National Labor Relations Board v. Transpersonnel, Incorporated, Transpersonnel, Incorporated v. National Labor Relations Board

LUTTIG, Circuit Judge,

concurring in part and dissenting in part:

I concur in the opinion for the court, with the exception of Part IV.D. From that part of the court’s opinion, I dissent. Although the ALJ credited Forkey’s testimony over Husvar’s, Forkey’s own testimony does not support the Board’s adopted finding that he was illegally solicited — as the majority’s opinion acknowledges. As the majority explains, the ALJ’s “primary conclusion” supporting the illegal solicitation finding as to Forkey — i.e., that Husvar asked Forkey for a statement saying that he did not want union representation — is directly contradicted by Forkey’s own testimony. Forkey testified that Husvar sought him out “merely [to] ask[ ][him] for a statement indicating whether or not he wanted the Union,” ante at 186 (emphasis added), and then Husvar accepted the note Forkey wrote him in response to his request. J.A. 38. Indeed, on the basis of this testimony by Forkey himself, the majority rejects as “clearly not supported by substantial evidence” the ALJ’s conclusion that Husvar asked Forkey to sign a paper that he did not want union representation.

Notwithstanding Forkey’s own testimony that he was merely asked for a statement as to whether or not he supported the union (which the majority accepts), *190 and without offering any other evidence in support of its conclusion that Forkey reasonably would have been intimidated or coerced, the majority finds that substantial evidence supports the Board’s judgment that Transpersonnel unlawfully solicited Forkey.

If we are prepared to affirm the Board’s conclusion, we should at least be prepared to recite the evidence on the basis of which we render that disposition, even if (or especially if) that evidence is “very slim evidence at best,” ante at 186 n. 12. When the substantiality of evidence supporting a conclusion is challenged, mere conclusory statements that substantial evidence exists give rise to a legitimate inference that no such evidence exists in fact.

Because the majority rejects as “clearly not supported by substantial evidence” the ALJ’s finding that Husvar asked Forkey to sign a paper that he did not want union representation; because it offers no evidence beyond this rejected conclusion in support of the Board’s judgment that Hus-var’s conduct had a reasonable tendency to intimidate or coerce Forkey in the exercise of his section 7 rights; and because I am aware of no such evidence, I dissent from Part IV.D of the court’s opinion.