On Application for Enforcement and Cross Petition for Review of an Order of the National Labor Relations Board.
Rosenn and Hunter, Circuit Judges and Hannum, District Judge.
This case is before the court on the application of the National Labor Relations Board for enforcement of its order, issued June 29, 1973, against Triangle Publications, Inc. (the Company) and on a cross-petition for review of the Board's order filed by the Company. The question presented is whether substantial evidence on the record as a whole supports the Board's conclusion that the Company violated Sections 8(a) (1) and 8(a) (3) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1), (3) (1970). We have concluded that there is substantial evidence to support the Board's decision and that its order should be enforced in full.*fn1
The § 8(a) (1) violation is based upon an incident involving Friedlander, an employee of the Company, and Grossman, who at all relevant times was in charge of the Hightstown plant where Friedlander was employed. On February 3, 1972 Friedlander spent a part of the work day collecting the names and addresses of his co-workers so that a union could get in touch with them.*fn2 Later in the day, a conversation occurred between Friedlander and Grossman, and, according to Friedlander, a second conversation occurred on the following day.
It is the nature of Grossman's comments during these discussions, as found by the Administrative Law Judge and adopted by the Board, that form the basis for the § 8(a) (1) violation. These findings are as follows:
"[Friedlander] was asked by Grossman why he was collecting [the names]. . . . When Friedlander admitted he was taking them for the use of the [union] . . . Grossman questioned the wisdom of such action and told him Flood [the production manager] was furious about it. The next day Grossman called him into his office and asked him just what he had done and what good he thought it would do him."
On the basis of these facts the Administrative Law Judge drew this conclusion:
"I find the interrogation on these two occasions, accompanied by Grossman's clear indication that it was not a smart thing to do and his statement that Jack Flood was furious about it, sufficient to make the interrogation coercive and to imply reprisals might be taken against Friedlander for his activity."
The Company attacks the findings and conclusion in two ways. First, it claims the record as a whole lacks substantial evidence to support the findings of fact. We cannot agree. While it is true that the Administrative Law Judge essentially accepted Friedlander's recollection of the conversations and rejected Grossman's we do not find this objectionable. Since both Grossman and Friedlander had a motive for lying,*fn3 and since neither told an inherently incredible story, the judge was making a reasonable credibility determination when he chose to credit Friedlander's account. We cannot overturn his findings of fact.
The Company's second contention is that even if we accept the facts as found by the Administrative Law Judge, they do not constitute a violation of § 8(a) (1). We reject this contention as well.
In Local 542, Int'l Union of Operating Eng. v. N.L.R.B., 328 F.2d 850 (3d Cir. 1964), this Court outlined the following test for determining whether a violation has occurred:
"That no one was in fact coerced or intimidated is of no relevance. The test of coercion and intimidation is not whether the misconduct proves effective. The test is whether the misconduct is such that, under the circumstances existing, it may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act." Id. at 852-53.
In addition, our precedent indicates that we must defer to the Board's superior expertise when we review its ...