International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Petitioner (15-2305),
National Labor Relations Board, Respondent/Cross-Petitioner (15-2305/2478). International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 1700, Petitioner/Cross-Respondent (15-2305/2478),
Argued: September 28, 2016
Petition for Review and Cross-Application for Enforcement of
an Order of the National Labor Relations Board. Nos.
R. Canzano, MCKNIGHT, CANZANO, SMITH, RADTKE & BRAULT,
P.C., Royal Oak, Michigan, for Petitioner/Cross-Respondent.
Local 1700. Jared D. Cantor, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for Respondent/Cross-Petitioner.
R. Canzano, MCKNIGHT, CANZANO, SMITH, RADTKE & BRAULT,
P.C., Royal Oak, Michigan, for Petitioner/Cross-Respondent.
Local 1700. Jared D. Cantor, Usha Dheenan, Linda Dreeben,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Before: GILMAN, GIBBONS, and STRANCH; Circuit Judges.
GIBBONS, J., delivered the opinion of the court in which
GILMAN and STRANCH, JJ., joined. STRANCH, J. (pg. 19),
delivered a separate concurring opinion.
SMITH GIBBONS, Circuit Judge.
Automobile, Aerospace and Agricultural Implement Workers of
America, Local 1700 (Local 1700) was charged with violating
its duty of fair representation in processing the grievance
of Aretha Powell, a Local 1700 member, who was terminated
from her position as an automotive plant janitor after
threatening a fellow employee. The charge stemmed from the
allegations that Margaret Faircloth, Powell's union
steward, had submitted a false statement against Powell and
was subsequently involved in Powell's grievance process.
After an Administrative Law Judge dismissed the charge, the
National Labor Relations Board (the Board) reversed, finding
that Local 1700 had violated its duty of fair representation
to Powell by acting arbitrarily or in bad faith. The Board
emphasized that it was relying on three facts, taken
together, to support its finding: (1) Faircloth had submitted
a statement against Powell that was partly false; (2)
Faircloth had represented Powell in the first stage of the
grievance process without disclosing the fact that she had
submitted a statement; and (3) Powell was unaware of
Faircloth's statement throughout the grievance process.
Because we conclude that the Board's finding regarding
the falsity of Faircloth's statement is not supported by
substantial evidence, and that there is an insufficient basis
to find that Local 1700 breached its duty of fair
representation, we grant the petition for review, deny the
cross-application for enforcement, and vacate the portion of
the Board's decision addressing the breach of the duty of
Knight Facilities Management, LLC (Caravan Knight) performs
janitorial services for Chrysler Automotive at its Sterling
Heights Assembly Plant (the Plant). International Union,
United Automobile, Aerospace and Agricultural Implement
Workers of America (the International Union), through its
Local 1700 affiliate (Local 1700, collectively, the Union)
represents Caravan Knight janitors who work at the Plant.
Caravan Knight and the Union were parties to a collective
bargaining agreement (CBA) that ran from December 1, 2009 to
November 30, 2012.
Powell, the charging party, was hired by Caravan Knight as a
janitor on September 2, 2008. At the same time, she joined
the bargaining unit represented by Local 1700. Powell's
employment at Caravan Knight was not without incident. In
early May 2012,  Powell told a group of employees that she
wanted to fight Faircloth and then offered to pay one hundred
dollars to anyone else who would also fight Faircloth. Powell
later apologized to Faircloth when she found out that
Faircloth had learned of her statements. On May 10, Powell
was issued a disciplinary warning for walking away from a
mandatory pre-shift meeting and not being able to answer
questions about what was discussed. Later in the day on May
10, Powell got into a fight at the Plant with Dishan
Longmire, her ex-boyfriend and a fellow Caravan Knight
employee. The fight was likely related to Longmire's
involvement with a third employee, Balinda Tanner.
next day, prior to the start of her shift, Powell threatened
Tanner while they were in the cage area. Powell told Tanner,
"I see I'mma have to tear into your motherfucking
ass."Tanner Hr'g Tr., JA 938. Tanner
immediately reported the comments to Faircloth and LeVaughn
Davis, Local 1700's union chairperson for the Plant.
Tanner and Faircloth then submitted statements to Shaun
Walle, Caravan Knight's site manager, indicating they
were present when the threat occurred. Faircloth later
testified that she reported the May 10 incident with Tanner
because she believed Powell's behavior was escalating.
