Integrated Electrical Services v. National Labor Relations Board ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-2289
INTEGRATED ELECTRICAL SERVICES, d/b/a Primo
Electric,
Petitioner,
versus
NATIONAL LABOR RELATIONS BOARD,
Respondent.
------------------------------
LOCAL 24, INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO,
Intervenor.
No. 05-2411
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
versus
INTEGRATED ELECTRICAL SERVICES, d/b/a Primo
Electric,
Respondent.
------------------------------
LOCAL 24, INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO,
Intervenor.
On Petition for Review and Cross-application for Enforcement of an
Order of the National Labor Relations Board. (5-CA-31829)
Argued: November 28, 2006 Decided: February 13, 2007
Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.
Petition for review denied; cross-application for enforcement
granted by unpublished opinion. Judge Gregory wrote the opinion,
in which Judge Wilkinson and Judge Motz joined.
ARGUED: Douglas Michael Nabhan, WILLIAMS MULLEN, Richmond,
Virginia, for Integrated Electrical Services, d/b/a Primo Electric.
Jeffrey Lawrence Horowitz, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for the Board. Gabriel Antonio Terrasa,
SINGLETON, GENDLER & TERRASA, Owings Mills, Maryland, for Local 24,
International Brotherhood of Electrical Workers, AFL-CIO,
Intervenor. ON BRIEF: Heath H. Galloway, WILLIAMS MULLEN,
Richmond, Virginia, for Integrated Electrical Services, d/b/a Primo
Electric. Ronald Meisburg, General Counsel, John E. Higgins,
Deputy General Counsel, John H. Ferguson, Associate General
Counsel, Aileen A. Armstrong, Deputy Associate General Counsel,
Julie B. Broido, Supervisory Attorney, NATIONAL LABOR RELATIONS
BOARD, Washington, D.C., for the Board.
Unpublished opinions are not binding precedent in this circuit.
2
GREGORY, Circuit Judge:
Integrated Electrical Services, Inc., d/b/a Primo Electric
(“Primo”) appeals a National Labor Relations Board (“NLRB” or
“Board”) decision that it violated the National Labor Relations Act
(“the Act”) by terminating William Hughes because of his protected
union activity. The NLRB brings a cross-appeal for enforcement of
the Board’s order that Primo reinstate Hughes and pay his back
wages and benefits. Because substantial evidence supports the
Board’s conclusion that Primo engaged in unfair labor practices in
violation of the National Labor Relations Act (“the Act”), 29
U.S.C. § 158(a)(1) and (3) (2000), we affirm the ruling of the
Board and grant the petition for enforcement.
I.
A.
In 2003,1 William Hughes, a licensed master electrician, went
to the Local Hall of the International Brotherhood of Electrical
Workers, AFL-CIO, in Baltimore, Maryland, to see if the union could
help him find work. In June or July and still significantly low on
the job list, Hughes decided, after prompting by union officer
Roger Lash, to apply for a job at Primo Electric in part so that he
could attempt to organize Primo electricians and influence Primo to
1
All the events described took place in 2003 unless
specifically designated otherwise.
3
become a union contractor. Hughes attended classes at the union
hall to learn effective and lawful salting techniques. He learned
that he should keep a daily log on the job and that he should not
hand out union literature during working time or at the work site.
Primo hired Hughes, and he began working on August 11. From
August 12 to August 18, he installed lights and did other
electrical work at the Naval Academy grounds in Annapolis,
Maryland. On August 19, Primo transferred him to another job at
the Navy football stadium, where he installed fluorescent lighting,
heaters, and air conditioners. On August 26, he did not come to
work, nor did he call to explain his absence. On August 27, he
returned to the stadium wearing his union t-shirt. The shirt said
“Union Yes” and depicted the Local 24’s logo on the front. J.A.
705. The back had a larger logo that included the statement, “Ask
me about my union,” the IBEW seal, a phone number, and the phrases,
“family health care,” “paid retirement,” “higher wages,” and “job
safety.” J.A. 706. When he saw the union shirt, Hughes’s foreman,
Mike Gunzelman, told Hughes that he needed to remove the shirt and
put on a Primo shirt. Hughes refused to do so, and Gunzelman sent
him home.
