National Labor Relations Board v. Q-1 Motor Express, Incorporated

Apple eventually cial fact. That Adams real to claim an investment tax credit. The dis- gain a on its investment is immaterial granting summary ized trict court’s decision judg- since the determination as to whose and how government ment in favor of the is reversed capital is to be made as of the much risk and the case is remanded with instructions to placed time the film is first in service. Dur grant summary judgment to DRL. Commissioner, kin v. Cir.), 107 L.Ed.2d 50 appeal, government On defends reasoning of the district court. It con NATIONAL LABOR RELATIONS agreement failed to

tends because BOARD, Petitioner, provide Apple security Adams with interest proceeds require to the film’s failed segregate proceeds to Orion owed Q-1 EXPRESS, MOTOR Apple’s right repay Apple, Adams Adams INCORPORATED, “solely” ment did not come from the film’s Respondent. According proceeds. government, to the proceeds reference to the film’s was intended No. 93-1746. merely specify repayment, a schedule for Appeals, United States Court of government’s not a source. The strained Seventh Circuit. reading regulation simply does not logically By limiting follow from the statute. Argued Nov. 1993. repayment depend ITC lenders whose Decided 1994. solely proceeds, legislators ed on the film’s ensuring legiti lenders with Rehearing Suggestion Rehearing for advantage film mate stake could take July En Banc Denied “solely” of the ITC. The word does not

inject statutory physical into the scheme a

requirement film distributor ear segregate

mark and the lender’s funds. government argues also Paper Clip

since remained accountable Apple

Adams event that Orion did repayment obligations, Ap

meet its Adams

ple’s right repayment did not come “sole

ly” proceeds. argument film from the This point.

misses the fundamental if Even Orion

reneged repayment obligations, on its Adams

Apple would not be entitled to from recover

Paper Clip any more than its contracted-for Hence, proceeds.

share of the film’s the fact Apple

that Adams cоuld look to either Orion Paper Clip repayment did not elimi repayment

nate the risk involved since re directly

mained tied to the film’s success.

III.

By purchasing gross receipts partic-

ipation “Easy Money,” Apple Adams

agreed portion to incur the risk involved Consequently,

with the success of the film. law, Apple

as a matter Adams was entitled (3) (1988), Act, 158(a)(1), §§ 29 U.S.C. employees, pro-union