Walle proceeded to investigate the allegations by
interviewing several employees, among them, Nathaniel Hudson,
a janitor working on the day of the incident. On May 12,
Powell met with Walle, Faircloth, and Davis to submit her
statement about the incident with Tanner. During that
meeting, Walle suspended Powell pending an investigation.
Caravan Knight terminated Powell four days later on May 16.
elected union steward for Local 1700, Faircloth's duties
included processing grievances for terminated employees.
Under the CBA, grievances were processed in a series of
steps. First, the employee or a representative submitted a
written grievance to her immediate supervisor that was signed
by a union committee person (Step 1). If the grievance was
not resolved at Step 1, Caravan Knight and Local 1700
representatives would meet to attempt to resolve the dispute
(Step 2). If the grievance could not be resolved in this
meeting, representatives from Caravan Knight, the
International Union, and Local 1700 would meet to attempt to
resolve the grievance (Step 3). If this was unsuccessful,
either party could take the matter to binding arbitration
18, Faircloth submitted a grievance on Powell's behalf to
satisfy Step 1. She met with Walle to submit the grievance
but did not offer any arguments on Powell's
behalf.Caravan Knight denied the grievance at Step
1. Local 1700 then proceeded to Step 2 of the grievance
procedure, with Davis now representing the Union and Powell.
Davis and Caravan Knight negotiated a settlement that would
allow Powell to return to work without back pay. In exchange,
Powell would be required to complete an anger-management
course, drop all pending claims before the Board, and sign a
ninety-day last-chance agreement. These terms were consistent
with a recent settlement agreement in a grievance based on
similar facts. Davis testified that a settlement was proposed
within 48 hours of the grievance moving to Step 2.
informed Powell of the proposed settlement on May 23. Powell
rejected it. The Union and Caravan Knight, nevertheless
settled the grievance under the agreed-upon terms. Powell
received a letter confirming the disposition of her grievance
on July 26.
May 16 and August 14, Powell filed a series of charges
against Caravan Knight, the International Union, and Local
1700, alleging violations of Sections 8(a)(1), (a)(3),
(b)(1)(A), and (b)(2) of the National Labor Relations Act
(NLRA). After charges were filed, Caravan Knight interviewed
employees, asking about their interactions with Board
investigators. Powell testified that she did not learn of
Faircloth's statement about the May 11 incident until the
Board informed her of it in early June.
August 21, the Board's Regional Director consolidated
Powell's charges and issued a single complaint against
all three parties. This consolidated complaint alleged that
Caravan Knight violated Sections 8(a)(1) and (a)(3) of the
National Labor Relations Act (NLRA) by imposing onerous
working conditions on Powell, changing her job duties,
disciplining her, suspending her, and discharging her because
she engaged in protected activity. The complaint also alleged
that Caravan Knight violated Section 8(a)(1) of the NLRA by
coercively interrogating employees about their communications
with a Board investigator. The complaint alleged that the
Union's refusal to proceed to arbitration on Powell's
grievance was arbitrary, discriminatory, or bad-faith conduct
constituting a breach of the union's duty of fair
representation to Powell, in violation of Section 8(b)(1)(A)
of the NLRA. The complaint further alleged that Local 1700
caused Caravan Knight to discriminate against and discharge
Powell because of her protected activity, in violation of
Administrative Law Judge (ALJ) held a hearing on these
allegations. On April 3, 2013, the ALJ issued a Decision and
Order dismissing the complaint in its entirety. With respect
to Caravan Knight, the ALJ found an insufficient causal
connection between Powell's protected activity and the
disciplinary action. The ALJ also found that a totality of
the circumstances established that Caravan Knight's
subsequent interviews with employees were not unlawfully
coercive. The ALJ dismissed all charges against the
International Union because the legal distinction between the
International Union and Local 1700 precluded any derivative
duties on the International Union and there was no indication
that International Union officials were involved in
Powell's grievance process.
