ON APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.
Gibbons and Hunter, Circuit Judges and Lord,*fn* District Judge.
This petition for enforcement of an NLRB cease and desist and reinstatement order arises out of the NLRB's findings of violations of Sections 8(a) (1) and (a) (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), (a) (3) (1976) (the Act), by the Blackstone Company, Inc. (the Company). Because we believe the Administrative Law Judge applied the wrong burden of proof to the Company in its attempt to rebut the General Counsel's prima facie case of violations of § 8(a) (3) in the discharge of two employees, we remand to the Board for further proceedings on those charges. In all other respects we enforce the Board's order.
The Company, which manufactures and distributes wooden windows, doors and related products for use in the construction industry, employs approximately 40 persons as production workers, warehousemen and drivers. In May 1978, the Teamsters Local Union No. 35 (the Union) began an organizing campaign at the Company's East Brunswick plant with meetings among Union officials and small numbers of employees at local restaurants and private homes. Early in September 1978 the Union stepped up its efforts with an organizing meeting held at a local McDonald's restaurant, which was attended by a number of drivers. During the meeting, several employees signed Union authorization cards and shortly after the meeting, an in-plant organizing committee was formed to distribute literature and cards on behalf of the Union. On September 28, 1978 the Union filed a representation petition, and on November 21, 1978 the election was held. The Union lost the election,*fn1 and on December 6, 1978 and February 29, 1979 it filed complaints with the Regional Office of the NLRB, alleging various unfair labor practices committed by the Company during the pre-election period, while resolution of the election objections was pending, and by the Company's discharge of two employees, Robert Nagy and Kevin Moffat. After an investigation, the General Counsel issued a complaint charging that the Company violated § 8(a) (1) of the Act by promising employees benefits, interrogating and threatening them and creating the impression of surveillance, and violated §§ 8(a) (1) and (a) (3) of the Act by its discharge of the two employees. After a hearing on January 30, 31 and February 1 and 4, 1980, an Administrative Law Judge (ALJ) found that the Company had violated §§ 8(a) (1) and (a) (3), entered a cease and desist order, and ordered reinstatement of Nagy and Moffat. 32a-33a. The Company filed objections to the ALJ's findings, 36a, but the NLRB affirmed the findings and order of the ALJ and ordered that a second election be held. 43a. On December 31, 1981 the NLRB filed its petition for enforcement.
We are bound to affirm the administrative factual findings and inferences drawn from the facts when they are supported by substantial evidence contained in the record, as a whole. E.g., Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 95 L. Ed. 456, 71 S. Ct. 456 (1951); NLRB v. Eagle Material Handling, Inc., 558 F.2d 160, 164 n.6 (3d Cir. 1977); NLRB v. Armcor Industries, Inc., 535 F.2d 239, 243 (3d Cir. 1976). This standard of review requires deference to the ALJ's interpretation of what can be characterized as fairly conflicting accounts of events presented on the record. E.g., NLRB v. Walton Manufacturing Co., 369 U.S. 404, 405, 7 L. Ed. 2d 829, 82 S. Ct. 853 (1962).
The findings of violations of § 8(a) (1)*fn2 need not detain us at great length. To establish a violation of § 8(a) (1), the NLRB must show that "under the circumstances existing, [the employer's conduct] may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act." NLRB v. Armcor Industries, Inc., supra, 535 F.2d at 242, quoting, Local 542, International Union of Operating Engineers v. NLRB, 328 F.2d 850, 852-53 (3d Cir.), cert. denied, 379 U.S. 826, 13 L. Ed. 2d 35, 85 S. Ct. 52 (1964).
Numerous employees testified that Company Vice President Stanley Swerdlick questioned them as to their Union support, indicated to them that he knew which employees had signed Union authorization cards or otherwise favored the Union, and, in some cases, threatened them with loss of employment if the Union succeeded. The ALJ concluded that these activities created the impression of surveillance, and constituted unlawful interrogation and threats of economic reprisals. One employee testified that he requested a pay raise, and that Swerdlick promised to take care of him when the Union matter was resolved. The ALJ found that Swerdlick intended to convey the impression that the sole reason for refusing to consider the employee's request immediately was the Union activity. The ALJ further found that the Company violated the Act by making unlawful promises of benefits in the form of additional holidays and a profit sharing plan, in order to discourage Union support.
The Company disputes the findings of the ALJ as to these § 8(a) (1) violations. However, as we stated in Behring International, Inc. v. NLRB, 675 F.2d 83 (3d Cir. 1982),
We might well have come to a different conclusion had we tried the case in the first instance. Our role, however, is limited to determining whether there is substantial evidence in the record as a whole to support the Board's findings of fact. 29 U.S.C. § 160(e) (1976). Similarly, credibility resolutions generally rest with the ALJ when he considers all the relevant factors in his explanation. Edgewood Nursing Center, Inc. v. NLRB, 581 F.2d 363, 365 (3d Cir. 1978). Since we ...