by discharging three Denham, Stevens, and Dan drivers Donald of their union activi- Anthony Lupo, because found that the General The Board ties. Drivers, Helpers Local Warehousemen & with the Internation- affiliated Union No. Teamsters, AFL-CIO al Brotherhood (“the Union”), majority of the represented a bar- appropriate Company’s employees an appropri- an unit as of gaining 8(a)(1) examining and ate for section date N.L.R.B., Region Kinney, Elizabeth 8(a)(3) violations, and determined Armstrong, IL, William Aileen A. Chicago, pervasive as to were so Company’s violations Appellate (argued), -N.L.R.B. A. Baudler unlikely. The Board a fair election ‍​​‌‌‌‌‌​‌​​​​‌‌​‌‌‌​‌​‌​‌‌​​‌‌‌​​‌‌‌‌‌‌​‌​‌​‌​‌​‍make Washington, Litigation, Court, Enforсement was therefore order held that N.L.R.B., Litigation Spielberg, DC, Paul J. re- Company to It ordered the appropriate. DC, Frye, Branch, D. Randall Washington, Denham, Stevens, Lupo and and instate OH, Cincinnati, peti- for N.L.R.B., Region upon the Union good faith with bargain tioner. action, and the This enforcement request. H. (argued), Haney James Douglas C. review, fol- cross-petition for Hanson, Garvin, Light & Hanson, Scopelitis, lowed. IN, respondent. Indianapolis, for record, we find Upon careful review the ROVNER, LAY,* and COFFEY Before Board’s supporting the evidence substantial Judges. Circuit 8(a)(1) 8(a)(3) and determinations.2 section in the of discretion find no abuse We further LAY, Judge. Circuit bargaining or- determination that Board’s (the Board Relations National Labor The remedy the viоlations appropriate der “Board”) find- of its order seeks enforcement or- the Board’s enforce Q-l. therefore We (“Q-l” or the Express, Inc. ing Q-l Motor der. practices.1 labor guilty of unfair “Company”), held, find- with the in accordance The Board I. BACKGROUND Judge Law an Administrative ings of (“ALJ”), Company had violated sec- Donald Q-l driver early May, 8(a)(1) Labor Relations National tion organiz- the Union about contacted Denham (“the Act”), 158(a)(1) (1988) § Act, 29 U.S.C. Denham ob- Company’s employees. ing the of its with closure threatening employees by and with authorization cards tained union reprisals if terminal, losses, other job soliciting began card employees help of other unionized; im- by creating the they became signatures. activities; of union prеssion of surveillance orga- Company became aware The pay increases by granting the began, and it shortly after nizing campaign grievances to address their promising by hostility. found As responded with The discourage union activities. order part-time driver ALJ, after a week findings that about the ALJ’s also affirmed card, Lupo signed an authorization Anthony Q-l had violated sections * is confined of a Board Judge review Lay, for 2. Our Circuit P. Honorable Donald " ‘factual assessing whether the Eighth Appeals for the States the United Court evidence supported findings are substantial Circuit, designation. sitting by legal conclusions a whole and its the record ” Inc., Corpora- Livingston Express, Indiana law.’ Motor basis in the a reasonable have Tube, tion, princiрal office Pipe its v. at all relevant Inc. times & Bakery 1993) Augusta (7th (quoting Clarksville, en- NLRB It is Indiana. Cir. and terminal in 1992)). Cir. Corp., trucking. gaged in interstate Q-l supervisor told him that Company afternoon, Later that Company began management knew union cards were meeting own with employees. Q-l being distributed and that if he knew what Vice President James Sehroering began J. him, good was stay away would from meeting by complaining about unions and those involved the effort. stating Another driver that he knew green that “little [union] signed who had an authorization cards” card was among circulated the em- told supervisor, this same ployees. whose husband President James E. Sehroering Q-l driver, was a hoped that she then her own announced that the Company was in- join husband did, would not creasing compensation Union. If he rates for the driv- supervisor ers, explained, purportedly he would have to improved because of the gas job, mileage find “Q-l another because the drivers had could not been able to attain. pressure.” stand He union also invited the employees express to job their agreed concerns give to Lupo later, A May 17, short time Presi- exchange more hours in for a reduction in dent Sehroering James E. orga- confronted the hours driven the other drivers. him, nizer Denham at a stop, telling truck (cid:127) After Company the meeting, Denham and a conversation part that was overheard in some of the other supporters Union met to Lupo, driver that knew he that Denham was discuss the status of orgаnizing cam- passing the one out the union cards. paign. Stevens, Driver Dan who had filled Sehroering told Denham that he spoken out his union card at the meeting earlier but attorney with his and had been advised that forgotten it, sign to asked Denham to turn Union, to thwart he could fire all the his along card in with the others. Denham drivers, Company down, close the and then and Lupo arranged then Lupo for to deliver reopen with new drivers 72 later. hours the cards to the Union. The ALJ deter- Denham testified that Sehroering said he mined that May as of eight authori- permit would not “no half-ass Union [to] zation executed, cards had been enough to come in try to tell him how to run his majority constitute a unit’s Sehroering business.” also informed Den- employees. eleven ham that he had called Denham’s previous employer and learned that Friday, May 24, Denham On had been President James E. a member of Sehroering complained Teamsters Union for ten to Stevens that he years. Finally, thought Sehroering he told “had Denham that better friends in this Com- pany amongst knew that the drivers planning the drivers than what’s turned meeting May 19, out for to be.” and that He told he was “I going every- to know body signed hold a meeting that with the a Union drivers card. [I]f that same takes day. firing everybody keep the Union out of here, then that’s what I will do.” Shortly On day of the employees’ thereafter, three union supporters, including organizational meeting, Q-l ran, for the first Denham, Stevens, and Lupo, were fired. time, a newspaper advertisement for new Q-l asserts that each employees drivers. At meeting, employees dis- was fired in Q-l’s accordance with disciplin- cussed the advertisement and why wondered ary procedures, for transgres- work-related Company seeking was more drivers when sions. The thoroughly ALJ examined and it had for months put part-time refused to rejected each of Company’s proffered Lupo driver on full-time status. The drivers explanations and that concluded the three also discussed the failure to raise drivers had discharged been because of their compensation rates, major impetus union membership and activities. for organizing campaign. Denham in- formed the employees gathered who had July On the Union wrote to the he had received authorization cards from a Company recognition. to demand The Com- majority of the drivers and that he had pany told reply. failed to The Union also filed a the Union they had elected it charge as their accusing Q-l with Board of un- bargaining representative. lawfully attempting discourage employee that, replete us is with The record before requesting

support for the Union conduct, conduct instances of comments and Q-l’s unlawful view of reasonably order.3 interfere would tend to with issue right self-organization. As we