considering the claims against Local 1700, the ALJ found it
undisputed that there was a strained relationship between
Powell and the three local union officials-Davis, Faircloth,
and Tanner-all of whom were involved in her grievance
process. The ALJ, however, recognized that these Local 1700
officials still filed a grievance on Powell's behalf and
negotiated a settlement for Powell's reinstatement
consistent with a recent settlement for another employee in a
similar situation. The ALJ found that the Board's Acting
General Counsel failed to show that Tanner and Faircloth
acted as union agents when submitting witness statements
against Powell. For these reasons, the ALJ concluded that
there was no arbitrary or bad faith conduct on the part of
Local 1700, and thus no violation of its duty of fair
representation under Section 8(b)(1)(A). As to the Section
8(b)(2) charge that Local 1700 caused Caravan Knight to
discharge Powell, the ALJ found no evidence that Tanner and
Faircloth did anything other than perform their required
duties as Caravan Knight employees by submitting the
statements that led to Powell's discipline and
Board's Acting General Counsel filed thirteen exceptions
to the ALJ's decision on May 31, 2013. Caravan Knight
filed two cross-exceptions on June 14, 2013. A three-member
panel of the Board issued a Decision and Order on August 27,
2015, affirming in part and reversing in part the ALJ's
decision. The Board adopted all of the ALJ's
witness-credibility determinations, finding no "clear
preponderance" of evidence on which to reverse such
findings. JA 1151 n.2. The Board reversed the ALJ on two
issues. First, it found that Caravan Knight violated Section
8(a)(1) by coercively interrogating an employee about her
statements to a Board agent. Second, the Board found Local
1700 liable under Section 8(b)(1)(A) for violating its duty
of fair representation to Powell. Although the Board
determined that Local 1700 acted within its discretion to
refuse to pursue Powell's grievance past Step 2, it held
that Local 1700 breached its duty of fair representation to
Powell on the basis of three facts "consider[ed]
cumulatively" that established bad faith or arbitrary
(i) Union Steward Faircloth submitted a statement against
Powell that was, in part, false; (ii) Faircloth represented
Powell in step 1 of the grievance procedure without
disclosing that she had submitted a statement against Powell;
and (iii) throughout the processing of her discharge
grievance, Powell remained unaware that Faircloth had
submitted a statement regarding the matters at issue in
JA 1151, 1155. The Board reasoned that Powell might have
pursued a different course of action had she known of
Faircloth's statement. The Board was careful to note that
this case presented "unique circumstances" because
of the "absence of any disclosure to Powell" and
that its liability finding was "narrowly
circumscribe[d]." JA 1156.
Union petitioned this court for review of the Board's
decision and order as to a single issue: whether Local 1700
was liable under Section 8(b)(1)(A) for breaching its duty of
fair representation. The Board filed a cross-application for
enforcement of its decision and order against Local 1700.
review the Board's factual determinations and its
applications of law to fact under the substantial-evidence
standard. NLRB v. Galicks, Inc., 671 F.3d 602, 607
(6th Cir. 2012). We uphold the Board's decisions if there
is "such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion."
Int'l Union, United Auto., Aerospace & Agric.
Workers of Am. v. NLRB, 514 F.3d 574, 581 (6th Cir.
2008) (internal citations omitted). The Board's
determinations of law are reviewed de novo.
Id. at 580.
reviewing the Board's fact-finding, we "respect the
judgment of the agency empowered to apply the law to
'varying fact patterns.'" Holly Farms Corp.
v. NLRB, 517 U.S. 392, 399 (1996) (quoting Bayside
Enters., Inc. v. NLRB, 429 U.S. 298, 304 (1977)). We
"defer to the Board's reasonable inferences and
credibility determinations, 'even if we would conclude
differently under de novo review.'"
Galicks, 671 F.3d at 607 (quoting FiveCAP, Inc.
v. NLRB, 294 F.3d 768, 776 (6th Cir. 2002)). "The
Board's choice between two equally plausible and
reasonable inferences from the facts cannot be overturned on
appellate review, even though a contrary decision may have
been reached through de novo review of the case."
Exum v. NLRB, 546 F.3d 719, 724 (6th Cir. 2008).
Board is "free to find facts and draw inferences
different from those of the ALJ." Jolliff v.
NLRB, 513 F.3d 600, 607 (6th Cir. 2008). But it cannot
"ignore relevant evidence that detracts from its
findings." GGNSC Springfield LLC v. NLRB, 721
F.3d 403, 407 (6th Cir. 2013). The ALJ's findings
"are part of the record we must review" and
therefore are considered "to the extent that they reduce
the weight of the evidence supporting the Board's
conclusion." Int'l Union, United Auto.,