National Labor Relations Board v. Leading Edge Aviation Services, Inc.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1204
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
versus
LEADING EDGE AVIATION SERVICES, INCORPORATED,
Respondent.
On Application for Enforcement of an Order of the National Labor
Relations Board. (11-CA-19783)
Argued: October 26, 2006 Decided: January 9, 2007
Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.
Petition granted by unpublished opinion. Judge Gregory wrote the
opinion, in which Judge Traxler and Judge Shedd concurred.
ARGUED: Melvin Hutson, Greenville, South Carolina, for Respondent.
Jeffrey Lawrence Horowitz, NATIONAL LABOR RELATIONS BOARD, Office
of the General Counsel, Washington, D.C., for Petitioner. ON
BRIEF: Ronald Meisburg, General Counsel, John E. Higgins, Jr.,
Deputy General Counsel, John H. Ferguson, Associate General
Counsel, Aileen A. Armstrong, Deputy Associate General Counsel,
David Habenstreit, Supervisory Attorney, NATIONAL LABOR RELATIONS
BOARD, Office of the General Counsel, Washington, D.C., for
Petitioner.
Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:
The National Labor Relations Board (“NLRB” or “Board”) brings
this action to enforce a Board order against Leading Edge Aviation
Services (“Leading Edge”) for its refusal to hire based on prior
protected union activity and for retaliation against a participant
in an NLRB unfair labor practices proceeding. Because substantial
evidence supports the Board’s conclusion that Leading Edge engaged
in unfair labor practices in violation of the National Labor
Relations Act (“the Act”), 29 U.S.C. § 158(a)(1), (3), and (4)
(2004), we affirm the ruling of the Board and grant the petition
for enforcement.
I.
From 1989 to 2001, Terry Host worked for Lockheed Martin
Aircraft Center (“Lockheed”) in Greenville, South Carolina. He
spent the last six years of his tenure as a quality control
inspector (“QCI”). In 1998 and 1999, Host served as the president
of a committee to organize a Lockheed local of the Aircraft
Mechanics Fraternal Association. Host was active and well known
for his efforts; he wore his red union shirt at all times during
the drive and received mention in the Greenville newspaper. In the
summer of 1999, after the union drive failed, Host’s manager, Joe
Janas, disciplined Host for continuing to wear his union shirt and
threatened him with termination. Host filed an unfair labor
2
practices claim with the NLRB against Lockheed. Administrative Law
Judge (“ALJ”) William N. Cates found that Lockheed, through Janas,
had used unfair labor practices against Host. The ALJ ordered
Lockheed to remove the warnings against Host from its files, to
notify Host that it had done so, and to post a notice of its
violations and its employees’ rights. Two years later, Host
voluntarily resigned from Lockheed to take a position at General
Electric (“GE”), which offered better pay and benefits.
Leading Edge has worked exclusively as a subcontractor for
Lockheed for fourteen years. Its facilities are entirely contained
within the Lockheed complex at the Donaldson Center in Greenville.
Leading Edge’s primary business is to strip and refurbish airplanes
and airplane fuel tanks. It performs the bulk of this work on the
P-3, a four-engine turbo prop aircraft.
In October 2002, Leading Edge decided to hire two new QCIs,
one to replace Harry Gaskin, the current QCI, who was receiving a
promotion, and one to work on a second shift the company was
starting to accommodate its increasing workload. Because GE had
been laying off workers, Host sent his resume to Leading Edge on
October 31, 2002. Craig Arnold, Leading Edge’s Director of
Military Programs, immediately called Host and asked him to come to
the complex for an interview that day. During the interview,
Arnold asked Host about his prior experience as a QCI on the P-3,
his comfort-level with completing paperwork and training employees,
3
and his willingness to work on the second shift. Host responded
positively to all of these questions and said that he would be
comfortable with the $18 hourly wage Leading Edge offered.1 Arnold
told Host that he would need to take a drug test and speak with the
current QCI, Gaskin. After taking a tour of the facility and
recognizing several of his former Lockheed colleagues, including
Rich Parker, Host left Leading Edge with the impression that he
would be hired if he passed the drug test and spoke with Gaskin.
Arnold made several notations at the top of Host’s application
sheet. He wrote that Host was “Okay our second shift,” which, he
later explained, meant that he considered Host suitable for the
second-shift QCI position. He also noted that he should check with
Parker and Janas, managers at Lockheed who had known Host. J.A.
57, 60, 271. Arnold testified that he checked with Parker and
Janas, and they told him that Host had been a “tough inspector” or
a “good inspector.” J.A. 57-60.
