Mashuda Corp. v. National Labor Relations Board , 135 F. App'x 574 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1642
MASHUDA CORPORATION,
Petitioner,
versus
NATIONAL LABOR RELATIONS BOARD,
Respondent.
No. 04-1758
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
versus
MASHUDA CORPORATION,
Respondent.
On Petition for Review and Cross-Application for Enforcement of an
Order of the National Labor Relations Board. (6-CA-33414)
Argued: February 1, 2005 Decided: April 20, 2005
Before WILKINS, Chief Judge, NIEMEYER, Circuit Judge, and Samuel G.
WILSON, United States District Judge for the Western District of
Virginia, sitting by designation.
Petition for review and cross-application for enforcement granted
in part and denied in part by unpublished opinion. Judge Niemeyer
wrote the opinion, in which Chief Judge Wilkins and Judge Wilson
joined.
ARGUED: Jane Lewis Volk, THE VOLK LAW FIRM, Sewickley,
Pennsylvania, for Mashuda Corporation. Jason Walta, NATIONAL LABOR
RELATIONS BOARD, Office of the General Counsel, Washington, D.C.,
for the Board. ON BRIEF: Charles R. Volk, Sewickley, Pennsylvania,
for Mashuda Corporation. Arthur F. Rosenfeld, General Counsel,
John E. Higgins, Jr., Deputy General Counsel, John H. Ferguson,
Associate General Counsel, Aileen A. Armstrong, Deputy Associate
General Counsel, Fred B. Jacob, Supervisory Attorney, NATIONAL
LABOR RELATIONS BOARD, Washington, D.C., for the Board.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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NIEMEYER, Circuit Judge:
Mashuda Corporation, a highway construction company,
filed this petition for review of an order of the National Labor
Relations Board ("NLRB" or the "Board") adopting an administrative
law judge's findings that Mashuda Corporation violated §§ 8(a)(1)
and 8(a)(3) of the National Labor Relations Act ("NLRA" or the
"Act"), when it declined to hire Gary Singer as a mechanic for its
road-widening project in Follansbee, West Virginia. The NLRB filed
a cross-application for enforcement of its order.
Ralph Mashuda, Mashuda Corporation's owner and president,
had explained to Singer that one of the company's reasons for not
hiring him was that "maybe you [were] too union for us." On the
basis of this comment and the surrounding circumstances, Singer
filed a complaint with the NLRB. Following a hearing, the
administrative law judge ("ALJ") concluded that Mashuda Corporation
had coerced employees in the exercise of their self-organization
rights in violation of § 8(a)(1) of the NLRA and that anti-union
animus had contributed to Mashuda Corporation's decision not to
hire Singer in violation of §§ 8(a)(3) and 8(a)(1) of the Act.
Among other remedies, the ALJ recommended that Mashuda Corporation
be ordered to hire Singer and to remit backpay to him.
We conclude that we have no jurisdiction to consider the
independent § 8(a)(1) coercion violation and that substantial
evidence supports the §§ 8(a)(3) and 8(a)(1) failure-to-hire
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violation. Accordingly, we deny Mashuda Corporation's petition for
review and grant the NLRB's cross-application for enforcement of
its order finding violations of the Act. Because Singer's
entitlement to backpay, however, should have been "tolled" by his
refusal to consider an alternative mechanic position with Mashuda
Corporation, we grant the company's petition for review and deny
the Board's cross-application for enforcement as to that portion of
the remedy.
I
Complainant Gary Singer is a mechanic and a member of the
International Union of Operating Engineers, Local 132, AFL-CIO.
Local 132 covers West Virginia and operates a "hiring hall" to
which contractors such as Mashuda Corporation can turn for
qualified workers. When a contractor needs to staff a job located
within Local 132's jurisdiction, it calls Local 132 and states the
skills required for the job. Local 132 then sends to the job the
first person on its list who meets the skill requirements. Over
the years, Mashuda Corporation, which is headquartered in western
Pennsylvania, has been involved in a number of highway construction
projects in West Virginia. And on three such projects, it employed
Singer pursuant to referrals by Local 132. In 1982, Singer served
on a Mashuda Corporation job as a drill operator, and in 1985 and
1990, as a master mechanic.
