Buckeye Electric Co. v. National Labor Relations Board

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 04a0138n.06
Filed: November 30, 2004
Nos. 03-1892, 03-2088
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BUCKEYE ELECTRIC CO.,
Petitioner-Cross-Respondent,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent-Cross-Petitioner.
)
)
)
)
)
)
)
)
)
ON APPEAL FROM A
D E C I S I O N O F T H E
N A T I O N A L L A B O R
RELATIONS BOARD
BEFORE: MARTIN, COLE, and GIBBONS, Circuit Judges.
R. GUY COLE, JR., Circuit Judge. Petitioner-Appellant Buckeye Electric Co. seeks
review of the National Labor Relations Board’s (“NLRB” or “Board”) determination that Buckeye
Electric violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (“NLRA”). The
NLRB cross-appeals for enforcement. On appeal, Petitioner argues that the NLRB erred in
determining that there was substantial evidence that the company threatened one of its former
employees with more onerous working conditions because of his support for the union, and also
erred in finding substantial evidence of discriminatory discharge based on the employee’s support
of, and membership in, the union. Because we find that there was substantial evidence of a threat
of more onerous working conditions and discriminatory discharge based on union membership, we
AFFIRM the decision of the NLRB and GRANT enforcement of its order.

-- 1 of 7 --

Nos. 03-1892, 03-2088
Buckeye Electric Co. v. NLRB
- 2 -
I. BACKGROUND
Tim McCoy worked as an electrician for Buckeye Electric (“Buckeye”), a construction
contracting company. McCoy commuted to Columbus for work, a trip that was approximately 100
miles each way. On September 7, 2001, McCoy joined Local 1105 of the International Brotherhood
of Electrical Workers (“IBEW”). Although the union did not have a job for McCoy at that time, the
union told him to keep his job with Buckeye until it found a position for him.
On September 10, 2001, McCoy informed his supervisor at Buckeye, Scott Whitaker, that
he had joined the union. McCoy explained that he would be “leaving soon” but that he would
continue to work as he had in the past. He also told his project manager about his union
membership. McCoy’s project manager requested that he inform Rick Smythe, the company vice-
president. McCoy testified that when he informed Rick Smythe of his union membership, Smythe
said to him, “So, now you are going to start paying to go to work.” Smythe also told McCoy that
he could work through the end of the week at which point he had to leave the company.
According to McCoy, on September 11, 2001, Dick Smythe, the company president, told him
that he could work for the company for as long as he wanted. McCoy thanked Smythe, explaining
that he needed the job because it provided health insurance for his family. In contrast, Dick Smythe
testified that he had told McCoy that he could stay one more week. Both McCoy and Smythe said
that Whitaker witnessed this exchange. However, Whitaker claimed he did not hear that portion of
the discussion.
Later that day, Whitaker told McCoy that Dick Smythe came to the Columbus worksite to
tell McCoy that he would be working in Dayton, a change that would have added three hours to his

-- 2 of 7 --

Nos. 03-1892, 03-2088
Buckeye Electric Co. v. NLRB
- 3 -
daily commute. Whitaker explained that the purpose of the change was to induce McCoy to quit.
On September 20, Whitaker and McCoy had another conversation about Dick Smythe’s desire to
send McCoy to Dayton. At that time, Whitaker told McCoy that Smythe always sent workers to
Dayton “when he finds out somebody’s in the IBEW.” This conversation was tape-recorded. At
no point did anyone actually tell McCoy he would have to work in Dayton.
On September 12, McCoy received union stickers and guides to pass out to other workers.
He placed the stickers on his hardhat, which he left in Whitaker’s office. Dick Smythe testified that
he knew about the stickers. On September 17, the union faxed the nonunion salting form to
Buckeye, identifying McCoy as a union member. On September 20, McCoy passed out the union
guides during a lunchbreak.
Later in the day on the 20th, Rick Smythe informed McCoy that his last day would be
September 21. Smythe told McCoy that he had given two weeks notice and that this termination
was the company’s response. McCoy turned in his keys and left.
The NLRB held a hearing and concluded that Buckeye violated Section 8(a)(1) of the NLRA
by threatening McCoy with more onerous working conditions, as well as Section 8(a)(3) and (1) by
discharging McCoy based on his union support and membership. 28 U.S.C. § 158(a)(1); 28 U.S.C.
§ 158(a)(3). The NLRB affirmed. This appeal followed.
II. ANALYSIS
A. There was Substantial Evidence that Buckeye Threatened McCoy with More Onerous Working
Conditions.

-- 3 of 7 --

Nos. 03-1892, 03-2088
Buckeye Electric Co. v. NLRB
- 4 -
The NLRB found that Buckeye violated section 8(a)(1) of the NLRA by threatening McCoy
with more onerous working conditions. We review the NLRB’s findings of fact for substantial
evidence. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 487-88 (1951). So long as there is
substantial evidence, we do not reverse the Board even if we would reach a different conclusion
were we to review de novo. Id.; see also Torbitt & Castleman, Inc. v. N.L.R.B., 123 F.3d 899, 906
(6th Cir. 1997) (holding that evidence that a statement is a threat should not be set aside because a
“different inference or conclusion may seem more plausible”).
The NLRA guarantees employees “the right to self-organization, to form, join, or assist labor
organizations . . . .” 29 U.S.C. § 157. Section 8(a)(1) makes it an unfair labor practice “to interfere
with, restrain, or coerce employees in the exercise of [those] rights . . . .” 29 U.S.C. § 158(a)(1).
An employer violates Section 8(a)(1) by threatening more onerous working conditions because an
employee supports a union. Chef’s Pantry, Inc. v. N.L.R.B., 654 F.2d 458, 459 (6th Cir. 1981).
In this case, there was substantial evidence to support the Board’s finding. McCoy testified
that Whitaker told him that Dick Smythe planned to transfer him to Dayton in the hope that McCoy
would quit. Whitaker did not deny that this conversation took place. Petitioner argues that since
no one actually told McCoy that he would have to work in Dayton we must reverse the Board’s
finding. We disagree. The statute does not require actual action, only a threat. Whitaker’s
statement alone constituted a threat.
It was not unreasonable for the Board to believe McCoy’s testimony on this point. The
NLRB makes credibility determinations which this Court may overturn only if “inherently
unreasonable or self-contradictory.” Wright Tool Co. v. N.L.R.B., 854 F.2d 812, 815 n.1 (6th Cir.