employees’ II. DISCUSSION NLRB, 997 Transport noted Central (7th Cir.1993), “Threatening em F.2d 1180 Practices Labor A. Unfair discharge, or ployees shop closure or with 8(a)(1) Violations 1. Section discourage coercively interrogating them to testimony credited the basis of On 8(a)(1) of the union activities violates Section ALJ, fully supports by the the record Act,” Here, Q-l management id. at 1189. practices. findings unfair labor personnel repeatedly threatened drivers makes it an of the NLRA Section reopen new down and with would shut employer “to practice unfair labor allow the drivers to employees rather than restrain, with, or coerce interfere Moreover, Q-l President James unionize. “self-organi rights” to the exercise (and in Schroering interrogated drivers E. form, zation, join, organiza or assist labor case, union spouse) about the one driver’s repre tions, collectively through bargain explicit made organization efforts and choosing, and to en thеir own sentatives of Berger, implicit threats of retaliation. See for the in concerted activities gage other (observing that “when the 678 F.2d at 689 mu bargaining or other purpose collective interpreted as questions asked Viewed and 157, §§ protection.” 29 U.S.C. tual aid or employee have understood the the must 158(a)(1) (1988); see NLRB Overnite ramifications, could rea questioning and its (7th Cir.1991). Co., F.2d 819 Transp. 938 employee intimidate the sonably coerce or constitutes “interference” test for what The activities,’ a violation regard with to union attempt whether an rights is not with these (citation omitted)). has been established” failed, but whether succeeded or at coercion “ interrogations and nu Through coercive such in that ‘rea emplоyer engaged conduct the statements, Q-l created an other merous with, restrain, or sonably to interfere tends engaging in that it was surveil impression in free exercise’” the coerce activities, imper another of the union (cita lance rights. Id. at 819 n. 5 protected their 8(a)(1). practice under section missible labor omitted); Berger & NLRB v. tion Transfer Cir.1982). (7th Co., id. at 691. See Storage 678 F.2d 689 subsequent labor the merits in a unfair for tive of the General Counsel 3. On October proceeding, the latter temporary injunctive practice and that review of petitioned for the Board Act, 10(j) rule.” of the the substantial evidence against under section is limited relief (2d Nichols, Inc., disposition com- F.2d 957 pending of the amended S.E. 862 final NLRB v. Inc., Indus., 1988); 10(j)proceeding the same plaint. concerned v. Acker The accord NLRB Cir. (5) 8(a)(1), (3), Cir.1972). (10th alleged violations included arid A district 652 sought rein- hearing The General Counsel to conducting 10(j) this action. is asked court Denham, Lupo and a during may the statement occur the harm that assess recognize requiring Q-l to proceedings ensuing administrative course of the employees’ exclu- bargain as the with the Union Counsel probability that the General "the 27, Judge agent. On December sive convincing NLRB that some will succeed District Court of the United States Kinney Sarah Barker laws.” violated the labor one has in fact Cir.1989) denied Press, (7th for the Southern District Indiana 491 v. Pioneer requested relief. At the later Counsel's added); General Kinney (emphasis also v. Internation see merits, Comрa- hearing denied the the Board Eng’rs, Operating Local al Union of request reopen in this case to ny's to the record Cir.1993). goal is to court's The " 10(j) proceeding. transcript of the mistaken,’ include the all the costs of 'minimize Press, at F.2d things Pioneer considered.” Judge emphasis upon appeal, places On omitted). (citation court therefore n. 3 (which seemingly credibility findings Barker's attempt predict the eventual out to what must proceeding). findings in this contradict the ALJ's proceedings be and to will of the Board’s come 10(j) proceeding. The studied the We have not transcript accordingly. outcome turns If the eventual act part us. of the record before is not predicted, what was However, be different from out tо however, importantly, is clear the law and more obviously prediction, it is temporary "findings made on a motion outcome, rejected. that must be 10(j) injunction are not determina- under section Additionally, supports the record pany made it known each to of them that it finding Board’s violated activities, section was aware of pro-union in- 8(a)(1) by soliciting grievances promising cluding the fact that Denham had been the May benefits at meeting distributing cards, that could one authorization and it reasonably appear, when viewed from threatened each of them with retaliation. perspective, directly drivers’ to be President Schroering specifi- aimed James E. even cally interfering organization with the union threatenеd Stevens that he ef would fire “everybody” forts. if pressure See id. After that is what it keep months to took to Q-l. Union out of compensation, Q-l increase the drivers’ final Given these circum- stances, ly we announced an believe that increase at the substantial evidence supports the meeting, height finding Board’s organiz the General union ing Counsel met its campaign. Especially establishing by burden of in the context of preponderance Company’s open hostility unionization, evidence that anti-un- ion animus timing might motivating such was a reasonably appear factor in to be Company’s part against actions employees. continuing these efforts to See id. at 427. employees’ interfere with the organizational activities. Similarly, supports substantial evidence finding Company that the failed

