Filed: Oct. 08, 2014
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-2362 GESTAMP SOUTH CAROLINA, L.L.C., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 12-1041 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GESTAMP SOUTH CAROLINA, L.L.C., Respondent. On Remand from the Supreme Court of the United States. (S. Ct. No. 13-1103) Decided on Remand: October 8, 2014 Before TRAXLER, Chief Judge, KEENAN, Circuit Judge, and R. Bryan HARWELL, United States District Judge for the District
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-2362 GESTAMP SOUTH CAROLINA, L.L.C., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 12-1041 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GESTAMP SOUTH CAROLINA, L.L.C., Respondent. On Remand from the Supreme Court of the United States. (S. Ct. No. 13-1103) Decided on Remand: October 8, 2014 Before TRAXLER, Chief Judge, KEENAN, Circuit Judge, and R. Bryan HARWELL, United States District Judge for the District ..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-2362
GESTAMP SOUTH CAROLINA, L.L.C.,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
No. 12-1041
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
GESTAMP SOUTH CAROLINA, L.L.C.,
Respondent.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 13-1103)
Decided on Remand: October 8, 2014
Before TRAXLER, Chief Judge, KEENAN, Circuit Judge, and R. Bryan
HARWELL, United States District Judge for the District of South
Carolina, sitting by designation.
Petition for review granted in part and denied in part; cross-
application for enforcement granted in part and denied in part
by published opinion. Chief Judge Traxler wrote the opinion, in
which Judge Keenan and Judge Harwell joined.
John J. Coleman, III, Marcel L. Debruge, BURR & FORMAN LLP,
Birmingham, Alabama, for Gestamp South Carolina, L.L.C. Stuart
F. Delery, Assistant Attorney General, Beth S. Brinkmann, Deputy
Assistant Attorney General, Douglas N. Letter, Scott R.
McIntosh, Melissa N. Patterson, Benjamin M. Shultz, Dara S.
Smith, Attorneys, Appellate Staff, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C.; Richard F. Griffin, Jr., General
Counsel, Jennifer Abruzzo, Deputy General Counsel, John H.
Ferguson, Associate General Counsel, Linda Dreeben, Deputy
Associate General Counsel, Usha Dheenan, Supervisory Attorney,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for the Board.
2
TRAXLER, Chief Judge:
Gestamp South Carolina, LLC, petitioned for review of an
order of the National Labor Relations Board (“the NLRB” or “the
Board”) affirming the decision of an administrative law judge
(“ALJ”) finding that Gestamp discharged employees David Anthony
Kingsmore and Reggie Alexander in violation of the National
Labor Relations Act (“the NLRA”) and that Gestamp was liable for
another violation of the NLRA as well. The Board cross-applied
for enforcement of the order.
In an earlier decision, we granted Gestamp’s petition for
review, denied the Board’s cross-application for enforcement,
vacated the Board’s decision, and remanded the case for further
proceedings, based upon our determination that the recess
appointment of Board Member Craig Becker deprived the Board of a
valid quorum to act when it issued its order. The Supreme Court
subsequently granted the Board’s petition for certiorari,
vacated our opinion, and remanded for further consideration in
light of its decision in NLRB v. Noel Canning, 134 S. Ct. 2550
(2014).
For the reasons set forth below, we now conclude that Board
Member Becker’s recess appointment was valid. We grant
Gestamp’s petition for review in part and deny it in part, and
we grant the Board’s cross-application for enforcement in part
and deny it in part.
3
I.
In January 2013, after oral argument had been held in this
case, Gestamp raised as an additional issue the question of
whether the Board had a quorum of validly appointed Board
Members when it issued its order. Specifically, Gestamp argued
that Board Member Craig Becker had been unconstitutionally
appointed to the Board during an intra-session recess of the
Senate in March 2010, in violation of the Recess Appointments
Clause. See U.S. Const. art. II, § 2, cl. 3.