-- 4 of 7 --

Nos. 03-1892, 03-2088
Buckeye Electric Co. v. NLRB
- 5 -
1988). The NLRB credited McCoy’s testimony that Whitaker had told him Dick Smythe planned
to transfer him to Dayton. Whitaker did not deny this testimony and there is no contradictory
evidence on this point. Although Dick Smythe testified that he did not plan to send McCoy to
Dayton, our analysis is unchanged. The truth of the substance of the threat is irrelevant. It is only
important that a threat was made. McCoy’s testimony, in combination with the tape-recorded
conversation in which Whitaker explained that Smythe routinely sends workers to Dayton to induce
them to quit, was sufficient to provide substantial evidence for the Board’s finding that Buckeye
threatened McCoy with more onerous working conditions.
B. There was Substantial Evidence that Buckeye Discharged McCoy Because of Union Support and
Membership.
The Board also found that Buckeye violated sections 8(a)(1) and 8(a)(3) of the NLRA by
discharging McCoy based on union support and membership. 29 U.S.C. § 158(a)(1), (a)(3). Motive
is a factual question. We therefore review the Board’s determination for substantial evidence.
N.L.R.B. v. Taylor Mach. Prods., Inc., 136 F.3d 507, 514-15 (6th Cir. 1998).
Section 8(a)(3) of the NLRA bans “discrimination in regard to hire or tenure of employment
or any term or condition of employment to encourage or discourage membership in any labor
organization.” 29 U.S.C. § 158(a)(3). Section 8(a)(1) states that it is an unfair labor practice “to
interfere with, restrain, or coerce employees in the exercise of [their statutory] rights . . . .” 29
U.S.C. § 158(a)(1). When an employer discharges employees to discourage union activity, such
action violates both Section 8(a)(3) and Section 8(a)(1). Taylor Machine, 136 F.3d at 511-12.

-- 5 of 7 --

Nos. 03-1892, 03-2088
Buckeye Electric Co. v. NLRB
- 6 -
Discriminatory discharge is proven through a burden-shifting scheme. The employee bears
the initial burden to show that protected conduct was a substantial or motivating factor in the
discharge. Id. at 514. The burden then shifts to the employer to prove an affirmative defense by a
preponderance of the evidence. Id. at 515.
In this case, there was evidence that protected conduct was a substantial or motivating factor
in the discharge. First, there was substantial evidence that Buckeye had knowledge that McCoy had
joined a union. McCoy informed his supervisor, his project manager, the vice-president, and the
president that he had joined the union, and he wore a union sticker on his hard hat. The company
president testified that he was aware of this sticker. McCoy openly handed out union literature to
other employees. In addition, the company received a letter on September 17 that specifically
identified McCoy as a union member.
There was also evidence that Buckeye was hostile towards union activity. Whitaker told
McCoy, in a tape-recorded conversation, that Dick Smythe generally says that he will relocate
employees to Dayton, a longer commute, to induce them to quit when the Smythes learn of union
membership. This evidence strongly suggests that Buckeye was, in fact, hostile towards union
activity. Thus, the NLRB correctly determined that there was substantial evidence of hostility
towards union activity.
Third, McCoy’s discharge occurred shortly after he announced that he had joined the union.
Proximity in time can be a reliable indicator of intent. W.F. Bolin Co. v. N.L.R.B., 70 F.3d 863, 872
(6th Cir. 1995). The phone call informing McCoy that his “last day” would be September 21
occurred on September 20, just three days after the company received the letter stating that McCoy

-- 6 of 7 --

Nos. 03-1892, 03-2088
Buckeye Electric Co. v. NLRB
- 7 -
had joined the union. In addition, the call came on the same day that McCoy started handing out
union literature. The Board reasonably inferred that this proximity in time supported a finding of
discriminatory discharge.
Buckeye defended its actions by arguing that McCoy had resigned. Buckeye said that his
statement that he “would be leaving soon” effectively constituted his two weeks notice. The Board’s
determination that Buckeye did not prove this defense by a preponderance of the evidence was based
on a credibility finding. McCoy testified that he made clear that he intended to stay with Buckeye
until he obtained a new job with the union. The Board’s determination that McCoy was more
credible was not inherently unreasonable, and was supported by the evidence.
As a result, this Court finds that there was substantial evidence to support the NLRB’s
determination that Buckeye discharged McCoy in a discriminatory manner in violation of sections
8(a)(1) and (3) of the NLRA.
III. CONCLUSION
For the reasons stated above, we AFFIRM the decision of the NLRB and GRANT
enforcement of its order.

-- 7 of 7 --