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During Singer's 1990 engagement with Mashuda Corporation,
two conflicts developed between him and his Mashuda supervisors.
First, toward the end of the project, Mashuda Corporation equipment
foreman Ronald Huffman attempted to lay off Singer while retaining
Dennis Drummond, a "company" mechanic who traveled with Mashuda
Corporation from project to project. Singer, however, claimed a
right to his continued employment on the basis of Mashuda
Corporation's contract with the union, which required that since
the project was taking place in Local 132's jurisdiction, Singer
had priority over Drummond, who was a member of Local 66 in
Pennsylvania. The union intervened on Singer's behalf; Drummond
was transferred to another job site; and Singer was retained until
termination of the project. The second conflict involved the
operation of a steam "jenny," which had been brought to the job
site in order to steam clean construction equipment and which
foreman Huffman had directed a laborer to operate. Singer advised
Huffman that, under Mashuda Corporation's contract with Local 132,
operators (such as mechanics) -- and not laborers -- were to run
steam jennies. In response to Singer's protest, Huffman had Singer
replace the laborer as the steam jenny operator.
In connection with the staffing of a project involving
the widening of West Virginia Route 2 in Follansbee in February
2003, Mashuda Corporation representatives met with Local 132 union
members, including business agent Mike O'Hara, to express the need
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for mechanics for the project. After O'Hara stated that Singer was
first on their referral list, Mashuda Corporation sent O'Hara a
letter advising O'Hara that it did not want Singer on the project.
The company's general manager, Robert Mellon, wrote, "Due to past
performance and personality conflicts with other mechanics and
employees[,] we are requesting at this time not to have Mr. Singer
sent to our project."
Shortly thereafter, Singer contacted O'Hara to inquire
about working on the Mashuda project, and O'Hara told him of the
Mashuda Corporation letter. Singer then telephoned Ralph Mashuda
to discuss the situation, and the two met alone in a parking lot at
the project site. According to Singer, whose testimony the ALJ
credited in making his findings of fact in this case, the following
exchange took place.
Singer asked Mashuda why he did not want Singer for the
job. Mashuda said his people said Singer was a pain in
the neck. Singer said he did not understand and asked
who made this accusation. Mashuda said, "maybe you just
PO'd somebody real good." Singer asked how, and Mashuda
replied you bad mouthed [Mashuda Corporation]. . . .
Mashuda said it was not a problem with Singer's ability
to do the job and there was no problem with his truck, it
was just a personality conflict. Singer told Mashuda he
did not understand the personality conflict assertion
because he was not aware that he had any problems with
anyone. Singer asked who the problem was with, but all
Mashuda would say was it was his people. Mashuda then
said, "maybe you was too union for us." Mashuda went on
to state you are a union man. Singer replied he was and
was proud of it. Mashuda told Singer that Mashuda wanted
mechanic Andy Potter on the job because Potter was well
versed in repairing [Mashuda Corporation's] 90's
scrapers, which are dirt moving machines. Mashuda said
he would talk to some more people and get back to Singer.
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Mashuda said in a couple of weeks he would be starting a
night shift. Singer cut him off, and said "if Gary
Singer is not good enough to work for you on day shift,
he sure is not good enough to work night shift for you."
(Footnotes omitted). Ralph Mashuda later telephoned Singer and
indicated that although he had not had a chance to discuss Singer's
performance further with any other individuals, he would be
sticking with his decision not to hire Singer for the project.
