Petition for Review of an Order of the National Labor Relations Board.
Cummings, Chief Judge, Nichols, Judge,*fn* and Cudahy, Circuit Judge.
This case is before us on petition for review of Sioux Products, Inc. ("Sioux") and the cross-application of the National Labor Relations Board (the "Board") for enforcement of the Board's decision and order reported at 257 N.L.R.B. No. 56 (1981). In that decision and order, the Board affirmed and adopted the findings of the Administrative Law Judge ("ALJ") that Sioux unlawfully interrogated employees about their union activities and threatened to eliminate profit sharing if the employees approved a union as their bargaining representative (alternatively promising to retain profit sharing and grant pay raises if the union was not so approved). The Board, in affirming the ALJ, also found that Sioux threatened to fire employees and create problems with immigration authorities if they supported the union. All these activities were held to be in violation of section 8(a) (1) of the National Labor Relations Act (the "Act"), 29 U.S.C. § 158(a) (1) (1976). The Board also adopted the ALJ's finding that Sioux unlawfully reprimanded and discharged employee Julia Arroyo in violation of sections 8(a) (1) and 8(a) (3) of the Act. We conclude that substantial evidence on the whole record supports the Board's decision and order except with respect to alleged interrogation of certain union leaders in Sioux's plant, and we thus enforce the Board's order as modified.
I. Section 8(a) (1) Allegations
Sioux produces various injection molded plastic parts at its suburban Chicago plant, employing 110 workers -- most of whom speak Spanish as their primary or only language -- during the times relevant here. A majority of these employees voted in favor of representation by the Production Workers Union of Chicago, Local 707, at an election held on February 1, 1980.*fn1 The various alleged section 8(a) (1) violations forming the basis of the Board's action in this case occurred during the union representation campaign which preceded the February 1 election.
Before considering the specific incidents involved in the alleged section 8(a) (1) violations, we note that the Board's findings on factual questions, if supported by substantial evidence on the whole record, are conclusive on appeal. 29 U.S.C. § 160(e) (1976); see Universal Camera Corp. v. NLRB, 340 U.S. 474, 95 L. Ed. 456, 71 S. Ct. 456 (1951). Several recent decisions of this court have further explicated that standard when factual questions are resolved by the ALJ (and the ALJ's findings are accepted by the Board) relying in part on credibility determinations based upon witness demeanor. "To the extent that the ALJ's decision rests explicitly on his evaluations of demeanor, we are required to weigh those particular findings more heavily." Kopack v. NLRB, 668 F.2d 946, 954 (7th Cir. 1982); accord Consolidation Coal Co. v. NLRB, 669 F.2d 482, 487-88 (7th Cir. 1982). In this case, several of the ALJ's crucial factual findings were premised upon his demeanor-based assessment of the credibility of opposing witnesses who presented differing accounts of the same events.*fn2 We have carefully reviewed all of the ALJ's findings in this case, but, in accord with our decisions in Kopack and Consolidation Coal, we have placed especial weight on those findings based upon the candor and demeanor of witnesses.
To establish a violation of section 8(a) (1), the Board must demonstrate that the employer's conduct might reasonably tend to interfere with the exercise by employees of rights protected under the Act. See NLRB v. Illinois Tool Works, Inc., 153 F.2d 811, 814 (7th Cir. 1946). With this standard to guide our analysis under section 8(a) (1), we turn to the facts of the instant case involving alleged violations under that section. In this endeavor, we should accept the Board's decision involving violations of the Act unless the evidence on the record as a whole indicates that the Board's decision is unjustified as either a fair interpretation of the evidence or as an informed exercise of the Board's judgment on matters within its area of general competence. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 490, 95 L. Ed. 456, 71 S. Ct. 456 (1951).
Employees Julia Arroyo and Hilda Reyes testified that on the day before the representation election, the employees were addressed in Spanish by Sioux's translators.*fn3 The translators told the employees that they would lose profit-sharing and other benefits if the union won the representation election, but that they would retain their profit sharing and receive increased benefits and better "treatment" if the union lost the election. Employees Arroyo and Angelina Lopez also testified that their votes were solicited individually before the election by one of the translators, accompanied by the owner of Sioux, with the same pitch: you will lose your profit-sharing and other benefits if the union wins the election.
