Town & Country Elec., Inc. v. N.L.R.B.
| Decision Date | 05 February 1997 |
| Docket Number | 93-1218,Nos. 92-3911,s. 92-3911 |
| Citation | 106 F.3d 816 |
| Parties | 154 L.R.R.M. (BNA) 2402, 133 Lab.Cas. P 11,770 TOWN & COUNTRY ELECTRIC, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, International Brotherhood of Electrical Workers, Local 292, Movant-Intervenor/Respondent. 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. |
| Court | U.S. Court of Appeals — Eighth Circuit |
James K. Pease, Jr., argued, Madison, WI (Douglas E. Witte, on the brief), for Petitioner.
Peter Winkler, argued, Washington, DC (Frederick L. Feinstein, General Counsel, Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, on the brief), for Respondent.
Paul W. Iversen, argued, Minneapolis, MN (Stephen D. Gordon, Richard A. Williams, Jr., on the brief), for Intervenor International Brotherhood of Electrical Workers Local 292.
Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.
This matter returns to us on remand from the Supreme Court. We deny the petition for review and enforce the Board's order.
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., --- U.S. ----, ----, 116 S.Ct. 450, 457, 133 L.Ed.2d 371 (1995). The Court vacated our judgment and remanded the case to us for further proceedings. Id.
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 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 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 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) (). The Board affirmed the ALJ's findings and agreed with the ALJ's conclusions.
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 (8th Cir.1958); Kitty Clover, Inc. v. NLRB, 208 F.2d 212, 214 (8th Cir.1953). See also, NLRB v. Walton Mfg. Co., 369 U.S. 404, 407-08, 82 S.Ct. 853, 854-56, 7 L.Ed.2d 829 (1962). 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 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, 98 S.Ct. 112, 54 L.Ed.2d 90 (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, 71 S.Ct. 456, 95 L.Ed. 456 (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.)
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