Shortly thereafter, this court issued an opinion in a
separate case finding invalid three different recess
appointments that had been made to the Board during a three-day
intra-session recess in January 2012. See NLRB v. Enterprise
Leasing Co. Southeast, 722 F.3d 609, 652 (4th Cir. 2013). Among
other things, the Enterprise Leasing panel held that the Recess
Appointments Clause permits the President to make such
appointments only during inter-session Senate recesses, not
during intra-session recesses. See id.; see also NLRB v. New
Vista Nursing & Rehab., LLC.,
719 F.3d 203, 208, 221 (3d Cir.
2013) (reh’g granted, Aug. 11, 2014); Noel Canning v. NLRB,
705
F.3d 490, 506 (D.C. Cir. 2013), aff’d on other grounds, NLRB v.
Noel Canning,
134 S. Ct. 2550 (2014).
In October 2013, we applied Enterprise Leasing to this case
and held that Board Member Becker’s appointment was likewise
4
invalid. See Gestamp v. NLRB, 547 F. App’x 164, 165 (4th Cir.
2013) (per curiam); see also New Vista, 719 F.3d at 221 (holding
that “‘the Recess of the Senate’ means only intersession
breaks,” and, therefore, “that [Board] Member Becker’s
appointment was invalid”). Accordingly, we vacated the Board’s
decision, and remanded the case to the NLRB for further
proceedings. The Board then petitioned the United States
Supreme Court for a writ of certiorari.
In NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), the
Supreme Court affirmed the D.C. Circuit’s determination that the
recess appointments of the three Board Members at issue in that
case were invalid. In doing so, however, the Supreme Court
disagreed with the lower court’s reasoning, making it clear that
the Recess Appointments Clause applies to both inter-session
recesses and “intra-session recess[es] of substantial length,”
id. at 2561, as well as to Board vacancies that occur prior to
or during the recess,
id. at 2567. The Court additionally held,
however, that Senate “pro forma sessions” must be considered,
id. at 2574, and affirmed the judgment because the resulting
three-day recess at issue there was “too short a time to bring
[the] recess within the scope of the Clause.”
Id. at 2557; see
id. at 2578.
Relying heavily on historical practice, the Court
confronted the “interpretive problem [in] determining how long a
5
recess must be in order to fall within the Clause,” id. at 2565-
66, and concluded “that a recess of more than 3 days but less
than 10 days [would be] presumptively too short to fall within
the Clause,”
id. at 2567. The addition of “the word
‘presumptively,” the Court explained, was “to leave open the
possibility that some very unusual circumstance – a national
catastrophe, for instance, that renders the Senate unavailable
but calls for an urgent response – could demand the exercise of
the recess-appointment power during a shorter break.”
Id. 1
Shortly thereafter, the Supreme Court granted the Board’s
petition for a writ of certiorari in this case, vacated our
judgment, and remanded for further consideration in light of its
decision in Noel Canning. See NLRB v. Gestamp,
134 S. Ct. 2901
(2014). In contrast to the recess appointments of the Board
members at issue in Noel Canning and Enterprise Leasing, which
took place over a three-day recess in January 2012, the recess
appointment of Board Member Becker took place over a two-week
recess in March 2010. Accordingly, we now hold that Board
Member Becker was validly appointed to the Board when it issued
1
Recognizing that there were “petitions [pending] from
decisions in other cases involving challenges to the appointment
of Board Member Craig Becker,” as well as “similar challenges .
. . pending in the Courts of Appeals,” the Court believed it was
important to answer all three questions presented in the case
before it, Noel Canning, 134 S. Ct. at 2558, including the
proper “calculation of the length of a ‘recess,’”
id. at 2556.
6
the order in this case. See Teamsters Local Union No. 455 v.
NLRB, No. 12-9519, 2014 WL 4214920, at *2 (10th Cir. Aug. 27,
2014) (noting that because Board Member Becker “was appointed
during an intra-session recess exceeding two weeks . . ., there
seems little reason to [now] doubt the validity of [his]
appointment.”). Having already had the benefit of full briefing
and oral argument on the remaining questions presented in this
case, we now proceed to decide Gestamp’s original challenges to
the Board’s order.
II.
A.