2. Section Violations attempt its it would show have Section of the Act makes it an made the same decisions the absence of unfair practice labor employer employees’ for an to dis union activities. See id. The against criminate employee Company “in regard claims ‍​​‌‌‌‌‌​‌​​​​‌‌​‌‌‌​‌​‌​‌‌​​‌‌‌​​‌‌‌‌‌‌​‌​‌​‌​‌​‍that discharges occurred hire or employment pursuant tenure of any or disciplinary term or procedures and employment condition of encourage employee based on dis misconduct. The courage membership any Company organiza labor asserts that Denham had commit- 158(a)(3) (1988). § tion.” 29 U.S.C. log and, An ted em numerous particu- violations plоyer lar, violates if discharges report section it failed to his whereabouts for over employee an because of her union nineteen hours making activities. after eight-hour considering Id. allegations, trip from ALJ, however, the Milwaukee. The may properly consider testimony such circum credited the of numerous witness- stantial evidence employer as whether es that log the violations were by condoned committed other practices Company unfair labor or and testimony Denham’s that expressed otherwise anti-union he had dispatcher animus called the repeated at in- period shortly throughout before the dismissals. tervals Living supposed his nineteen- Pipe NLRB, ston & Tube hour v. absence. Inc. 987 F.2d (7th Cir.1993). At point, allegedly Stevens discharged was for not “ general ‘[o]nce the counsel establishes that being be, available when supposed .was employer by was motivated antiunion after receiving prior discipline damaging sentiment, employer will be held in viola Q-l equipment falsifying and a worker’s tion of the Act it can unless show that the compensation Stevens, claim report. like same decisions would have been made absent Denham, never alleged prior received the employee’s protected activity.’” Id. reprimands until 10(j) hearing in October (quoting Huizinga NLRB, J. Cartage v.Co. and the supports record the ALJ’s (7th Cir.1991)). 941 F.2d determination that complaints were stale “coupled and with a fanciful version of The record contains substаntial evi events.” discharged dence employees’ union activities motivating were a factor in Finally, Q-l asserts that discharged Denham, discharge. Lupo and Lupo for not dispatch available for on were all closely fired on the heels of the drinking, because of failing and for organizing campaign within three weeks paperwork turn in particular trip from employee one another. No shows, however, Milwaukee. The record previously ever discharged. been The Company Com- that the did policy not have a NLRB, Cir.1988); v. Lupo had not been dispatch, forced 687; before, sup- Berger, Corp. accord night and that he Conair drinking the 1355, 1367(D.C.Cir.1983), lading necessary when he plied the bill 1241, 104 (having paycheck in for his last went trip Supreme the time of the L.Ed.2d 819 As the Court dispatched between been rejecting argument point). a similar question and that observed years ago: strong evidence the basis of On disputed litigation are not [T]he facts and the Company’s anti-union motivations equations— in isolated random unknowns expla- alternative weakness of behavior, they are facets of related human conduct, that substan- we find nations for helps chiseling and the of one facet supports the Board’s conclusion tial evidence Thus, of the next. in the mark the borders Denham, Stevens, Lupo would not facts, litigated determination of the testi- union ac- discharged absent their have been mony of one has found unreliable who been tivities. may properly one bе accorded as to issue Accordingly, weight to the next. little 3. Bias rejection opposed total of an view cannot of con- Company responds to the Board’s impugn integrity competence itself by disputing the facts primarily clusions of a trier of fact. determina- upon which the Board based its Co., Pittsburgh 337 U.S. at 69 S.Ct. S.S. appeal an alternative presents It tions. us, In the ease before the ALJ and con- of the events outlined above version by testimony employee witness- credited Board erred in that the ALJ and the tends corroborative, mutually given in that was es crediting testimony employee wit- by no some instances witnesses who were provided nesses rather than the witnesses by Q-l no longer employed and thus had account, it Q-l. uрon its alternative Based lie, that, in motive to the case of the practices unfair labor oc- argues that no reprisal, out alleged threats of was borne Q-l’s engage reject attempt to curred. We Denham, Stevens, firing of events such as the factfinding, and we in renewed this Court hand, Lupo. On the other the ALJ findings. affirm the Board’s testimony of wit- discredited the such Q-l acknowledges that we will not over Schroering, E. nesses as President James credibility ab turn an ALJ’s determinations by his credibility was cast into doubt whose circumstances, extraordinary such as a sent evidence, denial, overwhelming in the face of bias, uncontro- showing disregard of utter falsify Q-l forced to that drivers were testimony, acceptance of sworn or the verted Transportation logs in order Department of facially testimony. Central incredible See tight delivery sched- to meet the 1190; Transp., F.2d at see also Pitts 997 ule. Co., 656, 659-60, burgh 337 U.S. 69 S.Ct. S.S. only of “Credibility ... is a function not (1949). 1283, 1285-86, It 93 L.Ed. 1602 says but of how a witness what a witness however, in this case urges, that the ALJ it, court says cold record before this and the Q- antagonism towards displayed “constant anything conveying poor medium for is counsel,” and that his find l’s witnesses and than a exact words.” Over other witness’s ings against his bias reflect “both at see no Transp., 938 F.2d 819. We nite testimony of the his desire to credit cold “extraordinary circumstances” any cost.” General Counsel’s witnesses lead us to con before us that would record decision to credit clude that ALJ’s any bias or We see no evidence of warrants reversal. employee witnesses prejudicial conduct the ALJ that would proceedings. Con taint the administrative Bargaining B. Order assertion, Q-l’s necessarily trary to it is not upon finding Based for an to credit all of the witnesses bias ALJ 8(a)(1) and numerous section dispute and none of the had committed on one side of a issued, Indus., 8(a)(3) violations, bargain- the Board Impact Inc. witnesses on the other. 480

