               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 09a0129n.06
                         Filed: February 12, 2009

                                       No. 08-1892

                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT


NATIONAL LABOR RELATIONS BOARD,              )
                                             )
       Petitioner,
                                             )
v.                                           )
                                             )   ON PETITION FOR ENFORCEMENT
SOLARTEC, INC., AND SEKELY                       OF AN ORDER OF THE NATIONAL
                                             )
INDUSTRIES, INC.,                                LABOR RELATIONS BOARD
                                             )
                                             )
       Respondents.
                                             )




       Before: DAUGHTREY, ROGERS, and KETHLEDGE, Circuit Judges.


       PER CURIAM. The National Labor Relations Board seeks enforcement of a

Board order awarding back pay by respondent Solartec, Inc.,1 to Robert Stallsmith, who

the Board found had been discharged in violation of Sections 8(a)(1) and 8(a)(3) of the

National Labor Relations Act. Due to the length of time that has elapsed since

Stallsmith’s termination and the original Board hearing, and given Stallsmith’s advanced




       1
       A stipulation entered into by the parties defers the issue of whether Solartec, Inc.,
and Sekely Industries, Inc., constitute a single employer. See Solartec, Inc., 352 N.L.R.B.
331, 332 (2008). Thus, this issue is not before the Court. Sekely Industries ceased
operations in early 2007. Brief of Respondent-Appellant at 3.
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NLRB v. Solartec, Inc.

age, we granted expedited review of this case on motion from the Board. For the

reasons set out below, we order enforcement of the Board’s order.


       Robert Stallsmith was a employed as a large-machine department leader at

Solartec’s production facility in Salem, Ohio, which manufactured stamping dies used in

the automobile industry. He was discharged on July 10, 2000, in retaliation for his support

of an organizing drive conducted by the United Automobile, Aerospace, and Agricultural

Implement Workers of America (UAW), Region 2B. Because the employer conceded that

Stallsmith was fired for his union sympathy, the question addressed by the administrative

law judge was whether or not Stallsmith was a managerial employee. If Stallsmith were

a managerial employee, as the employer contends, the company was “at liberty to demand

absolute loyalty” from him in an organizing drive and, thus, was free to discharge him for

his union support. See Florida Power & Light Co. v. IBEW, 417 U.S. 790, 812 (1974).

However, if Stallsmith were a non-managerial employee, his discharge violated sections

8(a)(1) and 8(a)(3) of the National Labor Relations Act, which makes it an unfair labor

practice to “interfere with, restrain, or coerce employees in the exercise of the rights

guaranteed in section 157 of this title,” or to discourage union membership “by

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)(1), (a)(3).




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NLRB v. Solartec, Inc.

       The administrative law judge concluded that Stallsmith was a non-managerial

employee and therefore entitled to the make-whole remedy of reinstatement and back pay.

This opinion and order was adopted by the National Labor Relations Board. As a

reviewing court, we review the Board’s conclusions of law de novo. See 3750 Orange

Place Ltd. P’ship v. NLRB, 333 F.3d 646, 654 (6th Cir. 2003). We will uphold the Board’s

findings of fact if supported by “substantial evidence on the record considered as a whole.”

See 29 U.S.C. §§ 160(e) and (f); see also Conley v. NLRB, 520 F.3d 629, 638 (6th Cir.

2008). The “substantial evidence” standard means that we defer to the Board if the

evidence it relied upon is “adequate, in a reasonable mind, to uphold the decision.” NLRB

v. Gen. Fabrications Corp., 222 F.3d 218, 225 (6th Cir. 2000). Because determination of

whether or not an employee is managerial is an “intensive fact-based analyses,” see NLRB

v. Cooper Union for the Advancement of Science & Art, 783 F.2d 29,31 (2d Cir. 1986), on

a matter that is within the Board’s special expertise, we will not “displace the Board’s

choice between two fairly conflicting views, even though the court would justifiably have

made a different choice had the matter been before it de novo.” Universal Camera Corp.

v. NLRB, 340 U.S. 474, 488 (1951).


       Before the administrative law judge, the employer advanced two arguments to

support its contention that Stallsmith was a managerial employee: (1) Stallsmith’s role in

ordering and testing tools needed in his department, and (2) his supposed alignment with

management, as well as perception on the shop floor that he was the “right hand man” of

Machine Superintendent Tom Furlong. See Solartec, Inc., 352 N.L.R.B. 331, 333 (2008).

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NLRB v. Solartec, Inc.