Singer filed a complaint against Mashuda Corporation with
the NLRB, and on July 21, 2003, the NLRB issued a formal complaint
against Mashuda Corporation, alleging that the company "has been
interfering with, restraining, and coercing employees in the
exercise of the rights guaranteed by Section 7 of the [National
Labor Relations] Act in violation of Section 8(a)(1) of the Act,"
and "has been discriminating in regard to the hire or tenure or
terms or conditions of employment of its employees, thereby
discouraging membership in a labor organization in violation of
Section 8(a)(1) and (3) of the [National Labor Relations] Act."
The complaint was heard before an ALJ on October 1, 2003, and
Singer testified to the events as related above by the ALJ.
In response, Ralph Mashuda testified that the Mashuda
Corporation letter to O'Hara was based on his discussions with his
equipment foreman, Ronald Huffman, regarding Huffman's prior
experience with Singer. According to Mashuda, Huffman found Singer
to be lazy and a difficult individual with whom to work. Mashuda
recounted an episode involving some work on a 50-ton truck, during
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which Singer sat in a pickup truck and watched because it was
raining, and a somewhat different version of the steam jenny
incident. Ralph Mashuda testified that Huffman attempted to have
an operator run the steam jenny, but that the operators declined
because it was dirty work. Later, only after an operator was going
to be laid off did Singer allegedly protest, resulting in the
laying off of the laborer and the placement of an operator on the
steam jenny. Ralph Mashuda also testified that Paul Owens, Mashuda
Corporation's master mechanic on the Follansbee project, told
Mashuda that he would not work with Singer because, on a prior job,
Owens had ended up having to do the work that should have been
performed by Singer. Finally, Ralph Mashuda testified that Charlie
Hinkle, a supervisor for a Mashuda Corporation competitor, had told
him that the company was unlikely to get much work out of Singer.
Huffman and Owens testified on their own about these
events, but their testimony was significantly less detailed. Owens
testified that he told Ralph Mashuda that he would not work with
Singer because Singer was lazy, although he admitted on cross
examination that he had never actually worked directly with Singer.
Huffman testified simply that Singer did not work hard and did not
like to work in the rain.
The ALJ credited Singer's testimony, finding Huffman
entirely unbelievable and Owens' testimony contradictory. The ALJ
determined that Ralph Mashuda's remark to Singer in partial
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explanation of why Singer was not being hired -- that maybe he was
"too union for us" -- was coercive and violated § 8(a)(1) of the
NLRA. In addition, the ALJ found that Singer was qualified for the
mechanic position and that anti-union animus stemming from Singer's
actions to enforce the union contract during the 1990 job
contributed to Ralph Mashuda's decision not to hire him. The ALJ
also found that the performance-related reasons given by Mashuda
Corporation for not hiring Singer were pretextual. Finally, the
ALJ concluded that Ralph Mashuda's discussion with Singer about the
night shift position was not "a bona fide job offer to Singer" and
that "Mashuda never made a firm offer . . . for such a position."
With these findings, the ALJ held that Mashuda
Corporation engaged in unfair labor practices within the meaning of
§§ 8(a)(1) and 8(a)(3) of the Act and recommended that Mashuda
Corporation be ordered to offer Singer the day-shift mechanic
position for which he had applied and to make him whole for any
losses he had suffered. Mashuda Corporation filed exceptions, and
on April 30, 2004, the Board issued a decision and order affirming
the ALJ's "rulings, findings, and conclusions." The Board also
adopted the ALJ's recommended order with a slight modification.
Mashuda Corporation filed this petition for review, and the Board
filed a cross-application for enforcement of its order.
In its petition, Mashuda Corporation contends that the
Board erred in finding anti-union animus by failing to consider the
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context surrounding Ralph Mashuda's "too union" comment, the
company's long-standing relationship with the unions, and the
company's non-union-related objections to employing Singer. In
addition, the company contends that even if a prima facie case had
been made against Mashuda Corporation, the company "sustained its
burden to prove that the same action would have been taken even
absent the allegedly discriminatory motive." Finally, Mashuda
Corporation argues that backpay should not have been awarded to
Singer in light of its offer of night-shift employment.
