Bloomington -Normal Seating C O . v. National Labor Relations Board

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-2929 & 03-3101
B LOOMINGTON -N ORMAL S EATING C O .,
Petitioner-Cross-Respondent,
v.
N ATIONAL L ABOR R ELATIONS B OARD ,
Respondent-Cross-Petitioner.
____________
Petition for Review and Cross-Application for Enforcement
of an Order of the National Labor Relations Board.
No. 33-CA-13769
____________
A RGUED J ANUARY 21, 2004—D ECIDED F EBRUARY 5, 2004
____________
Before F LAUM , Chief Judge, and P OSNER and R IPPLE ,
Circuit Judges.
F LAUM , Chief Judge. In 2003, the National Labor Rela-
tions Board (“NLRB”) concluded that Bloomington-Normal
Seating Company (“the company”) had violated the National
Labor Relations Act by threatening to discharge an em-
ployee if he became a member of a labor organization and
by requesting that employees report the solicitation of
union authorization cards. The company now appeals. For
the reasons stated herein, we reject the company’s argu-
ments and grant enforcement of the NLRB’s order.

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2 Nos. 03-2929 & 03-3101
I. B ACKGROUND
Bloomington-Normal Seating Company manufactures
seats for automobiles. In September 2001, the Local 362 of
the Laborers’ International Union of North America, AFL-
CIO (“the union”), began attempting to represent the com-
pany’s production and maintenance employees. Prior to this
time, there had been no union activity at the company.
On September 5, 2001, supervisor Mark Overfelt noticed
employee Russell Sears reading a newspaper. According to
the company, Overfelt casually asked Sears what he was
reading and when Sears responded, “nothing,” Overfelt left.
According to Sears, Overfelt approached him, asked him if
he was reading the Union News, and then grabbed the
paper away from him. Sears testified that Overfelt then told
him that if he was trying to start a union he would be
“canned.”
Sears’ version of events was partially confirmed by the
testimony of his co-worker and aunt, Shirley Halsey. Halsey
testified that on the day Sears brought the Union News to
work, she saw Overfelt approach Sears and attempt to grab
the paper out of his hands. She then saw Overfelt talk to
Sears for a few minutes, but by the time she was near
enough to hear the two speaking, the conversation had
ended.
Later that day, the company held a meeting to address
the employees’ unionization efforts. At the meeting, a pro-
duction manager read a prepared speech which stated in
part, “if you are threatened or harassed about signing a
union card, I hope you will let us know about it.” There is
no evidence that any employee ever informed the company
that he or she felt threatened or harassed by the union or
by other employees.
The union subsequently filed unfair labor practice charges
against the company. The Administrative Law Judge

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Nos. 03-2929 & 03-3101 3
1 It is undisputed that it is unlawful for an employer to threaten
an employee with discharge if the employee engages in union
(continued...)
(“ALJ”) concluded that Overfelt had threatened Sears with
discharge if he attempted to unionize. The ALJ also found
that the company’s speech was an effort to encourage
workers to inform the company when other employees were
soliciting union support. The NLRB adopted the ALJ’s
findings and concluded that the company committed unfair
labor practices in violation of Section 8(a) of the National
Labor Relations Act (“NLRA”). The company now appeals.
The NLRB cross-appeals and asks this Court to enforce the
NLRB’s order that the company cease and desist from
engaging in unfair labor practices.
II. D ISCUSSION
We will enforce the NLRB’s order if its factual findings
are supported by substantial evidence and its conclusions
have a reasonable basis in the law. See Dilling Mech.
Contractors, Inc. v. NLRB, 107 F.3d 521, 523-24 (7th Cir.
1997). This standard requires only that the NLRB produce
relevant evidence sufficient for a reasonable person to ac-
cept the NLRB’s conclusion. See Universal Camera Corp. v.
NLRB, 340 U.S. 474, 477 (1951). We owe particular defer-
ence to the NLRB’s determinations regarding witness
credibility, which we do not disturb absent extraordinary
circumstances such as “clear bias by the ALJ, utter disre-
gard of uncontroverted sworn testimony, or acceptance of
testimony that on its face is incredible.” See NLRB v.
Gerig’s Dump Trucking, Inc., 137 F.3d 936, 941 (7th Cir.
1998).
The company first challenges the NLRB’s finding that
Overfelt threatened Sears with discharge if Sears engaged
in union activities.1 The company argues that the ALJ did

