Integrated Electrical Services v. National Labor Relations Board

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-2289

INTEGRATED ELECTRICAL SERVICES, d/b/a Primo

Electric,

Petitioner,

versus

NATIONAL LABOR RELATIONS BOARD,

Respondent.

------------------------------

LOCAL 24, INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS, AFL-CIO,

Intervenor.

No. 05-2411

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

versus

INTEGRATED ELECTRICAL SERVICES, d/b/a Primo

Electric,

Respondent.

------------------------------

LOCAL 24, INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS, AFL-CIO,

Intervenor.

On Petition for Review and Cross-application for Enforcement of an

Order of the National Labor Relations Board. (5-CA-31829)

Argued: November 28, 2006 Decided: February 13, 2007

Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.

Petition for review denied; cross-application for enforcement

granted by unpublished opinion. Judge Gregory wrote the opinion,

in which Judge Wilkinson and Judge Motz joined.

ARGUED: Douglas Michael Nabhan, WILLIAMS MULLEN, Richmond,

Virginia, for Integrated Electrical Services, d/b/a Primo Electric.

Jeffrey Lawrence Horowitz, NATIONAL LABOR RELATIONS BOARD,

Washington, D.C., for the Board. Gabriel Antonio Terrasa,

SINGLETON, GENDLER & TERRASA, Owings Mills, Maryland, for Local 24,

International Brotherhood of Electrical Workers, AFL-CIO,

Intervenor. ON BRIEF: Heath H. Galloway, WILLIAMS MULLEN,

Richmond, Virginia, for Integrated Electrical Services, d/b/a Primo

Electric. Ronald Meisburg, General Counsel, John E. Higgins,

Deputy General Counsel, John H. Ferguson, Associate General

Counsel, Aileen A. Armstrong, Deputy Associate General Counsel,

Julie B. Broido, Supervisory Attorney, NATIONAL LABOR RELATIONS

BOARD, Washington, D.C., for the Board.

Unpublished opinions are not binding precedent in this circuit.

2

GREGORY, Circuit Judge:

Integrated Electrical Services, Inc., d/b/a Primo Electric

(“Primo”) appeals a National Labor Relations Board (“NLRB” or

“Board”) decision that it violated the National Labor Relations Act

(“the Act”) by terminating William Hughes because of his protected

union activity. The NLRB brings a cross-appeal for enforcement of

the Board’s order that Primo reinstate Hughes and pay his back

wages and benefits. Because substantial evidence supports the

Board’s conclusion that Primo engaged in unfair labor practices in

violation of the National Labor Relations Act (“the Act”), 29

U.S.C. § 158(a)(1) and (3) (2000), we affirm the ruling of the

Board and grant the petition for enforcement.

I.

A.

In 2003,1 William Hughes, a licensed master electrician, went

to the Local Hall of the International Brotherhood of Electrical

Workers, AFL-CIO, in Baltimore, Maryland, to see if the union could

help him find work. In June or July and still significantly low on

the job list, Hughes decided, after prompting by union officer

Roger Lash, to apply for a job at Primo Electric in part so that he

could attempt to organize Primo electricians and influence Primo to

1

All the events described took place in 2003 unless

specifically designated otherwise.

3

become a union contractor. Hughes attended classes at the union

hall to learn effective and lawful salting techniques. He learned

that he should keep a daily log on the job and that he should not

hand out union literature during working time or at the work site.

Primo hired Hughes, and he began working on August 11. From

August 12 to August 18, he installed lights and did other

electrical work at the Naval Academy grounds in Annapolis,

Maryland. On August 19, Primo transferred him to another job at

the Navy football stadium, where he installed fluorescent lighting,

heaters, and air conditioners. On August 26, he did not come to

work, nor did he call to explain his absence. On August 27, he

returned to the stadium wearing his union t-shirt. The shirt said

“Union Yes” and depicted the Local 24’s logo on the front. J.A.

705. The back had a larger logo that included the statement, “Ask

me about my union,” the IBEW seal, a phone number, and the phrases,

“family health care,” “paid retirement,” “higher wages,” and “job

safety.” J.A. 706. When he saw the union shirt, Hughes’s foreman,

Mike Gunzelman, told Hughes that he needed to remove the shirt and

put on a Primo shirt. Hughes refused to do so, and Gunzelman sent

him home.

