*1 аrgue Plaintiffs they present- have III. CONCLUSION ed a genuine issue of fact respect For foregoing reasons, opinion their malicious prosecution claim alleg- by by order entered the Honorable Ger- ing that Defendants initiated a criminal Rosen, ald E. U.S. District Judge for the prosecution against Wayne Ahlers know- Eastern District of Michigan, granting ing that was not supported probable summary judgment to Defendants is AF- cause. The facts set forth the Ahlers- FIRMED. es, most, show that the investigation
was poorly conducted. Although Defen-
dants failed to collect information which Plaintiffs would believe have been exculpa- tory, Plaintiffs do appear to set forth
any facts which would show that evidence was willfully somehow concealed. Negligence/Intewtional Gross Infliction of ITT AUTOMOTIVE, a Division of ITT Emotional Distress Industries, Inc., Petitioner/Cross- law,
Under Michigan gross Respondent, negligence is defined as conduct so reck less as to demonstrate a substantial lack of NATIONAL LABOR RELATIONS concern for whether injury results. BOARD, Respondent/Cross- 691.1407(2)(c). MCLA Similarly, plain Petitioner. tiff can recover for intentional infliction of emotional only (1) distress where there is: 97-6339, Nos. 97-6436. (2) extreme and outrageous conduct; in United States Court Appeals, (3) tent recklessness; causation; Sixth Circuit. severe emotional distress. Roberts v. Co., 594,
Auto-Owners Ins. 422 Mich. 602- 28, Argued Jan. 1999. 03, 374 N.W.2d (Mich.1985); 908-09 Decided Aug. 1999. Belleville, Cebulski v. Mich.App. 190, 193-94, (1986). 401 N.W.2d
It appears that Plaintiffs are un able to set forth facts which would that Defendants’ reckless, conduct was
thereby proving fatal to both their claims gross negligence and inflic intentional tion of emotional distress. Washte
naw County Defendants were in charge of
the investigation for such a period limited
of time that their to gather failure consider certain items of evidence cannot be considered Parsons, reckless. As to
although Ahlerses have set forth facts prove Parsons conducted an incomplete investigation, this is insufficient
to establish that recklessly Parsons sub mitted the findings of his investigation to prosecutor because there adequate
probable cause to sustain Ahlers’s arrest. *4 L.
Curtis Mack (argued briefed), Richard B. (briefed), Hankins Mack, Hay- good McLean, Atlanta, GA, Robert D. & (briefed), Harris ITT Industries, White Plains, NY, for Petitioner Cross-Respon- dent.
Frederick C. (briefed), Havard John D. Burgoyne, Robert J. Englehart, Jeffrey *5 Horowitz (argued briefed), and Aileen A. Armstrong, National Labor Relations Board, Appellate Branch, Court Washing- ton, D.C., for Respondent Cross-Petitiоn- er. (briefed),
Jordan Rossen Nancy Sehiffer (briefed), Associate Counsel, General In- Union, UAW, ternational Detroit, MI, for Amicus Curiae. KENNEDY,
Before: DAUGHTREY, CLAY, and Judges. Circuit J., CLAY, opinion delivered the court, in which DAUGHTREY, J., joined. KENNEDY, (pp. 392-394), J. delivered a separate opinion concurring part and dissenting in part.
OPINION
CLAY, Circuit Judge. Petitioner (“ITT”) ITT Automotive ,. seeks review and Cross-Petitioner Nation- al Labor (“NLRB”) Relations Board seeks enforcement of an order entered by the NLRB September 30,1997, finding that engaged ITT practices unfair labor 8(a)(1), § violation of the National Labor Act, Relations § U.S.C. (1998), in connection with a repre- union sentation election held at its facilities. For below, reasons set forth we EN- FORCE IN PART the order of the NLRB notices, told Wyrock about Wyrock for petition IN PART GRANT and my own busi- like ‘mind “something him ITT. review be it should self- it ‘read ness’ ” 25.) Ultimately, (J.A. at explanatory.’ I. equipment wrapped removed parts automotive ITT manufactures equipment.3 newer it with replaced United throughout located plants February On and Mexico. States, Canada facility, City Tawas At Union, United the International supervisor Richardson saw Karen Im- Agricultural & Automobilе, Aerospace truck pickup his drive Gary Simmons (“UAW” or of America Workers plement park near lot and parking Petition a “Union”) filed with employ- hourly used main entrance rep- Representative Certification porta- load three saw She Simmons ees. Oscoda, at the certain resent onto “boards” called stations work ble Tawas, facilities Michigan Tawas, East by and stand truck, Simmons saw nine employ over together ITT, which man- Although employees.4 passing watch scheduled The NLRB workers. hundred jobs were had announced agement March representation job further plant and at the increasing 1995.1 Richardson expected, increases “trying behavior Simmons’ viewed CONDUCT PRE-ELECTION A. remove is to easy us show how election, preceding the the months In pickup just use boards, they can representa- against campaigned 1178.) at the Similarly, (J.A. at *6 truck.” nu- which in activities engaged and tion the floors ITT resurfaced facility, Oscoda a calculated as viewed employees merous regular its accordance five in plant jobs if the loss threaten effort Pri- years. every two doing so practice For exam- in the election. prevailed by company resurfaced toor election, em- prior to two months ple, part one equipment