Town & Country Electric, Inc. v. National Labor Relations Board

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No. 92-3911
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Town & Country Electric, Inc., *
*
Petitioner, *
*
v. *
*
National Labor Relations Board, *
*
Respondent, *
*
International Brotherhood of *
Electrical Workers, Local 292, *
*
Movant- *
Intervenor/Respondent.*
___________ Petition for Review of an
Order of the National Labor
No. 93-1218 Relations Board.
___________
Town & Country Electric, Inc.; *
Ameristaff Personnel *
Contractors, Ltd., *
*
Respondents, *
*
v. *
*
National Labor Relations Board, *
*
Petitioner, *
*
International Brotherhood of *
Electrical Workers, Local 292, *
*
Movant- *
Intervenor/Petitioner.*
___________
Submitted: April 23, 1996
Filed: February 5, 1997
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Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN and LOKEN, Circuit
Judges.
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WOLLMAN, Circuit Judge.
This matter returns to us on remand from the Supreme Court. We deny
the petition for review and enforce the Board's order.
I.
Town & Country Electric, Inc. (Town & Country), a nonunion contractor
from Wisconsin, obtained a contract to do electrical work in International
Falls, Minnesota. In the course of hiring Minnesota-licensed electricians,
Town & Country refused to interview two full-time union organizers and
eight union members. It hired one union member, whom it later discharged.
The Board found that Town & Country violated sections 8(a)(1) and 8(a)(3)
of the National Labor Relations Act (the Act), 29 U.S.C. §§ 158(a)(1) &
(a)(3), by refusing to interview the applicants because of their union
affiliation and by discharging the one hire for his union activities at the
jobsite. Town & Country Elec., Inc., 309 N.L.R.B. 1250, 1992 WL 390106
(1992).
We denied enforcement of the Board's order, concluding that the paid
union organizers and union members were not "employees" within the meaning
of section 2(3) of the Act, 29 U.S.C. § 152(3). Town & Country Elec., Inc.
v. NLRB, 34 F.3d 625, 628-29 (8th Cir. 1994). On writ of certiorari, the
Supreme Court concluded that the Board's interpretation of "employees" as
not excluding paid union organizers was lawful. NLRB v. Town & Country
Elec., Inc., 116 S. Ct. 450, 457 (1995). The Court vacated our judgment
and remanded the case to us for further proceedings. Id.
II.
Town & Country received the contract for the International Falls job
in early September 1989 and was to start work on September 11. Town &
Country learned that Minnesota law required
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it to have one Minnesota-licensed electrician on the job for every two
unlicensed electricians. Because Town & Country had no Minnesota-licensed
electricians on its staff, it retained Ameristaff, a temporary personnel
service, to recruit Minnesota-licensed electricians. Any electricians
hired would be carried as Ameristaff's employees but would be subject to
Town & Country's plenary authority and control.
Ameristaff placed ads in a Minneapolis newspaper on September 3 and
planned to conduct interviews at a Minneapolis hotel on September 7. Ron
Sager, human resources manager for Town & Country, made it clear to
Ameristaff before the ad was placed that Town & Country needed more than
one electrician and that applicants had to be willing to work a nonunion
job.1 As part of the screening process, Ameristaff's receptionist asked
potential applicants whether they preferred to work union or nonunion and
if they preferred union work, whether they would work a nonunion job.
Ameristaff ultimately set up interviews for seven applicants.
Sager, along with Town & Country project manager Dennis Defferding
and Ameristaff president Steven Buelow, flew from Town & Country's
headquarters in Appleton, Wisconsin, to Minneapolis on September 7. They
did not arrive at the hotel until 11 a.m. because their flight was delayed.
When they arrived, only one applicant with a scheduled interview was
waiting. Also waiting were approximately one dozen members of Local 292
of the International Brotherhood of Electrical Workers. Local 292
officials had learned of the ads and encouraged their unemployed members
to apply and, if hired, organize the jobsite.
The applicants accompanied the company officials to the interview
rooms. Sager described Town & Country and explained its
1
Town & Country refers to itself as a "merit shop." We will
use the designation "nonunion employer" for clarity's sake.
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employee benefits plans. The applicants then filled out applications while
Sager and Defferding began interviews in another room. They first
interviewed a union member who did not have an appointment and then the
sole applicant who had scheduled an interview. Neither was offered a
position. Buelow told Sager that none of the remaining applicants had
appointments for interviews. Sager asked how those present had known about
the interviews. Buelow responded by showing Sager several applications and
stating, "I think they're union." Buelow returned to the other room and
told the eleven remaining applicants that the job was nonunion. The
applicants generally replied that they were interested in any work
available. Buelow read off a list of applicants with appointments, none
of whom was present. Buelow told the union members that he did not know
if anyone without an appointment would be interviewed. One of the union
members replied that there were licensed journeymen present who could take
the place of those with scheduled interviews.