Gunzelman did not know that Primo’s dress code only applied to

workers in the service department, who were required to wear Primo

shirts because they interacted with customers. At 8:15 that

morning, Hughes received a telephone call from a woman at Primo.

4

She apologized for his having been sent home, told him that he

would be paid for the work day, and assured him that he could wear

his union shirt whenever he chose. She also told him to report to

work the next day at the Naval Academy grounds.

Hughes returned to work at the Naval Academy on August 28. He

wore his union shirt to work every day thereafter. On September 2,

Hughes was digging a trench with a Ditch Witch. One of his co-

workers alerted him to markers that indicated that he was digging

in the vicinity of a high voltage wire. When he informed his

foreman, Chip Grady, about the danger, Grady instructed him to dig

the trench by hand. Hughes reported this incident to Lash, who

called OSHA to inspect the potentially dangerous situation. On

September 3, OSHA inspectors came to the job site, inspected the

area, spoke with Primo supervisors, and instructed Hughes to use

only a shovel and not a digging bar when digging the trench. Primo

received no OSHA citation for this incident.

On September 3, Primo Human Relations Director Darcia Perini

called Hughes into the office to inquire about the job experience

listed on his application. Perini then had Hughes meet with

several managers, who interviewed him for one or more office

positions, including that of Job Estimator.2 At the conclusion of

these conversations, Perini asked Hughes if he would be interested

2

As the proprietor of his own electrical business for several

years, Hughes had significant experience in making estimates for

the types of jobs Primo did.

5

in any of the office positions. Hughes responded negatively,

saying that he liked to work with his tools and that his talents

would best serve Primo in the field. Hughes returned to his work

at the Naval Academy until he was transferred again on September 5,

this time to Andrews Air Force Base (“AAFB”).

After a little under a month, Hughes’s time at AAFB became

eventful.3 On September 28, Hughes was working when Eric Gray, a

man Hughes recognized as a backhoe operator, approached Hughes with

instructions. Stating that he only took orders from his foreman,

Dale Haylett, Hughes refused to obey Gray. Gray had taken over for

Haylett in his absence, but Hughes claimed not to have known that

fact at the time. On the next day, Hughes took offense at the

words of another backhoe operator, Joe Schlerf, and responded in

kind.4 Schlerf approached Hughes and exclaimed that someone ought

to get him off the job. Nothing more came of the incident, but

3

Hughes claimed in testimony that little of the work he did at

AAFB was electrician’s work and that he spent most of his time

shoveling and raking.

4

The crew was laying concrete in a form. Hughes’s job was to

operate the concrete vibrator, a long tube attached to a motor.

The vibrator, known in construction slang as a “dick,” spread the

concrete around in the form to help make it even and keep it liquid

until the form was filled. While waiting for another worker to

finish raking the concrete around him, Hughes held the vibrator in

the air, not in the concrete. Schlerf, who had been operating the

concrete dispenser, noticed the position of the vibrator and yelled

at Hughes to “stick your dick in the concrete.” Hughes, not

knowing the slang term for the equipment, took offense at the

comment and shouted back to Schlerf that he would stick it in his

ear. J.A. 931.

6

Hughes typed a report of it, verified the report with witnesses,

and gave it to his superiors. On October 2, Haylett accidentally

ran over Hughes’s lunch and tool boxes with a bulldozer. Primo

replaced the tools on October 3.

During September and October, Hughes increased his salting

activity at Primo. Throughout September, he spoke with his fellow

employees about the union and the benefits it might offer them, and

he reported in his daily log that his co-workers seemed to have no

problem with his union affiliation and that some even seemed

interested in the union. At some point during that month, Lash

gave Hughes some CD-ROM/DVDs that outlined the wages a union

electrician could expect to receive. Hughes kept these CD-ROMs in

the front seat of his car and on September 30, he gave two of them

to co-workers in the parking lot before work. He handed out two

more the next day at the same time.

Hughes claims he gave a CD-ROM to Clayton Bester, either

before or after work. Bester handed the CD-ROM over to Primo

officials, who reported the exchange to Perini.5 The supervisor

5

Primo’s employee handbook has a no-solicitation policy. The

policy states:

Solicitation for any cause during working time and in

working areas is not permitted. You are not permitted to

distribute non-Company literature in work areas at any

time during working time. Working time is defined as the

time assigned for the performance of your job and does

not apply to break periods and meal times. Solicitation

during authorized meal and break periods is permitted so

long as it is not conducted in working areas.

