# National Labor Relations Board v. Doug Neal Management Company

> Court of Appeals for the Sixth Circuit · May 5, 1980 · 620 F.2d 1133

URL: https://www.frixlaw.com/law-library/cases/9466700

## Case

- **Full name:** NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DOUG NEAL MANAGEMENT COMPANY, Respondent
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** May 5, 1980
- **Citations:** 620 F.2d 1133
- **Precedential status:** Published
- **Opinion:** Dissent by Keith
- **Judges:** Weick, Keith, Cecil
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

KEITH, Circuit Judge,
dissenting.
I respectfully dissent from the position that the application by the National Labor Relations Board for the enforcement of its order in this action should be denied. I cannot agree that “[tjhere was not an iota of evidence in the record of anti-union bias or prejudice on the part of Neal, Del Webb Corporation or Realty.”
Determinations of the Administrative Law Judge, whose responsibility it is to assess the credibility of the witnesses and determine the facts in the first instance, are entitled to be upheld if supported by substantial evidence. In this case, the ALJ found after weighing the evidence, that Neal was opposed to his employees securing the protection of a union contract, and decided to preclude the possibility of bargaining for a contract that he did not want by discharging the engineers without prior warning, and camouflaging the discharges under the umbrella of automation. The ALJ concluded that while it was possible that some consideration was being given to automation prior to the discharges, the immediate adoption and acceleration of the automation process was but a further implementation of the decision to discharge the engineers.
The ALJ supported his finding that no decision to automate had ripened at the time of discharge — that, rather, automation was merely one of several alternatives under consideration — with testimony to the effect that on February 6, Neal told one of the engineers after his discharge that he would have to call in a servicing contractor. In addition, the ALJ credited the contractor’s testimony that he was told to take over the work on February 6 after the discharged engineer was told by Neal that a servicing contractor would have to be called in.
Moreover, the ALJ found that Neal presented no credible evidence of economic necessity. To the contrary, Neal’s offer of a salary increase to the engineers remaining after the earlier contemplated discharge of only one engineer militates against the defense of economic necessity, as does Neal’s own claim that he told Epperson, after the decision to automate had been made, that if he eventually found that he did not need Grooms and Smith as engineers, he would reclassify them as maintenance employees. Therefore, from Neal’s own testimony comes an admission that the engineers involved in the discharge were to be retained in some capacity even if automation were effected.
In my opinion, there is substantial evidence on this record to support the ALJ’s finding of 8(a)(1) and (3) violations of the Act. I would affirm the finding of the violation as well as that part of the NLRB Order that requires the company to cease and desist from the unfair labor practices found, and from “in any other manner” interfering with, restraining, or coercing employees in the exercise of their Section 7 rights. I would also affirm that part of the Order requiring the Company to make the employees whole for lost wages and to post *1141 the customary notices. In addition, I would remand to the Board for a determination, in light of its finding that engineering positions no longer exist at the plant, of the feasibility of its order for full and immediate reinstatement of the employees to their former jobs, or to substantially equivalent jobs.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9466700. Public record. Not legal advice.