from moving all of wrapped ITT had discovered ployees had it Although another. plant to the Oscoda at equipment pieces of several resurfacing, during so before done never them sheeting, placed plastic facility with election, -the 1995 before shortly lot, and labeled parking plant out Oscoda’s equipment moved Trans- saying, “Mexico with notices them trailers large four onto it loaded and five Trasns- will This Job Per Schedule fer Job during lot employee parking parked (J.A. Complete.”2 Bank is when [sic] fer told anoth- resurfacing. One Yoesting 1055-58.) Wayne Employee at the com- implied that actions that these er a sitting on notices of such a stack saw pack could they ... “proved pany main by aisle. located desk supervisor’s 1108.) (J.A. at overnight.” move up and William supervisor asked Yoesting When manufacturing process ny relocate at can election scheduled the second 1. This plant. in 1994 another plаnts. The first charges practice in unfair resulted by agree- matter having settled against ITT. ITT about who testified 3. man- promising that post a notice ing to not know equipment did wrapped seen the coercive engage in longer no agement would equipment actually sent whether ITT tactics. Mexico. per- Guaymas, Mexico facility in ITT’s 2. weighing be- work station is a “board” A4. performed the work work similar formed that con- pounds fifty one hundred tween Occasionally, ITT plant. Oscoda in ITT’s compartments for testing equipment tains facility to its Oscoda from its work transferred glue as such parts material spare supply of inven- is a A “bank” plant. Mexico tape. compa- before must accumulate tory that election, Close the time of ITT dis- time that we [on the negotiating commit- tributed total of ninety-three leaflets to tee] would not be receiving pay its employees that newspaper included the company or the union ... That we clippings detailing earlier strikes by called would get up there and the company UAW and other unions at other compa- would bargain hard that we would get ny plants. The leaflets described a strike frustrated because we were getting no called the UAW against ITT that began pay and things would disintegrate.... in March ]é 1976 and lasted years. The That the company negotiate would real leaflets also told employees that only “the hard with us and that everything would guarantee” against strikes at ITT was to just bog down and we would all get (J.A. vote against 24.) the Union. at One frustrated and it just would disintegrate. leaflet stated: (J.A. 977.) 856-57, at ITT Automotive is not going to give Finally, Ralph lorio, President of the to unreasonable only demands. The Fluid Handling Systems division, gave thing that [the Union] can do about speeches at Oscoda, Tawas, East go on strike.... [T]he Company Tawas City facilities March would bargain in good faith. But we just days two before the election. Iorio would bargain very hard! You have no discussed ITT’s need to stay globally com guarantee you would up end with as petitive, and told employees that good a wage package you have now! perform assembly at functions those (J.A. 24, 479.) at At the plant, Oscoda plants where it was most efficient to do so. signs saw posted in the win- He said that in experience, his “wherever dows of managerial offices and in the com- there union, has been a sooner or later pany’s enclosed, locked bulletin board near (J.A. there problems.” 252.) at He the employee said, lunchroom that “Don’t stated that he did not know what UAW want it—UAW—don’t need it—I NEED “ would do when ITT said ‘no’to demands (J.A. MY 1110-12.) JOB!” we consider unreasonable.” ITT, through its managers, also made 252.) Finally, lorio stated: *7 speeches urging employees to vote against In other cases we have moved the work the Union before the election. At the East and closed plant the especially where Tawas facility, Davies, Robert Manager of light or assembly manual work was be- the Fluid Handling Systems division, told ing done and the work easily was trans- employees that although ITT would bar- ferred. You know what happened has at gain, it would bargain hard. At the Osco- some ITT plants where there were da facility, Davies told employees if a that strikes. Don’t let happen here. I third party such as the Union entered the can’t think of one example where a un- plant and plant unprofitable, became ion hаs plant made a productive, more ITT would shut plant. down the Davies efficient, more or more secure.... did not explicitly state plants that unions, [W]henever there are there can would close if the Union was elected its be strikes.... Don’t let the UAW cre- employees’ representative. George Treg- problems ate for all of us. lown, Manager of Human Resources at (J.A. 253.) at ITT, Oscoda employees told. if the won, Union breakdowns in negotiations Employee Theresa Whalen testified might occur. Treglown did not expressly 29, March 1995, on day before the state that plant would just close be- election, her shift supervisor offered her a cause the election, Union won the but told “vote no” button. Although Whalen stated employees that if won, the Union they: at first that she button, wore the she later would probably have to go to to Detroit said that placed she the button on the negotiate a contract. That