ing requires bargain goria’s) order that produced was not hearing, at the good although faith with the Union. The Board has Longoria testified that he had authority to issue such orders to combat signed one. The ALJ and the Board con- practices unfair labor “have the tenden cluded that the “at one time” criterion for cy majority strength to underminе im majority status had been satisfied. pede processes.” the election NLRB v. Gis Q-l contends, though, that even Co., 575, 614, Packing sel 395 U.S. 89 S.Ct. 19, majority. there was no argues It (1969); 23 L.Ed.2d 547 see Justak Longoria’s Stevens’ and authorizations were NLRB, 1074, Bros. & Co. v. 664 F.2d 1081 cards, signed invalid and that one of the (7th Cir.1981). bargaining justi A order is Suddeth’s, Martin should not have been enjoyed if fied the Union “at one time” ma mechanic, counted because Suddeth was a jority status and “the Board finds that the driver, part truck and thus he was not possibility erasing past prac the effects of bargaining reject unit. We each of ensuring tices and of a fair ... election challenges. these remedies, though pres use traditional ent, Gissel, 614, slight.” 395 U.S. 89 Longoria’s testimony at the administrative S.Ct. at 1940. “The determination of the hearing cоmpleted that he had an authoriza is, appropriateness bargaining of a like prior May tion card given 19 and had it to remedies, all entrusted to the sound discre another delivery driver for to the Union is Justak, tion of the Board.” 664 F.2d at 1081. (cid:127) probative status, majority the Union’s We will reverse the Board’s order if it though even misplaced. the card was later constitutes an abuse the Board’s discre NLRB, 1137, Hedstrom v.Co. Cf. tion. See id. at 1082. (3d Cir.1977) 1150 n. (affirming misplaced inclusion of tally majori card in Majority Status status); ty NLRB v. International Metal Q-l argues majority that the Union lacked Inc., (2d Specialties, 870, Cir. support at the time the Union demanded 1970) (same), recognition July and that there- Similarly, L.Ed.2d 647 impermissible. fore a order is we find no error in the ALJ’s inclusion of remedy When a order is ‍​​‌‌‌‌‌​‌​​​​‌‌​‌‌‌​‌​‌​‌‌​​‌‌‌​​‌‌‌‌‌‌​‌​‌​‌​‌​‍issued tо unsigned Stevens’ among majority. card 8(a)(3) violations, however, section card, printed Stevens filled out the his requires showing only Gissel that “at one it, full orally name on affirmed his intent— majority time” the union had status —not May meeting both at the and later at the majority union had a when it de- hearing it be submitted to the Union —that Gissel, recognition. manded 395 U.S. at cards, with the other authorization and credi 1940; 89 S.Ct. at First Lakewood Assocs. v. bly explained why forgot sign.5 Under Cir.1978). circumstances, such it was reasonable for the ALJ and the Board to conclude that the card The ALJ found that six of the eleven “ unit, ‘did, was authentic members of and that Stevens bargaining the ef which con fect, do what by voting sisted of all he would regular part-time full-time and have done election,’” Indus., truck drivers and employed driver-mechanics Medline Inc. v. NLRB, (7th Cir.1979) (cita terminal,4 at the Clarksville signed union 793 omitted). authorization May Finally, cards as of tion 19—before we see no error in the Denham, Stevens, Lupo and were fired and ALJ’s inclusion of par Suddeth’s card. The before hired four stipulated new drivers. In addi ties bargaining the relevant tion, (Stevens’) driver-mechanics, one card was filled out but unit included and the rec (driver signed, not and another Homer Lon- ord shows description. that Suddeth fit that parties stipulated truck, 4. The somebody’s on the hurry record to this hood of and I was in a bargaining trying characterization of the unit. because I was to listen to ... the discus- drivers, amongst complete sion and it was a just forgot 5. Stevens [sign], oversight my part, testified: "I put my and but I did mean to was, happened filling signature what I was it out on the on it.” peatedly justify bargain- that in addition to his work found sufficient to Suddeth testified mechanic, freight Ford, ing Tirapelli made occasional order. as a See Ron deliveries, paid 10; 69; he was the same Berger, which & n. 678 F.2d at Justak, mileage rates as the other drivers. has F.2d 1082. As we said in presented Justak, no evidence that would lead thus describing impact of unfair finding Board’s us to disturb the practices labor remarkably that are similar indeed, did, majority have as of Union status (including to those before us the termination 1991. exactly pro-union of employees): three probable impact prac- The of unfair labor Appropriateness Bargaining Or- of tices is bargaining increased when a small der unit is involvеd. The violations argues that even if the further engaged are not minor. It in surveillance status, majority bargain Union did have activities, discharged pro-Union of union ing inappropriate for order was other rea employees, layoffs threatened ... and both particular, alleged sons. In it asserts that its promised granted and benefits to thwart practices only unfair centered around labor only unionization. Threats not were made individuals, Denham, and three (“Actions speak but executed. louder than Lupo, only minority constituted a small who words,” as the judge administrative law unit, bargaining and the record noted.) circumstances, Under such support not otherwise the Board’s find does record, after careful review of the we ing impоssi that a fair election would now be fully agree bargain- with the Board that a consideration, ble. After careful we dis ing appropriate remedy. order is an agree. (citations omitted). 664 F.2d at 1082 The bargaining “strong A order is medicine same can be said here. implemented and is to be with the utmost Ford, NLRB, Tirapelli Ron Inc. v. care.” Q-l contends that the Board has not (7th Cir.1993). Conse- Q-l’s alleged shown how violations would it an quently, we have found abuse of the holding interfere with the of a fair election. impose bargaining Board’s discretion to Board, however, required is not to ex analysis order without sufficient and discus- plain accuracy impact with scientific of adequacy sion of the of traditional remedies. practices. unfair It labor Id. аt 1081. need Montgomery & Co. v. See Ward list the factors that considers mak (7th Cir.1990). case, In F.2d this ing its that a determination discharged believe its burden. we the Board is warranted and describe how these factors severity It considered the of the unfair labor efficacy weighed against been have practices; high-level management offi- id.; less drastic remedies. See see also Ron them; timing cials who committed Ford, Tirapelli (describing 987 F.2d at 441 closure, discharge plant threats of interests). balancing At some promises pay well as increase point, recognizes “common sense the dramat view, that, grievances; fact address long ic and term effects of such threats” as affected; all of the were Justak, were made here. 664 F.2d at 1082. light sizе of the unit. small Q-l’s managemént highest demonstrated in factors, Board concluded that “the these employees, unmistakable terms to all of the possibility erasing Re- the effects actually just who dis three spondent’s extensive and serious violations is activity charged, that union would not be slight holding Of a fair un- and the election participated and that those who tolerated likely.” punished, were watched and would be point losing The Board’s discussion is not a mere “sum- to the their livelihoods. Such conclusion,” mary disapproved chilling expected persist can to such as that a lesson be labor-management Montgomery pervade of in 904 F.2d at relations Ward. See factors, Instead, Q-l, both in the memories of those who 1159. it is a delineаtion of record, shop after supported by the that we have re- were there and in the lore of the 482 circumstances, Co., 569,