LSP Automotive (“LSP”) owned and operated a plant in Union,
South Carolina that manufactures metal body parts for BMW
vehicles that BMW assembles at a nearby facility. In May 2007,
LSP hired Kingsmore, a former BMW employee, as a quality
inspector. LSP hired Alexander in June 2007 as a supply
coordinator.
On October 1, 2009, Gestamp purchased the facility from LSP
and retained LSP’s employees and personnel policies, including
those provided in LSP’s employee handbook. The handbook
provided, as is relevant here, that “[m]isleading or false
statements . . . made during an interview” or “[f]alse . . .
entries . . . in any books or records of the Company” could
7
result in LSP withdrawing any employment offer or in
termination. J.A. 371, 377. The handbook provided for multiple
levels of discipline depending upon the severity of the
misconduct but reserved for the company the right, in its sole
discretion, to impose the level of punishment it deemed
appropriate.
Union Activity
Kingsmore contacted the United Steelworkers (“the Union”)
in late December 2009 regarding the possible organization of the
facility’s hourly employees. Alexander and Kingsmore were both
among the seven or eight employees on an organizing committee
that the Union helped form and which met approximately four
times in January and early February 2010. Alexander and
Kingsmore also both spoke to other employees about supporting
the Union. 2 The Union’s strategy, which was conveyed to
Alexander, Kingsmore, and others, was to keep organizing efforts
secret from the management. Nevertheless, management became
aware of the efforts as a result of many questions it was
receiving from employees.
Kingsmore’s and Alexander’s roles in the unionization
effort also became known by some plant supervisors. In early
February, Kingsmore told Supervisor and Quality Engineer Michael
2
The Union decided in mid-February to discontinue its
efforts to organize.
8
Fink that he intended to unionize the plant. Fink warned
Kingsmore to be careful because if Gestamp General Manager
Carmen Evola found out, Kingsmore would be “gone.” J.A. 433
(internal quotation marks omitted). Kingsmore also told
Supervisor Michael Sullivan that he was going to try to unionize
Gestamp’s employees. On another occasion, however, Kingsmore
called General Manager Evola to deny possible rumors that he was
part of the unionization effort.
In early to mid-February 2010, management conducted group
meetings explaining its position concerning the Union. Several
statements at the meetings showed that the union issue was
evoking very strong feelings, including one threat by an
employee that when he found out who called the Union, the
employee and others would “whip his ass.” J.A. 101. After the
meeting, two employees together and another individually
approached Alexander and accused him of being one of those
attempting to organize the facility.
Alexander related these accusations to Maintenance
Supervisor Daniel Morris. Following that conversation, Fink
told Alexander, with another employee in the vicinity, “I didn’t
know you were one of the ones that were trying to bring the
Union in.” J.A. 46 (internal quotation marks omitted).
Alexander offered no response.
9
Kingsmore’s Suspension and Discharge
On August 13, 2009, Kingsmore and Morris were instructed as
part of their jobs to go on a tour of the BMW facility. When
they arrived at the facility, Morris was allowed in, but a BMW
guard refused to allow Kingsmore to enter. BMW representatives
did not give him or Morris any explanation for denying Kingsmore
entry. Kingsmore immediately called his supervisor, Alex
Keller, to report the incident. According to Kingsmore, he also
told Evola about the incident that day when he returned to LSP.
In September 2009, Kingsmore applied for an internal
promotion to a quality supervision position and interviewed with
Human Resources Director Susan Becksted for the position later
that month. During the interview, Kingsmore told Becksted that
he had left his previous job with BMW because of the length of
the drive to BMW’s plant, the long hours, and his desire to
spend more time with his young family. Despite the fact that
the job for which he was interviewing required him to have
access to BMW’s premises, Kingsmore did not mention that he had
been barred from the facility. Kingsmore did not receive the
promotion.
In early February 2010, Evola told Becksted that he had
just learned that Kingsmore had been banned from BMW’s premises.
Becksted told Evola that the ban caused her concern for two
reasons. First, since she knew other Gestamp employees who had
10
worked at BMW previously but were not banned from the facility,
she questioned whether Kingsmore had lied when he told her he
had left BMW voluntarily. Second, Gestamp needed its employees
to have access to BMW’s premises at certain times. Evola asked
Becksted to investigate both why Kingsmore left BMW and why he
was banned from the premises.