during this ledge where she worked. Employee Beni- the Union’s with in connection hours ITT three saw she testified ta Pardonnet Coun- practices. unfair charges of employees three two asking or supervisors was she Pardonnet told for ITT On elec- sel buttons. no” “vote they wanted if was that she and any time at to saw leave 1995, free 30, Pardonnet March day, tion They questions. answer their “in not standing free supervisors or managers reprisal not suffer had that she her employees told where in an aisle a circle” ter- if job she on conduct negative where and from polls or get pass an- or refused the interview employees wait- minated see supervisors could attorneys 45-46.) (J.A. questions. Pardonnet their at swer to vote. ing (1) employees whether approxi- circle stood Pardonnet asked stated also supervisors where supervisor’s incidents had discussed fifteen feet mately but- no” six- “vote to wear approximately employees desk, located asked wearing employees to use (2) employees tons; whether the aisle feet from ty supported actually buttons no” “vote vote. yes” “vote wearing employees re- results The tabulation (3) ITT; why supported actually buttons against voted employees vealed union; supported repre- voted while representation, 32f regard- notes took Union, whether morning theOn sentation ques- plants at the the events ing Pardonnet, active election, after discuss- employees were tion throughout of the Union supporter vocal At themselves. amongst *8 parts airplane processing was date, Pardonnet the Un- the same On election.6 aWith Gapuz. Dorothy employee with of unfair charges various filed also ion hour, per person per fifty parts quota in connec- practices with labor required Gapuz during Pardonnet before ITT’s conduct tion their end of by each parts 1995, attorneys 10, produce May On election.7 they policy, ITT Under shift. eight-hour Pardonnet met with ITT representing unlawfully re- ITT alleged that Union 7.The Pardonnet he told that maintains 5. Karbowski from literature pro-union We bout. moved round is a fifteen "[t]his round, lunchroom, names we still the tenth recorded you out knocked (J.A. paraphernalia at go yet.” accept election more got five rounds who did a attempted to use 1244.) interrogated an that he company, He asserts although button, metaphor to illustrate sрorts "vote wearing no” a was not who battle, a was still long there jobs, been a there had loss of with the threatened go. strikes, long way to fu- inevitability closings, plant bargaining. tility of Ob- of these two withdrew Union later 6. The jections. could leave early if they reached their Complaint on the Objections consolidated quota in eight less than hours. Pardonnet and unfair practice labor charges. An ad- stated that she had met the production ministrative (“ALJ”) judge law conducted requirement her card, on time her had a hearing in Tawas City, Michigan from supervisor, Wilson, Denise sign card, 21, February 23, to February plant left the early. Wilson knew that concerning allegations. 17, On July Pardonnet was a “big supporter.” union 1996, the ALJ issued a decision concluding (J.A. 1414.) at Later that evening, Par- that ITT had engaged in coercive and in- donnet a received call from Patricia Staub- timidating behavior, unlawfully interroga- aum, inspector ITT, who informed ted an employee, and created an impres- her in response complaint by sion of bargaining futility during pre- Gapuz, she checked produc- Pardonnet’s period that had interfered with tion and fоund the amount of produc- right of the employees to make a free tion stated on her time card was false. choice about representation. The ALJ Staubaum’s call “floored” Pardonnet, who further recommended that the NLRB set “had no idea” parts her up come short. aside the results of the March (J.A. 49.) day, next June election and that a new election be held. Pardonnet told Wilson her conversation with Staubaum. reported Wilson the mat- ITT filed exceptions to the ALJ’s deci- ter to Plant Manager Robert Sharp rather sion with the NLRB. The General Counsel than to Karbowski because Karbowski was also an-exception filed to the failure of the not at plant day in question. ALJ to find 8(a)(1) § violated by Sharp called Pardonnet into his office unlawfully interrogating Pardonnet later that afternoon and told her preparation for the unfair practices was suspending her indefinitely pending hearing this case. On September 30, an investigation into the falsification of her 1997, the NLRB issued a Decision and time card. Pardonnet did not return to Order affirming the ALJ’s findings and work 27, 1995, until June when she met conclusions, and granting thе General with Sharp, Karbowski, and Wilson. Par- Counsel’s exception that an additional un- donnet could not give any explanation for fair labor practice had occurred. Specifi- the erroneous count. Sharp said al- cally, the NLRB found ITT violated though he believed her miscount in- was 8(a)(1) § NLRA predicting the tentional, he would allow her to return to jobs loss of result representa- work. Under standard ITT policy, ITT tion, coercively interrogating employees may terminate an employee for an offense about their willingness to wear anti-union such as theft or falsification of records. buttons, giving