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4 Nos. 03-2929 & 03-3101
(...continued)
activity. See NLRB v. Shelby Mem’l Hosp. Ass’n, 1 F.3d 550, 560
(7th Cir. 1993). Thus, if Overfelt did threaten to “can” Sears for
his union activities, the company violated Section 8(a) of the
National Labor Relations Act.
not properly assess the credibility of the witnesses because
the ALJ did not compare the witnesses’ demeanors. The
company further argues that Halsey was obviously an
incredible witness because she claimed to see Sears and
Overfelt but not to hear the conversation between them.
Finally, the company contends that even if we grant
substantial deference to the ALJ’s findings, we should not
uphold them because the ALJ relied entirely upon the
presumption that current employees who testify against
their employer are likely to be truthful.
We conclude that these arguments are without merit.
First, the ALJ did assess the credibility of the witnesses
when he commented that Sears and Halsey had credible
demeanors. Despite the company’s arguments to the con-
trary at oral argument, the ALJ was not required to list the
physical characteristics of the witnesses that led to the
conclusion that they were credible. Second, the fact that
Halsey testified that she could see Overfelt and Sears
without hearing them does not make her an incredible
witness. The record shows that Halsey has poor hearing
and has undergone surgery on both ears. Even if Halsey
had perfect hearing, it is not unbelievable that one might be
able to see people talking but not be able to hear the
conversation. Finally, the ALJ did not rely entirely upon the
presumption that current employees testify truthfully
against their employers. The ALJ specifically noted that
there is no such presumption, but stated that the testimony
of current employees is likely to be reliable because the
employees are testifying adversely to their pecuniary

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Nos. 03-2929 & 03-3101 5
2 An employer violates Section 8(a) of the NLRA when the em-
ployer’s actions have a reasonable tendency to interfere with or
coerce employees in the exercise of their protected rights. See
NLRB v. Gerig’s Dump Trucking, Inc., 137 F.3d 936, 940 (7th Cir.
1998). Both parties apparently agree that encouraging employees
to report unionization efforts would be unlawful under Section
8(a); the company challenges only the finding that its speech did
encourage employees to turn in fellow employees as union ad-
herents.
interests. This is in accord with Flexsteel Industries, Inc.,
316 N.L.R.B. 745 (1995), which held that a “witness’ status
as a current employee may be a significant factor” in deter-
mining the credibility of the witness. Moreover, in addition
to their status as employees, the ALJ also discussed the
witnesses’ demeanors and lack of motive to lie when de-
ciding to credit their testimony.
Essentially, the company asks us to reweigh the evidence
and reach our own conclusions regarding whether Overfelt
or Sears and Halsey should be believed. This is not the
proper standard of review. See J.C. Penney Co., Inc. v.
NLRB, 123 F.3d 988, 993 (7th Cir. 1997) (“It is not our
place to engage in our own fact finding or supplant the
Board’s reasonable conclusions ‘even though [we] would jus-
tifiably have made a different choice had the matter been
before [us] de novo.’ ”). We therefore conclude that substan-
tial evidence supports the NLRB’s finding that Overfelt
threatened Sears with discharge if he aided the union.
The company next challenges the NLRB’s finding that the
company violated the NLRA by encouraging employees to
inform on those who were unionizing.2 The NLRB’s finding
was based upon the company’s speech to employees, which
stated in part: “if you are threatened or harassed about
signing a union card, I hope you will let us know about it.”
The company argues that this speech was not made to
discourage unionization, and urges us to safeguard an

