National Labor Relations Board, Teamsters Local Union No. 20, Intervenor v. Seawin, Inc.

COLE, Circuit Judge,

dissenting.

Because I believe the majority rejects out of hand factual findings of the Board that are supported by substantial evidence, and substitutes its own factual conclusions instead, I respectfully dissent.

I. STANDARD OF REVIEW

It has long been established that we must uphold the Board’s factual findings if they are supported by substantial evidence on the record as a whole. See 29 U.S.C. § 160(e) (“The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive.”); Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88, 71 S.Ct. 456, 95 L.Ed. 456 (1951). As we noted in NLRB v. Plainville Ready Mix Concrete, 44 F.3d 1320 (6th Cir.1995), “the facts and complexities of the bargaining process are ‘particularly amenable to the expertise of the Board as factfinder,’ and ‘few issues are less suited to appellate judicial appraisal than evaluation of bargaining processes or better suited to the expert experience of a Board [that] deals constantly with such problems.’ ” Id. at 1326 (quoting Bolton-Emerson, Inc. v. NLRB, 899 F.2d 104, 108 (1st Cir.1990); NLRB v. Hospitality Motor Inn, Inc., 667 F.2d 562, 563 (6th Cir.1982)).

As the Universal Camera Court explained, “substantial evidence” means “such • relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 340 U.S. at 477, 71 S.Ct. 456 (internal quotation marks omitted). While a reviewing court must consider “the record in its entirety ..., including the body of evidence opposed to the Board’s view,” id. at 487-88, 71 S.Ct. 456, “the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence,” Am. Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 523, 101 S.Ct. 2478, 69 L.Ed.2d 185 (1981) (internal quotation marks omitted).

The Supreme Court has recently noted that the substantial evidence standard requires a reviewing court to ask “whether on this record it would have been possible for a reasonable jury to reach the Board’s conclusion.” Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 366-67, 118 S.Ct. 818, 139 L.Ed.2d 797 (1998). *560The substantial evidence standard “gives the agency the benefit of the doubt, since it requires not the degree of evidence which satisfies the court that the requisite fact exists, but merely the degree that could satisfy a reasonable factfinder.” Id. at 377, 118 S.Ct. 818 (emphasis in original). We may set aside the Board’s findings, therefore, only “when the record before [us] clearly precludes the Board’s decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both.” Universal Camera, 340 U.S. at 490, 71 S.Ct. 456.

We have described the substantial evidence standard of review in a different context as follows:

Substantial evidence is more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. This court does not try the case de novo, nor resolve conflicts in the evidence, nor decide questions of credibility.... If the Secretary’s decision is supported by substantial evidence, it must be affirmed even if the reviewing court would decide the matter differently, and even if substantial evidence also supports the opposite conclusion.

Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir.1994) (citations omitted) (emphasis added). With these principles in mind, it is clear to me that the majority errs in refusing to enforce the Board’s order in this case.

II. DISCUSSION

I do not disagree with the majority regarding the substantive legal standard applicable in this case. I believe, however, that the majority misapplied this standard in setting aside the Board’s factual determinations. As the Court notes, it has long been the rule that laid-off employees may vote in a representation election if, as of the payroll-eligibility date and the date of the election, they have a reasonable expectation of being recalled in the near future. See NLRB v. Ideal Macaroni Co., 989 F.2d 880, 881 (6th Cir.1993); Apex Paper Box Co., 302 N.L.R.B. 67, 68, 1991 WL 55317 (1991), enforcement denied, 976 F.2d 733, 1992 WL 229294 (6th Cir.1992) (table); NLRB v. Franklin Art Glass Studios, Inc., 675 F.2d 106, 106 (6th Cir.1982). In determining whether an expectation of recall was reasonable, the Board considers objective factors, including the company’s future plans, past experiences, and the circumstances of the layoff. See Sol-Jack Co., 286 N.L.R.B. 1173, 1173, 1987 WL 90037 (1987). The Board may also consider what was said by the employer to the employees regarding the likelihood of recall; however, “vague statements by the employer about the chance or possibility of the employee being hired will not overcome the totality of the evidence to the contrary.” Id. at 1174.