The next day, November 1, Arnold telephoned Host to tell him
that he was bringing in two men to fill the QCI jobs. He reassured
Host that he was the third choice. Host testified that he was
confused about this change, so he called the three references he
had listed on his resume—Ken Crowe, Ken Buffington, and Don
1
Host had worked with the P-3 while at Lockheed and had
received favorable reviews and several awards for his inspection
work.
4
Gary—and discovered that no one from Leading Edge had contacted
them.
Host testified that on November 4 or 5, having heard nothing
from Leading Edge, he called Arnold again to ask why he had not
been hired. Arnold initially told him that he was still the third
choice. Host then confronted Arnold and asked him if he had spoken
to Parker. Arnold replied that he had but that the conversation
had no bearing on his hiring decision. Host described the rest of
the conversation as follows:
And at that point I just told him frankly, I said, “Let’s
cut the B.S. . . . You know you can be honest with me
about what was said. . . . I went from being hired—or,
excuse me, to all I need to do is tak[e] a drug test one
day, then I’m the third choice, and, you know, I’d like
the truth.” And he said that whatever Rich and him had
talked about, once again, had no bearing on it, but Rich
had told him that I was a good worker but I’d had some
trouble in the past.
J.A. 94-95. Host testified that he told Arnold he had left
Lockheed voluntarily but he had “been involved in a Union related
matter and Lockheed was found guilty on five of the six charges
that they went to Court on against me.” J.A. 95. According to
Host, Arnold then told him that he would not be hiring Host at that
time or at any time in the future. Arnold denied before the ALJ
that Parker or Janas had mentioned any of Host’s trouble with
Lockheed, but he admitted that “days later” some of the other
Lockheed workers told him Host “had some trouble” there. J.A. 158-
5
59. Arnold maintained, however, that he did not learn of Host’s
NLRB claim against Lockheed until two weeks before the trial.
Arnold testified that he decided not to hire Host for the
first shift QCI position because Host lacked the interpersonal
skills necessary for a QCI who had to communicate with the
customer, i.e., Lockheed. Arnold emphasized that “the
communications skills are important in being able to tell the
customer he’s wrong.” J.A. 143. The job, he testified, “requires
the ability to be able to communicate verbally and in written form
carefully and accurately.” J.A. 144. Arnold testified that Host
failed as a candidate in these areas:
I had some concerns over his communication skills. His
verbal communication skills were relatively good. His
written communication skills possibly seemed lacking, but
I wasn’t sure. However, in general, his inter-personal
skills I felt as though he would be better suited for the
second shift; there would be less requirement for him to
interface with the Lockheed mid-level, senior level
management; and that his technical skills could be used
to the best of their advantage.
J.A. 149. Arnold admitted on cross-examination that he had not
asked Host for a writing sample, nor had he seen any of Host’s
writing or discussed his writing ability with anyone. Finally,
Arnold testified that although he felt Host was qualified for the
second-shift QCI position, the position never materialized because
Lockheed sent Leading Edge fewer airplanes, eliminating the need
for a second shift.
6
After Host’s interview with Arnold, Jeffrey Meyer, another GE
employee and former QCI at Lockheed, sent his resume to Leading
Edge. Meyer had spoken with Host about the QCI openings, and Host
seemed confident in his own prospects. Meyer interviewed with
Arnold during the first week of November. Arnold told Meyer that
they were implementing a second shift and wanted a QCI for that
shift and a replacement QCI for the first shift. Arnold and Meyer
discussed the requirements of the job and the starting salary, and
Gaskin gave Meyer a tour of the facility. Meyer testified that
Arnold told him that Leading Edge “was getting ready to spool up
[the second shift] that week, and that if he got the job, he would
be training under Gaskin on the first shift until he was ready to
handle the second shift by himself.” J.A. 43-44. On November 6,
Arnold called Meyer and offered him a QCI position. Meyer asked
for a day to consider the offer. During that day, Meyer received
another job offer from the Greenville Airport. Deciding to take
the airport job, Meyer called Arnold to express his regrets and
refuse the job offer. Arnold asked Meyer if he could recommend
anyone else for the job, and Meyer named Carlos Hoyos and Randy
Herman.
In his testimony before the ALJ, Arnold denied that he had
offered Meyer a position as a QCI. Arnold stated that it was
Leading Edge’s policy to make job offers in writing. Meyer
admitted on cross-examination that he never received a written job
7
offer from Leading Edge, but Leading Edge offered no evidence
beyond Arnold’s testimony that it only extended job offers in
writing.
