Eldeco, Inc. v. N.L.R.B.

• Citation: 132 F.3d 1007
• Decision Date: 29 December 1997
• Docket Number: 96-2259,Nos. 96-2092,s. 96-2092
• Parties: 157 L.R.R.M. (BNA) 2046, 134 Lab.Cas. P 10,095 ELDECO, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ELDECO, INCORPORATED, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1007

132 F.3d 1007

157 L.R.R.M. (BNA) 2046, 134 Lab.Cas. P 10,095

ELDECO, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ELDECO, INCORPORATED, Respondent.

Nos. 96-2092, 96-2259.

United States Court of Appeals Fourth Circuit.

Argued April 10, 1997.

Decided Dec. 29, 1997.

ARGUED: Kenneth Edwards Young, Nelson, Mullins, Riley & Scarborough, L.L.P., Greenville, SC; Cherie W. Blackburn, Nelson, Mullins, Riley & Scarborough, L.L.P., Charleston, SC, for Eldeco, Inc. Steven B. Goldstein, National Labor Relations Board, Washington, DC, for N.L.R.B. ON BRIEF Frederick L. Feinstein, General Counsel, Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Margaret Gaines Neigus, Supervisory Attorney, National Labor Relations Board, Washington, DC, for N.L.R.B.

Before HALL and NIEMEYER, Circuit Judges, and DUFFY, United States District Judge for the District of South Carolina, sitting by designation.

Enforcement granted in part and denied in part by published opinion. Judge DUFFY wrote the majority opinion, in which Judge NIEMEYER joined. Judge HALL wrote a dissenting opinion.

OPINION

DUFFY, District Judge:

The National Labor Relations Board ("NLRB" or "the Board") found that Eldeco, Inc. ("Eldeco" or "the Company"), committed several violations of the National Labor Relations Act ("the Act") at its facilities in North Charleston, South Carolina and Winston-Salem, North Carolina. Eldeco offers two basic responses to these findings: (1) that the ALJ's credibility determinations were biased in favor of the union; and (2) that the Board's findings on the various violations were not supported by substantial evidence. We agree with the Board that substantial evidence supports some violations, and we reject the Company's claims that the agency proceedings were impermissibly biased. We agree with Eldeco, however, that its decision to implement a drug testing policy did not run afoul of the Act. We also agree with Eldeco that its decision to terminate two employees (Waco Cottingham and Stephen Pope) was not based on discriminatory considerations and that the August 3, 1994 letters sent to applicants constituted valid offers of employment. For these reasons, we enforce the Board's order in part and deny enforcement in part.

I.

Eldeco is alleged to have committed unfair labor practices involving electrical work in the construction of K-Mart retail stores in North and South Carolina. The charge pertaining to the North Charleston job site was filed by International Brotherhood of Electrical Workers, Local 776, AFL--CIO ("Local 776"), and the Winston-Salem charges by International Brotherhood of Electrical Workers, Local 342, AFL--CIO ("Local 342") (jointly referred to as "the Union").

After issuance of an original complaint, a consolidated complaint was issued on October 31, 1994. The amended allegations are that, at the Winston-Salem job site, Eldeco violated Section 8(a)(1) of the Act by: (1) advising its employees that union affiliated employees would not be hired; (2) telling employees that it hired a foreman to keep the job site union-free; (3) interrogating employees regarding the union activities of other employees; (4) threatening its employees with unspecified reprisals for engaging in union activity; (5) telling employees that it would not have any union employees on the job; (6) telling an employee that he was being terminated because of his union activity; (7) discriminatorily prohibiting employees from discussing the Union on the job; (8) creating the impression that it was engaged in surveillance of employees' union activities; (9) promulgating and disparately enforcing its drug testing policy in order to discourage union activities by employees; and (10) threatening to discharge employees supporting the Union by implementing a drug testing policy.

The complaint also alleges that, at the Winston-Salem job site, Eldeco discharged employee Gregory Davis and failed to consider and refused to offer jobs to 16-named applicants because of their union activities or sympathies, in violation of Section 8(a)(3) of the Act.

At the North Charleston job site, the complaint alleges that Eldeco failed to consider and refused to offer jobs to nine applicants because of their union activities, in violation of Section 8(a)(3) of the Act.

