Unpublished Disposition, 869 F.2d 1499 (9th Cir. 1986)

MEMORANDUM^** 

The National Labor Relations Board ("Board") petitions for enforcement of its order pursuant to section 10(e) of the National Labor Relations Act ("Act") (29 U.S.C. § 160(c)). Respondent Lewis Mechanical and Metal Works, Inc. ("Lewis Mechanical") filed a cross-petition to review and set aside the Board's order. We have jurisdiction over this matter by virtue of sections 10(e) and (f) of the Act (28 U.S.C. §§ 160(e) and (f)). Because the Board applied the correct legal standard and its findings are supported by substantial evidence, we enforce the order in its entirety.

* FACTS AND PROCEEDINGS

Lewis Mechanical, a nonunion company, performs mechanical, heating, air conditioning, ventilation, refrigeration and sheet metal contracting. The company was incorporated in Idaho Falls, Idaho in 1985 but did not secure any construction contracts until March or April of 1986. On April 16, 1986, Pettaway and Andy Hall ("Hall"), both members of the Sheet Metal Workers' International Union, Local No. 60 ("Union") approached Lamont Lewis ("Lamont"), vice president of Lewis Mechanical, and inquired about the possibility of employment. Lamont informed Hall and Pettaway that Lewis Mechanical was nonunion, questioned them about their union status, and discussed the problems which they could expect to encounter if they were to withdraw from the union. Lamont told Hall and Pettaway that it was up to them to decide whether they would withdraw from the union or remain active members.

Approximately two weeks later, Hall and Pettaway again approached Lamont and discussed the possibility of employment. On this occasion, Lamont again inquired about Hall's and Pettaway's union status.

On May 14 or 15 1986, Lamont finally offered a job to Hall. Lamont specifically told Hall that there might be a problem if he did not withdraw from the union before starting work. When Hall reported for work on May 19, 1986, Lamont inquired as to Hall's union status again. Following Hall's reply that he had obtained a withdrawal card, Lamont put him to work. Hall quit approximately three weeks later.

Although Lewis Mechanical did not offer Pettaway a job until August 22, 1986, Pettaway and Leland Lewis ("Leland"), the president of the company, had numerous conversations concerning employment prior to that date. During telephone conversations in June and August, Leland continued to interrogate Pettaway regarding the status of his union membership. On one occasion, Leland stated that "every time I hire union I get in trouble." ALJ decision at 5:39-40.

On August 4, 1986, Carl Jorgensen applied for employment at Lewis Mechanical. During the course of his interview with Leland, Leland asked Jorgensen if he belonged to the union. Following Jorgensen's negative response, Leland said "that they were not a union shop and never would be." ALJ decision at 5:39-40.

Based on the above factual findings, the administrative law judge ("ALJ") concluded, and the Board concurred, that sections 8(a) (1) and (a) (3) of the Act (28 U.S.C. §§ 158(a) (1) and (3)) had been violated.

II

ANALYSIS

To establish a violation of section 8(a) (1) (28 U.S.C. § 158(a) (1)), "the test is whether, under all the circumstances, the employer's [conduct or words] reasonably tends to restrain or interfere with the employees in the exercise of their protected rights." NLRB v. Big Horn Beverage, 614 F.2d 1238, 1241 (9th Cir. 1980) (quoting Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074, 1080 (9th Cir. 1977)). "The Board's determination on this issue must be upheld if the Board correctly applied the law and if its findings are supported by substantial evidence on the record considered as a whole." 29 U.S.C. § 160(e); Big Horn Beverage, 614 F.2d at 1240.

Lewis Mechanical challenges the Board's finding based on their contention that discussing union status with applicants for employment is not unlawful. However, conditioning employment upon giving up union membership or activity is a violation of section 8(a) (1) of the Act (29 U.S.C. § 158(a) (1)). See NLRB v. Nevis Industries, Inc., 647 F.2d 905, 908 (9th Cir. 1981); Daily Transit Mix Corp., 238 NLRB 879 n. 1 (1978), enforced 614 F.2d 777 (9th Cir. 1980). Furthermore, "interrogation of prospective employees about their union sentiments by a high company official is ... coercive and interferes with an employee's rights." NLRB v. Tesoro Petroleum Corp., 431 F.2d 95, 96 (9th Cir. 1970).