Becksted began by contacting Keller, who confirmed that
Kingsmore had been denied access to BMW’s facility. After
consulting again with Evola, Becksted then met with Kingsmore
and his manager Juergen Weckermen on February 17. Kingsmore
continued to maintain that the reasons he had given in his
interview for leaving BMW were correct. Becksted explained that
she needed to know the reason for the ban and, in that regard,
asked him to sign a release that she could provide to BMW. When
Kingsmore hesitated, Becksted told him that he could be
terminated if he refused to sign, and Kingsmore relented and
signed the document. After consulting with Evola regarding
whether to give Kingsmore a copy of the release, Becksted
suspended Kingsmore with pay, effective immediately, and told
him that during the suspension he was not to enter Gestamp’s
premises or contact Gestamp employees since doing so would
interfere with her investigation.
Becksted sent the release to BMW on February 17 but
received no response. She testified that she contacted BMW
11
within two business days of Kingsmore’s suspension and briefly
spoke to someone in human resources who refused to give her any
information. She also testified that she did not remember
whether she documented the conversation and she does not recall
any details about the human resources employee to whom she
spoke. On February 22, she told Kingsmore that she did not want
her investigation to drag on and that he had until 5:00 p.m. on
February 24 to obtain documentation from BMW explaining the
reason he left BMW. BMW, however, would only provide Kingsmore
with written documentation of the dates of his employment.
Kingsmore faxed that documentation to Becksted on the afternoon
of February 24. Upon receiving the information, Becksted
informed Kingsmore that it was not what she had requested and
that he was terminated. Kingsmore’s employee separation
checklist listed the reasons for his discharge as
“[f]alsification of prior work history, not supplying proper
documentation from prior employer as requested and not supplying
information for reason of BMW’s refusal to allow employee on
property.” J.A. 348.
Alexander’s Discharge
It was normal procedure for Gestamp employees to create
weekly self-prepared timesheets that listed their start times,
ending times, and total hours and to submit those to their
supervisors. The company also maintained a system whereby
12
employees checked in and out of work electronically, and the
resulting records were compared by supervisors to the employee-
submitted time sheets.
Alexander had a pre-prepared timesheet template on his
computer that included 7:00 a.m. start times. Alexander arrived
late to work on both February 9 and 10. In preparing his time
sheet – probably on Friday, February 12 – Alexander struck
through the 7:00 a.m. start time for February 10 and wrote in
the time he had actually arrived, which was 7:15 a.m.; however,
he neglected to make any change noting that on February 9 he had
arrived at 7:38 a.m. With Alexander having failed to make that
change, the timesheet he submitted indicated that he arrived on
time on February 9. Alexander’s supervisor, Sullivan, noted the
discrepancy in comparing the employee-submitted timesheets to
the electronic records, advised Alexander of the problem, and
changed Alexander’s time sheet to reflect that Alexander had
arrived at 7:38 a.m., and Alexander was not paid for the extra
38 minutes. When Becksted learned of the discrepancy, she met
with Alexander on February 19, informed him that he had violated
company policy, and terminated him for falsifying his timesheet.
Complaint
Based on these facts, the Board’s Acting General Counsel
issued a complaint alleging unfair labor practice charges
against Gestamp. As is relevant to this appeal, the complaint
13
alleges that Gestamp violated 29 U.S.C. § 158(a)(3) and (1) by
suspending and discharging Kingsmore and by discharging
Alexander because of their union organization efforts (“the
discharge claims”) and that Fink violated 29 U.S.C. § 158(a)(1)
by warning Kingsmore that he would be fired if Evola found out
he was trying to unionize the facility (“the threat claim”).