the impression that bar- However, because did not find that gaining futile, would be and threatening an her conduct intentional, Sharp gave employee in retaliation for her the “benefit of the doubt” and union; (2) 8(a)(1) § violated her allowed to return to work. exceeding the legitimate 880-81.) scope of inquiry Pardonnet signed suspension her while interviewing *9 notice Pardonnet 50.) prepara- “under protest.” ITT tion for an unfair practice previously suspended hearing; Pardonnet on (3) April 5, ITT §§ 1990 violated 8(a)(1), for having too many by no-fault sus- absences, 13, on March pending 1992 for leaving retaliation for her out, without punching and on 24, known union January activities. practical As a 1994 for producing matter, too many bad parts. the NLRB’s order requires ITT to cease and desist from the unfair labor
D. PROCEDURAL HISTORY practices by identified the NLRB and from 10, On 1995, October the General coercing Coun- interfering with employees in sel issued a Complaint and an Amended exercise their rights under
384 election, ITT had grounds on order tion Additionally, the NLRB’s
NLRA. express its anti-union views. right a to make Pardonnet whole requires ITT Second, evi- argues ITT that substantial suspension, due to the she sustained losses support finding not dence does post a remedial notice. requires an be- against ITT discriminated this Court for review of petitioned advocacy with and 5, cause of her affiliation 1997. NLRB’s order on November Third, ITT argues on behalf of the union. cross-application for en- NLRB filed 1, support does not that substantial evidence on December forcement of its order attorneys unlawfully finding that its 1997. employee during prepa- an its interrogated in this II. hearing ration for the NLRB case. below, we For the forth con- reasons set the NLRB’s This reviews Court sup- that while substantial evidence clude determinations, application factual and its unlawfully in- ports finding that ITT facts, for set of particular of the law to employees to right with the terfered Universal Cam substantial evidence. See representation in a election and un- vote 474, 477-78, NLRB, Corp. v. 340 U.S. era against an lawfully discriminated (1951); 456, 456 Turn 71 95 L.Ed. S.Ct. union, substantial support for her NLRB, F.2d Baking Cone Co. v. 778 bull finding support evidence does (6th Cir.1985). 292, evi 295 Substantial unlawfully for ITT coerced em- counsel scintilla of dence is more than a mere preparing hearing for a be- ployee when evidence; aas it is “such relevant evidence fore the NLRB. might accept adequate reasonable mind as a conclusion.” Consolidated NLRB, 197, 229, 59 Edison Co. v. 305 U.S. A. (1938). 206, 126 83 L.Ed. Our review S.Ct. 8(a)(1) pro Section of the NLRA of the record must consider evidence with, re employers interfering hibits contrary findings. the NLRB’s runs coercing employees in the straining, or Indus, 106, NLRB, DTR v. 39 F.3d § rights them 7 guaranteed exercise (6th Cir.1994). However, long as 110 158(a)(1) § of the NLRA. See 29 U.S.C. as a whole contains the record substantial (1998). 7 guarantees Section of NLRA findings, supporting the NLRB’s evidence self-organization, “the right findings sustain those this Court must form, join, organizations or assist labor might if have reached a different even we ... activ engage other concerted upon conclusion novo review. See Uni de purpose bargain ities for the collective Camera, 71 S.Ct. versal U.S. protection.” 29 ing or other mutual aid or Finally, generally this Court defers 456. (1998). may § find a U.S.C. Courts credibility to the determinations of 8(a)(1) § violation of where the evi even NLRB, particularly where the “record is does not dence show testimony es fraught conflicting actually intimidated or coerced em credibility have sential determinations v. ployer’s conduct. See NLRB Dickinson Trucking, Inc. v. Tony been made.” Scott Inc., Press Cir. (6th Cir.1987). 1998). Rather, demon the evidence must that, point taken from the strate view III. employees, tendency the reasonable challenges appeal three conclu- employer’s conduct or statements is First, argues NLRB. sions of the Peabody “coercive in Coal effect.” support the substantial evidence does not *10 (6th Cir.1984). 357, 363 725 with, re-
finding that ITT interfered strained, Among things, ALJ con сoerced in the exer- other or representa- in cluded that ITT created a coercive atmo- right to vote a cise their
385
sphere
speeches
of its
through
manag-
defense to an unfair
practice
charge
supervisors,
spoke
all of
ers and
whom
on of unlawful
coercion
violation of
8(a)(1). See,
unionization,
§
'the negative
e.g.,
Elec.,
effects of
NLRB v. Pentre
363,
Cir.1993).
998 F.2d
through
written statements
ITT leaf-
368-69
In
“
deed,
practice
In
‘it
often
describing
response,
lets
strikes.
difficult in
to
distinguish
argues that
between lawful
employer
firmly
advocacy
an
has a
es-
”
threats of
retaliation’ when
right
speech
employer
tablished
to free
even as em-
point
seeks
out to
ployees
right
their
workers the adverse
self-orga-
exercise
consequences of unionization
join
during rep
or to form
a
nize
or
unions.
resentation
Co.,
575,
election.
Id. at 369
Packing
617,
(quoting
v. Gissel
395 U.S.
89
IX, Inc.,
(1969).
Village
NLRB v.
