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North Cambria Fuel Co. v. National Labor Relations Board

decided: April 10, 1981.

NORTH CAMBRIA FUEL COMPANY, INC., PETITIONER IN NO. 80-1381 AND HANS P. WUCHINA, PAUL G. BAUGHMAN, LOUIS T. ZILLI
v.
NATIONAL LABOR RELATIONS BOARD, RESPONDENT PAUL BAUGHMAN, LOUIS ZILLI, WAYNE CAMPBELL, RONALD SMITH, ROGER SNYDER, NORMAN GORMAN, AND DALE BASINGER, INTERVENORS ; PAUL BAUGHMAN, LOUIS ZILLI, WAYNE CAMPBELL, RONALD SMITH, ROGER SNYDER, NORMAN GORMAN, AND DALE BASINGER, PETITIONERS IN NO. 80-1568 V. NATIONAL LABOR RELATIONS BOARD, RESPONDENT ; NORTH CAMBRIA FUEL COMPANY, INC., INTERVENOR



Petitions for Review and Cross-Petition for Enforcement of an Order of the National Labor Relations Board (Board Nos. 6-CA-11901, 6-CA-12013, and 6-CA-12127)

Before Seitz, Chief Judge, Rosenn and Sloviter, Circuit Judges.

Author: Seitz

Opinion OF THE COURT

North Cambria Fuel Company (NCF) petitions for review of an order of the National Labor Relations Board (the Board) finding NCF guilty of violating section 8(a)(3) and (1) of the National Labor Relations Act by wrongfully discharging Hans Wuchina, a striking employee. Seven former NCF employees (the Baughman group) petition for review of that portion of the Board's order finding that they were lawfully discharged by NCF because they had engaged in serious strike misconduct. The Board cross-petitions for enforcement of its order.

I.

NCF and United Mine Workers of America Local 1880 (the Union) were parties to the National Bituminous Coal Wage Agreement of 1974. When that agreement expired on December 6, 1977, the Union engaged in an economic strike against NCF. The Union returned to work on March 26, 1978, when a new national agreement was reached with the Bituminous Coal Operators Association. NCF, which is not a member of the Association, refused to accept this agreement and continued negotiating with the Union. When an agreement could not be reached, the Union resumed its economic strike.

The strike was marred by violence and vandalism, and NCF obtained two state-court injunctions prohibiting the Union from maintaining more than four pickets at any NCF worksite and enjoining any Union interference with the company's operations. On July 10, 1978, the day after a heated union meeting in which the Union's members were told to put on a "show of force," a group of union members, including Wuchina and the Baughman group, gathered near the entrance to NCF's I-22 coal-loading facility. When six coal trucks approached the facility the union members assembled at the entrance in an attempt to prevent the trucks from entering. The strikers shouted obscenities at the drivers, made obscene gestures, and picked up rocks.

Soon after the strikers blocked the entrance to the I-22 facility, the county sheriff arrived and ordered the strikers to disperse because they were violating a state-court injunction. The strikers moved across the highway and stayed there until after the sheriff left with four of the coal trucks. When the remaining two trucks attempted to leave, the lead truck was attacked by a group of strikers throwing rocks. Some of the rocks hit the truck, breaking its windshield but not causing any injuries.

Following the incident at the I-22 facility, NCF filed contempt charges in state court. The court found the strikers, including Wuchina and the Baughman group, in contempt of court and ordered four strikers not involved in these appeals to pay for the damages to the truck. NCF also brought criminal charges against the strikers, charging them with riot, criminal trespass, and the propulsion of missiles into an occupied vehicle. The Baughman group entered guilty pleas to the reduced charge of disorderly conduct, and their fines were paid by the Union. Following entry of the pleas, NCF's attorney indicated that the guilty pleas could result in discharge because they were admissions of guilt with regard to the violence at I-22. The company subsequently discharged the Baughman-group employees because of their "criminal activity" at the coal-loading facility. Wuchina pleaded not guilty at his preliminary hearing and was bound over for trial. The day after his hearing Wuchina also was discharged by NCF because of his involvement in the incident at I-22. The charges against Wuchina were later dismissed for failure of the state to prosecute.

The discharged employees filed complaints against NCF with the Board. After a hearing, the administrative law judge (ALJ) concluded that NCF had violated section 8(a)(3) and (1) of the National Labor Relations Act by discharging the employees because they had been engaged in protected strike activity. The Board agreed that Wuchina's discharge was wrongful, but it overturned the ALJ's finding that the Baughman group had not engaged in serious strike misconduct. The Board found that Wuchina left the I-22 facility when the sheriff ordered the strikers to disperse, but it concluded that the Baughman group had remained and was present during the rock-throwing incident.

II.

A. NCF Petition

NCF first argues that the record does not support the Board's finding that Wuchina left the I-22 facility after the sheriff ordered the strikers to disperse. We must, of course, uphold the Board's finding if it is "supported by substantial evidence on the record considered as a whole." 29 U.S.C. ยง 160(e) & (f) (1976); see Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 456 (1951). NCF directs our attention to evidence indicating that Wuchina not only remained at the I-22 facility but also participated in the rock-throwing incident. Nevertheless, we find that the Board's finding is supported by substantial evidence on the record. For example, Wuchina's testimony that he left the loading facility when the sheriff arrived was corroborated by the testimony of two other strikers, and a third union member testified that he saw Wuchina at a local ice cream stand fifteen minutes after Wuchina testified that he left I-22 and twenty minutes before the other strikers began to arrive. In addition, Wuchina was the only striker who pleaded not guilty to the criminal charges, and NCF allowed Wuchina to return to work after he signed a statement that he had not been involved in the violence at the coal-loading facility. Although the evidence presented at the hearing was conflicting, our review of the record indicates that the evidence supporting the Board's finding is not "overborne by evidence calling for contrary inferences." NLRB v. Pittsburgh Steamship Co., 340 U.S. 498, 502, 71 S. Ct. 453, 455, 95 L. Ed. 479 (1951).

Moreover, the ALJ made specific credibility determinations to support her finding that Wuchina left the I-22 facility before the rock-throwing incident. The ALJ emphasized that Wuchina's testimony was persuasive because he had been more candid about the events of July 9 and 10 than the other union witnesses and had made various admissions concerning those events. These findings were adopted by the Board. NCF asks this court to overturn these credibility determinations because they are "based on an inadequate reason, or no reason at all." NLRB v. Moore Business Forms, Inc., 574 F.2d 835, 843 (5th Cir. 1978). This court, however, will not disturb the credibility findings of an ALJ as long as the ALJ considers all relevant factors and sufficiently explains his or her resolutions. See NLRB v. W. C. McQuaide, Inc., 552 F.2d 519, 526 n. 14 (3d ...


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