Sager decided to return to Appleton without interviewing anyone else,
allegedly because he had to attend an important meeting that afternoon.
He announced to the remaining applicants that no further interviews would
be conducted and requested that they leave. One of the union members,
Malcolm Hansen, protested that he had called Ameristaff that morning and
scheduled an interview. After confirming that this was true, Sager agreed
to interview Hansen. He refused to interview anyone else and threatened
to call hotel security if the remaining union members did not leave.
The administrative law judge (ALJ) concluded that the General Counsel
had established a prima facie case that Town & Country had discriminatorily
refused to consider for hire the ten applicants it had refused to
interview. The ALJ rejected Town & Country's defenses largely on the basis
of his determination that Sager's proffered reasons for his decision to
immediately end the
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interviews were implausible and not credible. The ALJ concluded that Town
& Country had violated section 8(a)(3) because it failed to establish that
it would not have interviewed and considered for hire the ten remaining
applicants in the absence of their union membership. See York Prods., Inc.
v. NLRB, 881 F.2d 542, 544-45 (8th Cir. 1989) (setting forth burden-
shifting analysis). The Board affirmed the ALJ's findings and agreed with
the ALJ's conclusions.
III.
Our standard of review affords great deference to the Board's
affirmation of the ALJ's findings. We will enforce the Board's order if
the Board has correctly applied the law and its factual findings are
supported by substantial evidence on the record as a whole, even if we
might have reached a different decision had the matter been before us de
novo. Wilson Trophy Co. v. NLRB, 989 F.2d 1502, 1507 (8th Cir. 1993). See
also Handicabs, Inc. v. NLRB, 95 F.3d 681, 684 (8th Cir. 1996).
Credibility determinations are for the ALJ to make. We have characterized
the broad deference we extend to an ALJ's credibility determinations in
terms of a shock-the-conscience standard of review:
The rule in this Circuit is that ``the question of credibility
of witnesses and the weight to be given their testimony' in
labor cases is primarily one for determination by the trier of
facts. Paramount Cap Mfg. Co. v. NLRB, 260 F.2d 109 (8 Cir.
1958); Kitty Clover, Inc. v. NLRB, 208 F.2d 212, 214 (8 Cir.
1953). See also, NLRB v. Walton Mfg. Co., 369 U.S. 404, 407-08
(1961). This Court is not the place where that question can be
resolved, unless it is shocking to our conscience. It is not
so here.
NLRB v. Morrison Cafeteria Co. of Little Rock, Inc., 311 F.2d 534, 538 (8th
Cir. 1963). Although we have frequently applied the shock-the-conscience
standard of review, see, e.g., Golden Eagle Spotting Co. v. Brewery Drivers
and Helpers, Local Union 133, 93
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F.3d 468 (8th Cir. 1996); NLRB v. Monark Boat Co., 800 F.2d 191 (8th Cir.
1986), we have cautioned against a blind application of the Morrison
Cafeteria test by saying that "this rule is not to be applied mechanically
so as to compel us to sustain any finding concerning conflicting
testimonial evidence." NLRB v. Midwest Hanger Co., 550 F.2d 1101, 1104
(8th Cir.), cert. denied, 434 U.S. 830 (1977). See also Buffalo
Bituminous, Inc. v. NLRB, 564 F.2d 267, 269 (8th Cir. 1977); NLRB v.
Payless Cashway Lumber Store of South St. Paul, 508 F.2d 24, 28 (8th Cir.
1974).
Under the standard of review announced in the Paramount and Kitty
Clover decisions cited in Morrison Cafeteria, an ALJ's credibility
determinations are considered with the rest of the NLRB's factual findings
under the general substantial evidence test derived from Universal Camera
Corp. v. NLRB, 340 U.S. 474 (1951).
In NLRB v. Fruin-Colnon Constr. Co., 330 F.2d 885, 889-90 (8th Cir.
1964), we said
[w]hile this Court respects the prerogative of the trier of
fact in an unfair labor practice case to resolve issues of the
witnesses' credibility in arriving at a decision based thereon,
we cannot avoid our greater responsibility under Universal
Camera to fairly weigh against the Board's findings the
countervailing evidence independent of and consistent with its
credibility determinations. (Cited cases omitted.)
