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

WILKINSON, Circuit Judge,

dissenting:

Many of Transpersonnel’s drivers lawfully went out on an economic strike. Transpersonnel hired replacement workers and promptly used statements made by these replacement workers to decertify the union. The question before us today is not what we might have done if faced with this case in the first instance. Rather, our review is limited to whether the Board took a permissible view of the evidence in finding that the company unlawfully solicited anti-union statements from its replacement employees. With all respect for my good colleagues, I think that the Board did.

The question of whether or not a company’s actions would tend to coerce an average employee is one at the heart of the Board’s expertise. An employer’s conduct must be examined “in the context of its labor relations setting.” J.P. Stevens & Co. v. NLRB, 638 F.2d 676 , 687 (4th Cir.1980) (citations omitted). In other words, a company’s conduct must be judged by how a worker, who is economically dependent on an employer, would understand the company’s actions.

In this regard, the Board’s findings of fact must be sustained, even if a reviewing court “might have reached a different result had [it] heard the evidence in the first place.” NLRB v. Nueva Eng’g, Inc., 761 F.2d 961, 965 (4th Cir.1985) (citations omitted). Deference to the Board’s findings of fact is particularly appropriate where credibility determinations are at issue, and “absent exceptional circumstances, the ALJ’s credibility findings, ‘when adopted by the Board are to be accepted by the [reviewing] court.’” NLRB v. Air Prods. and Chems., Inc., 717 F.2d 141, 145 (4th Cir.1983) (alterations in original) (citations omitted). Rather than according the appropriate deference to the ALJ who heard the testimony and then credited one set of inferences over another, the majority reconstructs the dynamics of the April 6 meeting in order to draw its own conclusions. In so doing, it has over-stepped its bounds as a reviewing court.

The ALJ found that the conduct of Hus-var and Burrell at the April 6 meeting had the tendency to coerce six replacement employees in the exercise of their rights, and the Board adopted this finding. The majority contends that this finding lacks support in the record because it concludes that the company was doing no more than giving out accurate information and acting *191 in a neutral fashion. However, there is substantial evidence to support the Board’s view that Husvar’s con-duct created an atmosphere in which the drivers would feel pressured to sign the “no union” petition.

The meeting was attended by a small group consisting mostly of newly-hired striker replacements. This gathering was their first official meeting with the company. One of the purposes of the meeting was to discuss their employment status as replacements. The only non-replacement driver present was Raymond Wray, who began the session by asking, at Husvar’s behest, what could be done to get rid of the union. Husvar responded by telling the drivers that the company would need some written proof of the employees’ anti union sentiments in order to oust the union. It was hardly unreasonable for the Board to find that under the totality of the circumstances, Husvar’s statement would tend to make the replacement employees feel that the company was trying to elicit anti-union statements from them. These newly-hired workers, replacement drivers whose standing with the company was bound to be of concern to them, would understandably want to please their employer. Because of the small number of employees at the meeting, the company would likely become aware of each and every individual who chose not to sign a “no union” note. Thus an employee who did not wish to sign the petition might nonetheless have done so rather than risk the boss’s displeasure and be branded a union sympathizer right at the start of his employment.

Moreover, Husvar could simply have answered Wray’s question when it was first asked rather than having him hold it until the meeting when all the workers would be present. The company defends this action as one of administrative efficiency, contending that Husvar was merely saving himself the trouble of repeating the information again at the meeting. But this assumes that at least some of the replacement workers had also independently decided that they wanted to decertify the union. Husvar had no indication of this except for Wray’s statement “I don’t want union representation. I don’t think the people want union representation.” Hus-var did not know whether or not Wray had spoken to most, or even any, of the replacement workers before Husvar decided that all of the drivers needed to hear information on how to get rid of the union. While it is not a necessary inference that Husvar was trying to pressure these drivers in the exercise of their rights, it is certainly a permissible one. The Board’s finding that Husvar’s actions would tend to coerce newly-hired workers to sign a “no union” note at a small initial meeting presided over by the employer’s chosen representatives is not without support in the record.

The right to self-organization is the fundamental guarantee of the National Labor Relations Act. See 29 U.S.C. § 157 (2000). To that end, employers are forbidden to “interfere with, restrain, or coerce employees in the exercise of [their] rights.” 29 U.S.C. § 158 (a)(1). The Act makes clear that companies are to maintain neutrality towards the union, taking no actions which might encourage or discourage employees’ union activities. The Board found that Transpersonnel did not abide by these rules when dealing with its employees. We may not have come to the same conclusion if we were viewing this case in the first instance, but the Board’s finding had support in the record and therefore should be sustained. Because I would uphold the Board’s findings with respect to the April 6 meeting, I have no reason to reach the other alleged violations of the Act. I would *192 thus enforce the Board’s order and deny the cross-petition for review.