7

Keith Hogge then requested that Bester make a written statement.

Bester’s statement, dated September 24, 2003, at 8:30 am,

identified Ernest Bringas as a witness and stated: “We were

backing filling swith [sic] pads when Bill talk [sic] to me about.

That is when he gave me the disc.” J.A. 806. On October 10,

Perini and Richard Stiles came to AAFB to interview Bester and

Hughes. Bester claimed that Hughes had given him the CD-ROM on the

job site during working time. When Perini confronted Hughes with

the allegation that he had violated the company’s no-solicitation

policy by distributing the CD-ROM during working time, Hughes

demanded to know the name of his accuser. Perini refused to tell

him Bester’s name and also refused to show him Bester’s statement.

Hughes denied the allegations, and Perini informed him that they

were terminating him for lying.6

B.

On March 24, 2004, the union filed an unfair labor practices

claim against Primo with the NLRB. During the hearing before the

Administrative Law Judge (“ALJ”), Hughes testified that he had been

a hard worker, his foremen treated their workers badly, he was

assigned laborers’ work of digging dirt after he wore his union t-

shirt, and he had never given out union materials on the job site

J.A. 784.

6

Primo’s handbook lists dishonesty as an offense warranting

discipline or termination.

8

or during working time. He also testified that a couple of days

before he was fired, Bringas warned him that he might be fired

because someone was telling the bosses that he was handing out

material during working hours. Hughes had some trouble on the

stand remembering minor details and recognizing Bester as someone

to whom he had given a CD-ROM. He only remembered Bester and the

details of their interaction after Bester had testified.

Primo’s witnesses painted an entirely different picture.

Primo’s management testified that Hughes was a slow, lazy worker,

who spent more time smoking than working. They testified that

Hughes was a troublemaker and that they had plenty of reasons to

discharge him beyond their claimed reason of dishonesty. Perini

admitted that she informed the company president or vice president

when Primo took any action regarding Hughes. Primo’s witnesses

testified inconsistently about the circumstances surrounding

Hughes’s distribution of the CD-ROM to Bester and Bester’s

cooperation with Primo officials. The company’s stated anti-union

policy did not help its case.7

7

The policy reads:

Primo does not have a union; therefore, no one is

required to be a member of a union to work here.

Employees have been satisfied with this arrangement.

There is no discrimination because a person is or is not

a union member.

All employees are treated fairly, and an employee who is

now a member or becomes a member of a union in the future

should expect no more than an employee who is not a union

9

Primo attempted to demonstrate that it treated similarly

situated employees consistently by presenting evidence that since

Hughes’s termination, it has fired several people for dishonesty.

In those cases, Perini admitted that she did more extensive

investigations than she did in Hughes’s case, even speaking with

witnesses involved. The one pre-Hughes case Primo used to disprove

disparate treatment lacked force because the original official

reason for termination did not match the reason Perini gave on the

stand. The reasons given to the employee, written in the employee

member. Unions have provided none of the salaries and

benefits at Primo, and it is not expected that they will

help improve any benefits in the future. What the future

can be and the success that will come will depend on what

each employee does, individually and collectively, with

his or her opportunities.

Solicitation will be allowed consistent with Primo’s

policy as reflected in Section 10.8 of this Handbook.

However, intimidation or coercion of any employee for any

reason will not be condoned. Primo will resist any

efforts to bring a union into the Company by all legal

means at its disposal.

J.A. 791.

Primo’s handbook also states:

Employees must refrain from taking part in or exerting

interest in any transaction in which their own interests

may conflict with the best interests of the Company.

Primo reserves the right to determine when an employee’s

activities represent a conflict with the Company’s

interest and to take whatever action is necessary to

resolve that situation, including termination of

employment.

J.A. 782.

10

file, and stated to the unemployment board included gross

misconduct, negligence, and unsatisfactory job performance. Only

on the stand in Hughes’s case did Perini claim that the actual

reason was the employee’s dishonesty.