Similarly, in NLRB v. Payless Cashway Lumber Store, we stated:
We reach this decision in full awareness of the rule that the
question of credibility of witnesses and the weight to be given
their testimony is primarily one for determination by the trier
of facts. But the rule is not one to be applied mechanically
for if we were to so apply it, the substantial evidence test
set forth in the Administrative Procedure Act, 5 U.S.C. §
706(2)(E), and in Universal Camera Corp. v. NLRB [citation
omitted], would be meaningless. The reviewing court would be
compelled to sustain any finding as to which testimonial
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evidence was conflicting.
508 F.2d at 28 (citations omitted).
Although we see no inherent conflict between the shock-the-conscience
standard of review and the earlier and more traditional standard
articulated in Paramount, Kitty Clover, and Fruin-Colnon Constr. Co., we
prefer to apply the latter standard, based as it is on the teachings of
Universal Camera. Viewing the record in the light of that standard of
review, we conclude that the Board's findings are supported by substantial
evidence, and we agree with the Board's conclusion that Town & Country
violated sections 8(a)(1) and (a)(3) with respect to the ten applicants it
refused to interview and consider for hire. On Thursday, September 7, Town
& Country did not have a single licensed electrician for a job that started
the next Tuesday, September 11. When Sager, Buelow, and Defferding arrived
at the hotel, they were pleased with the size of the turnout even though
it was larger than the number of scheduled appointments. Sager made his
decision to interview only those applicants with appointments, effectively
terminating the interviews, only after Buelow told him that the remaining
applicants were union members. Sager testified that he suspected that Town
& Country was being harassed or set up. The ALJ's decision to discredit
Sager's various explanations for why he decided to terminate the interviews
is not so lacking in evidentiary support as to require us to set it aside.
IV.
Sager interviewed and hired Hansen for the International Falls job,
knowing that Hansen was a union member. Although Hansen was technically
an Ameristaff employee, Town & Country retained sole discretion regarding
his supervision and discharge.
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Hansen reported to the jobsite on Monday, September 11. The five-man
crew (Supervisor Rod Smithback, Mike Grow, Randy Reinders, Tom Steiner, and
Hansen) began work Tuesday, September 12. Hansen hinted about his union
membership that day. During a morning break the following day he openly
announced that he was a union member and was there to organize for the
union. Smithback and Sager repeatedly told Hansen not to talk about the
union, whether at work or at the cabin where the crew was staying. Grow,
Reinders, and Steiner repeatedly told Hansen they were not interested in
joining the union and complained to Smithback about Hansen's talking and
pressure. Smithback told Hansen he was not interested in joining the union
and asked Hansen what it would take for Hansen to drop his union membership
and "come over" to Town & Country's side. With tensions already high, a
confrontation occurred at lunch on September 14 between Hansen and other
crew members about Hansen's organizing pressure.
On September 14, Sager informed Buelow that because state law
prevented Town & Country from using Ameristaff's temporary personnel on the
jobsite, it could no longer use Hansen to meet the state requirements
unless it directly hired him, which it did not intend to do. After this
conversation, Buelow discharged Hansen that afternoon. Hansen called Sager
to ask if Town & Country would hire him directly onto its payroll, to which
Sager responded, "Absolutely not."
The ALJ found that the General Counsel made a prima facie case that
Town & Country's decision not to retain Hansen was motivated by Hansen's
union activity. Town & Country offered the defenses that Hansen was a poor
worker who failed to meet productivity standards and failed to perform in
a craftsmanlike manner. See Mississippi Transport, Inc. v. NLRB, 33 F.3d
972, 979 (8th Cir. 1994) (elements of unlawful discharge case and
employer's defense). The ALJ discredited these defenses, characterizing
Town & Country's case as "shifting, replete with contradiction," its
witnesses as
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"biased," and its defense as "structured upon a composite of lies." The
ALJ concluded that Town & Country's decision to not retain Hansen was based
upon Hansen's union activities, in violation of sections 8(a)(1) and
(a)(3).
The record supports the ALJ's rejection of Town & Country's defenses.
At the time of Hansen's termination, the only objective complaint Smithback
documented was Hansen's lack of productivity. Town & Country's allegations
that Hansen's work was not of craftsmanlike quality and that Hansen misused
and abused Town & Country's tools were not documented during Hansen's
tenure, and the ALJ found that they were post-hoc justifications. Sager
admitted at the hearing that Hansen's alleged violation of safety rules was
not a factor in the decision to terminate him. Town & Country claimed it
would have discharged Hansen earlier in the week due to his lack of
productivity except that it needed his Minnesota license. The ALJ found,
however, that at the time of Hansen's discharge, Town & Country needed at
least two licensed electricians at the jobsite, did not have a replacement
for Hansen, and risked not being able to work without having a licensed
electrician.
Town & Country stated that one factor in its decision not to retain
Hansen was the crew's low morale and the disharmony Hansen was causing.