Gunzelman did not know that Primo’s dress code only applied to
workers in the service department, who were required to wear Primo
shirts because they interacted with customers. At 8:15 that
morning, Hughes received a telephone call from a woman at Primo.
4
She apologized for his having been sent home, told him that he
would be paid for the work day, and assured him that he could wear
his union shirt whenever he chose. She also told him to report to
work the next day at the Naval Academy grounds.
Hughes returned to work at the Naval Academy on August 28. He
wore his union shirt to work every day thereafter. On September 2,
Hughes was digging a trench with a Ditch Witch. One of his co-
workers alerted him to markers that indicated that he was digging
in the vicinity of a high voltage wire. When he informed his
foreman, Chip Grady, about the danger, Grady instructed him to dig
the trench by hand. Hughes reported this incident to Lash, who
called OSHA to inspect the potentially dangerous situation. On
September 3, OSHA inspectors came to the job site, inspected the
area, spoke with Primo supervisors, and instructed Hughes to use
only a shovel and not a digging bar when digging the trench. Primo
received no OSHA citation for this incident.
On September 3, Primo Human Relations Director Darcia Perini
called Hughes into the office to inquire about the job experience
listed on his application. Perini then had Hughes meet with
several managers, who interviewed him for one or more office
positions, including that of Job Estimator.2 At the conclusion of
these conversations, Perini asked Hughes if he would be interested
2
As the proprietor of his own electrical business for several
years, Hughes had significant experience in making estimates for
the types of jobs Primo did.
5
in any of the office positions. Hughes responded negatively,
saying that he liked to work with his tools and that his talents
would best serve Primo in the field. Hughes returned to his work
at the Naval Academy until he was transferred again on September 5,
this time to Andrews Air Force Base (“AAFB”).
After a little under a month, Hughes’s time at AAFB became
eventful.3 On September 28, Hughes was working when Eric Gray, a
man Hughes recognized as a backhoe operator, approached Hughes with
instructions. Stating that he only took orders from his foreman,
Dale Haylett, Hughes refused to obey Gray. Gray had taken over for
Haylett in his absence, but Hughes claimed not to have known that
fact at the time. On the next day, Hughes took offense at the
words of another backhoe operator, Joe Schlerf, and responded in
kind.4 Schlerf approached Hughes and exclaimed that someone ought
to get him off the job. Nothing more came of the incident, but
3
Hughes claimed in testimony that little of the work he did at
AAFB was electrician’s work and that he spent most of his time
shoveling and raking.
4
The crew was laying concrete in a form. Hughes’s job was to
operate the concrete vibrator, a long tube attached to a motor.
The vibrator, known in construction slang as a “dick,” spread the
concrete around in the form to help make it even and keep it liquid
until the form was filled. While waiting for another worker to
finish raking the concrete around him, Hughes held the vibrator in
the air, not in the concrete. Schlerf, who had been operating the
concrete dispenser, noticed the position of the vibrator and yelled
at Hughes to “stick your dick in the concrete.” Hughes, not
knowing the slang term for the equipment, took offense at the
comment and shouted back to Schlerf that he would stick it in his
ear. J.A. 931.
6
Hughes typed a report of it, verified the report with witnesses,
and gave it to his superiors. On October 2, Haylett accidentally
ran over Hughes’s lunch and tool boxes with a bulldozer. Primo
replaced the tools on October 3.
During September and October, Hughes increased his salting
activity at Primo. Throughout September, he spoke with his fellow
employees about the union and the benefits it might offer them, and
he reported in his daily log that his co-workers seemed to have no
problem with his union affiliation and that some even seemed
interested in the union. At some point during that month, Lash
gave Hughes some CD-ROM/DVDs that outlined the wages a union
electrician could expect to receive. Hughes kept these CD-ROMs in
the front seat of his car and on September 30, he gave two of them
to co-workers in the parking lot before work. He handed out two
more the next day at the same time.
