* Pursuant to 5 TH C IR

. R. 47.5, the Court has determined that this

opinion should not be published and is not precedent except under the

limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

May 15, 2003

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-60319

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

VERSUS

ALBIS PLASTICS,

Respondent.

Application for Enforcement of an Order of the

National Labor Relations Board

(16-A-19615)

Before GARWOOD, JOLLY and HIGGINBOTHAM, Circuit Judges.

E. GRADY JOLLY, Circuit Judge: *

The National Labor Relations Board (“NLRB”) seeks enforcement

of its decision and order finding various violations of the labor

laws on the part of Albis Plastics (“Albis”). The dispute in this

case arises from various unrelated infractions committed by Albis

during the course of an attempt by United Steelworkers of America

(“USW”) to organize the employees of Albis in 1998. The election

was never held because the USW filed charges with t he NLRB. The2

A LJ found that Albis had committed unfair labor practices,

including violations of section 8(a)(1) for unlawful interrogation

of an employee; a violation of Section 8(a)(1) and (3) for taking

an employee’s protected activities into account as a negative

factor in evaluating that employee; and a violation of section

8(a)(1) for threatening employees with the loss of a scheduled wage

increase if the union won the election. The Board reversed some of

the ALJ’s findings of violations and ordered Albis to cease and

desist from continuing the practices found, rescind one of the

employee appraisals found to be violative of the labor laws by the

ALJ, and post a notice to employees reflecting employees’ rights

and the obligations of Albis not to infringe those rights. Albis

declined to comply with the order and the NLRB filed th e present

application for enforcement.

I

In reviewing petitions for enforcement of NLRB decisions and

orders, this court reviews questions of law de novo, but defers to

the legal conclusions of the Board if reasonably grounded in the

law and not inconsistent with the Act. With respect to mixed

questions of law and fact, this court will sustain the Board's

application of legal interpretation to facts if it is supported by

substantial evidence based upon the record considered as a whole.

Similarly, the B oard's factual determinations must be upheld if

supported by substantial evidence. T ellepsen Pipeline Services Co.3

v. N.L.R.B. , 320 F.3d 554, 559-60 (5th Cir. 2003)

.

II

The ALJ found, and Board affirmed, that Albis unlawfully

interrogated an employee about her union activities in violation

of Section 8(a)(1). Albis asserts that the ALJ erred in his

credibility determination because he relied on the uncalled witness

rule. Although Albis urges that this rule is outdated, this court

has recently affirmed the use of the rule by the NLRB and the ALJ’s

credibility det ermination must be upheld. T ellepsen

, 320 F.3d at

562 (stating that “under NLRB precedent, the failure to call an

available witness likely to have knowledge about a particular

matter gives rise to an inference that such testimony would be

adverse to the party’s position and consistent with the opposing

party,” citing NLRB v. E-Systems Inc.

, 103 F.3d 435, 439 (5th Cir.

1997)). Thus, despite conflicting testimony, after reviewing the

entirety of the circumstances, we cannot say that the conclusion of

the ALJ is unsupported by substantial evidence.

The second issue involves disciplinary actions against

employee William Hall by hi s supervisor Bob LaVigne for alleged

harassment by Hall of fellow employees. The General Counsel

alleged an 8(a)(1) violation for a threat made by LaVigne against

Hall, and a separate violation of 8(a)(1) and (3) for a negative

performance review of Hall by LaVigne, both unlawful because they

were responses to what the General Counsel considered and the Board

found to be protected activities. The ALJ concluded that the4

“harassment” referred to by LaVigne -- repeated discussions about

the union with co-workers

-- was not the kind of har assment “in

which one person repeatedly bothers another in an unwelcome manner

over a period of time,” but was in fact “simply union activity”.

The ALJ concluded that Albis had violated Section 8(a)(1) because

LaVigne's warnings could be understood only as a veiled threat of

discipline if Mr. Hall continued to engage in protected activity.

Applying the burden-shifting analysis of Wright Line

, 251 N.L.R.B.