A hearing was held before the ALJ in Charleston, South Carolina, on January 18, 19, and 20, 1995. The ALJ issued his opinion on June 9, 1995. He uniformly found in favor of the Union on issues of credibility and held that Eldeco had engaged in several unfair labor practices. The ALJ concluded that the Company violated Section 8(a)(1) of the Act at its Winston-Salem, North Carolina job site by: (1) advis ing its employees that a foreman had been hired to keep the job site "union-free"; (2) interrogating employees regarding the union activities of other employees; (3) threatening employees with unspecified reprisals for engaging in union activity; (4) telling employees that there would not be any union employees on the job; (5) telling an employee that he was being terminated because of his union activities; (6) creating the impression that Eldeco was engaging in surveillance of its employees' union activities; (7) promulgating and disparately enforcing a drug testing policy in order to discourage union activities of its employees; and (8) telling employees that the purpose of the drug-testing program was to eliminate union employees.

The ALJ further concluded that the Company violated Section 8(a)(1) and(a)(3) of the Act by: (a) discharging employees Gregory Davis on July 23, 1994, and Stephen Pope and Waco Cottingham on August 11, 1994, because of their union activities and sympathies; and (b) failing to consider for employment and failing to employ certain applicants because of their union sympathies and activities.

The Board affirmed the ALJ's conclusions and required that injured employees be reinstated, made whole, and further directed the Company to cease and desist from all unfair labor practices. Eldeco filed this petition for a review of the Board's order, and the Board cross-petitioned for enforcement.

The ALJ's findings of fact are adequate to address most of the Company's arguments. Therefore, we will reiterate the facts only when specifically relevant.

II.

Eldeco lodges various objections to the fact-finding process in this case, which we shall consider seriatim.

A.

Eldeco first presents statistical arguments, which it claims prove that the ALJ was biased in favor of the Union. Eldeco notes that the ALJ credited all of the Union's witnesses and none of its own, thereby proving bias. Contrary to the Company's suggestion, bias is not established merely because an ALJ uniformly credits one party's witnesses over another's. NLRB v. Pittsburgh Steamship Co., 337 U.S. 656, 659, 69 S.Ct. 1283, 1285, 93 L.Ed. 1602 (1949). Furthermore, this court, in Fieldcrest Cannon v. NLRB, previously stated:

Our review shall not be driven ... by an overall statistical balance of whose witnesses received credit and whose did not. To do so would amount to judging a case by some mechanical formula rather than the merits of the evidence. After all, such statistics do not inform us whether "a credibility determination is unreasonable, contradicts other findings of fact, or is 'based on an inadequate reason or no reason at all.' "

97 F.3d 65, 69 (4th Cir.1996) (citing NLRB v. McCullough Environmental Services, Inc., 5 F.3d 923, 928 (5th Cir.1993) (citation omitted)).

Eldeco also contends that approximately 89% of the ALJ's decisions in the last 20 years were in favor of the Union, thereby indicating a bias in favor of labor unions. Fieldcrest also held that this type of statistical argument is irrelevant. Fieldcrest, 97 F.3d at 69 ("To evaluate an ALJ's impartiality in this way amounts to judging his record by mere result or reputation, and in reality, such statistics tell us little or nothing."). Accordingly, we have set aside the statistics and have examined the fact-finding in this case to assess whether the record as a whole supports the ALJ's determinations.

B.

Eldeco next challenges many of the ALJ's credibility determinations. However, the credibility determinations that Eldeco challenges were the product of lengthy and thorough proceedings during which each party had ample opportunity to present its respective position to the ALJ. The testimony consumed 3 days, during which the Union called 31 witnesses, and Eldeco called 6 witnesses. The transcript filled more than 800 pages.

The ALJ's decision reflects careful consideration of the testimony, and he specifically stated that his decision was based upon his observation of the demeanor of the witnesses. Furthermore, the ALJ carefully spelled out each violation, the evidence proving the violation, and his reasons for ruling as he did. Reviewing courts owe deference to factual findings, assessing them only to determine whether they are supported by substantial evidence. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 488-91, 71 S.Ct. 456, 464-66, 95 L.Ed. 456 (1951). When factual findings rest upon credibility determinations, they should be accepted by the reviewing court absent "exceptional circumstances." NLRB v. Air Products & Chemicals, Inc., 717 F.2d 141, 145 (4th Cir.1983). Exceptional circumstances include cases where "a credibility determination is unreasonable, contradicts other findings of fact, or is 'based on an inadequate reason or no reason at all.' " McCullough, 5 F.3d at 928 (citation omitted). Only in such a situation is a reviewing court "free to review the record and independently reach [its] own conclusions." McCullough, 5 F.3d at 928. Otherwise, careful fact-finding, such as that undertaken in this case, is entitled to deference.

III.

Giving the proper deference to the ALJ's fact finding...