Unpublished Disposition, 843 F.2d 501 (9th Cir. 1987)

MEMORANDUM^* 

Sun World, Inc. (Sun World) petitions for review of a Supplemental Decision and Order of the National Labor Relations Board (Board) issued on June 21, 1987. The Board affirmed the administrative law judge's (ALJ) finding that Sun World failed to make "an unequivocal, specific, or unconditional offer of reinstatement on 23 March 1982" to striking Union¹  members.

The Board also affirmed the ALJ's conclusion that Sun World's backpay obligation continued until after October 17, 1984 when individual letters were sent to the strikers offering full reinstatement. Accordingly, the Board ordered Sun World to pay the strikers the amounts of backpay set forth in the ALJ's order.

Sun World requests that we modify the Board's order to provide that the backpay liability terminated at the end of the third quarter of 1982 because an unconditional offer of reinstatement was made on March 23, 1982. Before this court, Sun World makes the following contentions in support of its petition for review:

One: The ALJ was improperly "swayed" in making his credibility findings by his belief that the attorneys for Sun World were subject to criticism for unethical conduct because they appeared in the dual role of witness and advocate in this matter.

Two: The Board erroneously refused to review the ALJ's credibility findings de novo.

Three: The March 23, 1982 offer of reinstatement to commence in the fall for the next carrot season was valid as a matter of law.

We order enforcement because substantial evidence supports the ALJ's finding that Sun World did not make a valid unconditional offer of reinstatement on March 23, 1982. We discuss each issue and the facts pertinent thereto under separate headings.

REVIEWABILITY OF THE ALJ's CRITICISM OF COUNSEL

In footnote 2 of the ALJ's Supplemental Decision, the ALJ made the following comment:

Both Bloom and Smith acted both as advocates and witnesses in this case. Attorneys having a dual role in the same case have been criticized in the federal courts. [citations omitted] However, the Board has taken the position that it should not have to police attorney ethics. [citation omitted] Accordingly, I note only for the record, the dual role played by Bloom and Smith.

Sun World argues for the first time before this court that footnote 2 demonstrates the ALJ improperly based credibility findings on an erroneous assessment of the propriety of the attorneys' conduct. We are without jurisdiction to consider this objection. Congress has declared that " [n]o objection that has not been urged before the Board ... shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances." 29 U.S.C. § 160(e) (1982); Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665-66 (1982).

Sun World has failed to identify any extraordinary circumstances that would explain its failure to raise its objection to the ALJ's footnote in its Exceptions to the Administrative Law Judge's Supplemental Decision. Furthermore, Sun World failed to raise this question in a petition for reconsideration or rehearing of the Board's decision to adopt the ALJ's findings pursuant to 20 C.F.R. Sec. 101.48(d) (1) (1987). Sun World's failure to object before the Board to the ALJ's comments in footnote 2 bars us from reviewing this question.

PROPER STANDARD FOR REVIEWING NONDEMEANOR CREDIBILITY FINDINGS

Sun World argues that since the ALJ's findings were not based on the demeanor of the witnesses, the Board was required to conduct a de novo review of the record to determine whether substantial evidence supports the ALJ's finding that Smith and Bloom were not credible witnesses because their testimony was "vague and contradictory."

Where the ALJ's credibility findings are not based on an assessment of the demeanor of the witnesses, the Board must review the record independently and make its own findings of fact where the ALJ has determined that the testimony of a witness was vague. Coleson Equipment, Inc., 257 N.L.R.B. 78, 80 (1981). The Board stated in footnote 1 to its Supplemental Decision and Order that it "carefully examined the record and [found] no basis for reversing the findings." The Board fulfilled its responsibility to make an independent examination of the record to determine whether the ALJ was correct in determining that the testimony of Sun World's witnesses was vague and contradictory. The Board failed, however, to follow its rule requiring it to make express findings of fact on credibility. This error is harmless because we have conducted our own review of the ALJ's findings and find them to be fully supported by the record.

Our duty in reviewing an ALJ's credibility findings is to accord them great deference and to affirm unless they are inherently incredible or patently unreasonable. Local 512, Warehouse and Office Workers' Union v. NLRB, 795 F.2d 705, 712 (9th Cir. 1986). The ALJ's finding that Bloom's and Smith's testimony was vague and contradictory is not inherently incredible or patently unreasonable.

