# Clock Electric, Inc. v. National Labor Relations Board

> Court of Appeals for the Sixth Circuit · December 9, 1998 · 162 F.3d 907

URL: https://www.frixlaw.com/law-library/cases/6979305

## Case

- **Full name:** CLOCK ELECTRIC, INC., Petitioner/Cross-Respondent v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, International Brotherhood of Electrical Workers Local No. 38 (97-5999), Intervenor
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** December 9, 1998
- **Citations:** 162 F.3d 907
- **Precedential status:** Published
- **Opinion:** Concurring in part by Boggs
- **Judges:** Boggs, Kennedy, Wellford
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6979305

## Opinion text

BOGGS, Circuit Judge,
concurring in part and dissenting in part.
I concur in the court’s opinion with respect to the photographing incident and with respect to the hiring of Lemin. However, I believe that the evidence that Clock would not have hired Gelski except for anti-union animus was sufficient and that, thus, the Board’s ruling must be upheld.
The crucial problem with the court’s opinion is shown by the variety of places in which it accurately recites the evidence as to the company’s version of its hiring criteria. Thus, the opinion states at pages 11-12, “Clock testified that ... the company considers .... ” and “Pmportedly using these criteria, the Company made two discrete hiring-decisions ....”; at page 13, it states, “[t]he remaining factors that Clock Electric claims to consider ....”; and at page 8, it declares that “[u]sing the factors that the company claims to consider ... the weight of the evidence establishes that it would have hired Gelski .... ” (emphases added).
I do not disagree with any of these statements. Gelski may well have been a plausible candidate, or even the objectively preferred choice in our minds, or in the mind of a reasonable contractor. And I agree that the Board may not substitute its judgment for that of the employer as to the proper weight to give to factors such as job stability, recommendations from friends or customers, and wage history.
However, the proper inquiry here is whether Clock in fact would have made the same decision in the absence of anti-union animus. Given the ALJ’s opportunity to weigh credibility, and the deference due to the Board’s expertise in this area, I believe that the following evidence, which the court’s opinion accurately recites, does constitute substantial evidence that Gelski’s hiring was in fact motivated by anti-union animus.
* Clock did not at any time contact apparent union members for interviews, despite specific statements it made to the contrary.
* Clock did interview and accept inferior applicants such as Lemin, whom Clock believed (erroneously as it turned out) to be non-union.
* Clock specifically dissembled with respect to the degree of recommendation given to, and prior involvement with the company of, Gelski.
* Crumbley and Embrescia had several significant areas of their background in which they were more qualified than Gelski, especially training and prior experience.
When these matters are taken into account, there is substantial evidence that the decision to hire Gelski, even if he was objectively a plausible or even superior choice, was not in fact motivated by the considerations claimed by Clock, but rather by anti-union animus.
I therefore respectfully dissent with respect to the reversal of the Board’s decision with regard to the hiring of Gelski.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6979305. Public record. Not legal advice.