Arnold admitted in his testimony that Leading Edge started a
second shift in November 2002. He also admitted that he hired
Hoyos as a QCI between November 14 and 18. He said that he hired
Hoyos above Host because Hoyos had excellent communication skills,
seemed “very receptive to change,” and “had a very professional
demeanor and presentation about him.” J.A. 154-55.
Host filed an unfair labor practices charge against Leading
Edge on December 12, 2002. He accused Leading Edge of violating 29
U.S.C. §§ 158(a)(1), (3), and (4) by refusing to hire him because
of his past union activity and NLRB action against Lockheed. On
May 22, 2003, ALJ Margaret G. Brakebusch found that Leading Edge
had violated the Act by refusing to hire Host for a QCI position.
Basing her decision on the Wright Line test, she stated that the
NLRB had carried its burden on the prima facie case and that
Leading Edge had not proven that it had legitimate, non-
discriminatory reasons for refusing to hire Host.
The ALJ credited the testimony of Meyer and Host but did not
believe Arnold’s stated reasons for his refusal to hire Host. She
found Arnold’s justification that Host lacked good written and
verbal communication skills to be pretextual. She discredited his
testimony about his conversations with the Lockheed managers:
8
I find it incredible that Janas simply verified Host’s
employment and described Host as a good inspector without
mentioning Host’s Union or protected activities. It is
implausible that Janas would have failed to mention that
Host filed a charge against Lockheed and testified
against the company in the unfair labor practice
proceeding. As a result of Host’s testimony, Judge Cates
found Janas’s actions violative of the Act. . . .
[I]t would be naive to assume that a Lockheed manager
named in the judge’s decision would have a casual
response to any inquiry about Host.
J.A. 300. The ALJ also did not believe that Arnold had not known
about the Lockheed case until just before his own hearing.
The ALJ concluded that Leading Edge had a second shift
position available (because they had offered it to Meyer), that
Host was qualified for the position, and that Leading Edge’s
reasons for not hiring Host gave rise to an inference of animus and
discriminatory motive. She ordered Leading Edge to cease and
desist from its unfair labor practices and to post the required
notice informing its employees of its wrongs and their rights. She
also ordered Leading Edge to offer Host a job and pay his lost
wages and benefits.
On September 29, 2005, the Board affirmed in large part Judge
Brakebusch’s ruling. The Board agreed that Leading Edge had
violated the Act by refusing to hire Host for the second-shift QCI
position and that Leading Edge’s reason for refusing to hire Host
was pretextual. The Board pointed out that Leading Edge had
started a second shift in November and that it was hiring for the
QCI position when it considered Host and offered the job to Meyer.
9
Concluding that Leading Edge had thus not rebutted the NLRB’s prima
facie case, the Board upheld the remedies the ALJ had ordered.
The NLRB brings this action before us for enforcement of the
Board’s order.
II.
We will enforce an NLRB 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 she 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, then 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
10
F.3d 175, 184 (4th Cir. 2003). The ALJ is in the best position to
judge the credibility of the witnesses who appear before 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
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 union 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 . . . ;
11
(4) to discharge or otherwise discriminate
against an employee because he has filed
charges or given testimony under this
subchapter.
29 U.S.C. § 158 (2004). The NLRB has enforcement jurisdiction for
these sections of the Act. 29 U.S.C. § 160.
To succeed on a refusal to hire claim under Section 8,2 the
applicant must prove that the employer refused to hire him or her
“for the purpose of discouraging union activity.” Ultrasystems W.
Constructors, Inc. v. NLRB, 18 F.3d 251, 256 (4th Cir. 1994). The
NLRB, on behalf of the applicant, must show:
(1) that the employer is covered by the Act;
(2) that the employer at the time of the purportedly
illegal conduct was hiring or had concrete plans to hire
employees;
(3) that anti-union animus contributed to the decision
not to consider, interview, or hire an applicant; and
(4) that the applicant was a bona fide applicant.
Id. The employer’s motive for refusing to hire the applicant is
the key element in these 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.R.L.B. 1083 (1980)). To make
a prima facie case of discriminatory refusal to hire, the NLRB must
2
Proving that an employer violated Section 8(a)(3) also proves
a derivative violation of Section 8(a)(1). Metropolitan Edison Co.
v. NLRB, 460 U.S. 693, 698 n.4 (1983).
12
prove by a preponderance of the evidence “that a discriminatory
motive was a substantial motivating factor” in the employer’s
refusal to hire the applicant. RCG (USA) Mineral Sands, Inc. v.
NLRB, 281 F.3d 442. 448 (4th Cir. 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).