The record shows that Bloom and Smith presented conflicting versions of the March 23, 1982 luncheon meeting where the offer of reinstatement was discussed. Bloom testified that the purpose of the March 23, 1982 meeting was to present Sun World's three-fold proposal to settle the dispute between the parties and that each proposition was independent of the other. Smith testified that the March 23, 1982 meeting was merely an attempt "to reach a framework for settlement." Smith testified that it was agreed that subsequent meetings would be held with the Union's new business agent, Michael A. Lyons, to negotiate the lump sum award to be paid to the workers for backpay. In his testimony, Bloom did not refer to any agreement that subsequent meetings would be held. Smith did not recall that the lump sum to be divided among the Union members would be $40,000.

The ALJ found that H. Ronald Domnitz's (Domnitz) recollection of the statements made at the meeting was credible. Domnitz testified that the purpose of the luncheon meeting was to give Smith an impression of Lyons and to let Smith now what he "could expect in negotiations to try to settle this case." Domnitz testified that " [t]here was never any offer of reinstatement of strikers without a full package of settlement in this case." The ALJ noted that no notes were taken and no written proposals were presented. Furthermore, no written confirmation of the alleged reinstatement offer was sent to Domnitz or the Union following the March 23, 1982 luncheon meeting.

Domnitz's testimony, that the discussion concerning reinstatement was conditioned upon settlement of the dispute and withdrawal of the unfair labor practice charges before the Board, was corroborated by Lyon's testimony of his conversations with Smith. Lyon testified that Smith told him that Sun World would reinstate all the employees if the Union withdrew its charges against the employer and agreed to a lump sum settlement of the backpay owed to the employees "all in a package." The ALJ's findings that Domnitz was a credible witness, and that Smith and Bloom were not, were fully supported by the record and are not inherently incredible or patently unreasonable. The Board's findings of fact in an enforcement proceeding are conclusive on the court if they are supported by substantial evidence on the record considered as a whole. 29 U.S.C. § 160(e) (1982); Universal Camera Corp. v. NLRB, 340 U.S. 474, 493 (1951). We are satisfied from our review of the record that substantial evidence supports the Board's adoption of the finding of the ALJ that no unconditional offer of reinstatement was made at the March 23, 1982 luncheon meeting. Instead, the record shows that reinstatement was conditioned upon a withdrawal of the unfair labor practice charges and acceptance of a lump sum amount of backpay to be divided among the workers.

VALIDITY OF THE MARCH 23, 1982 OFFER OF REINSTATEMENT

In an alternative holding, the ALJ concluded that even if Bloom's testimony were credited, Sun World's offer to reinstate the strikers for the fall season, while replacement workers continued to finish the carrot season, did not comply with the terms of Judge Stevens' order as a matter of law. Sun World argues that its offer to reinstate the strikers at a specific date in the future was valid and would toll backpay liability as of that date. Sun World asserts that " [t]he timing of the offer of reinstatement is not relevant, other than it serves to terminate liability for backpay."

No authority is cited in support of this argument. Sun World also fails to discuss the specific requirement of Judge Stevens' February 23, 1982 order mandating an offer of immediate reinstatement if work was available at Sun World. Judge Stevens ordered Sun World to " [o]ffer immediate and full reinstatement" to the discharged strikers. This order was subsequently modified to provide that if the strikers could not be reinstated immediately due to the seasonal nature of the business, then reinstatement was to occur immediately upon resumption of work at Sun World. The evidence is undisputed that on March 23, 1982 replacement workers were still employed by Sun World to finish the carrot season and that the corn season would require the employment of workers prior to the fall. Because there was still work to be done on March 23, 1982, Sun World's failure to offer immediate reinstatement violated the express terms of Judge Stevens' order. We agree with the ALJ that even if Sun World's factual theory of the case can be accepted, and its witnesses' testimony can be fully credited, the offer of reinstatement was invalid and could not serve to toll Sun World's backpay obligation.

The Board's Application for Enforcement of the Supplemental Order is GRANTED. Sun World's Petition for Review is DENIED.