Local Union No. 948, International Brotherhood of Electrical Workers, (Ibew), Afl-Cio v. National Labor Relations Board , 697 F.2d 113 ( 1982 )

NATHANIEL R. JONES, Circuit Judge,

concurring.

I write separately to make clear the distinction between the standards of review for matters of credibility and for factual findings that may or may not rest upon credibility determinations. The majority opinion does not make clear that important distinction.

There are different standards for review of factual findings or conclusions and determinations concerning the credibility of witnesses. Review of factual findings is for reasonableness. Universal Camera Corp. v. NLRB, 340 U.S. 474, 496, 71 S.Ct. 456, 468, 95 L.Ed. 456 (1951) (“examiner’s findings (should not) be given more weight than, in reason and in light of judicial experience, they deserve”) (emphasis added). Credibility determinations are accepted unless there is no rational basis for them. NLRB v. Pittsburgh Steamship Company, 337 U.S. 656, 660, 69 S.Ct. 1283, 1285, 93 L.Ed. 1602 (1949) (credibility determination should be accepted unless the credited evidence carries its own death wound, that is incredible and therefore, cannot in law be credited, and that the discredited evidence carries its own irrefutable truth, that is, is of such a nature that it cannot in law be discredited).

The majority correctly notes that credibility determinations of the ALJ must be afforded considerable weight upon review, and that the court should ignore them only when the Board “oversteps the bounds of reason.” NLRB v. Mt. Vernon Telephone Co., 352 F.2d 977, 979 (6th Cir.1965). In essence, the test is whether the credibility determination has no rational basis. Compare NLRB v. Anthony Co., 557 F.2d 692 (9th Cir.1977) (determinations to be rejected only when patently unreasonable or inherently incredible), with NLRB v. Columbia University, 541 F.2d 922 (2d Cir.1976) (determinations should stand unless “hopelessly incredible”).

Several times in the opinion, however, the majority confuses the reasonableness standard applied in reviewing factual conclusions with the no rational basis credibility standard.¹ The cases cited for the reasonableness standard make clear that they apply only to inferences the Board or the ALJ may draw from the evidence, and not to credibility determinations. NLRB v. Paschall Truck Lines, Inc., 469 F.2d 74 (6th Cir.1972); NLRB v. G. & S. Metal Products Company, Inc., 489 F.2d 441 (6th Cir.1973); NLRB v. Com General Corp., 684 F.2d 367 (6th Cir.1982). The quotations in the majority opinion from these cases are taken wholly out of context;² in none of these cases is there an issue concerning the credibility determinations of the AU.

In NLRB v. Paschall Truck Lines, supra, the court noted that the “only issue presented in this case is a factual one; whether the alleged violation is supported by substantial evidence on the record as a whole.” 469 F.2d at 74. After noting that “the possibility of drawing two inconsistent conclusions from the evidence does not prevent the administrative agency’s findings from being supported by substantial evidence,” id. at 75, the quotation cited by the majority appears:

Reviewing the credibility findings and the inferences drawn by the Board from the evidence, the test is whether the Board’s conclusions are reasonable in light of the proven facts.

It is unfortunate that the court used the phrase “credibility findings” in its statement of the standard of review. That phrase is ambiguous between “credibility determinations” and “conclusions based upon credibility determinations.” The latter is reviewed for reasonableness, the former is not. The sentences that follow the passage make clear that the case is concerned only with the reasonableness of the factual inferences reached from the evidence in the case:

Thus, this court may not substitute its judgment on the question whether the inference drawn is a correct one or whether a different inference would be better supported, but is limited to the determination of reasonableness—not rightness.

Id. at page 75 (emphasis added). There is no discussion of the credibility determinations of the AU. A review of the other cases cited shows that this Court has not applied a reasonableness standard to review credibility determinations.

NLRB v. G. & S. Metal Products Company, 489 F.2d 441 (6th Cir.1973) does not support a reasonableness standard for credibility determinations. In that case, there was no issue of credibility before the court. Rather, the issue was whether there was substantial evidence to support the conclusion that the employees were fired because of their union activities. The quotation cited by the majority, when it appears in context, clearly is intended only to apply the reasonableness standard to review the inferences drawn from the evidence in the case, and not to credibility determinations:

The issues raised by the Company are factual. As we recently stated, “in reviewing the credibility findings and the inferences drawn by the Board from the evidence, the test for a reviewing court is whether the conclusions are reasonable in light of the proven facts.” N.L.R.B. v. Paschall Truck Lines, Inc., 469 F.2d 74, 76 (6th Cir.1972). In the case before us the Administrative Law Judge received evidence that would indicate illegal employer interference with union organizational activities. The discharging of numerous employees, some with good work records, within a short time after they became involved in union activities raised at least a reasonable inference that they were fired because of their union activities. The Board is permitted to infer unlawful intent from the circumstances surrounding such discharges.

489 F.2d at 443.

This Court was also not faced with an issue concerning credibility determinations in NLRB v. ComGeneral Corp., 684 F.2d 367 (6th Cir.1982). There the Court was evaluating the employer’s intent in light of evidence supporting a mixed-motive of the employer for a discharge. Thus, the Court was reviewing the factual conclusions based upon the evidence in the record and not the credibility determinations of the ALJ.

Finally, to say that NLRB v. Universal Packaging Corporation, 361 F.2d 384 (1st Cir.1961) supports a reasonableness standard of review for credibility determinations and thus that “this court will not be bound by the Board’s conclusions when the determinations go beyond what good sense permits” (at 117), is to misinterpret the statement that questions of credibility will be overturned only when they “overstep the bounds of reason.” Id. at 388. That phrase suggests the no rational basis standard of review.

In essence, the line of Sixth Circuit cases cited by the majority does not support a reasonableness standard of review for credibility determinations. Rather, the cases stand for the proposition that the review of factual findings based upon credibility determinations and other evidence will be for reasonableness.

Since I believe that the appropriate standard for review of credibility determinations dictates that we cannot upset the determinations unless there is no rational basis for them, that the determinations in this case do have a rational basis and that there is substantial evidence in the record as a whole to support the ultimate holding in this case, I concur.

1 . On page 117, the majority states, “We will set aside the Board’s determination of credibility only where its resolution is unreasonable.” The two cases cited for that proposition involve review of factual conclusions or findings and not credibility determinations underlying those findings.

On Page 118, the majority notes, “Our review for substantial evidence requires this court to accept the Board’s credibility determinations unless they are unreasonable.” Again, this confuses the “reasonableness” review for substantial evidence supporting the factual findings and conclusions, with the “no rational basis” review of credibility determinations.

2 . The majority cites all three cases for the proposition, which appears in each, that:

Reviewing credibility findings and inferences drawn by the Board from the evidence, the test is whether the Board’s conclusions are reasonable in light of the proven facts.

At 117. This phrasing originated in Paschall Truck Lines.