International Union, United Automobile, Aerospace & Agricultural Implement Workers of America v. National Labor Relations Board

CONCURRENCE

STRANCH, Circuit Judge,

concurring.

I concur with the lead opinion that there is not sufficient evidence to support the Board’s finding that Local 1700 breached its duty of fair representation, but write' separately to emphasize the unique circumstances that merit vacating the Board’s decision. In reviewing the Board’s factual determinations under the substantial evidence standard, we defer to the Board’s reasonable inferences and credibility determinations even when “we would conclude differently under de novo review.” Mt. Clemens Gen. Hosp. v. NLRB, 328 F.3d 837, 844 (6th Cir. 2003) (citing Painting Co. v. NLRB, 298 F.3d 492, 499 (6th Cir. 2002)). This considerable deference reflects the weight given to the Board’s expertise and its prerogative to choose among the conflicting testimony of witnesses. See NLRB v. Taylor Mach. Prods., Inc., 136 F.3d 507, 514 (6th Cir. 1998) (“[I]f the record supports the Board’s decision, we may not substitute our own judgment for that of the Board.”)

In the present case, the Board expressly stated that it relied on a combination of three factual findings to determine that Local 1700 violated its duty of fair representation. As explained in the lead opinion, we find that one of these conclusions—that Faircloth submitted a partially false statement—is not supported by substantial evidence in the record. Though the Board’s other two factual findings remain, they are insufficient to support its ultimate conclusion. The Board’s determination rested expressly on the cumulative effect of these three findings. Had the Board’s determinations on the three factors been independent, remand to the Board for consideration in light of our reversal on one finding would have been appropriate. On this unusual record, however, I concur with vacating the portion of the Board’s decision finding that Local 1700 violated its duty of fair representation.