they Transp. In such a bar- NLRB v. Advance 979 F.2d leave.6 (7th Cir.1992); not an abuse of the Board’s 573 NLRB v. gaining order is So-White (7th Lines, Inc., 401, Freight discretion. 969 F.2d 407 Cir.1992)). equally is law clear that we III. CONCLUSION findings they will affirm the Board’s of fact if supported by are “substantial evidence on findings case. The This is not a difficult the record considered as a whole.” Central ALJ, by adopted the Board and af- as cases, Transport, In 997 F.2d at 1184. most here, persistent a firmed demonstrate credibility findings an ALJ’s would withstand Q-l campaign part on the pervasive challenge findings a that he was biased if the exercising prevent employees from ‍​​‌‌‌‌‌​‌​​​​‌‌​‌‌‌​‌​‌​‌‌​​‌‌‌​​‌‌‌‌‌‌​‌​‌​‌​‌​‍their its by supported substantial evidencе. See rights unionize under the National Labor NLRB, Corp. Universal Camera 340 U.S. Q-l management expressed Relations Act. 496, 474, 456, 468-69, 71 S.Ct. 95 L.Ed. 456 open hostility organizational to the efforts NLRB, (1951); 946, Kopack v. 668 F.2d 952- organizers impermis- and to the themselves — (7th Cir.), 994, 54 sibly coupling expressions of views with 2278, (1982). 73 L.Ed.2d In this reprisal actual threats of and with retaliation. case, respondent-appellant, Motor constitutes a blatant violation Such conduct Express, presents compelling argument a of sections of the Act. We the ALJ was fact biased because the see no abuse of the Board’s discretion its opposite ALJ reached the exact conclusion fair determination that a election would not regarding credibility of the witnesses possible bargaining and that a be experienced than did the U.S. district court Accordingly, Q- necessary. deny is we who, judge hearing testimony open after petition l’s review and enforce witnesses, principal court from the same see Board’s order. 2, grant note refused to the NLRB a infra ENFORCED. preliminary injunction pending the outcome hearing.1 of the administrative COFFEY, Judge, dissenting. Circuit credibility findings by “We will not overturn an ALJ’s I realize that the factual made extraordinary judge 10(j) injunctive absent circum a proceeding determinations trial [extraordinary Board, binding stances. These circum are the ALJ or the showing include a clear of bias National Labor stances] Relations Bd. v. Acker In (10th ALJ, dust., Inc., disregard Cir.1972), utter for uncontroverted however, testimony, acceptancе testimony expe sworn it causes me concern when an judge which on its face is incredible.” Central rienced U.S. district and an NLRB Transport, judge Inc. v. National Labor Relations administrative law reach such conflict Bd., Cir.1993) 1180, 1190 (citing ing credibility conclusions as to witness after by Q-l's 6. Our conclusion is thus not altered 110 S.Ct. 108 L.Ed.2d 614 More- over, brief, appears assertion in made without reference even if the have record, changed, any management Q-l's evidence in the that all but one remains the same. Thus, repetition illegal practices appears original employees bargaining unit has Ward, likely Montgomery more here than in changes Q-l. this time left While in circum remained, managers where one of thirteen long period stances over a of time are relevant to Impact order, see 904 F.2d at or than in Indus- determining propriety of a tries, among changed where circumstances Ward, Montgomery see F.2d at "[i]t manage- deemed relevant was the fact that the may well settled ... that the Board issue a bar completely changed, ment had see 847 F.2d at gaining represents only order even if the Union entered," Justak, minority when the order is Gissel, (citing F.2d at 1082 395 U.S. at 1938). Where, here, employer's S.Ct. at 10(j) 1. Section of the National Labor Relations Act, pervasive likely persist misconduct is de 160(j), permits § party 29 U.S.C. to seek turnover, spite employee injunctive pending order still relief final Board action. may preserve case, employee sought enjoin Q-l better and foster frеe this the NLRB from other, Id.; engaging choice than traditional remedies. see practices in further unfair labor and to Stores, Amazing require wrongfully also Inc. v. to reinstate the three (D.C.Cir.1989), discharged employees. (truck testimony essentially hearing employees the same