Hughes claims he gave a CD-ROM to Clayton Bester, either
before or after work. Bester handed the CD-ROM over to Primo
officials, who reported the exchange to Perini.5 The supervisor
5
Primo’s employee handbook has a no-solicitation policy. The
policy states:
Solicitation for any cause during working time and in
working areas is not permitted. You are not permitted to
distribute non-Company literature in work areas at any
time during working time. Working time is defined as the
time assigned for the performance of your job and does
not apply to break periods and meal times. Solicitation
during authorized meal and break periods is permitted so
long as it is not conducted in working areas.
7
Keith Hogge then requested that Bester make a written statement.
Bester’s statement, dated September 24, 2003, at 8:30 am,
identified Ernest Bringas as a witness and stated: “We were
backing filling swith [sic] pads when Bill talk [sic] to me about.
That is when he gave me the disc.” J.A. 806. On October 10,
Perini and Richard Stiles came to AAFB to interview Bester and
Hughes. Bester claimed that Hughes had given him the CD-ROM on the
job site during working time. When Perini confronted Hughes with
the allegation that he had violated the company’s no-solicitation
policy by distributing the CD-ROM during working time, Hughes
demanded to know the name of his accuser. Perini refused to tell
him Bester’s name and also refused to show him Bester’s statement.
Hughes denied the allegations, and Perini informed him that they
were terminating him for lying.6
B.
On March 24, 2004, the union filed an unfair labor practices
claim against Primo with the NLRB. During the hearing before the
Administrative Law Judge (“ALJ”), Hughes testified that he had been
a hard worker, his foremen treated their workers badly, he was
assigned laborers’ work of digging dirt after he wore his union t-
shirt, and he had never given out union materials on the job site
J.A. 784.
6
Primo’s handbook lists dishonesty as an offense warranting
discipline or termination.
8
or during working time. He also testified that a couple of days
before he was fired, Bringas warned him that he might be fired
because someone was telling the bosses that he was handing out
material during working hours. Hughes had some trouble on the
stand remembering minor details and recognizing Bester as someone
to whom he had given a CD-ROM. He only remembered Bester and the
details of their interaction after Bester had testified.
Primo’s witnesses painted an entirely different picture.
Primo’s management testified that Hughes was a slow, lazy worker,
who spent more time smoking than working. They testified that
Hughes was a troublemaker and that they had plenty of reasons to
discharge him beyond their claimed reason of dishonesty. Perini
admitted that she informed the company president or vice president
when Primo took any action regarding Hughes. Primo’s witnesses
testified inconsistently about the circumstances surrounding
Hughes’s distribution of the CD-ROM to Bester and Bester’s
cooperation with Primo officials. The company’s stated anti-union
policy did not help its case.7
7
The policy reads:
Primo does not have a union; therefore, no one is
required to be a member of a union to work here.
Employees have been satisfied with this arrangement.
There is no discrimination because a person is or is not
a union member.
All employees are treated fairly, and an employee who is
now a member or becomes a member of a union in the future
should expect no more than an employee who is not a union
9
Primo attempted to demonstrate that it treated similarly
situated employees consistently by presenting evidence that since
Hughes’s termination, it has fired several people for dishonesty.
In those cases, Perini admitted that she did more extensive
investigations than she did in Hughes’s case, even speaking with
witnesses involved. The one pre-Hughes case Primo used to disprove
disparate treatment lacked force because the original official
reason for termination did not match the reason Perini gave on the
stand. The reasons given to the employee, written in the employee
member. Unions have provided none of the salaries and
benefits at Primo, and it is not expected that they will
help improve any benefits in the future. What the future
can be and the success that will come will depend on what
each employee does, individually and collectively, with
his or her opportunities.
Solicitation will be allowed consistent with Primo’s
policy as reflected in Section 10.8 of this Handbook.
However, intimidation or coercion of any employee for any
reason will not be condoned. Primo will resist any
efforts to bring a union into the Company by all legal
means at its disposal.
J.A. 791.
Primo’s handbook also states:
Employees must refrain from taking part in or exerting
interest in any transaction in which their own interests
may conflict with the best interests of the Company.