S.Ct.
or opinion, or the dissemination protection 8(c), § deserved the we con written, printed, or graphic, clude that substantial supported evidence form, visual shall not constitute or be the conclusion of both the ALJ and the practice evidence of an unfair labor un- NLRB that ITT’s statements merit did not any 8(c) provisions der § this sub- protection reasonably because they chapter, expression if no such contains employees. tended to Although coerce' reprisal threat of or promise presented objective force or leaflets facts about benefit. place strikes that had taken at other com panies itself, and at ITT the leaflets also 158(c) (1998). § In balancing U.S.C. warned that although bargain would employer’s above right delineated faith, in good bargain ITT would “very expression against employee’s free a consequence hard” and as that employ association, right Supreme to free may up ees not “end with good wage as a Court has observed that: and benefit package [they] have now!” [A]n is free to communicate to 479.) Moreover, while his any general of his views speeches supervisors of ITT rеflected eco any about specific unionism or of his predictions nomic that after unionization particular views about a He union.... plants might if they close un became may prediction even make as to the profitable or that might strikes occur as a precise he effects believes unionization result of ITT’s give refusal to union will have company. on his In such a demands, properly the ALJ found however, prediction case must be predictions supported by these were not carefully phrased objec- on the basis objective Additionally, facts. ITT’s state convey tive fact to an employer’s belief ments did not refer to matters over which demonstrably probable as to conse- ITT exercised no control. Pentre Cf. quences beyond his If control.... Elec., (observing 998 F.2d at “em any implication there is employ- ployees may reasonably conclude may er not take may solely action they being are opinions coerced where the his own initiative for reasons unrelated the speaker refer matters over which to economic only necessities and known control”). has no him, longer the statement is no prediction based on available facts but a Indeed, ITT has not demonstrated threat of misrepre- retaliation based on objective facts that suggest that UAW sentation and coercion. demands, would make unreasonable Gissel Packing, plants U.S. S.Ct. unionization would cause the be Packing, 1918. Under an employer unprofitable, Gissel come or that ITT be 8(c) may § claim protections consequences as a to control unable *11 386 jobs that suggestion home the drove ITT U.S. Packing, 395 Gissel See
unionization. to cause so as by acting at stake “con (stating that 1918 618-19, 89 S.Ct. at might transfer ITT believe to employees belief, even employer’s of the veyance The plant. Mexico to ITT’s jobs their or will sincere, unionization though employees testimony of the credited ALJ is not plant the closing of in the may result of the transfer indicating signs saw who the eventu ... unless fact of a statement in employees Mexico, of and to equipment Al proof’).8 of capable closing ality of saw ITT City who in Tawas Oscoda this Court’s heavily ITT reliеs though trucks trailers onto equipment move in Electric, that case in Pentre decision the where lots parking employee in located supervi aby company’s statements volved Addi- them. easily see could employees likely lose company the sors of testimony the ALJ credited tionally, the con union employ did not who customers MY JOB!” “I NEED who employee saw an See unionized. company the if tractors manage- of windows in the posted signs weAs at Elec., F.2d 369-70. 998 Pentre employee locked in ITT’s offices ment did not case in that noted, supervisors the points Although board. bulletin doors, its might close that Pentre suggest supervisors of its testimony conflicting the reason could “[n]o and therefore “I saying signs not see they did who said speech either away come ably have the trans- suggesting JOB!” MY NEED sentiment anti-union belief with the Mexico, Court this equipment of fer lead to could company the of part on the judg- [its] substitute “normally may not of in favor voted employees if the closure or adminis- [NLRB] of the for ment instant 370. id. the union.” See observed who has judge law trative different, su as ITT dramatically case is Universal witnеsses.” demeanor ob without suggested, expressly pervisors 456. 71 S.Ct. Camera, 340 U.S. believing, actually for facts jective credit expressly the ALJ only did Not in voted employees if close might plants saw who employees those testimony of held repeatedly have Courts the union. discredited expressly ALJ signs, natural employee’s an view that “in as General managers such denials threats employment, in continued interest Supervi- Floor Karbowski Supervisor fla the most ‘among are closure plant did they who claimed Lawlor sor Sandra ” Indiana practices.’ unfair grant question. in signs see not F.2d Cal-Pro, Inc. v. evidence, beyond that even Additional Cir.1988) Pack Gissel (quoting supports campaign, jobs” “loss ITT’s 1918). n. S.Ct. at 611 U.S. ing, or re- coerced finding that NLRB’s to vote Moreover, right neither employees’ while its strained Indeed, the ex of ITT the union. representation statements nor written spoken employees upon testimony jobs credited threatened ALJ pressly offering anti- supervisors exists saw unionization, evidence who substantial As employees. together that, buttons taken finding pressures held, such behavior pre-election NLRB has during сonduct ITT’s with public in about a choice to make employees right of ITT interfered period, senti- their union acknowledge representa freely to vote “effectively put[s] ments The ALJ concluded tion election. facts—but objective precise support Elec- Pentre important note 8. It is prove employer to require the simply not does employer is not tric, an held that Court this Indeed, we statements. of those truth to corroborate evidence “produce required to elaborated, once further have unionization effect of predictions about predic- his objective basis 8(c).” articulates Pentre section protection of invoke that the tion, demonstrate must the NLRB together with Elec., Read at 368. untruthful or was objective prediction decision Packing, the Electric Pentre Gissel Indus., at 114. DTR nature. to have employer’s statements requires an still