The ALJ credited Hughes’s testimony over that of the Primo

witnesses and found that Primo had been motivated by anti-union

animus when it fired Hughes. He cited as evidence of that animus

Primo’s decision to move Hughes away from other electricians after

he started wearing his union t-shirt, its attempt to offer Hughes

a job that would pull him out of the field, and its stated anti-

union policy. The ALJ further concluded that Primo’s allegedly

legitimate reason for firing Hughes—dishonesty during the

investigation—was pretextual. He took particular notice of the

lack of investigation by Perini: she never attempted to speak with

the named witness, Bringas, nor did she name Hughes’s accuser,

despite the fact that in prior sexual harassment investigations she

had always told the alleged culprit the name of his accuser. The

ALJ also pointed out that Primo could not refute a disparate impact

claim with its inconsistent evidence. He relied on Hughes’s

credited testimony that before Perini had asked Hughes any

questions she told him that he was being terminated.

The ALJ concluded that Primo had violated 29 U.S.C. §§

158(a)(1) and (3) by firing Hughes because of his union activities.

He ordered Primo to cease and desist from its unfair labor

11

practices, to reinstate Hughes and make him whole, to remove any

mention of the termination from its files, and to post the required

notice. Upon receipt of this order, Primo filed exceptions with

the Board.

The Board affirmed the ALJ’s decision. Primo argued that the

decision should be overturned because the ALJ relied mainly upon a

piece of evidence that he erroneously admitted in violation of the

attorney-client privilege.8 Concluding that sufficient evidence

existed exclusive of that statement to support the ALJ’s decision,

the Board declined to rule on the admissibility of the statement.

The Board also relied on the ALJ’s credibility determinations.

Primo has appealed the Board’s ruling to this Court. The NLRB

has filed a cross-appeal, seeking enforcement of the Board’s order.

8

The ALJ had admitted testimony by Bester that in preparation

for the hearing, Primo’s attorney told Bester that Primo fired

Hughes for distributing the CD-ROM on company time. Bester

testified:

That he gave me that illegally, you know, he wasn’t

supposed to give it to me during company time and that

Bill had got fired and he was suing the company or

something to that nature. And he’s saying that because

he gave that to me on company time.

J.A. 390.

12

II.

We will enforce a Board 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 the ALJ 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, 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

F.3d 175, 184 (4th Cir. 2003). The ALJ is in the best position to

judge the credibility of the witnesses who appear before him or

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

13

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 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 . . . ;

29 U.S.C. § 158. The NLRB has enforcement jurisdiction for these

sections of the Act. 29 U.S.C. § 160.

14

To succeed on an unlawful termination claim under Section 8,9

the employee must make a prima facie case that the employer’s

decision to fire him or her was motivated by anti-union animus.

FPC Holdings, Inc., v. NLRB, 64 F.3d 935, 942 (4th Cir. 1995). The

NLRB, on behalf of the employee, must show:

(1) that the employee was engaged in protected

activity,10

(2) that the employer was aware of the activity, and

(3) that the activity was a substantial or motivating

reason for the employer’s action.

Id. The employer’s motive for termination is the key element in

these types of 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.L.R.B. 1083 (1980)). To make

a prima facie case of unlawful termination, the NLRB must prove by

a preponderance of the evidence “that a discriminatory motive was

a substantial motivating factor” in the termination decision. RCG

(USA) Mineral Sands, Inc. v. NLRB, 281 F.3d 442. 448 (4th Cir.

9

Proving that an employer violated 29 U.S.C. § 158(a)(3) also

proves a derivative violation of § 158(a)(1). Metropolitan Edison

Co. v. NLRB, 460 U.S. 693, 698 n.4 (1983).

10

The Supreme Court has held that distributing union materials

in non-working areas during non-working times is a protected

activity under Section 7 of the Act. Beth Israel Hosp. v. NLRB,

437 U.S. 483, 491-93 (1978).

15

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).

IV.

This case turns on the credibility of the witnesses. If we do

not find extraordinary circumstances sufficient to overturn the

ALJ’s credibility determinations, we should find that substantial

evidence supports the Board’s decision that anti-union animus

motivated Primo’s termination of Hughes and that the stated reason

of dishonesty is mere pretext. The record demonstrates that both

sides suffered from inconsistency in their testimony.

