Petition to Review and Set Aside a Decision and Order of the National Labor Relations Board and Cross-Application for Enforcement.
Tone and Wood, Circuit Judges, and Charles E. Wyzanski, Jr., Senior District Judge.*fn*
Electri-Flex Company (hereinafter referred to as the company) petitions this court, pursuant to Section 10(f) of the National Labor Relations Act, 29 U.S.C. §§ 151 et seq., to review a Decision and Order of the National Labor Relations Board. The Board has filed a cross-application for enforcement of its order.*fn1
The company contends there is not substantial evidence to support the Board's finding that the company interfered with or restrained the employees in their unionization efforts or that the company improperly discharged and transferred pro-union employees. In addition, the company seeks review of the violations found in respect to its use of a written warning system, and the implementation of tentatively approved contract provisions, a call-in rule and a 60-day probationary provision.
The company contends the record lacks the substantial evidence necessary to support the Board's findings that it interfered with, restrained, and coerced its employees in the exercise of their statutory rights and thus violated Section 8(a)(1) of the Act.
In applying the "substantial evidence" standard we are aware of our duty to examine the entire record, including the evidence opposed to the Board's view, to determine whether the record contains "such evidence as a reasonable mind might accept as adequate to support a conclusion" and to find that the decision is "justified by the fair estimate of the worth of the testimony of the witnesses or its informed judgments on matters within its special competence." Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-90, 95 L. Ed. 456, 71 S. Ct. 456 (1957).
The testimony before the Administrative Law Judge (hereinafter referred to as ALJ) revealed that there had been interrogation by the company of its employees in regard to their union activity, and that discharge and other forms of reprisals were threatened if the employees supported the union or signed the authorization cards. In addition, the company promised to place those who voted for the company in management positions in an effort to dissuade employees from supporting the union. Other testimony revealed that the company maintained lists of employees on the basis of pro or anti-unionism, creating the impression that it had its employees under surveillance. We find there is substantial evidence to support the Board's finding of a violation of Section 8(a)(1).
The company also objects, claiming the ALJ used an "unnatural and legally unsupported test" relying solely on the absence of specific denials by the supervisors who engaged in the violative conduct.
The Board found that the ALJ even though not making explicit credibility findings, implicitly resolved conflicts in the testimony "by accepting and relying on the testimony of the General Counsel's witnesses," and in addition that the findings were based on demeanor. We agree with the conclusion reached by the Board that "there is no basis to overturn the . . . evaluation of credibility based on demeanor and the record as a whole . . . ." See NLRB v. Braswell Motor Freight Lines, 486 F.2d 743, 745 (7th Cir. 1973).
The Discharge and Transfer Violations
The Board found that the company violated Section 8(a)(3) in its actions involving employees, Adrian Velez, Martin Ibarra, Juan Martin and Tony Capasso and additionally violated Section 8(a)(4) as to Tony Capasso.
The controlling principle behind the finding of a Section 8(a)(3) violation is that the company's action or decision was discriminatorily motivated. NLRB v. National Food Stores, Inc., 332 F.2d 249, 252 (7th Cir. 1964). In determining this motivation, the Board may consider circumstantial as well as direct evidence. Further, while it is necessary for this court to determine whether there is substantial evidence on the record as a whole to support the decision of the Board, the decision is entitled to judicial affirmance, "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. at 488.
Finally, we note that absent exceptional circumstances, credibility resolutions are within the province of the trier of fact. Sarkes Tarzian, Inc. v. NLRB, 374 F.2d 734, 736 (7th Cir. 1967).
Below we give a brief review of the circumstances surrounding these incidents.
The records show that Adrian Velez's transfer from the position of set-up man to packager occurred within days of interrogation by company supervisor regarding his union sentiments and his admission that he had signed a union card. The company's statements and treatment of Velez following this July 16 transfer also indicate that the company was attempting to get rid of him prior to the union election, because they viewed him as a union sympathizer and activist.
As to Martin Ibarra, the record shows that his transfer from set-up man to machine operator occurred on the very same day he was observed distributing union handbills. The ALJ indicated he was not crediting the testimony of the company's representative, that Ibarra had been transferred because of dissatisfaction with his work.
Juan Martin had been employed by the company since 1971. He became active in the unionization efforts at the company, signed an authorization card, attended meetings and distributed handbills on the day of the election. The company was aware of his union activity. Martin was fired by the company on January 28 after a disputed incident involving another employee. The ALJ indicated he was crediting the employee's version, which indicated that the incident was merely an "insignificant bumping" ...