387 position accept implications of to or having either of the might latter that be reject [employer’s] proffer.” readily AO. more by dismissed a more disinter- Prods., 994, Smith Automotive 315 NLRB ested ear.” Packing, Gissel 395 U.S. (1994). 1009, 1994 сlaim 617, WL 720016 ITT’s 89 Taking together S.Ct. 1918. all there is no evidence on the record the evidence of on part conduct of ITT to employees whom ITT offered but- prior election, to and during the we find inappo- did not want those tons buttons is supports substantial evidence the de- site, para- as what makes the offer of such cision of the NLRB in this case ITT’s phernalia pressure places coercive is reasonably actions tended coerce its em- sympathies on his employee an declare ployees, and that therefore ITT violated public. in 8(a)(1) § of the NLRA. concluded, The ALJ also on the basis employee testimony by deemed credible B. SUSPENSION OF PRO- ALJ, supervisors that ITT had en- UNION EMPLOYEE in gaged by coercive behavior positioning 8(a)(3) NLRA, § Under of the in building themselves the center of the employer commits an unfair practice labor and near through the intersection of aisles “by regard discrimination in to hire or in pass had to order to employment tenure of term or con vote. The NLRB has held that such con- dition employment encourage or dis an employee’s duct interferеs with free- courage membership in any organi dom choice an election. See Perfor- 158(a)(3) (1998). § zation.” 29 U.S.C. In Co., mance Measurements 148 NLRB case, present the ALJ and the NLRB 1657, 1659, (1964). Al- WL 16318 8(a)(3) § found that ITT both violated argues, though of testi- basis 8(a)(1) § by suspending Benita Pardonnet Karbowski, given by mony super- that the days for five because of her for did employee passage visors not obstruct Specifically, union. the ALJ found area, voting to the we hesitate interfere that ITT knew Pardonnet be active determinations,
with the credibility ALJ’s supporter, union and that suspending particularly expressly since the ALJ dis- Pardonnet, responded allega testimony. credited Finally, Karbowski’s misrepresented tion that Pardonnet .had expressly testimony the ALJ credited the production her in a amounts manner that Benita Pardonnet that Kar- departed practices. from its usual We be her, overtly reject- bowski threatened lieve substantial evidence supports that ed, again, once the version events set conclusion, despite ITT’s claim that it was forth Karbowski. Giving due deferfence suspend entitled to miscon credibility to the determinаtions of the duct. ALJ, sup- we believe substantial evidence ports a finding of coercion this case. observed, As this Court has 8(a)(3) essence, §
ITT has
argued,
violations consist
two elements:
animus,
we
the conduct
have described above did anti-union
occurrence of
faith,
benign
not stem from bad
employment
covered
action.
See NLRB
953,
explanations
Daniel, Inc.,
supervi
the conduct of its
Fluor
However,
Cir.1998).
might
sors
exist.
we must view
NLRB
bears the burden
in light
NLRB’s decision
of the fact
showing
employment
that an adverse
ac
balancing
rights
of the
in part
of the
tion resulted in whole or
from anti-
animus,
employee’s
“must take into
pro
or “that the
dependence
account the economic
tected conduct was a
motivating factor
employers,
on their
Transpor
and the
adverse action.” NLRB v.
former,
necessary tendency of the
Management Corp.,
because
tation
462 U.S.
(1983).
relationship,
pick up
of that
intended
S.Ct.
L.Ed.2d 667
no-
suspension
Pardonnet’s
Additionally,
showing,
makes such
Once
*13
have
did not
Pardonnet
that
tice revealed
employer
to the
however,
shifts
burden
the
previous
for the
record
on her
violation
a
defense,
demonstrate,
affirmative
as
to
alleged
her
marked
and
twelve months
action
adverse
the
have taken
it would
that
violation
a first
as
in
case
this
violation
See
animus.
of such
in the'absence
even
warning.”
written
a “first
merit
that would
pro
not
NLRB need
Significantly,
id.
progress
her
contrary,
To
improper
of
evidence
direct
duce
hard
good,
“awas
she
that
stated
review
wrongful animus
rather,
motivation;
such
jobs
to do new
willing
very
iswho
worker
circum
all the
from
inferred
“may be
and
them”
‘bugs’ out of
work the
help&
Welding Fabricat
&
Run
Birch
stances.”
good work.”
up the
“[k]eep
to
told her
1175, 1179
Inc. v.
ing,
first
49.)
when Wilson
Finally,
(J.A. at
employ
Cir.1985).
example, an
(6th
For
incident, she
of
report
a written
made
may in
past practices
from
deviation
er’s
had inten-
Pardonnet
that
believe
did
NLRB
See
animus.
anti-union
dicate
amount
production
her
falsified
tionally
367, 370
Corp.,
ComGeneral
up.
writing her
not even
considered
and
NLRB’s
Cir.1982).
uphold
must
We
a
support
circumstances
undisputed
These
“if it
motivation
improper
of
determination
Pardon-
against
ITT’s action
that
showing
facts.”