The pattern of "conversations" regarding union membership initiated by the company president and vice president in the context of possible employment clearly supports the Board's finding that these were "interrogations" within the meaning of section 8(a) (1) of the Act (29 U.S.C. § 158(a) (1)). The Board applied the law correctly and its findings are supported by substantial evidence in the record and will not be disturbed.

Lewis Mechanical also challenges the Board's finding that sections 8(a) (1) and (3) of the Act (29 U.S.C. §§ 158(a) (1) and (3)) were violated by not hiring Pettaway prior to August 22, 1986 because he would not withdraw from the union.

The prescriptions of the Act apply to applicants for employment as well as existing employees. See K.B. & J. Young's Supermarket, Inc. v. NLRB, 377 F.2d 463, 466 n. 4 (9th Cir.), cert. denied, 88 S. Ct. 71, 389 U.S. 841, 19 L. Ed. 2d 105 (1967). Thus, an employer violates the Act when it has been shown that an applicant's union membership is a motivating factor in the employer's decision to take adverse action against the applicant unless the employer demonstrates, as an affirmative defense, that the employer would have acted in the same manner even in the absence of the prospective employee's union membership. See NLRB v. Transportation Management Corp., 462 U.S. 393, 401-403 (1983), affirming, NLRB v. Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083, 1989 (1980), enforced on other grounds, 662 F.2d 899, (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982); see also NLRB v. Searle Auto Glass, Inc., 762 F.2d 769, 773 (9th Cir. 1985).

The employer's motive is the crucial factor, and the Board may rely on both direct and circumstantial evidence in determining the lawfulness of that motivation. Lippencott Industries, Inc. v. NLRB, 661 F.2d 112, 116 (9th Cir. 1981). The Board's determination of motive is particularly within the purview of the Board and its inferences and findings will not be rejected if supported by substantial evidence. Clear Pine Mouldings, Inc. v. NLRB, 632 F.2d 721, 726 (9th Cir. 1980).

"General counsel bears only the initial burden of showing that protected activity was 'a motivating factor' in the discharge. The burden then shifts to the employer to prove that he would have discharged the employee absent the protected activity." Doug Hartley, Inc. v. NLRB, 669 F.2d 579, 581 (9th Cir. 1982). Lewis Mechanical contends that "ample" evidence exists in the record to establish that legitimate business concerns prevented the employment of Pettaway; that Lewis Mechanical did not discriminate against Pettaway nor discourage his membership in the union, and that Lewis Mechanical's offer to set up a meeting of employees for the union negates any finding of anti-union animus. The bulk of this "ample" evidence consists of testimony by Leland Lewis. However, the ALJ did not credit this testimony because it was inconsistent with Leland's previous testimony. The inconsistent statements combined with Leland's demeanor and testimony in other areas led the ALJ to conclude that the company's explanation of its motivation for not hiring Pettaway was "not susceptible of belief." ALJ decision at 10:43.

"It is the function of the ALJ who observes the witnesses and hears their testimony to determine credibility." Great Chinese American Sewing Co. v. NLRB, 578 F.2d 251, 254 (9th Cir. 1978). Accordingly, special weight must be given to the credibility determinations of the ALJ. Big Horn Beverage, 614 F.2d at 1240. We will not disturb the court's findings on the issue of credibility unless a clear preponderance of the evidence convinces us that the finding is erroneous. See NLRB v. Carilli, 648 F.2d 1206, 1211 (9th Cir. 1981). A careful review of the record indicates that Lewis Mechanical cannot establish that the Board's rejection of Leland's explanation was erroneous by a clear preponderance of the evidence. Accordingly, Lewis Mechanical's challenge to the Board's finding that its refusal to hire Pettaway violated sections 8(a) (1) and (3) of the Act (28 U.S.C. §§ 158(a) (1) and (3)) finds no support in the record. Substantial evidence supports the Board's findings.

The Board's order is ENFORCED.¹