We agree with the ALJ that the evidence clearly showed that the disharmony
was due to Hansen's organizing activities. Furthermore, while the
disharmony set the stage for the noontime confrontation that occurred on
September 14, the confrontation was directly the product of Hansen's
organizing activities on nonworking time, which was protected activity.
The ALJ found that this was the event that sealed Town & Country's decision
not to retain Hansen, a finding that supports the inference of improper
motivation. See Hall v. NLRB, 941 F.2d 684, 689 (8th Cir. 1991)
(coincidence between protected activity and discharge supports inference
of illegal motive).
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Although Hansen may not have been a model employee,2 Town & Country
failed to establish that it decided to discharge Hansen on the basis of his
level of productivity. As we stated in Mississippi Transport, 33 F.3d at
979, it is the employer's burden of proving by a preponderance of the
evidence "that it would have discharged [the employee] even in the absence
of his union activities." We conclude that substantial evidence supports
the ALJ's conclusion that Town & Country's failure to retain Hansen was
motivated by Hansen's protected union activities. Cf. Hall, 941 F.2d at
689 (evidence supported finding of illegal discharge where, among other
things, employer's testimony regarding poor work was discredited, shifting
reasons were given for discharge, chronological proximity existed between
discharge and employee's protected union activities, and employee was
interrogated regarding union sentiments and activities).
V.
Town & Country argues that the ALJ's credibility determinations and
resulting factual findings were based on a presumption that Town & Country
was motivated by anti-union bias because it is a nonunion employer. Town
& Country argues that because the ALJ used this presumption to discredit
its witnesses, the presumption was effectively irrebuttable. Contrary to
what Town & Country cites in its brief, however, the ALJ used no such
express presumption. Furthermore, a fair reading of the ALJ's
2
Indeed, had the ALJ credited the testimony of Hansen's co-
workers, he would have found that Hansen failed to accurately bend
and cut lengths of conduit; that he broke an inordinate number of
blades because of his improper use of a portable bandsaw; that he
chipped and dulled a large number of drill bits by failing to first
drill a pilot hole and then enlarge the hole with a larger bit;
that he improperly cut and threaded pieces of pipe; and that he
abused a pipe-threading machine by pounding on it with a hammer
rather than by tightening the locking mechanism by hand. Under
this view of the testimony, Hansen was either an incompetent or a
saboteur.
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opinion and his questioning of witnesses at the hearing does not reveal the
implicit use of such a presumption. See Hall, 941 F.2d at 689 (rejecting
employer argument that ALJ's findings were the result of bias when only
basis for claim was ALJ's adverse credibility determinations and findings
of fact). Moreover, an ALJ may properly use an employer's attitudes about
unions as one factor in evaluating the credibility of the employer's
witnesses and drawing inferences regarding the employer's motive. See id.
at 688; York Prods. Inc., 881 F.2d at 546; Ballou Brick Co. v. NLRB, 798
F.2d 339, 342 (8th Cir. 1986); McGraw-Edison Co. v. NLRB, 419 F.2d 67, 75
(8th Cir. 1969).
VI.
Town & Country argues that Hansen was not retained because he
violated a company rule against union solicitation on work time. Town &
Country also argues that it had a legitimate business reason for not hiring
the union members or retaining Hansen in that their obligations under the
union's "salting" resolution created an irreconcilable and disqualifying
conflict of interest with the obligations they owed Town & Country as their
employer.3 Town & Country raises both of these arguments for the first
time on remand. Objections not urged before the Board are not to be
considered by a reviewing court absent extraordinary circumstances. 29
U.S.C. § 160(e); Radisson Plaza Minneapolis v. NLRB, 987 F.2d 1376, 1382-83
(8th Cir. 1993). The conflict-of-interest argument was previously raised
only in the context of whether the union organizers were statutorily
defined "employees," not as a defense
3
Salting is a practice whereby a union local authorizes its
members to work on nonunion projects in order to organize the
project. The members, or "salts," are reimbursed for the
differences in wage scales and benefits, and their expenses. The
salts work at the jobsite until it is organized or when directed to
leave by the union. See Town & Country, 34 F.3d at 629; Herbert R.
Northrup, "Salting" the Contractors' Labor Force: Construction
Unions Organizing with NLRB Assistance, 14 J. Lab. Res. 469 (1993).
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for Town & Country's actions. The no-solicitation-rule argument was not
raised in the exceptions Town & Country filed with the Board, and our
review of the record shows that no evidence of such a rule was presented
at the hearing. Town & Country has not demonstrated extraordinary
circumstances requiring our examination of these arguments, and we decline
to do so.
The Board's order is enforced.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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