proven
light
in
is reasonable
and that
praсtices
prior
from
net deviated
id.
part
in
at least
motivated
was
animus.
improper
circumstances, we
all of
Considering
have
would
that it
claims
Although ITT
matter, in accor-
preliminary
aas
observe
any event
in
Pardonnet
suspended
ITT con-
that
our conclusion
with
dance
simi-
ITT received
other
that
of un-
against
campaign
a
ducted
conduct,
agree
we
for such
suspensions
lar
animus
anti-union
that
representation,
ion
failed
ITT has
that
NLRB
suspend-
at the time
generally
existed
it would
showing that
its burden
carry
Pardonnet,
ITT was aware
that
ed
it not
Pardonnet
suspended
have
activities
Pardonnet’s
to show
ITT failed
sympathies.
her union
discloses
Moreover, the evidence
union.
em-
similarly accused
other
it treated
that
practices
its usual
ITT deviated
that
example,
way by,
the same
ployees
charge that Pardon-
response
in its
any
conducting
without
suspending them
report.
production
her
falsified
net had
it had
allegation
ITT’s
investigation.
Par-
Sharp promised
Manager
Plant
While
violations
various
up for
Pardonnet
written
ac-
investigate
ITT would
donnet
proving that
short
past
in the
falls
intentiоnally lied about
she
cusation
any
Pardonnet
suspended
have
Wilson,
amount,
Pardon-
production
her
con-
record
example, while
For
event.
that she never
admitted
supervisor,
net’s
disciplinary
progressive
aof
evidence
tains
that Pardon-
the matter
investigated
disci-
only
account
into
that takes
system
story.
her side
got
tell
never
net
last
occurring within
actions
plinary
admitted
Moreover,
violation,
never
Pardonnet
new
of a
months
twelve
amount
production
previous
lying about
Pardonnet’s
show
failed to
suspension
her
sign
as
months
far
went so
twelve
within
occurred
infractions
result, ITT
has
a net
As
case.
protest.”
in this
alleged
“in
notice
the one
suspend-
Pardonnet
have
it would
discovered
show that
never
failed
following
basis,
Nev-
instead
amount.
production
her
her on
fact falsified
ed
program.
her,
though
disciplinary
suspended
progressive
even
ertheless, ITT
Karbowski,
Moreover,
as with
suspended for
we note
only other
testimony of Wil-
discredited
production
ALJ
falsifying
offense
first
being
“as
ALJ
son,
impressed
who
misrepresentation
her
amounts confessed
any testi-
give
willing
who
witness
to Karbоwski.
mony that might help the
Company’s
obtain the employee’s voluntary
51.)
cause.”
Under these
participation.
cireum-
See Bill
Oldsmobile,
Scott
stances and because ITT failed to
show
(BNA)
L.R.R.M.
that it would
have suspended
(1987).
who furnished the
IV.
with a
copy
the affidavit she submitted
fear,
although
We conclude that
to the
did so out of
substantial
board
rather
spirit
supports
in
appears
cooper
findings
she did it
the
evidence
the
that ITT
Similarly, Dayton
ation.”
stances, interview conduct additional ALJ noted The em- interfere, coerce, or strain, company’s that the his decision supported Dayton at 1195. Id. rights. ployee’s *17 in- This conduct coercive. actions the Sixth that noted court Typographic equipment wrapped display cluded the posi- the NLRB’s adopted had not Circuit JOBS” TRANSFER “MEXICO labeled warnings Poultry Johnnie’s tion that operation anof taping video legality ensure to be given “must” plants company’s at the employees use (noting at 1194 id. interrogation. this conduct finding that A in Mexico. Anserphone, decision that the Court’s by substantial supported not is coercive Cir.1980), (6th 4 F.2d 632 Inc. v. to the prior times At various evidence. this stance NLRB’s with conflicted drive, trans- ITT had organization instant require- NLRB issue). adopting the By It Mexico. also work certain ferred an give “must” employer that ment Michi- jobs in equipment new added warnings, Poultry Johnnie’s employee the campaign, election During the gan. this Cir- law of rewrites Majority and retained employees additional hired Court that not believe I do cuit. employees. old standard. Circuit’s to this add should some performed plant Mexico Its that Majority with agree IWhile plant. Michigan as the operations same some supports evidence substantial Mexican to train taping was video The employees, its coerced findings that per- improve their presumably workers are believe I do not are some there that it conclusion Board’s The formance. The evidence. by substantial supported into be- frighten was made during the removal found ALJ Mexico be lost jobs would lieving of build- equipment out period not been moved they had just as moved this drew conclu- single 1. While years. prior re- presses were sion, thought all the she been had not large presses four The moved. 