Regarding the ordering and testing of tools, the evidence presented at the hearing

established that Stallsmith’s duties included making routine purchases of tools, testing

tools that were not purchased routinely, and conveying price quotes to management when

tool salesmen visited the shop. The administrative law judge noted that Stallsmith’s

discretion was circumscribed in these duties. For instance, Stallsmith’s routine orders for

tools in the “blanket order book” were reviewed by the large-machine superintendent, and

Stallsmith was not among the employees authorized to place orders without a written

purchase order. See id. at 335. Stallsmith also referred price quotes for new tools to

management and, when instructed to do so by management, asked certain tool

salespeople for better prices. However, he denied being “involved in any price haggling”

or in the selection of vendors or adjusting of disputes with vendors. See id. at 334.

Stallsmith testified that he had to seek approval of a supervisor for his purchase orders and

that he was not aware of the company’s budget and did not attend meetings where the

company’s budget or purchasing policies were formulated. Based on these facts, the

administrative law judge distinguished Stallsmith’s duties from those of a buyer in Concepts

and Designs, Inc., 318 N.L.R.B. 948 (1995), where the buyer’s discretion to make

purchases was not reviewed by others in the company, the buyer attended weekly

management meetings, and the buyer was the sole representative of the company to meet

with vendors. Accordingly, the administrative law judge concluded that Stallsmith’s limited

involvement in ordering tools did not make him a managerial employee.




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NLRB v. Solartec, Inc.

       In considering whether or not Stallsmith was aligned with management, the

administrative law judge considered two main items of evidence: a job description signed

by Stallsmith in June 2000, and the testimony of a machinist who worked with Stallsman.

The job description was presented to Stallsmith by the company’s labor consultant after

management was made aware of the UAW’s organizing drive. Solartec, Inc., 352 N.L.R.B.

at 338. Stallsmith, who recorded the meeting with the labor consultant, objected to the

description of his duties and questioned why he was being asked to sign the document at

that time. The labor consultant admitted to Stallsmith that the document had been drawn

up with the intent to make Stallsmith a supervisor under Section 2(11) of the National

Labor Relations Act. Stallsmith signed the document but denied ever performing many of

the functions listed in the job description, such as disciplining employees and training newly

hired machinists.


       The administrative law judge also heard testimony from a machinist that Stallsmith

was “supposed to be the guy in charge” and was the “right-hand man” of the machine

superintendent. See id. at 341. Despite this, the administrative law judge concluded that

the machinist’s testimony “concerning Stallsmith’s day-to-day interaction with him and the

other machinists is not indicative of managerial status,” when viewed under all the

circumstances. See id. The administrative law judge also questioned the machinist’s

ability to be an “impartial and objective witness” because he described a workplace incident

that led to him becoming angry with Stallsmith. See id. at 341-42. Considering the

circumstances under which Stallsmith signed the job description and the adverse credibility

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NLRB v. Solartec, Inc.

finding regarding the machinist’s testimony, the administrative law judge concluded that

Stallsmith was not aligned with management and, thus, not a managerial employee in the

meaning of section 2(11) of the Act.


       As we have previously held, we “ordinarily will not disturb credibility evaluations by

an ALJ who observed the witnesses’ demeanor.” Vencare Ancillary Servs., Inc. v. NLRB,

352 F.3d 318, 321 (6th Cir. 2003). In this case, the administrative law judge credited

Stallsmith’s testimony, noting that “his overall testimony was consistent,” despite the seven

years that had elapsed. She also was entitled to draw an adverse inference regarding the

failure to present testimony from the company officials with firsthand knowledge of

Stallsmith’s purchasing activities and job duties, such as the large-machine superintendent

or purchasing agent. See Solartec, Inc., 352 N.L.R.B. at 343 (“The failure to call a witness

whose testimony would reasonably be presumed to favor a party warrants an adverse

inference that had the individual been called as a witness, his testimony would not have

supported the party’s position.”); see also DMI Distribution of Delaware, Ohio, 334 N.L.R.B.

409, 412 (2001); Int’l Assn of Bridge Workers Local 118 (California Erectors), 309 N.L.R.B.

808, 811 (1992). Because the administrative law judge’s finding that Stallsmith was not

a managerial employee was supported by specific testimony and reasonable inferences

drawn from that testimony, we conclude that it was supported by substantial evidence on

the record as a whole.




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NLRB v. Solartec, Inc.

       For the reasons set out above, we GRANT the Board’s application for enforcement

of its order.




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