were no attempting drivers Following testimony unionize) of the present witnesses.2 at the time the conversa- Q-l management, truck drivers and the tion employees occurred. no Since were stated, judge “Generally, this U.S. district present, the Board ruled the comments could Q-l Express’ court finds that Motor witness- attempt with, not constitute an to “interfere petitioner’s were more credible than the es restrain, in coerce the exercise witnesses; testimony appeared the drivers’ right[ organize. ]” to 29 U.S.C. ‘scripted,’ having to the court have been 158(a)(1). § again, finding, Once this which many in been uniform details that would disavowed, the Board po- reveals the ALJ’s naturally yield otherwise to certain inconsis- Q-l. Third, against tential bias the ALJ tencies, ALJ, and less than candid.” The concluded that Sehroering because James E. giving explanation why without an as to his attorney discharging consulted his before credibility findings directly opposed were to Donald Denham it “suggested] respected judge, trial those of the credited [Sehroering] plotting carefully was his course testimony Q-l of the drivers over that of outset,” i.e., from the seeking that he was Sehroering throughout President his deci- disrupt attempts unionizing without run- inconsistency especiаlly sion. trou- This ning rejected afoul of the law. The Board light hearing in blesome of the fact that the finding merely seeking this because the ad- judge before the district occurred several vice of discharging employ- counsel before prior hearing months before the ALJ suggest ee does not antiunion animus but memory and thus the witnesses’ recollec- rather is a sound business decision in this events, circumstances, tion of under usual increasing employee climate of lawsuits would be clearer and much more vivid when against employers. The fact that the ALJ they in testified district court. interpreted Schroering’s consulting with his addition to the variance the credibili- attorney president’s as an indication of the ty findings, findings there were several made hostility toward the union is further evidence suggesting the ALJ that he was in fact jaund- that the ALJ viewed the record with a Q-l against management. biased The Board eye. disavowed, Finally, iced the Board properly findings, “disavowed” each of these elaboration, finding without the ALJ’s yet holding against Q-l. affirmed ALJ’s 8(a)(5) § there was a violation as of instance, For based his ALJ decision Q-l, against part, on six violations allege § that the NLRB did not even express four These instances of the Board complaint. in its dismissed the (each rejecting findings of the ALJ find- findings against ALJ’s six additional the em- ing against Q-l), provide additional evidence ployer Q-l because did have fair notice against Q-l. that the ALJ had a bias He alleged of these violations. The fact that the was not satisfied with the NLRB’s сase beyond complaint ALJ went far in search against Q-l upon so he took it himself to against employer of additional violations charges manufacture more and construe the strongly objec- infers that he was less than light Q-l evidence most unfavorable to Second, tive about the NLRB’s' case. impartial rather than a neutral and fash- against Q- § found ALJ one violation ion. dispatcher report based on Leah Conrad’s credibility Based on find- the irreconcilable Sehroering E. President James that union ings judge of the district and the ALJ as well cards were distributed. The Board (which finding disavowed this as the four instances of bias because both Conrad “disavowed”), Sehroering supervisors and there Board I reverse the would rad, driver; majority opinion 2. As in the we mentioned lack a who was another as well as transcript 10(j) proceeding, the U.S. Hogan, but James another driver. The NLRB judge express district made reference to the testi- brief before this court listed three witnesses Q-l; mony Sehroering, president of James E. testify that testified before the ALJ that did not Denham, Donald R. Dan W. and Antho- Longoria district court: Homer and Sandra drivers; ny Lupo, rad, discharged Q-l Leah Con- Shirley Glisson'. dispatcher; her husband Mark Con- remand for a new factual Board’s order and different, impartial