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6 Nos. 03-2929 & 03-3101
employer’s right to protect employees from threats and
harassment. The NLRB responds that it is not unlawful for
an employer to ask employees to report threats, but that
any use of the term “harassment” is per se a violation of the
NLRA because it has the potential for chilling legitimate
union activity.
While it is true that we have often found a violation of the
NLRA when words such as “pressure” or “harassment” are
used, we decline to hold that the use of such words is a per
se violation. See NLRB v. Aluminum Casting & Eng’g Co.,
Inc., 230 F.3d 286, 294 (7th Cir. 2000); NLRB v. Almet, Inc.,
987 F.2d 445, 453 (7th Cir. 1993). Rather, our cases demon-
strate that a fact-based, contextual inquiry is required to
determine whether a company has violated the NLRA.
For example, in Aluminum Casting, 230 F.3d at 294, a
company distributed a memorandum to its employees re-
questing that the employees notify the company if they
were pressured to sign union cards. In addition to the
wording of the memorandum, the Court also discussed its
timing (after a contested union election, when a new elec-
tion was imminent), and whether employees had actually
been threatened or pressured (at least one employee felt
pressured, but not threatened), before concluding that the
company had violated the NLRA. Similarly, in Almet, 987
F.2d at 452-53, the Court found that a company violated the
NLRA when it required employees to report bullying or
threats. In addition to the use of the words “bullying or
threats,” the Court also considered it significant that em-
ployees faced discipline if they did not report bullying, and
noted that it was important that the company only barred
bullying by union supporters.
It is only in evaluating factors such as the timing of
the speech, the words used in the speech, whether the
speech targeted union supporters, and whether the speech

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Nos. 03-2929 & 03-3101 7
was directed toward employees who were being threatened,
that it can be determined whether a company has violated
the NLRA. While such an inquiry does not provide the
bright-line rule requested by the NLRB, it balances the two
equally important interests of protecting employees while
not infringing upon their right to engage in union activities.
We therefore must analyze the context of Bloomington-
Normal’s speech to determine whether substantial evidence
supports the NLRB’s finding that the speech encouraged
employees to report unionization efforts.
We begin by noting that although the company asked
employees to report threats or harassment, there was
no evidence presented that the company believed any
employees had been threatened or harassed by union rep-
resentatives. In fact, the company first learned of attempts
to unionize on the very day of the speech. This cuts against
the company’s arguments that it was trying to protect its
employees’ physical safety. After all, as far as the company
knew there had been no threats to the safety of the em-
ployees. Additionally, the company’s speech was inextrica-
bly linked to the process of unionization. It was not part of
an employee handbook or code of conduct that prohibits
harassment generally; rather, the company asked only
those “threatened or harassed about signing a union card”
to come forward. (emphasis added). Moreover, it targeted
only union supporters, as those are the ones who approach
others about signing union cards. Finally, the term “har-
assment” is an elastic one, and may include protected
organizational activity. See NLRB v. Almet, 987 F.2d 445,
452 (7th Cir. 1993). Although not dispositive, it certainly
does not help Bloomington-Normal that it used such a sub-
jective term when asking employees to notify the company
of union activities. Considering that the speech was made
immediately upon finding out about the union’s presence,
without any knowledge of threats or harassment from the
union, and targeted only union supporters, it was not

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8 Nos. 03-2929 & 03-3101
unreasonable for the NLRB to conclude that the speech
encouraged employees to report unionization efforts. We
therefore conclude that sufficient evidence was presented to
support the NLRB’s finding that the company violated
Section 8(a) of the NLRA.
III. C ONCLUSION
Substantial evidence supports the NLRB’s finding that
the company violated the National Labor Relations Act
when it threatened an employee with discharge if he aided
the union and when it encouraged employees to report un-
ionization efforts. Therefore, we D ENY the company’s
petition for review and E NFORCE the NLRB’s order in full.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-5-04

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