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

> Court of Appeals for the Sixth Circuit · January 28, 2008 · 514 F.3d 574

URL: https://www.frixlaw.com/law-library/cases/8411063

## Case

- **Full name:** INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW), AFL-CIO Leo Andre Ahern, an individual v. National Labor Relations Board, Ogihara America Corp., Intervenor
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** January 28, 2008
- **Citations:** 514 F.3d 574; 183 L.R.R.M. (BNA) 2583; 2008 U.S. App. LEXIS 1784
- **Precedential status:** Published
- **Opinion:** Dissent by Rogers
- **Judges:** Gibbons, Norris, Rogers
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8411063

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8411063. Public record. Not legal advice.