hearing of a ALJ. in front considering totality of the evi-

When must,

dence, cer- the evidence bias as we At the

tainly on his decision. casts doubt least, necessary for the

very a remand why accepted the ALJ’s explain

Board to referring

credibility findings even without findings. credibility Al- trial court’s might very

though the result after remand ‍​​‌‌‌‌‌​‌​​​​‌‌​‌‌‌​‌​‌​‌‌​​‌‌‌​​‌‌‌‌‌‌​‌​‌​‌​‌​‍same, is entitled to appellant

well be the day explana-

have its court and receive Board as to how it reconciled

tion from the judicial findings. In our

these inconsistent satisfy appearance

system, “justice must justice” agencies, and administrative judges, administrative law must avoid

well as partiality. appearance of bias or

even Murchison,

re L.Ed. 942

Dissent.

FIDELITY AND INSUR GUARANTY UNDERWRITERS, INC.,

ANCE

Plaintiff-Appellee, COMPANY, L.P., I.

EVERETT BROWN Brown, Brown,

Eugene L. Kenneth W. Miller,

Joseph De S. Brown Sol C.

fendants-Appellants.

No. 93-2959. Appeals,

United States Court of Circuit.

Seventh

Argued Jan. 1994.

Decided 1994.

Rehearing Denied June

Case Details

Case Name: National Labor Relations Board v. Q-1 Motor Express, Incorporated

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jul 29, 1994

Citation: 25 F.3d 473

Docket Number: 93-1746

Court Abbreviation: 7th Cir.