Primo reserves the right to determine when an employee’s
activities represent a conflict with the Company’s
interest and to take whatever action is necessary to
resolve that situation, including termination of
employment.
J.A. 782.
10
file, and stated to the unemployment board included gross
misconduct, negligence, and unsatisfactory job performance. Only
on the stand in Hughes’s case did Perini claim that the actual
reason was the employee’s dishonesty.
The ALJ credited Hughes’s testimony over that of the Primo
witnesses and found that Primo had been motivated by anti-union
animus when it fired Hughes. He cited as evidence of that animus
Primo’s decision to move Hughes away from other electricians after
he started wearing his union t-shirt, its attempt to offer Hughes
a job that would pull him out of the field, and its stated anti-
union policy. The ALJ further concluded that Primo’s allegedly
legitimate reason for firing Hughes—dishonesty during the
investigation—was pretextual. He took particular notice of the
lack of investigation by Perini: she never attempted to speak with
the named witness, Bringas, nor did she name Hughes’s accuser,
despite the fact that in prior sexual harassment investigations she
had always told the alleged culprit the name of his accuser. The
ALJ also pointed out that Primo could not refute a disparate impact
claim with its inconsistent evidence. He relied on Hughes’s
credited testimony that before Perini had asked Hughes any
questions she told him that he was being terminated.
The ALJ concluded that Primo had violated 29 U.S.C. §§
158(a)(1) and (3) by firing Hughes because of his union activities.
He ordered Primo to cease and desist from its unfair labor
11
practices, to reinstate Hughes and make him whole, to remove any
mention of the termination from its files, and to post the required
notice. Upon receipt of this order, Primo filed exceptions with
the Board.
The Board affirmed the ALJ’s decision. Primo argued that the
decision should be overturned because the ALJ relied mainly upon a
piece of evidence that he erroneously admitted in violation of the
attorney-client privilege.8 Concluding that sufficient evidence
existed exclusive of that statement to support the ALJ’s decision,
the Board declined to rule on the admissibility of the statement.
The Board also relied on the ALJ’s credibility determinations.
Primo has appealed the Board’s ruling to this Court. The NLRB
has filed a cross-appeal, seeking enforcement of the Board’s order.
8
The ALJ had admitted testimony by Bester that in preparation
for the hearing, Primo’s attorney told Bester that Primo fired
Hughes for distributing the CD-ROM on company time. Bester
testified:
That he gave me that illegally, you know, he wasn’t
supposed to give it to me during company time and that
Bill had got fired and he was suing the company or
something to that nature. And he’s saying that because
he gave that to me on company time.
J.A. 390.
12
II.
We will enforce a Board order under the National Labor
Relations Act if “substantial evidence on the record considered as
a whole” supports the ALJ’s factual findings and if the ALJ applied
the law to the facts in a manner both “reasonable and consistent
with the act.” 29 U.S.C. § 160(e); Grinnell Fire Protection Sys.
Co. v. NLRB, 236 F.3d 187, 195 (4th Cir. 2000). Substantial
evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Consol. Diesel Co. v.
NLRB, 263 F.3d 345, 351 (4th Cir. 2001) (citations and quotation
marks omitted). We must “accord due deference to the reasonable
inferences that the Board draws from the evidence.” Grinnell, 236
F.3d at 195. If substantial evidence exists to support an NLRB
decision, we “must uphold the Board’s decision even though we might
have reached a different result had we heard the evidence in the
first instance.” Consol. Diesel, 263 F.3d at 351.
In determining whether substantial evidence exists, we defer
to the credibility findings of the ALJ unless faced with
“extraordinary circumstances.” NLRB v. Transpersonnel, Inc., 349
F.3d 175, 184 (4th Cir. 2003). The ALJ is in the best position to
judge the credibility of the witnesses who appear before him or
her: “The balancing of witnesses’ testimony is at the heart of the
factfinding process, and it is normally not the role of the
reviewing court to second-guess a fact-finder’s determinations
13
about who appeared more ‘truthful’ or ‘credible.’” Fieldcrest
Cannon, Inc. v. NLRB, 97 F.3d 65, 71 (4th Cir. 1996).