In its cross-application for enforcement, the Board
contends that its decision and order is supported by substantial
evidence and that Mashuda Corporation waived any objection to the
independent § 8(a)(1) violation because it failed to present the
issue to the Board. The Board also maintains that its backpay
order was justified because Mashuda's night-shift offer was
insufficiently clear to toll backpay under the Board's established
mitigation doctrine.
II
We address first the Board's contention that we lack
jurisdiction to review the independent § 8(a)(1) violation stemming
from Ralph Mashuda's "too union" comment because Mashuda
Corporation did not preserve the point.
Section 8(a)(1) makes it unlawful for an employer "to
interfere with, restrain, or coerce employees in the exercise of"
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their self-organization rights. 29 U.S.C. § 158(a)(1). The Board
may find an independent § 8(a)(1) violation, and any § 8(a)(3)
violation that it finds arising from a failure to hire also
necessarily includes a derivative violation of § 8(a)(1). See
Metro. Edison Co. v. NLRB, 460 U.S. 693, 698 n.4 (1983) (explaining
the relationship between § 8(a)(1) and § 8(a)(3)).
In its exceptions taken from the ALJ's findings and
recommendations, Mashuda Corporation addressed only the failure-to-
hire violation, and it preserved no challenge to the ALJ's
independent finding that the "too-union" remark itself violated §
8(a)(1). Because Mashuda Corporation did not preserve this issue
before the Board, it cannot present it to us now. We agree with
the Board that on that basis we have no jurisdiction to review the
violation. See 29 U.S.C. § 160(e) (noting that the court has no
jurisdiction to consider objections not urged before the NLRB,
absent "extraordinary circumstances"); see also Woelke & Romero
Framing, Inc. v. NLRB, 456 U.S. 645, 665-66 (1982). Mashuda
Corporation's conclusory assertions that it "filed exceptions to
the [ALJ's] entire decision" and that it "is not relinquishing its
appeal from the 8(a)(1) portion of the Order" are unsupported by
the record and unavailing, given the requirements of the Act.
Indeed, it is telling that Mashuda Corporation's argument
challenging this violation is confined to a solitary footnote in
its opening brief.
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Mashuda Corporation's petition for review of this portion
of the Board's order is accordingly dismissed, and the Board's
cross-application for enforcement is granted.
III
We now turn to Mashuda Corporation's principal argument
that the Board erred in concluding that anti-union animus
contributed to its decision not to hire Singer, and that Mashuda
Corporation thus violated NLRA § 8(a)(3) and derivatively §
8(a)(1). Section 8(a)(3) makes it unlawful for an employer "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(a)(3). We
enforce the Board's order with respect to violations such as these
if, looking at the entirety of the record, the Board's factual
findings are supported by substantial evidence. 29 U.S.C. §
160(e); Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).
The analysis for determining a § 8(a)(3) violation was
initially set out in NLRB v. Wright Line, Inc., 662 F.2d 899 (1st
Cir. 1981), and has since been adopted and restated by us. See,
e.g., USF Red Star, Inc. v. NLRB, 230 F.3d 102, 106 (4th Cir.
2000); FPC Holdings v. NLRB, 64 F.3d 935, 942 (4th Cir. 1995). It
is a two-step, burden-shifting analysis under which we determine
first whether the General Counsel proved a prima facie case that
the employer's decision not to hire an employee was motivated by
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anti-union animus. See FPC Holdings, 64 F.3d at 942. To prove a
prima facie case, "the General Counsel must show (1) that the
employee was engaged in protected activity, (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.If the General Counsel has carried his burden, we move to the
second step, under which we determine whether the employer has
carried its burden of proving that the same action would have been
taken even in the absence of the employee's union activity. Id.Mashuda Corporation contends first that there was
insufficient evidence that Singer's 1990 pro-union activity was a
motivating reason behind Mashuda's decision not to hire him.
