National Labor Relations Board v. Hartley Oil Company, Incorporated

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
No. 99-1224
HARTLEY OIL COMPANY,
INCORPORATED,
Respondent.
On Application for Enforcement of an Order
of the National Labor Relations Board.
(9-CA-33372-4)
Argued: March 3, 2000
Decided: March 27, 2000
Before WILKINSON, Chief Judge, and WILLIAMS
and MOTZ, Circuit Judges.
_________________________________________________________________
Application for enforcement granted by unpublished per curiam opin-
ion.
_________________________________________________________________
COUNSEL
ARGUED: Mark Evan Heath, HEENAN, ALTHEN & ROLES,
Charleston, West Virginia, for Hartley Oil. Joan Elizabeth Hoyte,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Board. ON BRIEF: Anna M. Dailey, HEENAN, ALTHEN &
ROLES, Charleston, West Virginia, for Hartley Oil. Frederick L.
Feinstein, General Counsel, Linda Sher, Associate General Counsel,

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Aileen A. Armstrong, Deputy Associate General Counsel, Fred L.
Cornnell, Supervisory Attorney, NATIONAL LABOR RELATIONS
BOARD, Washington, D.C., for Board.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Hartley Oil Company, Inc., located in Ravenswood, West Virginia,
repackages and warehouses plastic products produced by other com-
panies. Hartley's facility includes three buildings: a rail building,
where employees wash rail cars and repair them; a warehouse where
employees repackage and store plastic products; and an "extruder"
building where employees melt down fiber into plastic.
On November 17, 1994, Hartley hired Leon Simms as a laborer to
work in the rail building. Three months later, Simms dislocated his
shoulder, and the company transferred him to the warehouse. In May
1995, the company transferred Simms back to the rail building. On
June 14, 1995, several weeks after returning to the rail building,
Simms fell in the parking lot and cut his hand. His doctor gave him
a note requiring him to stay "off heavy work 4-6 w[ee]ks," and when
he returned to work on June 20 the company assigned Simms to the
warehouse. Simms testified, and the Board found, that company
supervisors told him at this time that he "wouldn't be going back to
the rail building" but instead "would be staying [at the same hourly
rate ($5.00)] in the warehouse."
In July 1995, the Oil Chemical and Atomic Workers International
Union, AFL-CIO, began an organizing drive at Hartley. Simms
signed the union's representation petition on August 16 and began
attending union meetings. On August 28, 1995, Simms wore a union
button on his hat at work in the warehouse. Simms testified that a
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supervisor, Bruce Speece, saw Simms with the button,"closed his
eyes and put down his head and shook his head." Speece returned to
his office, which he shared with warehouse manager Doug Moore,
and fifteen minutes later the company ordered Simms to transfer to
the rail building.
Company records indicate that in the four weeks prior to this
August transfer from the warehouse to the rail building, Simms
worked 52.50 hours, 57.25 hours, 47.75 hours, and 45.50 hours, while
in the three weeks after this transfer he worked 37.25 hours, 33.50
hours, and 23.00 hours. The company records also reveal that during
the weeks immediately after Simms' transfer, laborers in the ware-
house continued to work substantial overtime, and that even the labor-
ers in the rail building, other than Simms, worked numerous overtime
hours. The other employees working in the rail building were able to
work overtime although work in the rail building was"sporadic" dur-
ing this time in part because of a company practice, not followed in
Simms' case, of permitting employees to work in one building (e.g.,
the warehouse) if work in another (e.g., the rail building) was slow.
In mid-September, Simms, concerned about his dwindling hours,
asked Bernard Lyons, a Vice President at Hartley, how many hours
he could expect to be able to work in the future. Lyons noted that
another rail building employee had just been laid off and told Simms
that his hours would not be increasing. Lyons suggested that Simms
take a "voluntary layoff" to receive full unemployment benefits, and
Simms accepted the layoff. The remaining laborers in the rail building
worked an average of over 20 overtime hours a week for the six
weeks following Simms' layoff. Hartley hired two new laborers in
November 1995 and another two in December 1995. Thus within
three months after laying Simms off, the company hired four new
laborers.
On December 8, 1995, Simms filed a charge against Hartley with
the National Labor Relations Board. On February 29, 1996, the Board
issued a complaint alleging that Hartley had discriminatorily trans-
ferred Simms, reduced his hours, and discharged him because of anti-
union animus; that Hartley had coercively interrogated another
employee about union activities at Hartley; and that Hartley's no-
solicitation policy was unlawfully broad. After hearing testimony and
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considering substantial documentary evidence, the ALJ issued find-
ings of fact, conclusions of law and a recommended order, dismissing
the coercive interrogation charge but finding that Hartley discrimi-
nated in transferring Simms, reducing his hours, and laying him off
in violation of § 8(a)(1) and (3) of the National Labor Relations Act,
29 U.S.C. § 158(a)(1), (3) (1998), and that Hartley's no-solicitation
policy was unlawfully broad in violation of § 8(a)(1) of the Act, 29
U.S.C. § 158(a)(1). The Board adopted the ALJ's recommended order
and its findings of facts and conclusions of law. Hartley Oil Co., 326
NLRB No. 97 (September 25, 1998). The Board applies for enforce-
ment of the order, and Hartley challenges it.