Extraordinary circumstances sufficient to overturn an ALJ’s
credibility determination exist in “those instances when ‘a
credibility determination is unreasonable, contradicts other
findings of fact, or is based on an inadequate reason or no reason
at all.’ ” Sam’s Club v. NLRB, 173 F.3d 233, 240 (4th Cir. 1999)
(quoting NLRB v. CWI of Md., Inc., 127 F.3d 319, 326 (4th Cir.
1997)).
III.
The National Labor Relations Act protects employees who seek
to form unions or participate in union activities. Section 8 of
the Act protects the rights of employees by making it an unfair
labor practice for an employer:
(1) to interfere with, restrain, or coerce
employees in the exercise of the rights
guaranteed in section 157 of this title; . . .
(3) by discrimination in regard to hire or
tenure of employment or any term or condition
of employment to encourage or discourage
membership in any labor organization . . . ;
29 U.S.C. § 158. The NLRB has enforcement jurisdiction for these
sections of the Act. 29 U.S.C. § 160.
14
To succeed on an unlawful termination claim under Section 8,9
the employee must make a prima facie case that the employer’s
decision to fire him or her was motivated by anti-union animus.
FPC Holdings, Inc., v. NLRB, 64 F.3d 935, 942 (4th Cir. 1995). The
NLRB, on behalf of the employee, must show:
(1) that the employee was engaged in protected
activity,10
(2) that the employer was aware of the activity, and
(3) that the activity was a substantial or motivating
reason for the employer’s action.
Id. The employer’s motive for termination is the key element in
these types of cases.
Because proving discriminatory motivation is a difficult task,
the Supreme Court has approved a burden-shifting proof process
known as the Wright Line test for mixed-motive cases. See NLRB v.
Transp. Mgmt. Corp, 462 U.S. 393, 403 (1993) (approving the burden-
shifting scheme of Wright Line, 251 N.L.R.B. 1083 (1980)). To make
a prima facie case of unlawful termination, the NLRB must prove by
a preponderance of the evidence “that a discriminatory motive was
a substantial motivating factor” in the termination decision. RCG
(USA) Mineral Sands, Inc. v. NLRB, 281 F.3d 442. 448 (4th Cir.
9
Proving that an employer violated 29 U.S.C. § 158(a)(3) also
proves a derivative violation of § 158(a)(1). Metropolitan Edison
Co. v. NLRB, 460 U.S. 693, 698 n.4 (1983).
10
The Supreme Court has held that distributing union materials
in non-working areas during non-working times is a protected
activity under Section 7 of the Act. Beth Israel Hosp. v. NLRB,
437 U.S. 483, 491-93 (1978).
15
2002) (citing CWI, 127 F.3d at 331)). The burden then shifts to
the employer “to prove affirmatively that the same action would
have been taken even in absence of the [applicant’s] union
activity.” Id. (citing FPC Holdings, Inc. v. NLRB, 64 F.3d 935,
942 (4th Cir. 1995)). The ALJ should scrutinize the reasons given
by the employer, and “[i]f the [judge] believes the employer’s
stated lawful reasons are non-existent or pretextual, the defense
fails.” USF Red Star, Inc. v. NLRB, 230 F.3d 102, 106 (4th Cir.
2000).
IV.
This case turns on the credibility of the witnesses. If we do
not find extraordinary circumstances sufficient to overturn the
ALJ’s credibility determinations, we should find that substantial
evidence supports the Board’s decision that anti-union animus
motivated Primo’s termination of Hughes and that the stated reason
of dishonesty is mere pretext. The record demonstrates that both
sides suffered from inconsistency in their testimony.
Hughes had difficulty remembering certain details of his
experience at Primo. He had trouble recognizing and identifying
Bester. He mistakenly claimed that Perini had given him his final
paycheck at the termination meeting on October 10, then changed
that testimony on cross-examination, explaining that his wife had
reminded him that he had received that check in the mail. He could
16
not remember missing work on August 26, and he could not remember
a job he held prior to working at Primo.