Hughes had difficulty remembering certain details of his

experience at Primo. He had trouble recognizing and identifying

Bester. He mistakenly claimed that Perini had given him his final

paycheck at the termination meeting on October 10, then changed

that testimony on cross-examination, explaining that his wife had

reminded him that he had received that check in the mail. He could

16

not remember missing work on August 26, and he could not remember

a job he held prior to working at Primo.

The testimony of the Primo witnesses also suffered from

inconsistencies. Most striking were the differences in the stories

surrounding Hughes’s termination. Bester testified that he walked

in on a conversation between Hogge and Schlerf in which the two

were discussing Hughes’s distribution of union materials. He

claimed that they asked him if he had a CD-ROM and then asked him

to bring it to them. Bester had to retrieve the CD-ROM from his

trash at home. Hogge testified that Bester had come to him with

the CD-ROM of his own accord. Schlerf testified that Bester had

approached him in the field about the CD-ROM, and Schlerf advised

that Bester turn it in to Hogge. The witnesses also gave

inconsistent stories about when Bester handed over the CD-ROM, when

he made his statement, and at whose request.

Ultimately the ALJ credited Hughes over the Primo witnesses.

The ALJ found that Hughes “testified in a straight forward manner

concerning the events leading to his discharge.” J.A. 938.

Indeed, Hughes’s testimony concerning his distribution of the CD-

ROMs and the events of the termination meeting remained consistent

throughout direct, cross, and rebuttal examination. He maintained

that he never distributed union material on working time. He also

maintained that when he initially entered the office on October 10,

17

Perini told him he was terminated and refused to reveal the name of

his accuser or of any witnesses.

The ALJ noted that Perini’s lack of a sufficient explanation

for why she never interviewed Bringas and her self-serving

disparate treatment testimony undercut her credibility. Perini

testified that she found no need to interview Bringas, the only

named witness to the alleged illegal distribution, because she

simply believed Bester over Hughes. She also gave no compelling

reason for not revealing Bester’s name to Hughes and not allowing

him to do any investigation on his own. Additionally, Primo’s

attempts to prove that it treated all of its lying employees

similarly fell flat. In those cases, most of which post-dated

Hughes’s termination, Perini did speak to witnesses. In the one

termination that preceded Hughes’s, Perini seemed, on the witness

stand, to fabricate dishonesty as a reason for firing an employee

whom all of the evidence showed was fired for unsatisfactory job

performance.

Exceptional circumstances that would allow us to overturn the

ALJ’s credibility determinations do not exist. The Primo

witnesses’ inconsistent testimony about the circumstances of the

CD-ROM incident significantly undermines their credibility.

Although Hughes had some trouble with his testimony, his daily log

corroborates the key elements of his case and lends credence to his

claim. Nothing in the record suggests that the ALJ’s credibility

18

findings were unreasonable or that they contradict his other

findings of fact.

The NLRB has provided enough evidence to meet its burden under

Wright Line and FPC. By wearing his union t-shirt, discussing the

union with co-workers, and distributing union materials, Hughes

engaged in protected activity. Primo knew about that activity no

later than August 26, when Gunzelman sent Hughes home for wearing

a union t-shirt. Primo’s subsequent treatment of Hughes provides

enough evidence to support the final element: that Primo was

motivated by anti-union animus in its termination of Hughes.

Sufficient evidence also supports the ALJ’s conclusion that

Primo’s claimed reason of Hughes’s dishonesty was mere pretext.

Although it seems likely that Hughes did not work as hard or as

quietly as Primo would have liked, Perini’s lack of investigation

concerning the CD-ROM distribution is suspicious, especially in the

context of Primo’s stated anti-union policy, the close eye managers

kept on Hughes, and the efforts Primo made to move Hughes around

when it became clear that he was advocating for the union. Primo’s

arguments that it could have fired Hughes because he was a poor

worker and a disruption have no force because Primo only gave

dishonesty as the reason it terminated Hughes. We find no reason

to disturb the findings of the Board.

19

V.

Substantial evidence in the record as a whole supports the

Board’s conclusion that Primo fired William Hughes because of his

protected union activity. We therefore deny Primo’s appeal, grant

the NLRB’s application, and order enforcement of the Board’s order.

PETITION FOR REVIEW DENIED;

CROSS-APPLICATION FOR ENFORCEMENT GRANTED

20