Opinion

International Union, United Automobile, Aerospace & Agricultural Implement Workers of America v. National Labor Relations Board

  • 514 F.3d 574
  • 183 L.R.R.M. (BNA) 2583
  • 2008 U.S. App. LEXIS 1784
Court
Court of Appeals for the Sixth Circuit
Filed
Jan 28, 2008
Status
Published
Author
Rogers
On the bench
Gibbons, Norris, Rogers
Cited by
8 cases
Authority
More cited than 9.7%

The opinion

ROGERS, Circuit Judge,

dissenting.

This case presents both a close factual issue and a close legal issue. Because on balance I would resolve both issues in favor of the union, I respectfully dissent.

*587 When Ahern put down his co-worker’s name as the sender of a complaint, he may have contemplated that the co-worker would get in trouble. But the ALJ explicitly found that Ahern did not so contemplate, and I would accept that conclusion. JA 10. I recognize that deference regarding fact-finding under the substantial evidence standard is accorded to the Board and not to the ALJ. But where the factual determination of an ALJ is based on a credibility determination, we may more readily conclude that the Board’s determination, if indeed contrary, lacks substantial evidence. See NLRB v. Universal Camera Corp., 190 F.2d 429, 430-31 (2d Cir.1951) (L. Hand, J., on remand); see also Tel Data Corp. v. NLRB, 90 F.3d 1195, 1198 (6th Cir.1996).

Assuming then that Ahern did not intend, but at most created a small possibility, that his coworker would get in trouble, Ahern did not lose the statutory protection afforded his sending an anonymous work-related complaint. The Board of course has primary responsibility for defining what types of actions are sufficient to lose protection of the Act. But such definitional power cannot — in light of the apparent congressional policy — be so broad as to let the Board permit the termination of an employee for otherwise-protected conduct because of such a minor risk.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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