393 ignores the historical facts and the con- wage and benefit package if they voted for tinuing increase in jobs. Michigan the union. The ALJ found that these statements constituted a threat Finally, I believe that the ALJ’s finding company might regard any proposed im- Mr. speech Iorio’s to employees on provement in the (two benefit package March 28 be days election) before the unreasonable demand. The threatening company did strikes, with plant say not that. As we stated closings bargaining futility, coerced Electric, Pentre Inc., employees in violation of 369 8(c) Section (6th Cir.1993): the Act is not supported by substаntial evidence. The ALJ Because specifically “the only found way effective argu- “President ing Iorio’s speech lengthy against does not the union is for the company contain any explicit point threats to the out employ- to the workers the adverse jobs ees’ at the Oscoda, Company’s consequences of unionization, Tawas ... it City and plants East Tawas if often difficult in employ- practice to distinguish ees selected the Union to represent between them.” lawful advocacy and threats of He then found “that speech this about retaliation.” NLRB v. Village IX, Inc., ‘viability’ the three .of plants particularly Cir.1983). In — in the context of the Gissel Company’s Packing, other 616-20, U.S. at speeches, literature, and S.Ct. at 1941-43, conduct—was a the Supreme Court prediction veiled job losses strikes, examined scope 8(c)’s of section pro- job transfers, or plant closure.” tection and He did the interplay of that section not find other speech or section literature in an attempt to draw contained an unlawful threat. line What he between lawful and unlawful found was that literature employer speech distributed more clearly. The the company consisting of court noted newspaper arti- employer “[a]n is free cles about strikes at other ITT plants sug- communicate to his employees any of gested if the union won his general the election views about unionism or any there could be strikes at specific three his Michi- views particular about a gan plants. union, so long as the communications do not contain a of reprisal ‘threat or force did say the union ” promise of benefit.’ Id. at would call a strike or that it would refuse S.Ct. at Moreover,' 1942. the court stat- to bargain. Rather, lorio stated the com- *18 ed that an employer “may even make a pany bargain but bargain hard. prediction as to precise the effects he While ITT jobs noted that had been trans- believes unionization will have on his ferred to Mexico in past, it also noted company.” Id. that these three plants had expanded and would continue expand. plant While ITT did not predict that the union would closures were by Dawles, mentioned Bob it make unreasonable demаnds but only was in the context that ITT would close pointed out a possible consequence, i.e., plants if they unprofitable became strike, and had it if did. It point could out that plants closed that became unprofitable. contract with the union might be no better Finally, the ALJ found that ITT’s state- than the employees’ present wages and ment a four-page 478) flyer that it benefits. There is no “threat of reprisal” would not give in to unreasonable by demands predicting an uncertain future. This and, only “the thing [the could union] do was nothing predictions more than pos- strike,” about it is was coercive. The flyer sible consequences. There was no threat also stated the company would bargain in to close plant if the union won the good faith but would bargain very hard election or desire to punish employees for and that there no guarantee was pro-union a vote. There was no “threat of employees would up end good as reprisal.” Proposed al., James, Kimberly et super- the fact found also The ALJ Intervening Defendants- could floor plant on the standing
visors Appellants, feet to 80 vоting 60 observe The was coercive. stairway aup away and Hamacher, and Gratz, Patrick Jennifer office voting were situated, similarly all others floor plant above mezzanine was on a Plaintiffs-Appellees, wall. stairway against aby reached particular in that locations most From line was who could see one building Defendants, al., Bollinger, et Lee suggestion no There vote. said anything hear could supervisors al., Proposed Patterson, et Ebony Relying voters. prospective Perfor- Intervening Defendants- Co., Measurements mance Appellants. (1964), a case WL feet of six 98-2009, stood within 98-2248. Nos. that this ALJ found place, polling Appeals, Court States United constituted coercive was observation Circuit. Sixth place. polling within intimidation plant period, time relevant During the 8, 1999. June Argued loca- operations. its normal continued 10, 1999. Aug. Decided on the personnel management tion fact explained be could floor plant offices their to use unable some to the offices their proximity to the due in- was Management
voting location. as the turnout voting large in a terested manage- fact Thus, mere union. cannot voted knew ment in the intimidation finding place. polling statements are other there Because con- Board’s support the do conduct to the matter clusion, remand I would remaining determine Board to sufficiently co- conduct statement a second remedy of warrant ercive election. *19 GRUTTER, herself
Barbara situated, similarly all others Plaintiffs-Appellees, Defendants, al., BOLLINGER, et Lee notes ing those General approached campaign, attorneys interview, ITT’s end to offer Karbowski Richard Supervisor an affida- into statements Pardonnet’s put Pardonnet, According to congratulations. it. When review her to vit, asked her finger his shook Karbowski com- her one noticed Pardonnet 11; compa- Round this is said, “Lady, affidavit, counsel in the ments was your god- are 15,” “Where ny goes affidavit into the the comments put [sic]?”5 now protection UAW damn request, her accordance 858.) 48, affidavit. signed this POST-ELECTION, PRE- B. CONDUCT HEARING PRO- OF SUSPENSION C. timely 1995, the Union April On EMPLOYEE UNION on conduct objections eight filed meeting her after month one over Just Petitioner Petitioner, claiming part ITT, June counsel for of with results unlawfully affected the thereby