The majority makes much of the evidence presented by Seawin regarding its diminished customer base, its declining sales, and its high inventory at the time the company decided to lay off the eleven employees. The majority points to evidence presented by Seawin that, after the layoffs, the company purchased automated production equipment and installed new computer systems for more efficient inventory management. The majority relies on this evidence to refute the Hearing Officer’s conclusion that “there is no evidence on the record that the Employer had changed the nature or scope of its business.” The majority also cites cases in which the Board and the courts of appeals have found that similar evidence supports a conclusion that laid-off employees had no reasonable expectation of recall.

*561I agree with the majority that Seawin presented some evidence that the scope and nature of its business had changed, which change arguably necessitated a permanent layoff of the eleven Seawin employees. Indeed, the majority may even be correct to conclude that Seawin’s evidence in support of this argument was “substantial.” The majority commits a subtle but critical error, however, in reversing the Board for failing to adopt Seawin’s version of the facts, even if Seawin’s version may have been supported by substantial evidence. The question before this Court is whether the factual conclusion reached by the Board is supported by substantial evidence, not whether an opposite conclusion is also supported by substantial evidence. See Cutlip, 25 F.3d at 286 (“If the Secretary’s decision is supported by substantial evidence, it must be affirmed even if the reviewing court would decide the matter differently, and even if substantial evidence also supports the opposite conclusion.”). As discussed below, the Board’s factual findings are more than adequately supported by substantial record evidence.

The Board’s Hearing Officer heard testimony from several of the laid-off employees as well as from Charles Gaitros, Seawin’s vice-president responsible for implementing the layoffs, and expressly credited the employees’ version of the facts over the version presented by Gait-ros. Specifically, the Hearing Officer gave great weight to the testimony of employees Diane Jackson, Rose Priddy, Tammy Ruffing, and Gail Winter. Jackson testified that Gaitros told the employees they would be recalled within two weeks to a month. Priddy testified that Gaitros told her that she would be recalled in a “couple of weeks to a month.” She also testified that when she asked Gaitros if she would be recalled, he said “to my knowledge, yes.” Ruffing testified that Gaitros said that the employees would be recalled in “a week, two weeks or a month.” Winter testified that she asked Gaitros when the employees would be recalled, to which he responded, “hopefully by the end of February.”

The majority points to our decision in Ideal Macaroni and the Board’s decision in Sol-Jack for the proposition that “vague statements by the employer about the chance or possibility of the employee being-hired will not overcome the totality of the evidence to the contrary.” Ideal Macaroni, 989 F.2d at 882 (quoting Sol-Jack, 286 N.L.R.B. at 1174). The majority consequently dismisses Gaitros’s statements to the laid-off employees as “equivocal.” The majority’s reliance on Ideal Macaroni and Sol-Jack is misplaced, however. Where, as here, an employer’s expressed anticipation of recall tends to be supported by extant objective circumstances, the Board is certainly warranted in assigning more than minimal weight to the employer’s expressions. Neither Ideal Macaroni nor Sol-Jack is to the contrary.1 Moreover, this Court is in a poor position to second-guess the Hearing Officer’s credibility determinations with respect to witness testimony regarding Gaitros’s pre-election *562statements to the laid-off employees. See Roadway Express, Inc. v. NLRB, 831 F.2d 1285, 1289 (6th Cir.1987) (noting that reviewing courts rarely disturb determinations of credibility made by the Board). While Gaitros and the employee-witnesses may have agreed that Gaitros’s statements were unclear as to when the employees would be recalled, Gaitros and the employees disagreed as to whether the employees were to be recalled. Given the conflicting testimony on this issue, the Board was entitled to conclude that Gaitros’s statements to the laid-off employees supported a finding that the employees had a reasonable expectation of recall at the time of election.

The Hearing Officer also considered an article published in the Fremont Daily News Messenger shortly after the January 1998 layoff. The article discussed a tax abatement agreement reached between Seawin and the City of Fremont, and quoted Gaitros as saying that the layoff was partly a result of construction delays in Seawin’s equipment expansion project. The article further quoted Gaitros as saying, “When the project is done, we will have the number of employees (54) stated in the agreement.” Gaitros denied making the statement, and further denied ever having been interviewed by the paper. Nevertheless, Gaitros admitted reading the article and also conceded that he did not attempt to contact the newspaper to have the article corrected.