Following a hearing, the ALJ found that Gestamp and Fink
had committed the alleged violations. Regarding the discharge
claims, the ALJ concluded that the General Counsel proved
protected activity on the part of Alexander and Kingsmore since
both participated actively in the union campaign. He concluded
that knowledge of Alexander’s and Kingsmore’s union activity
could be imputed to Gestamp by virtue of its supervisors’
awareness of their participation. In response to an argument by
Gestamp that the supervisors with knowledge were not involved in
the employment decisions at issue, the ALJ acknowledged that the
record was unclear whether Becksted made the adverse employment
decisions herself or whether she consulted with others in making
them. Nevertheless, the ALJ determined that knowledge of the
union activity by Gestamp’s “management” was established by
circumstantial evidence, namely the evidence that the union
campaign was highly charged, as exemplified by the threat of
physical violence made by an employee against union supporters
and by the accusations of union involvement made against
14
Alexander. J.A. 442. The ALJ also found that Kingsmore was
suspended, and Alexander and Kingsmore were fired, because of
anti-union animus and that Gestamp failed to show that it would
have taken the same actions even in the absence of the protected
activity.
The ALJ further found that Fink’s warning to Kingsmore that
Kingsmore would be fired if Evola learned of Kingsmore’s attempt
to unionize the plant constituted an unlawful threat under §
8(a)(1). The ALJ concluded that Fink’s statement “reasonably
conveyed the message that Kingsmore’s protected activities might
harm his employment and thus reasonably could have caused
Kingsmore to fear reprisals for engaging in protected
activities.” J.A. 498.
The ALJ determined that Gestamp was liable for the
statement, rejecting the company’s argument that Fink’s
authority over two Gestamp employees that worked at the BMW
plant was not sufficient to make him a supervisor. Having found
the aforementioned violations, the ALJ recommended an order
requiring Gestamp to cease and desist from its unfair labor
practices, to reinstate Kingsmore and Alexander and make them
whole, to remove any mention of the terminations from its files,
and to post the required notice.
On appeal, a three-member panel of the NLRB affirmed the
ALJ’s decision and adopted the ALJ’s recommended order with
15
minor modifications not relevant here. Gestamp now petitions
for review of the Board order and the Board cross-petitions for
enforcement of the order.
B.
Gestamp first argues that because the ALJ did not find that
the official who made the challenged employment decisions knew
of the employees’ union activity, the ALJ erred in concluding
that the General Counsel established a prima facie case as to
the discharge claims. We agree.
“Although we ordinarily review questions of law de novo,
the NLRB’s interpretation of the Act is entitled to deference if
it is reasonably defensible.” Industrial TurnAround Corp. v.
NLRB, 115 F.3d 248, 251 (4th Cir. 1997). However, the Board is
required “to follow the law as set forth by the relevant court
of appeals.” NLRB v. Flambeau Airmold Corp.,
178 F.3d 705, 712
(4th Cir. 1999).
It is a violation of 29 U.S.C. § 158(a)(3) and (a)(1) to
discharge an employee for engaging in protected union activity.
See NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 397-98 (1983),
overruled on other grounds by Director, OWCP v. Greenwich
Collieries,
512 U.S. 267 (1994); Valmont Indus. v. NLRB,
244
F.3d 454, 463 (5th Cir. 2001). In Transportation Management
Corp., the Supreme Court approved the test set forth by the
Board in Wright Line,
251 N.L.R.B. 1083 (1980), for mixed-motive
16
cases. See 462 U.S. at 401-04. Under that test, the General
Counsel bears the burden of making a prima facie case that the
challenged employment decision was at least partly motivated by
discriminatory intent. See Medeco Sec. Locks, Inc. v. NLRB,
142
F.3d 733, 741-42 (4th Cir. 1998). Meeting this burden requires
the General Counsel to prove “(1) that the employee was engaged
in protected activity, (2) that the employer was aware of the
activity, and (3) that the activity was a substantial or
motivating reason for the employer’s decision.” FPC Holdings,
Inc. v. NLRB,
64 F.3d 935, 942 (4th Cir. 1995). The employer-
knowledge requirement entails proving knowledge “on the part of
the company official who actually made the discharge decision.”
