CCC Group, Inc. v. National Labor Relations Board ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 28, 2004
____________________
Charles R. Fulbruge III
No. 04-60118 Clerk
Summary Calendar
_________________
CCC GROUP, INC.
Petitioner-Cross-Respondent,
V.
NATIONAL LABOR RELATIONS BOARD
Respondent-Cross-Petitioner.
____________________________________________
Petition for Review of an Order of the
National Labor Relations Board
(12-CA-21800)
_________________________________________
Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Petitioner CCC Group, Inc. appeals the National Labor
Relations Board (Board) order finding that Petitioner committed
unfair labor practices by refusing to hire Michael Kell (Kell)
because of his union affiliation. The only significant issue on
appeal is whether the finding is supported by substantial
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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evidence.
After reviewing the record in this case, we are satisfied
that ample evidence supports the Board’s conclusion that CCC
Group, Inc. engaged in discriminatory hiring practices by
refusing to hire Kell because of his union affiliation. The Board
credited Kell’s testimony, particularly his account of his job
interview with Terry Atchley (Atchley), the Operations Manager of
CCC Group, Inc. On April 20, 2001 Kell filled out an application
for employment at the CCC Group, Inc. office in Bartow, FL. When
Kell returned the completed application to the secretary, she
asked him to wait for an interview. After a few minutes, Atchley
called Kell into his office. During the beginning of their
conversation, Atchley inquired about Kell’s prior work experience
and level of expertise with various machines. Atchley expressed
interest in Kell until he turned to the second page of the job
application and saw that Kell was a member of a union. According
to Kell’s testimony, upon reading that Kell was employed by the
Operating Engineers, Atchley’s attitude changed visibly and he
began to inquire as to whether Kell planned to leave the union if
employed by CCC Group, Inc. When Kell replied that he intended to
stay with the union and work at CCC Group, Inc. at the same time,
Atchley put down Kell’s job application and informed Kell that
the company did not hire crane operators. At the end of the
interview, as Kell moved toward the door to leave, Atchley said
“CCC’s non-union down here in Florida.”
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A few weeks later, Kell learned that Petitioner was actively
recruiting crane operators by placing an ad in the “Ledger”, a
Lakeland, FL newspaper, which advertised a position for a
conventional/hydraulic crane operator in the Bartow office. This
ad ran from May 3 - 8, 2001, two weeks after Kell had filled out
an application and been told that the company did not hire crane
operators. After discovering this, Kell, on two later dates,
asked secretaries for CCC Group, Inc. how long the company kept
job applications active. He received two different answers, “six
months” and “for years”. Petitioner, however, did not call Kell
to fill the crane operator position. When Kell applied for the
crane operator position at CCC Group, Inc., he had 8 years
experience in hydraulic and conventional cranes, 5 years with
engine and heavy equipment repair, could operate several other
machines, and possessed a forklift operator’s license and
training in phosphate mine safety. These credentials qualified
Kell for the position of crane operator which Petitioner sought
to fill.
The Board did not credit Petitioner’s employee Atchley’s
testimony. However, his refusal to admit that he interviewed Kell
and his description of their conversation demonstrated that
Petitioner never considered Kell as a job applicant, even though
he completed an application to be a crane operator and expressed
his interest throughout the interview. Additionally, the Board
credited the testimony of Robert Willis (Willis), who testified
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that John Matejek (Matejek), the regional manager of Bartow, FL,
when firing Willis, stated that CCC Group, Inc. was “a non-union
company and it was going to F’ing stay that way”.
In arguing that the Board incorrectly held that CCC Group,
Inc. was unable to prove its affirmative defense that Kell would
not have been hired even in the absence of anti-union animus,
Petitioner relies primarily on the testimony of Matejek. At
bottom, Petitioner challenges the Board’s credibility call in
rejecting the testimony of Matajek who testified that the reason
Petitioner did not hire Kell was that there were several more
qualified applicants for the crane operating position. It is,
however, not the function of this Court to secondguess the
Board’s credibility calls with respect to witnesses. See NLRB v.
McCullough Envt’l Servs. Inc., 5 F.3d 923, 927-8 (5th Cir. 1991)
Because substantial evidence supports the Board’s Order, the
Board’s application for enforcement is granted.
Order enforced.
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