entitled to the make-whole remedy of reinstatement and back pay.
This opinion and order was adopted by the National Labor Relations Board. As a
reviewing court, we review the Board’s conclusions of law de novo. See 3750 Orange
Place Ltd. P’ship v. NLRB, 333 F.3d 646, 654 (6th Cir. 2003). We will uphold the Board’s
findings of fact if supported by “substantial evidence on the record considered as a whole.”
See 29 U.S.C. §§ 160(e) and (f); see also Conley v. NLRB, 520 F.3d 629, 638 (6th Cir.
2008). The “substantial evidence” standard means that we defer to the Board if the
evidence it relied upon is “adequate, in a reasonable mind, to uphold the decision.” NLRB
v. Gen. Fabrications Corp., 222 F.3d 218, 225 (6th Cir. 2000). Because determination of
whether or not an employee is managerial is an “intensive fact-based analyses,” see NLRB
v. Cooper Union for the Advancement of Science & Art, 783 F.2d 29,31 (2d Cir. 1986), on
a matter that is within the Board’s special expertise, we will not “displace the Board’s
choice between two fairly conflicting views, even though the court would justifiably have
made a different choice had the matter been before it de novo.” Universal Camera Corp.
v. NLRB, 340 U.S. 474, 488 (1951).
Before the administrative law judge, the employer advanced two arguments to
support its contention that Stallsmith was a managerial employee: (1) Stallsmith’s role in
ordering and testing tools needed in his department, and (2) his supposed alignment with
management, as well as perception on the shop floor that he was the “right hand man” of
Machine Superintendent Tom Furlong. See Solartec, Inc., 352 N.L.R.B. 331, 333 (2008).
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No. 08-1892
NLRB v. Solartec, Inc.
Regarding the ordering and testing of tools, the evidence presented at the hearing
established that Stallsmith’s duties included making routine purchases of tools, testing
tools that were not purchased routinely, and conveying price quotes to management when
tool salesmen visited the shop. The administrative law judge noted that Stallsmith’s
discretion was circumscribed in these duties. For instance, Stallsmith’s routine orders for
tools in the “blanket order book” were reviewed by the large-machine superintendent, and
Stallsmith was not among the employees authorized to place orders without a written
purchase order. See id. at 335. Stallsmith also referred price quotes for new tools to
management and, when instructed to do so by management, asked certain tool
salespeople for better prices. However, he denied being “involved in any price haggling”
or in the selection of vendors or adjusting of disputes with vendors. See id. at 334.
Stallsmith testified that he had to seek approval of a supervisor for his purchase orders and
that he was not aware of the company’s budget and did not attend meetings where the
company’s budget or purchasing policies were formulated. Based on these facts, the
administrative law judge distinguished Stallsmith’s duties from those of a buyer in Concepts
and Designs, Inc., 318 N.L.R.B. 948 (1995), where the buyer’s discretion to make
purchases was not reviewed by others in the company, the buyer attended weekly
management meetings, and the buyer was the sole representative of the company to meet
with vendors. Accordingly, the administrative law judge concluded that Stallsmith’s limited
involvement in ordering tools did not make him a managerial employee.
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No. 08-1892
NLRB v. Solartec, Inc.
In considering whether or not Stallsmith was aligned with management, the
administrative law judge considered two main items of evidence: a job description signed
by Stallsmith in June 2000, and the testimony of a machinist who worked with Stallsman.
The job description was presented to Stallsmith by the company’s labor consultant after
management was made aware of the UAW’s organizing drive. Solartec, Inc., 352 N.L.R.B.
at 338. Stallsmith, who recorded the meeting with the labor consultant, objected to the
description of his duties and questioned why he was being asked to sign the document at
that time. The labor consultant admitted to Stallsmith that the document had been drawn
up with the intent to make Stallsmith a supervisor under Section 2(11) of the National
Labor Relations Act. Stallsmith signed the document but denied ever performing many of
the functions listed in the job description, such as disciplining employees and training newly
hired machinists.
The administrative law judge also heard testimony from a machinist that Stallsmith
was “supposed to be the guy in charge” and was the “right-hand man” of the machine
superintendent. See id. at 341. Despite this, the administrative law judge concluded that
the machinist’s testimony “concerning Stallsmith’s day-to-day interaction with him and the
other machinists is not indicative of managerial status,” when viewed under all the
circumstances. See id. The administrative law judge also questioned the machinist’s
ability to be an “impartial and objective witness” because he described a workplace incident
that led to him becoming angry with Stallsmith. See id. at 341-42. Considering the
circumstances under which Stallsmith signed the job description and the adverse credibility
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No. 08-1892
NLRB v. Solartec, Inc.
finding regarding the machinist’s testimony, the administrative law judge concluded that
Stallsmith was not aligned with management and, thus, not a managerial employee in the
meaning of section 2(11) of the Act.
As we have previously held, we “ordinarily will not disturb credibility evaluations by
an ALJ who observed the witnesses’ demeanor.” Vencare Ancillary Servs., Inc. v. NLRB,
352 F.3d 318, 321 (6th Cir. 2003). In this case, the administrative law judge credited
Stallsmith’s testimony, noting that “his overall testimony was consistent,” despite the seven
years that had elapsed. She also was entitled to draw an adverse inference regarding the
failure to present testimony from the company officials with firsthand knowledge of
Stallsmith’s purchasing activities and job duties, such as the large-machine superintendent
or purchasing agent. See Solartec, Inc., 352 N.L.R.B. at 343 (“The failure to call a witness
whose testimony would reasonably be presumed to favor a party warrants an adverse
inference that had the individual been called as a witness, his testimony would not have
supported the party’s position.”); see also DMI Distribution of Delaware, Ohio, 334 N.L.R.B.
409, 412 (2001); Int’l Assn of Bridge Workers Local 118 (California Erectors), 309 N.L.R.B.
808, 811 (1992). Because the administrative law judge’s finding that Stallsmith was not
a managerial employee was supported by specific testimony and reasonable inferences
drawn from that testimony, we conclude that it was supported by substantial evidence on
the record as a whole.
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No. 08-1892
NLRB v. Solartec, Inc.
For the reasons set out above, we GRANT the Board’s application for enforcement
of its order.
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