Firestone Tire & Rubber Co. v. NLRB,
539 F.2d 1335, 1338 (4th
Cir. 1976); see Vulcan Basement Waterproofing of Illinois, Inc.
v. NLRB,
219 F.3d 677, 685 (7th Cir. 2000); Pioneer Natural Gas
v. NLRB,
662 F.2d 408, 412 (5th Cir. 1981). Even if the General
Counsel meets this burden, the employer can avoid liability if
it can prove that the employee would have been discharged for
legitimate reasons even absent the protected activity. See
Medeco Sec. Locks,
Inc., 142 F.3d at 742.
As Gestamp asserts, the ALJ never found that the official
making the discharge decisions was aware of Kingsmore’s and
Alexander’s union activity, but rather only imputed Gestamp’s
supervisors’ knowledge to Gestamp and alternatively found that
17
Gestamp’s management knew of the activity. 3 In fact, the ALJ
acknowledged that the record was unclear whether Becksted made
the adverse employment decisions herself or whether she
consulted with others in making them.
The General Counsel defends the ALJ’s decision on two
bases. He first suggests that Gestamp bore the burden of
proving who made the discharge decisions. He also argues that
supervisors’ knowledge of union activity can be imputed to the
employer.
The General Counsel’s first argument is easily handled,
because it is the General Counsel and not Gestamp that bears the
burden of proving the General Counsel’s prima facie case,
including the knowledge requirement. See Firestone, 539 F.2d at
1338-39 (“[T]he burden of establishing . . . knowledge rest[s]
on the Board.”). 4 As for the second argument, the General
3
Gestamp also argues that the ALJ, instead of requiring
that the General Counsel prove anti-union animus by a
preponderance of the evidence, required only that the General
Counsel produce evidence that could support an inference of
anti-union animus. We disagree. The ALJ explained that “[t]he
General Counsel must show, either by direct or circumstantial
evidence, that the employee engaged in protected conduct, the
employer knew or suspected the employee engaged in such conduct,
the employer harbored animus, and the employer took action
because of this animus.” J.A. 440 (emphasis added). Indeed,
the ALJ’s order makes clear that he found each of these elements
was proven by a preponderance of the evidence.
4
The General Counsel claims that our analysis in Firestone
concerning the knowledge requirement was mere nonbinding dicta,
(Continued)
18
Counsel is incorrect to the extent he suggests that supervisors’
knowledge of an employees’ union activity is automatically
imputed to the employer. See id. at 1339 (refusing to impute
supervisors’ knowledge of employees’ union activity to decision-
maker). On the other hand, to the extent that the General
Counsel argues only that a finding of decision-maker knowledge
can be based on wholly circumstantial evidence, he is certainly
correct. See NLRB v. Grand Canyon Mining Co.,
116 F.3d 1039,
1048 (4th Cir. 1997). However, as we have explained, the ALJ
never found, based on circumstantial evidence or otherwise, that
any Gestamp official involved in the decisions to suspend or
fire Alexander or Kingsmore was aware of their union activity.
Nor could the ALJ have made such a finding based on the record
before him.
C.
Gestamp also challenges the ALJ’s finding that Fink’s
warning to Kingsmore about Evola constituted a § 8(a)(1)
violation. On this violation, we disagree with Gestamp.
We are bound by the Board’s factual findings and
application of law to the facts “if they are supported by
apparently because it was only one of two different bases
supporting the grant of the petition for review in that case.
However, alternative holdings are not dicta. See MacDonald,
Sommer & Frates v. Cnty. of Yolo, 477 U.S. 340, 346 n.4 (1986);
United States v. Fulks,
454 F.3d 410, 434-35 (4th Cir. 2006).
19
substantial evidence on the record as a whole.” WXGI, Inc. v.
NLRB, 243 F.3d 833, 840 (4th Cir. 2001); see 29 U.S.C. § 160(e),
(f). “Substantial evidence” is
such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. It is
more than a scintilla but less than a preponderance.
Although a reviewing court accords due deference to
the Board’s factual findings under the substantial
evidence standard of review, the court does not
mechanically accept those findings.
Vance v. NLRB, 71 F.3d 486, 489-90 (4th Cir. 1995) (per curiam)
(alterations, citations, and internal quotation marks omitted).
