“Exceptional circumstances include cases where a credibility determination is unreasonable, contradicts 15 USCA4 Appeal: 22-1340 Doc: 73 Filed: 01/08/2024 Pg: 16 of 31 other findings of fact, or is based on an inadequate reason or no reason at all.” (internal quotation marks omitted)
How later courts described this case
- “Exceptional circumstances include cases where a credibility determination is unreasonable, contradicts 15 USCA4 Appeal: 22-1340 Doc: 73 Filed: 01/08/2024 Pg: 16 of 31 other findings of fact, or is based on an inadequate reason or no reason at all.” (internal quotation marks omitted)
- “When factual findings rest upon credibility determinations, they should be accepted by the reviewing court absent ‘exceptional circumstances.’” (quoting NLRB v. Air Prods. & Chems., Inc., 717 F.2d 141, 145 (4th Cir. 1983))
- “Contrary to the Company’s suggestion, bias is not established merely because an ALJ uniformly credits one party’s witnesses over another’s.”
Written by the judges who cited it.
The opinion
K.K. HALL, Circuit Judge,
concurring in part and dissenting in part:
To the extent the majority enforces the order of the Board, I concur in the judgment. To the extent it does not, I respectfully dissent.
I.
Winston-Salem
The sequence of events leading up to it leaves little doubt about Eldeco’s motive for suddenly implementing drug testing of new hires at Winston-Salem; at the very least, the Board’s finding of unlawful motivation has substantial support in the record, leaving us no choice bpt to affirm it. 29 U.S.C. § 160 (e) (findings supported by substantial evidence are “conclusive”).
Terry Christie was a foreman at the Winston-Salem jobsite. On July 14, he told employee Gregory Davis that the company was bringing in ten to twelve workers from South Carolina. Christie mentioned that local union men had applied for jobs, which prompted Davis to ask whether they were qualified. Christie admitted that they were, but continued, “We’re not having no union men on this job. [Mastalz] won’t hire union people on this job.”
Christie and Davis had a less cordial encounter on July 23. Christie observed Davis talking to a new employee, Suspecting that Davis was a covert union sympathizer, Christie confronted him and asked whether Davis was pro-union. Davis revealed that he was. Christie immediately fired Davis.
The discharge of a worker solely on account of his pro-union sentiments is perhaps the most basic of all unfair labor practices. In protest, several employees immediately went on strike, and there was intermittent picketing. The union filed'unfair labor practice charges on July 27.
Before the strike, Eldeco had never conditioned employment on a drug test and had, as the majority concedes, unlawfully refused to employ known or suspected union sympathizers. Within' seven days 'of the strike, however, Eldeco had both implemented its drug testing policy and invited members of the union to come to work. Was this convergence of events simply a remarkable coincidence of a well-meaning safety improvement and a Grinch-like change of heart? Or, rather, was it simply a legal stratagem designed to enable Eldeco to continue to exclude union *1016 members and then, perhaps, to cut its losses before the Board or this court?
Surely it was rational for the Board to draw the latter inference. The timing of a policy change is powerful evidence of its unlawful purpose. See NLRB v. Village IX, Inc., 723 F.2d 1360, 1366 (7th Cir.1983) (anti-union purpose behind facially neutral policy can be inferred from timing). Moreover, there is more than timing here. As I will discuss below, Mastalz expressly admitted to an employee and a prospective employee that the purpose of the drug testing was to “get rid of the union guys.” This statement alone provides substantial support for the Board’s factual finding of unlawful purpose.
If the purpose of a work rule is to suppress the exercise of section 7 rights, the employer has committed an unfair labor practice, notwithstanding that the rule is applied to pro- and anti-union alike. Standard-Coosa-Thatcher Carpet Yarn Div’n v. NLRB, 691 F.2d 1133 , 1141-1143 (4th Cir.1982). Why? Because every worker has section 7 rights, whatever his attitude at any given time toward collective representation. Heavy-handed retaliatory tactics like Elde-eo’s drug testing are illegal not just because they may unfairly and coercively blunt a current organizational drive, but also because them example serves to squelch any incipient desires for representation in the existing workforce. Pillories and hangings were public for their salutary effects on witnesses, and many a saber has been rattled to keep the peace. A deliberate show of force is a deliberate exercise of force.