1083 (1980), enf'd. 662 F.2d 899 (1st Cir. 1981), however, the

Board found that, with respect to one evaluation of Hall, Albis had

presented evidence that it would have disciplined Hall even in the

absence of union activities, dismissed the s e allegations, and

revised the Order and Notice accordingly. After reviewing the

record and the findings of the ALJ and Board, we conclude that the

other violations upheld by the Board are supported by substantial

evidence and cannot be reversed.

The finding that gives this Court the most pause is the

conclusion that Albis violated Section 8(a)(1) by threatening to

withhold a scheduled wage increase. The facts are fairly clear and

uncontested. The company introduced a scheduled pay progression

and performance pay system that established a scale of target

salaries for each position based on the years worked and skill of

the employee. Before the particulars of a scheduled wage increase

were finalized, the Union posted a flyer, stating “[c]urrent wages,5

benefits and practices are frozen at the status quo until a new

contract is negotiated. (See other side of this leaflet for an

expert legal opinio n).” The “expert legal opinion”, an attached

letter from a Union attorney, stated that “[o]nce a majority of

employees designates a union as their bargaining agent, an employer

may not change any existing terms and conditions of employment

without the consent of the union membership.”

The language in the flyer tha t wages would be frozen

apparently caused employees to ask management whether the scheduled

wage increases would in fact occur if the union was selected. The

ALJ found that Albis’ general manager of operations, James Craig,

at employee meetings, told employees that if the union won the

election, wages would be frozen at the status quo. The credited

t estimony of Mr. Craig established that “he also told employees

that the compan y planned to go ahead with pay increases it had

scheduled for January 1999, but then, picking up a union campaign

flyer, said that the company had to be careful. To that, he added

the statement that if the union won the election, the wages would

be fr ozen.” The ALJ concluded that “[t]his statement is not a

correct explanation of an employer’s duty under the labor law” and

that the “obvious effect of these statements is to present

employees with the apparent choice of a wage increase if they did

not select the union or a wage freeze if they did.” Thus, the ALJ

concluded and the Board affirmed, that the statement interfered

with, restrained, and coerced employees in the exercise of their6

Section 7 rights, in violation of Section 8(a)(1).

Albis argues that it was stuck between a rock and a hard

place. On the one hand, it had a scheduled wage increase which it

planned to implement. On the other hand, Albis argues that because

the wage increase was not firmly schedu led or finalized, as the

effective date and individual amounts of the wage increase were not

yet set, Albis risked incurring an unfair labor charge if it went

forward. Given the position set forth in the union flyer, Albis

argues that Craig’s statements were a good faith effort to avoid

the problem.

Although we might have made a different choice had the matter

been before us de novo, because Craig apparently was responding to

employees’ questions about an ambiguous union flyer , we must

sustain the findings of the Board if they are supported by

substantial evidence on the record as a whole. See NLRB v. Delta

Gas, Inc.

, 840 F.2d 309, 310 (5th Cir. 1988). In the light of the

established practice of Albis to give regularly scheduled pay

increases, as well as its announced intention to grant the January

1999 wage increase at issue here, it is plausible that employees

would interpret Craig’s statements as a threat that the cost of

voting for the union would be to abrogate for an indefinite period

of time the existing policy of regular wage incre ases. As such,

the comments, as interpreted by the ALJ and Board, represent a

violation of the clear stricture not to change benefits, for better

or worse. See

, e.g.

, NLRB v. Dothan Eagle, Inc. , 434 F.3d 93, 987

(5th Cir. 1970) (“whenever the employer by promises or by a course

of conduct has made a particular benefit part of the established

wage or compensation system, then he is not at liberty unilaterally

to change this benefit either for better or worse during the union

campaign or during the period of collective bargaining.”). We must

conclude that there is substantial evidence to sustain the holding

that Craig’s statements violated Section 8(a)(1).

III

In sum, because we cannot say that the Board’s findings are

unsupported by substantial evidence, the application for

enforcement of the Board’s order is GRANTED.

ENFORCEMENT GRANTED.