               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 06a0038n.06
                         Filed: January 12, 2006

                                  Nos. 04-2536/05-1089

                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT


JOSEPH CHEVROLET, INC., a Michigan            )
corporation,                                  )
                                              )
       Petitioner/Cross-Respondent,           )
                                              )
v.                                            )   ON PETITION FOR REVIEW OF AN
                                              )   ORDER OF THE NATIONAL LABOR
NATIONAL LABOR RELATIONS BOARD,               )   RELATIONS BOARD
                                              )
       Respondent/Cross-Petitioner.           )




       Before: NELSON, DAUGHTREY, and SUTTON, Circuit Judges.


       PER CURIAM. Joseph Chevrolet, Inc., an automobile dealership in Millington,

Michigan, petitions for review of a decision of the National Labor Relations Board (NLRB).

The Board concluded in its ruling that Joseph Chevrolet had committed various unfair labor

practices by singling out certain employees for discipline or harassment solely because of

the workers’ union sympathies. The NLRB also petitions the court for enforcement of the

Board’s order. In light of the evidence presented before the administrative law judge in this

matter, and in light of the deferential nature of this court’s review of the administrative

decision, we deny Joseph Chevrolet’s petition for review and grant the Board’s petition for

enforcement.
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Joseph Chevrolet v. NLRB

                   FACTUAL AND PROCEDURAL BACKGROUND


       In March 2001, the NLRB certified Local 324 of the International Union of Operating

Engineers as the collective bargaining representative for approximately 14 automotive

technicians working at the Joseph Chevrolet dealership, and the union and the employer

signed a collective bargaining agreement intended to govern employer-employee relations

at the dealership from May 23, 2001, until May 23, 2002. Prior to the expiration of the

collective bargaining agreement’s one-year term, the union sought to reopen negotiations

on the contract, and one of the union members, Gary St. Charles, petitioned the Board to

decertify the union altogether. Even though bargaining sessions began on April 15, 2002,

with an eye toward reaching a new agreement, a decertification election was held on April

30 of that year. The election produced a significant number of challenged ballots, and it

was not until August 9, 2002, that all challenges to the balloting were resolved and a tally

of the valid votes resulted in the decertification of the union as the exclusive bargaining

agent of the affected employees.


       Unfortunately, between the time bargaining for a new contract began on April 15 and

the August 9 date of the decertification decision, numerous instances of alleged

harassment against pro-union employees occurred. Several of those disputes formed the

basis of this appellate proceeding. One, for example, involved the discharge of a union

steward named Tony Amend, who was a master mechanic with approximately 15 years’

experience, and who was accused of fraudulently over-billing for a repair to a customer’s


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Joseph Chevrolet v. NLRB

vehicle. Amend was initially suspended from work but returned to the dealership to assist

in setting up a picket line at the dealership. At that point, he was informed by a member

of Joseph Chevrolet’s management that he had been permanently discharged from

employment with the dealership and that the company would seek to have his technician’s

license revoked. That same day, two other employees who had been active union

supporters, Larry Stevens and Mike Cooper, were laid off from work, purportedly because

of an anticipated business slowdown due to the picketing. Both Stevens and Cooper were

master technicians, yet they were selected for layoff despite the fact that the company had

recently hired four new employees who were still on probation.


       Amend, despite his termination, continued to represent the local in its negotiations

with the company for a new collective bargaining agreement. At a bargaining session on

June 12, after Amend inquired about the possibility of returning to work, Joe Hood, the

company owner, pointed his finger at Amend and made a statement variously reported as:

“You lost your job right here at this bargaining table,” “You fucked up your job because

you’re sitting at the other side of that table,” or “Your job got fucked up at the bargaining

table.” Al Booth, one of the union negotiators present at the time, was so surprised by the

remark that he noted on an envelope that he had with him, “Joe Hood 6-12-02 (Job got

fucked up at bargaining table).”


       These and other incidents of harassment led the administrative law judge to

conclude that Joseph Chevrolet violated the provisions of §§ 8(a)(1) and (3) of the National


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Joseph Chevrolet v. NLRB

Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (3). The Board affirmed the administrative

law judge’s decision in all respects, with one member dissenting, and the administrative

judge’s order that the company cease and desist from certain unfair labor practices and

take affirmative action to effectuate the policies of the National Labor Relations Act, 29

U.S.C. § 157. The company now petitions for review and the Board petitions for

enforcement of its order.


                                      DISCUSSION


       Pursuant to the express language of § 7 of the National Labor Relations Act,

employees are guaranteed the right to organize and bargain collectively for their mutual aid

or protection. Moreover, § 8 of the Act makes it an unfair labor practice for an employer

to interfere with those rights or to discourage membership in any labor organization “by

discrimination in regard to hire or tenure of employment or any term or condition of

employment.” 29 U.S.C. §§ 158(a)(1) and (3). The threshold test for determining whether

an employment decision constitutes an unfair labor practice is whether the determination

was motivated by anti-union animus. See NLRB v. Cook Family Foods, Ltd., 47 F.3d 809,

816 (6th Cir. 1995). The Board bears the initial burden of showing, by a preponderance

of the evidence, that the employer’s decision was motivated by the employee’s exercise

of rights protected by the Act. See NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 401

(1983); Cook Family Foods, Ltd., 47 F.3d at 816. If such a showing is made, the burden

of persuasion shifts to the employer to establish, also by a preponderance of the evidence,


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Joseph Chevrolet v. NLRB

the affirmative defense that the same employment decision would have been made even

in the absence of any protected labor activity. See W.F. Bolin Co. v. NLRB, 70 F.3d 863,

870 (6th Cir. 1995). See also Dir., Office of Workers’ Comp. Programs v. Greenwich

Collieries, 512 U.S. 267, 278 (1994).


       Board findings with respect to questions of law are then reviewed by this court de

novo, while the Board’s findings of fact are upheld if supported by substantial evidence on

the record. See 29 U.S.C. §§ 160(e) and (f). “Substantial evidence” has been defined as

“such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Opportunity Homes, Inc. v. NLRB, 101 F.3d 1515, 1518 (6th Cir. 1996)

(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “Deference to the

Board’s factual findings is particularly appropriate where the ‘record is fraught with

conflicting testimony and essential credibility determinations have been made.’” Tony Scott

Trucking, Inc. v. NLRB, 821 F.2d 312, 315 (6th Cir. 1987) (quoting NLRB v. Nueva Eng’g,

Inc., 761 F.2d 961, 965 (4th Cir. 1985)).


       In attacking the Board’s decision in this matter, Joseph Chevrolet insists that the

Board failed to establish that any of the company’s alleged unfair labor practices were

undertaken with anti-union animus. Consequently, the petitioner argues that the agency

decision must be reversed. However, our review of decisions of the NLRB is extremely

limited. As long as factual determinations of the Board are supported by substantial

evidence on the record, and as long as inferences drawn by the Board from those facts are


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Joseph Chevrolet v. NLRB

reasonable, we may not overturn a Board decision, even if we believe that a contrary

decision is also supportable. In this case, we conclude that the findings of fact and legal

conclusions of the Board are supported by the record and by the applicable law. We

therefore DENY Joseph Chevrolet’s petition for review and GRANT the Board’s application

for enforcement of its order.




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