The record also indicates that on September 4, 1997, Seawin and the City of Fremont entered into a tax abatement agreement in which Fremont promised to grant a tax exemption to Seawin in return for Seawin’s promise to retain fifty-four full-time jobs at its Fremont facility. The exemption was intended to facilitate Seaw-in’s new expansion. The Hearing Officer noted that at the time of the August 11, 1998, hearing, Seawin employed only fifty full-time employees and thus would need to add at least four employees to be in compliance with the tax abatement agreement. The Hearing Officer accordingly found that Gaitros’s statements in the newspaper article, coupled with Seawin’s noncompliance with the tax abatement agreement, supported the employees’ argument that they had a reasonable expectation of being recalled by Seawin.

Finally, there is ample evidence in the record to support the Board’s conclusion that the layoffs were not occasioned by a change in the nature or scope of Seawin’s business. It is true that Seawin submitted evidence showing that the company’s inventory had increased and its sales had declined, primarily as a result of the company losing two of its key customers. However, the Hearing Officer accorded little weight to this evidence, and pointed out that there were “no compelling factors that would indicate that new sales would not be obtained or that business would not increase.... ” To the contrary, the evidence indicated that Seawin was actively committed to enhancing its productivity and performance. The Hearing Officer specifically found that Seawin had commenced construction of a warehouse in December 1997, which was completed shortly before the August 1998 hearing in this matter. The president of Seawin’s parent company, Mark Winter, testified regarding the new computer system installed in February 1998 to better monitor inventories, and also boasted about the ongoing automation of Seawin’s production processes.

Seawin argues that its declining business, together with its investments in modernizing its manufacturing operations, is evidence of fundamental change in the nature and scope of its business, thus precluding the laid-off employees from having *563any reasonable expectation of recall. It seems to me, however, that an equally reasonable inference to draw from this evidence is that the company was experiencing temporary setbacks that would be resolved quickly by enhancements to, and expansion of, the company’s existing operations. This inference is particularly plausible in light of Gaitros’s statements to employees that they could expect to be recalled within two weeks to a month, Gaitros’s statement to the newspaper that he anticipated an increase in the employee complement once the warehouse was completed, and Gaitros’s testimony before the Hearing Officer that Seawin did not intend to cease the manufacture of fittings. See Nordam, Inc., 173 N.L.R.B. 1153, 1154, 1968 WL 19265 (1968) (employer’s claim that he intended layoff to be permanent undermined by fact that he did not disclose that intent to employees or to company official responsible for implementing layoffs).

III. CONCLUSION

In sum, while I agree with the majority that there is evidence supporting Seawin’s argument that the layoffs were the result of a fundamental change in the company’s business operations, this evidence is not sufficient to justify overturning the Board’s decision in this case. This is particularly true when the Board’s decision to certify the election results rested in large part on the credibility of the witnesses testifying before the Hearing Officer. See Gen. Fabrications Corp., 222 F.3d at 225 (“It is the NLRB’s function to resolve questions of fact and credibility. The court, therefore, will not ordinarily disturb credibility evaluations by an Administrative Law -Judge who observed the witnesses’ demeanor.”). "While I recognize that we are not a “mere rubber stamp” for the Board’s factual and credibility determinations, NLRB v. Cook Family Foods, Ltd., 47 F.3d 809, 816 (6th Cir.1995), I nevertheless conclude that the inferences drawn by the Board from the evidence presented were reasonable, and the Board’s conclusions are supported by substantial evidence. I would enforce the Board’s bargaining order.

. The Court in Ideal Macaroni discounted the significance of the employer's expressed anticipation of recall because " 'surrounding objective facts’ ” did not support a reasonable anticipation of recall. 989 F.2d at 882 (quoting Ideal Macaroni, 301 N.L.R.B. 507, 510 n. 13 (1991) (Member Cracrafl, dissenting)). Similarly, in Sol-Jack, the Board discounted the employer’s expressions anticipating recall, observing that such statements do not "overcome the totality of the evidence.” 286 N.L.R.B. at 1174. Significantly, the employer in Sol-Jack disavowed-prior to the election-his previous statements regarding the possibility that the company would recall the laid-off employees. There is no indication in this case that the company disavowed Gaitros’s statements.