The testimony of the Primo witnesses also suffered from
inconsistencies. Most striking were the differences in the stories
surrounding Hughes’s termination. Bester testified that he walked
in on a conversation between Hogge and Schlerf in which the two
were discussing Hughes’s distribution of union materials. He
claimed that they asked him if he had a CD-ROM and then asked him
to bring it to them. Bester had to retrieve the CD-ROM from his
trash at home. Hogge testified that Bester had come to him with
the CD-ROM of his own accord. Schlerf testified that Bester had
approached him in the field about the CD-ROM, and Schlerf advised
that Bester turn it in to Hogge. The witnesses also gave
inconsistent stories about when Bester handed over the CD-ROM, when
he made his statement, and at whose request.
Ultimately the ALJ credited Hughes over the Primo witnesses.
The ALJ found that Hughes “testified in a straight forward manner
concerning the events leading to his discharge.” J.A. 938.
Indeed, Hughes’s testimony concerning his distribution of the CD-
ROMs and the events of the termination meeting remained consistent
throughout direct, cross, and rebuttal examination. He maintained
that he never distributed union material on working time. He also
maintained that when he initially entered the office on October 10,
17
Perini told him he was terminated and refused to reveal the name of
his accuser or of any witnesses.
The ALJ noted that Perini’s lack of a sufficient explanation
for why she never interviewed Bringas and her self-serving
disparate treatment testimony undercut her credibility. Perini
testified that she found no need to interview Bringas, the only
named witness to the alleged illegal distribution, because she
simply believed Bester over Hughes. She also gave no compelling
reason for not revealing Bester’s name to Hughes and not allowing
him to do any investigation on his own. Additionally, Primo’s
attempts to prove that it treated all of its lying employees
similarly fell flat. In those cases, most of which post-dated
Hughes’s termination, Perini did speak to witnesses. In the one
termination that preceded Hughes’s, Perini seemed, on the witness
stand, to fabricate dishonesty as a reason for firing an employee
whom all of the evidence showed was fired for unsatisfactory job
performance.
Exceptional circumstances that would allow us to overturn the
ALJ’s credibility determinations do not exist. The Primo
witnesses’ inconsistent testimony about the circumstances of the
CD-ROM incident significantly undermines their credibility.
Although Hughes had some trouble with his testimony, his daily log
corroborates the key elements of his case and lends credence to his
claim. Nothing in the record suggests that the ALJ’s credibility
18
findings were unreasonable or that they contradict his other
findings of fact.
The NLRB has provided enough evidence to meet its burden under
Wright Line and FPC. By wearing his union t-shirt, discussing the
union with co-workers, and distributing union materials, Hughes
engaged in protected activity. Primo knew about that activity no
later than August 26, when Gunzelman sent Hughes home for wearing
a union t-shirt. Primo’s subsequent treatment of Hughes provides
enough evidence to support the final element: that Primo was
motivated by anti-union animus in its termination of Hughes.
Sufficient evidence also supports the ALJ’s conclusion that
Primo’s claimed reason of Hughes’s dishonesty was mere pretext.
Although it seems likely that Hughes did not work as hard or as
quietly as Primo would have liked, Perini’s lack of investigation
concerning the CD-ROM distribution is suspicious, especially in the
context of Primo’s stated anti-union policy, the close eye managers
kept on Hughes, and the efforts Primo made to move Hughes around
when it became clear that he was advocating for the union. Primo’s
arguments that it could have fired Hughes because he was a poor
worker and a disruption have no force because Primo only gave
dishonesty as the reason it terminated Hughes. We find no reason
to disturb the findings of the Board.
19
V.
Substantial evidence in the record as a whole supports the
Board’s conclusion that Primo fired William Hughes because of his
protected union activity. We therefore deny Primo’s appeal, grant
the NLRB’s application, and order enforcement of the Board’s order.
PETITION FOR REVIEW DENIED;
CROSS-APPLICATION FOR ENFORCEMENT GRANTED
20