               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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.                                                     )        ON APPEAL FROM A
                                                       )        DECISION OF THE
NATIONAL LABOR RELATIONS BOARD,                        )        NATIONAL LABOR
                                                       )        RELATIONS BOARD
       Respondent-Cross-Petitioner.                    )




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.
Nos. 03-1892, 03-2088
Buckeye Electric Co. v. NLRB

                                       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

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Buckeye Electric Co. v. NLRB

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.




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Buckeye Electric Co. v. NLRB

       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.

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Buckeye Electric Co. v. NLRB

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.




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Buckeye Electric Co. v. NLRB

       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

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Buckeye Electric Co. v. NLRB

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.




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