In considering whether the employer violated Section 8(a)(4)
of the Act, the ALJ should also use the Wright Line test to
determine whether the employer’s decision not to hire was based in
part on the applicant’s having filed unfair labor practice charges
in the past.
IV.
The Board determined that Leading Edge’s decision not to hire
Terry Host was substantially motivated by animus against his union
activities at Lockheed. Neither party disputes that Leading Edge
is an employer covered under the Act, and Leading Edge has conceded
13
that Terry Host was qualified for the QCI position.3 With these
elements met, we now examine whether substantial evidence supports
the conclusions that Leading Edge had a position available when it
denied Host the job and that anti-union animus motivated its
decision not to hire Host.
A.
Leading Edge claims that it did not violate the Act because
the company never started its second shift and therefore never had
a second-shift QCI position to offer to Host. In support of this
argument, Leading Edge states that it experienced a slow down in
work that prevented the implementation of its second shift, that it
never made Meyer an official offer for the second-shift position,
and that it hired Hoyos for the first-shift position. During the
hearing before the ALJ, Leading Edge offered documents to show that
Lockheed had indeed sent them fewer airplanes to refurbish from
January through July 2003 and that it had to reduce its workforce
from fifty-six employees to thirty-four employees between February
and April 2003.
Despite Leading Edge’s arguments, substantial evidence
supports the ALJ and Board’s conclusions that at the time it was
3
Arnold testified that Host “had good experience as an
inspector; was very strong in technical skills, in other words the
physical inspection part of the job.” J.A. 146. According to
Arnold, Host’s “experience level was—appeared to be well rounded,
and—but as far as his application goes, I felt as though he was a
good, strong candidate.” Id. Arnold also said, “I felt he was a
qualified candidate for our second shift operation.” J.A. 147.
14
considering Host for a position, Leading Edge had a position on the
second shift available. Arnold testified that he was looking for
two or three QCIs and that he had started the second shift by
hiring new people and moving some first-shift employees in November
2002. The ALJ found Meyer’s testimony that Arnold had offered him
a second-shift position to be credible, and there are no
extraordinary circumstances to warrant overturning that credibility
determination. Leading Edge offered no other evidence in support
of Arnold’s statement that the company only made written offers of
employment. That Leading Edge’s work slowed in 2003 does not
undermine the fact that it had an open QCI position in November
2002.
B.
Substantial evidence also supports the conclusions of both the
ALJ and the Board that Leading Edge’s claim that it had no second-
shift position was pretextual. Arnold, Leading Edge’s only
witness, claimed that he did not have a second-shift position for
Host but testified that he had started the second shift and was
looking to hire two or three QCIs. Arnold claimed that he never
made an offer to Meyer because that offer would have been in
writing, but he produced no documentary evidence that Leading Edge
exclusively made written job offers. He claimed that he checked
Host’s references, but he only talked with Lockheed managers Parker
and Janas, one of whom had been found liable in Host’s NLRB action
15
against Lockheed. Arnold stated that he did not know of Host’s
troubles with Lockheed, but he testified that he had heard workers
speaking about those very troubles. He claimed that Host lacked
written communication skills, but he neither saw nor asked about
Host’s writing. Given these inconsistencies in Leading Edge’s
case, we find sufficient evidence to support the finding of
pretext, inference of animus, and consequent violation of 29 U.S.C.
§ 158(a)(1) and (3).
V.
The Board also concluded that Leading Edge retaliated against
Host for his participation in the NLRB proceeding against his
former employer. Substantial evidence supports the ruling in favor
of Host’s retaliation claim under Section 8(a)(4). Finding no
evidence of extraordinary circumstances that would warrant a
reversal, we defer to the ALJ’s credibility determinations. The
ALJ determined that Arnold was less than credible when he testified
about his lack of knowledge about Host’s participation in an unfair
labor practices proceeding against Lockheed. She stated that it
was hard to believe that a person in his position would not have
been informed of Host’s activities and that neither Parker nor
Janas mentioned them to him when he inquired about Host. Arnold
testified that he had heard from other workers that Host had been
in trouble at Lockheed. Arnold’s testimony about his lack of
16
knowledge stands in stark contrast to Host’s testimony about their
November 4 phone call. It also contradicts his own testimony that
he had heard of Host’s troubles at Lockheed. In light of the ALJ’s
credibility findings, we affirm the Board’s determination that
Leading Edge violated Section 8(a)(4).
VI.
Substantial evidence in the record as a whole supports the
Board’s conclusion that Leading Edge did not hire Terry Host
because of and in retaliation for his prior protected union
activity. We therefore grant the NLRB’s application and order
enforcement of the Board’s order.
PETITION GRANTED
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