Hartley's principal contention is that the Board's decision is based
on insufficient evidence. The testimony of company witnesses did
conflict with that of Simms on several issues. Most significantly,
Hartley witnesses maintained that the company transferred Simms in
late August because at that time another employee fell ill. They testi-
fied that Simms, who had been hired as a rail building employee, had
been assigned to the warehouse only temporarily while his hand
healed and so was the natural replacement. The ALJ instead relied on
Simms' alternative testimony to find that because Hartley manage-
ment believed Simms was "accident prone," they had permanently
transferred him to the warehouse in June, ordering that he "not be
allowed near" the washing operations of the rail building. The ALJ
further found that Hartley's late August transfer of Simms from his
permanent assignment at the warehouse to the rail building and the
company's subsequent reduction in hours and lay off of Simms was
motivated by anti-union animus in response to Simms' support of the
union. The Board adopted these factual findings.
As the company recognizes, if substantial evidence supports the
Board's factual findings, we must defer to those findings as "conclu-
sive." Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 477 (1951);
29 U.S.C. § 160(e) (1998). Substantial evidence is evidence that "a
reasonable mind might accept as adequate to support a conclusion."
Id. When the record contains such evidence we must respect the
Board's findings "even though we might have reached a different
result had we heard the evidence in the first instance." Alpo Petfoods,
Inc. v. N.L.R.B., 126 F.3d 246, 250 (4th Cir. 1997) (internal quota-
tions omitted).
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Simms' testimony certainly provides evidence that a"reasonable
mind might accept as adequate," Universal Camera, 340 U.S. at 477.
Moreover, although the company has consistently maintained that it
acted with no anti-union animus, its records and witnesses corrobo-
rated Simms' story in significant respects. Hartley supervisor Speece
admitted that he saw Simms with the union button, and the company
conceded that it transferred Simms to the rail building in late August
when work there was "sporadic." Company records indicate that
Simms' work hours rapidly decreased after he wore the union button,
while those of other similarly situated employees did not. Anti-union
motive may be established by just such circumstantial evidence. See
FPC Holdings, Inc. v. N.L.R.B., 64 F.3d 935, 943 (4th Cir. 1995).
Moreover, evidence of the timing of an employment action close to
a union-relevant occurrence can constitute substantial evidence to
uphold the Board's finding of discriminatory motive. See id. at 943-
44; N.L.R.B. v. S.E. Nichols, Inc., 862 F.2d 952, 957 (2d Cir. 1988),
cert. denied, 490 U.S. 1108 (1989). See also N.L.R.B. v. Nueva Eng'g,
Inc., 761 F.2d 961, 968-69 (4th Cir. 1985).
Hartley contends, however, that we must entirely discount the
Board's findings because inconsistencies in Simms' testimony consti-
tute the kind of "exceptional circumstances" that permit a reviewing
court to disturb the Board's findings. See Fieldcrest Cannon, Inc. v.
N.L.R.B., 97 F.3d 65, 69-70 (4th Cir. 1996). In support of this asser-
tion Hartley points for example to inconsistencies as to some of the
dates in Simms' testimony, the sequence of events involving Simms'
punching out for the last time, and the exact day Simms began to wear
a union button on his hat. The difficulty with this argument is that
these inconsistencies simply do not reach the central facts as to the
timing of Simms' transfer and his subsequent layoff. We defer to the
credibility determinations made by the factfinder when the inconsis-
tencies in a witness's testimony do not go to the"heart" of the testi-
mony. See Minyard Enter. v. Southeastern Chem. & Solvent Co., 184
F.3d 373, 381 (4th Cir. 1999). Indeed, given the frequency with which
witnesses provide inconsistent testimony, to hold that minor inconsis-
tencies justify a reviewing court's reversal of the Board's finding
would effectively eviscerate the deferential standard of review estab-
lished by both statute and well-settled case law. See Universal Cam-
era, 340 U.S. at 477; 29 U.S.C. § 160(e).
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The company also contends that we should refuse to enforce the
Board's order because the ALJ was biased against it. Hartley offers
no evidence other than a statistical analysis of the number over the
years of employer witnesses that the ALJ has credited compared to
the number of employee witnesses the ALJ has credited. We have
squarely held that "this type of statistical argument is irrelevant."
Eldeco, Inc. v. N.L.R.B., 132 F.3d 1007, 1010 (4th Cir. 1997). Such
statistics tell us "little or nothing" about an ALJ's impartiality, id.
(quoting Fieldcrest Cannon, 97 F.3d at 69) (internal quotations omit-
ted), and we decline to overrule that sound precedent.
Finally, on one hand Hartley concedes that it "will not contest" the
Board's no-solicitation order, but on the other argues that the order
is moot. If Hartley is pressing mootness, we reject its contention.
"[To] obviate[] the need for additional remedial action," an employ-
er's repudiation or disavowal of prior unlawful policies or conduct
"should give assurances to employees that in the future their employer
will not interfere with the exercise of their . . . rights" to organize. See
Passavant Mem'l Area Hosp., 237 NLRB 138, 138-39 (1978). Fur-
thermore, "there must be adequate publication of the repudiation to
the employees involved and there must be no proscribed conduct on
the employer's part after the publication;" the repudiation or dis-
avowal also "must be timely, unambiguous, specific in nature to the
coercive conduct, and free from other proscribed illegal conduct." Id.
(internal quotations omitted). Hartley does not claim that its old no-
solicitation policy was legal. It issued a new no-solicitation policy on
March 1, 1996, months after Simms left the company and several
weeks after the complaint was issued in this case. The company pro-
vided no evidence that it gave specific assurances that it would not
enforce its old, overbroad policy, nor has it offered evidence of the
adequacy of its publication of the new policy. The need for the
Board's order regarding the no-solicitation is, therefore, not moot.
APPLICATION FOR ENFORCEMENT GRANTED
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