NATIONAL LABOR RELATIONS BOARD, Petitioner, v. OBERLE-JORDRE COMPANY, DIVISION OF the BISHOPRIC PRODUCTS COMPANY, Respondent, 777 F.2d 1119

BOYCE F. MARTIN, Jr., Circuit Judge. The National Labor Relations Board seeks enforcement of its order against Bishopric for violations of 29 U.S.C. §§ 158, 160, for discharging a union member. The Oberle-Jordre Company, between 1947 and March 1, 1982, was engaged in a business of installing boilers and other equipment at various sites throughout the United States. On March 1, 1982, Bishopric Products Company of Cincinnati acquired certain of their operations and assets. As a consequence of this acquisition many employees were laid off. A few employees, however, requested employment on an “as needed” basis.

Robert Nickell, a member of Teamsters Local No. 135, was among this group. The violation in this case occurred on February 28, 1983. Several other alleged violations occurred before this, but were not charged because they were barred by

section 10(

b) of the Act, 29 U.S.C. § 160(b). These occurrences provide, however, the background in which the complained of violation took place. The first incident occurred in July, 1982, when Paul Oberle, Sr. advised Robert Nickell that the company was moving across the state line and would leave the Teamsters in Ohio. He suggested that Nickell go to the union hall and withdraw from the union. Nickell replied that he would “check on it.” The following day Nickell went to the union hall and told a union representative what Oberle had said. The representative told Nickell that Oberle had acted illegally.

Nickell relayed this message to Oberle the next day, and Oberle became angry and told Nickell he should have kept his mouth shut. Between July and December 1982 Nickell was approached several times by Ron Sprenkle, Nickell’s immediate supervisor, and asked if he had decided whether or not he was going to withdraw from the union. On the first occasion Sprenkle told him if he withdrew from the union and stayed with the respondent, he would receive $6.00 per hour in wages and no benefits.

In a second conversation, Sprenkle told Nickell that if he would withdraw from the union he would receive $8.00 per hour and some insurance. At the time, Nickell was receiving $11.20 per hour under the Teamster’s contract. In November, Sprenkle asked Nickell again what he had decided concerning withdrawal from the union. Nickell replied that he could not decide. On the date of the violation, February 28, 1983, Sprenkle and Paul Oberle, Jr., the Vice-President’s son, visited Niekell’s home. Sprenkle handed Nickell a discharge slip which stated the reason for Nickell’s discharge was “Lack of Work.

Teamster service not required.” Sprenkle then, for the last time, asked Nickell whether he had decided to withdraw from the union. Nickell replied, “It don’t really matter. You’re not going to work me anyway, are you?” Sprenkle replied, “No.” In March the union filed this charge. After a hearing, the administrative law judge determined a violation occurred when Nickell was interrogated regarding his withdrawal from the union. Both sides agree that we are limited in our review. The facts are almost admitted and we are left to determine if they support the finding of the Board.

We believe they do. “Substantial evidence” is “more than a mere scintilla ... [and is generally accepted to] mean such relevant evidence as a reasonable mind might accept as adequate to support a conclusion____” Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951). The February 28th interrogation took place within a scenario of prior interrogations that were accompanied by explicit promises of continued employment conditioned on Nickell’s responses. While these prior interrogations occurred outside the six month time limitation imposed by

section 10(

b) of the Act, 29 U.S.C. § 160(b), the evidence concerning them “shed[s] light on the true character of matters occurring within the limitations period.” Local Lodge 1424 IAM v. NLRB, 362 U.S. 411, 416, 80 S.Ct. 822, 826, 4 L.Ed.2d 832 (1960). It was not unreasonable for the Board to conclude that the interrogation’s probable effect was to unlawfully coerce the employee within the meaning of 29 U.S.C. § 158(a)(1). On the discharge issue it is well established that an employer violates

section 8(a)(1) and 8(a)(3) if it discharges because of union membership. NLRB v. Transportation Management Corp., 462 U.S. 393, 103 S.Ct. 2469, 2472, 76 L.Ed.2d 667 (1983). In these circumstances the employer’s motive becomes the focal point. In Transportation Management, the Board’s analytical framework for resolving the question of an employer’s motive for deciding to discharge an employee was approved.

The Board established its framework in Wright Line, A Div. of Wright Line Inc., 251 N.L.R.B. 1083, 1089 (1980), enf’d. on other grounds, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982). It requires the General Counsel show the employee’s protected activity formed a motivating factor in the employer’s decision. Once such a showing has been made, the employer’s decision to discharge constitutes a violation of the Act unless the employer establishes that the decision would have been made absent the protected activity. NLRB v.

E.I. duPont deNemours, 750 F.2d 524, 529 (6th Cir. 1984). The record in this case established that NickelPs continued affiliation with the Teamsters formed a motivating factor in the employer’s decision. The respondent could have simply laid off Nickell following the March 1982 acquisition, but seemed to value his work and attempted to retain him as an employee. Several attempts were made to get him to withdraw from the union with no success. As a last resort they terminated him on February 28,1983.

We feel that upon consideration of the record as a whole there is substantial evidence to uphold the decision of the Board. The order of the Board is enforced.