Sioux does not argue -- nor could it contend -- that the employees' testimony, if true, fails to establish a violation of section 8(a) (1). Indeed, threats to take away benefits upon a union victory in a representation election constitutes precisely the type of conduct which is a demonstrable obstacle to the exercise by employees of the free choice guaranteed by sections 7 and 8(a) (1) of the Act. See First Lakewood Associates v. NLRB, 582 F.2d 416, 419-21 (7th Cir. 1978).*fn4 Rather, Sioux asserts that the ALJ (and consequently, the Board) erred by accepting the testimony of Arroyo and Reyes, while rejecting the testimony of the company owner and one of the translators to the effect that, although profit-sharing was discussed with employees, there was no threat to eliminate that benefit as a result of a union victory.
But the ALJ's appraisal cannot be upset on this basis. The ALJ carefully explained that Arroyo, Reyes and Lopez were more candid and straightforward in their testimony than Sioux's witnesses -- and as we indicated above, this demeanor-based credibility determination is entitled to considerable weight. Moreover, the ALJ inferred from other facts that the testimony of the three employees more likely approached the truth than the contradictory testimony of Sioux's witnesses. For example, two of the employee witnesses (Reyes and Lopez) testified under subpoenas from the General Counsel; the ALJ noted that these witnesses, who were still employed by Sioux, did not "appear anxious to testify on behalf of [the] General Counsel against Respondent [Sioux]," and thus, their testimony was more believable. 257 N.L.R.B. No. 56 at 12. Sioux's translator, on the other hand, was originally hired to counter the union drive and the ALJ inferred from that fact that he probably testified in a manner consistent with the purpose for which he was employed; the company owner's testimony was unbelievable in part, according to the ALJ, because the owner did not speak Spanish and thus did not know precisely what the translator told the employees in Spanish. In such circumstances, we find no reason to fault the ALJ's findings of fact about the threats to take away benefits since these findings are, in our view, well supported by substantial evidence.
Several employees, including Marta Arroyo, Silvina Andrade, Angelina Lopez and Humberta Lopez, also testified that in various meetings with Sioux's management personnel and translators, they were threatened with loss of jobs, shorter working hours, strikes, and plant shutdowns if the union won the election. The employees further testified that they were told that those employees lacking proper immigration documents would be either fired or picked up by immigration authorities if the union won the election. Sioux cannot, of course, deny the illegality of such threats if they were indeed communicated to its employees. Cf. NLRB v. Gissel Packing Co., 395 U.S. 575, 23 L. Ed. 2d 547, 89 S. Ct. 1918 (1969) (employer coerced employees in violation of section 8(a) (1) by predicting adverse consequences, not based on objective facts beyond employer's unilateral control, upon unionization).*fn5 Rather, Sioux again argues that the ALJ improperly accepted the employees' testimony and rejected the contradictory testimony of Sioux's witnesses.
We believe that the ALJ properly credited the testimony of employees Marta Arroyo, Angelina Lopez and Humberta Lopez and correctly found that the statements attributed to Sioux violated section 8(a) (1). Although the ALJ's determination here was not based upon demeanor evidence and thus is not entitled to exceptional weight under our Consolidation Coal decision, the ALJ nonetheless satisfactorily explained why he chose to believe some testimony and disbelieve other testimony, and we are unable to fault his determinations as lacking substantial evidentiary support. The ALJ accepted the testimony of Arroyo and the two Lopezes because Borgerson, whom the ALJ regarded as Sioux's most unbiased witness (see note 9, infra), testified inconsistently; Gibson, the personnel manager, was too closely tied to Sioux's interests in the case; and, translator Garza, a third potential witness, was not called by Sioux to refute the allegations made by Angelina and Humberta Lopez. In the absence of consistent, unbiased testimony to the contrary, we ought not to disapprove the Board's acceptance of the ALJ's findings.*fn6
The final section 8(a) (1) violation alleged here involved interrogation by Sioux's translator, John Garza, of employees Eulogio Arroyo, Marta Arroyo and Julia Arroyo. The Arroyos testified that on separate occasions Garza asked each of them whether they planned to vote for the union. Eulogio Arroyo testified that Garza also asked him after the election whether he had actually voted for the union. Garza did not appear or testify at the hearing. In contrast to his otherwise detailed analysis of the facts and law on other matters, the ALJ here simply and cryptically concluded that the employees testified credibly that Garza did not refute their ...