Even if it were essential to the policy’s illegality that it be discriminatory, there is substantial evidence that it was. In August, Eldeco employee Tony Heath introduced Mark Luper to Mastalz and Christie. Heath needed a helper, and he recommended Lu-per. Heath told Mastalz that Luper was afraid he might fail the drug test. Mastalz replied that “the drug test was not to get rid of the drug users but to get rid of the Union guys and not to worry about it.” Luper took the test and failed. There were no adverse consequences — he was hired and permitted to continue to work.
In addition to this direct evidence of discrimination, the odd structure of the policy supports a finding of discriminatory motive. Eldeco proposed to test only new applicants, at a time that it believed that its existing workforce was non-union and that the union was trying to organize from outside. *
Moreover, we ought not — and in my view, we cannot — forgive Eldeco’s illegal motivation because drug testing of electricians in Winston-Salem strikes us as a good idea. We have no role in setting the terms and conditions of private employment (other than, of course, those few actually prescribed by law, like minimum wages and maximum hours). It is quite beside the point that drug testing might be a “good safety device” or a “valid public policy decision.” Supra at 1012. The goodness and validity of work rules are in the eye of the employer, and their promulgation is its prerogative, with the one big exception relevant here: rules intended to interfere with employees’ free exercise of § 7 rights are illegal.
Because the drug testing policy violated the Act, the August 3 blanket offers of employment to union members were invalid: an offer conditioned on acquiescence in an unfair labor practice is no offer at all. Likewise, Pope and Cottingham’s terminations were based on an illegal policy, rendering the terminations unlawful as well.
II.
North Charleston
The majority has not pruned quite so much from the Board’s order regarding the North Charleston jobsite, but, in my view, those prunings are just as erroneous.
As to Flood, Jr., the majority has inappropriately reached out to address and resolve an issue that has not yet been resolved below. The Board found simply that the actual *1017 reason for Eldeco’s failure to hire Flood, Jr., was its perception that he was for the union. The Board left completely open, however, whether Flood, Jr., was entitled to any remedy: “we leave to compliance whether [Flood, Jr.’s lack of qualifications] should operate to preclude reinstatement and/or toll backpay.” In a footnote, the Board noted that leaving the matter for compliance would allow “a further development of relevant facts.”
I would enforce this logical approach. We know precisely why Flood, Jr., was not hired, and that reason is unlawful. Perhaps a responsible electrical contractor should not have hired him, but Eldeco’s burden is higher: it must show that it would not have hired Flood, Jr., absent its illegal motivation. NLRB v. Transportation Management Corp., 462 U.S. 393, 400-403 , 103 S.Ct. 2469, 2473-75, 76 L.Ed.2d 667 (1983) (overruled in part on other grounds, Director, OWCP v. Greenwich Collieries, 512 U.S. 267 , 114 S.Ct. 2251 , 129 L.Ed.2d 221 (1994)). Unqualified persons are hired every day to positions high and petty. Those employees, however inept their job performance, have § 7 rights.
The majority also errs in limiting Flood, Sr.’s backpay to the period before he signed, under subpoena, an affidavit critical of Elde-co’s work at another job. This affidavit was submitted to a state licensing agency in support of charges a third party had filed against Eldeeo. The essential premise of the majority’s holding is that Flood, Sr., could have been fired for signing this affidavit had he been hired in the first place. I do not read the law that way:
No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted, or caused to be instituted, any proceeding under or relating to statutes, rules, or regulations regarding occupational safety and health, or testified, or is about to testify, in any such proceedings or because of the exercise by- such employee on behalf of himself or others of any right afforded by such statutes, rules or regulations.
S.C.Code Ann. § 41-15-510 (1986). Eldeco’s expressed willingness to violate this state law ought not be a defense to its violation of federal law.
I would enforce the Board’s order in its entirety.
Eldeco's policy also made an odd distinction among applicants: only those who applied directly would be tested, while those referred by a temporary employment agency would not. Again, one could infer that Eldeco did not expect union members to apply through an agency, and it designed its policy accordingly.