We may not “displace the Board’s choice between two fairly
conflicting views, even though the court would justifiably have
made a different choice had the matter been before it de novo.”
Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951).
Section 7 of the NLRA guarantees employees the “right to
self-organization, to form, join, or assist labor
organizations,” and the right “to engage in other concerted
activities for the purpose of . . . mutual aid or protection.”
29 U.S.C. § 157. Section 8(a)(1) of the Act in turn protects
those rights by making it an unfair labor practice for an
employer “to interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed in section 7.” 29 U.S.C.
§ 158(a)(1). The NLRA provides that “[t]he term ‘employer’
includes any person acting as an agent of an employer.” 29
U.S.C. § 152(2). We have held that it is proper to attribute
20
liability to an employer for statements of a supervisor. See
Benson Veneer Co. v. NLRB, 398 F.2d 998, 1000 (4th Cir. 1968).
The NLRA defines “supervisor” to
mean[] any individual having authority, in the
interest of the employer, to hire, transfer, suspend,
lay off, recall, promote, discharge, assign, reward,
or discipline other employees, or responsibly to
direct them, or to adjust their grievances, or
effectively to recommend such action, if in connection
with the foregoing the exercise of such authority is
not of a merely routine or clerical nature, but
requires the use of independent judgment.
29 U.S.C. § 152(11) (emphasis added).
Gestamp raises two challenges to the ALJ’s finding that it
violated § 8(a)(1), and we will address them seriatim.
Gestamp first argues that substantial evidence did not
support the ALJ’s finding that Fink was a supervisor for
purposes of the alleged § 8(a)(1) violation. We disagree. The
ALJ found that Fink was a supervisor by virtue of his authority
over two Gestamp employees that worked at the BMW plant. The
ALJ found that Fink gave them instructions; that they report to
him or another employee, Beasley, if they have problems; and
that the employees inform Fink or Beasley if they need to take
time off for an emergency and that Fink then makes the initial
decision whether to approve the leave. Fink and Beasley also
prepare the two employees’ biannual evaluations and review their
training reports. The ALJ noted that while a third employee
retained final authority regarding the emergency leave and
21
evaluation questions, he had never disagreed with Fink’s
recommendations. We conclude that these factual findings were
supported by substantial evidence and warranted the ALJ’s
conclusion that Fink was a supervisor. See NLRB v. Yeshiva
Univ., 444 U.S. 672, 683 n.17 (1980).
Gestamp next challenges the ALJ’s finding that the
conversation at issue took place as Kingsmore said it did.
Gestamp argues that Fink’s testimony regarding the conversation
contradicted Kingsmore’s account of it. Gestamp further
contends that the ALJ found Fink to be “truthful and reliable”
based in part on his “candid[]” testimony concerning the
conversation at issue, but the ALJ found Kingsmore “not fully
reliable.” J.A. 426, 429. In light of the ALJ’s credibility
findings, Gestamp contends that no substantial evidence supports
the finding that Fink told Kingsmore that if Evola discovered
his pro-union activity, Kingsmore would be “gone.” See Weather
Shield Mfg., Inc. v. NLRB, 890 F.2d 52, 59 (7th Cir. 1989)
(reversing NLRB finding based on witnesses ALJ discredited). We
disagree with Gestamp’s argument. Nothing prevented the ALJ
from crediting portions of each witness’s testimony and
discrediting others. And while the ALJ found that Fink was a
reliable witness and that he testified candidly concerning the
conversation at issue, part of his candor was admitting that he
did not recall all the details of the conversation. In light of
22
that fact, there was nothing contradictory about the ALJ’s
decision to accept Kingsmore’s account.
III.
For the foregoing reasons, we grant the petition for review
and deny the cross-application for enforcement with respect to
the discharge claims. We deny the petition for review with
respect to the threat claim and grant the cross-application for
enforcement with respect to that claim.
PETITION FOR REVIEW GRANTED IN PART AND DENIED IN
PART; CROSS-APPLICATION FOR ENFORCEMENT GRANTED
IN PART AND DENIED IN PART
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