"Motive may be demonstrated by circumstantial as well as direct
evidence and is a factual issue 'which the expertise of the Board
is peculiarly suited to determine.'" FPC Holdings, 64 F.3d at 942(citations omitted) (quoting Perel v. NLRB, 373 F.2d 736, 737 (4th
Cir. 1967)). When these "factual findings rest upon credibility
determinations, they should be accepted by the reviewing court
absent 'exceptional circumstances.'" Fieldcrest Cannon, Inc. v.
NLRB, 97 F.3d 65, 69 (4th Cir. 1996) (quoting NLRB v. Air Products
& Chemicals, Inc., 717 F.2d 141, 145 (4th Cir. 1983)).
In this case, the issue does come down to a question of
witness credibility, and accordingly our review is highly
deferential. Applying the standard of review, we can find no
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"exceptional circumstances" that compel us to reject the ALJ's
credibility determinations. Singer testified to two union-related
conflicts that he had in 1990 and to Ralph Mashuda's observation in
2003 that Singer might be "too union" for Mashuda Corporation. Of
course, Mashuda Corporation disputes this testimony, contending
instead that Ralph Mashuda's decision not to hire Singer was
motivated by negative reports on Singer's work ethic. Ralph
Mashuda testified to conversations he had about Singer with Ronald
Huffman, Greg Demistratus, Mike O'Hara, Charlie Hinkle, and Paul
Owens. Of this group, however, only Huffman and Owens testified
before the ALJ, and neither testified as fully about the
conversations as did Ralph Mashuda. For example, Owens testified
that Singer was lazy and that he told Mashuda he would not work
with him. But Owens admitted that he had never worked with Singer
directly and that his opinion was based on what he himself had only
heard from others. When Owens was asked directly about his
experience with Singer, he only replied that he would "hear a lot
of stuff," that Singer would be "[s]itting in his truck, wouldn't
report to the master mechanic for other stuff to do." This
testimony compares with Ralph Mashuda's testimony recounting a
conversation in which Owens stated that he had had to do Singer's
work. Similarly, Ralph Mashuda testified that Huffman told him
about the steam jenny incident and about Singer's sitting in a
truck watching others repair a 50-ton truck in the rain. Huffman,
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however, testified in only very general terms about Singer's work
ethic and mentioned something about Singer's not liking the rain.
Huffman never mentioned the steam jenny incident, and the record
reveals that his testimony in general was somewhat agitated.
Singer's testimony, if credited, provides support for the
motivation prong under the Wright Line test, especially because
anti-union animus need only be a contributing factor and is
sufficient for a prima facie case even if "combined with other
legitimate nondiscriminatory motives." Ultrasystems Western
Constructors, Inc. v. NLRB, 18 F.3d 251, 257 (4th Cir. 1994).
Second, Mashuda Corporation contends that even if a prima
facie case was proved, it sustained its burden of proving that it
would not have hired Singer anyway because of his work ethic. But
the evidence that would substantiate Ralph Mashuda's claim that he
heard Singer was lazy is the same discredited evidence that was
used in an attempt to rebut a prima facie case of anti-union
animus. Moreover, under this second prong of the Wright Line test,
Mashuda has the shifted burden of proof. See FPC Holdings, 64 F.3d
at 942.
Given the ALJ's credibility determinations and the
unexceptional circumstances of this case, we conclude that the
Board's findings are supported by substantial evidence.
Accordingly, we deny Mashuda Corporation's petition to review the
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§§ 8(a)(3) and 8(a)(1) violations and grant the Board's cross-
application for enforcement with respect to these violations.
IV
Finally, Mashuda Corporation challenges the Board's order
awarding Singer backpay on the basis of the conversation between
Ralph Mashuda and Singer in which Singer essentially rejected the
possibility of accepting an offer for night employment. As found
by the ALJ, the exchange took place as follows:
Mashuda said in a couple of weeks he would be starting a
night shift. Singer cut him off, and said "if Gary
Singer is not good enough to work for you on day shift,
he sure is not good enough to work night shift for you."
The Board concluded that because Mashuda Corporation did not make
a valid offer of employment for the night shift, it could not toll
Singer's entitlement to backpay.
The general rule is that an individual's entitlement to
backpay is tolled if he fails to mitigate damages. See NLRB v.
Pepsi Cola Bottling Co. of Fayetteville, 258 F.3d 305, 310 (4th
Cir. 2001). Accordingly, "[a]n employer's offer of reinstatement,"
or, in this case, of employment, "tolls the accrual of backpay,"
Halle Enterprises v. NLRB, 247 F.3d 268, 271 (D.C. Cir. 2001),
because it creates an opportunity for the employee to mitigate
damages. Such an offer of employment is only effective, however,
if it is "firm, clear, and unconditional." Id. (quoting Consol.
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Freightways v. NLRB, 892 F.2d 1052, 1056 (D.C. Cir. 1989))
(internal quotation marks omitted).
In this case the Board correctly noted that Mashuda
Corporation did not demonstrate that it had firmly, clearly, and
unconditionally offered Singer a job on the night shift. But the
Board ignored the fact that the reason for this failure was
Singer's preemption of such an offer. By telling Ralph Mashuda
that he would not consider a night shift job when Mashuda raised
the subject, Singer must now be estopped from asserting the
insufficiency of Mashuda's offer as a basis to excuse his failure
to mitigate.
This is not the case where an employer has extended a
conditional or hypothetical offer and attempted to use an
employee's rejection of that offer as evidence of a failure to
mitigate. A number of circuits have held that such a situation
does not result in the tolling of an entitlement to backpay. See,
e.g., Consol. Freightways, 892 F.2d at 1056 (noting that it is
"incumbent on the [employer] to extend to the injured employee a
facially valid offer of reinstatement before the burden shifts to
the injured employee to accept or reject the offer" (citation and
internal quotation marks omitted)); NLRB v. Seligman & Assoc., 808
F.2d 1155, 1163 (6th Cir. 1986) (noting that "an employee is under
no obligation to decide whether to accept reinstatement until an
unconditional offer of reinstatement is made"). Instead, in this
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case Singer cut Ralph Mashuda off and precluded his extending any
offer of employment -- conditional, hypothetical, or bona fide --
and the only evidence received was that Ralph Mashuda was prepared
to extend a valid offer.
Although it was unnecessary to his conclusion, the ALJ
also concluded that the day shift mechanic position was a "higher
profile job" than the night shift position and that it was not
"incumbent on Singer, after being told that he was 'too union' for
[Mashuda], to be required to accept a less favorable shift and a
position of less stature as a result of his union activities."
Such a conclusion, however, is not supported by the record, and
Singer testified before the ALJ that the night shift position paid
the same as the day shift. Moreover, the Board explicitly declined
to address this finding.
Accordingly, we conclude that Singer's preemptive
statement renouncing any interest in a night shift position with
Mashuda Corporation tolled his entitlement to backpay. While
Mashuda Corporation did not make a bona fide offer of employment,
it need not have done so in the face of Singer's unambiguous
anticipatory rejection of any such offer. Therefore, with respect
to this portion of the Board's order, we grant Mashuda
Corporation's petition for review and deny the Board's cross-
application for enforcement.
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V
In sum, we dismiss Mashuda Corporation's petition for
review of the independent § 8(a)(1) violation based on the "too-
union" comment; we deny its petition for review of the Board's
findings that it violated §§ 8(a)(3) and 8(a)(1) in declining to
hire Singer; we grant Mashuda Corporation's petition for review
with respect to the Board's award of backpay to Singer; and we
grant the Board's cross-application for enforcement of its order in
its entirety, with the exception of its order awarding Singer
backpay.
IT IS SO ORDERED.
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