___________

 No. 92-3911

 ___________

Town & Country Electric, Inc., *

*

Petitioner, *

*

v. *

*

National Labor Relations Board, *

*

Respondent, *

*

International Brotherhood of *

Electrical Workers, Local 292, *

*

Movant- *

Intervenor/Respondent.*

 ___________ Petition for Review of an

 Order of the National Labor

 No. 93-1218 Relations Board.

 ___________ 

Town & Country Electric, Inc.; *

Ameristaff Personnel *

Contractors, Ltd., *

*

Respondents, *

*

v. *

*

National Labor Relations Board, *

*

Petitioner, *

*

International Brotherhood of *

Electrical Workers, Local 292, *

*

Movant- *

Intervenor/Petitioner.*

___________

 Submitted: April 23, 1996

 Filed: February 5, 1997

___________

Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN and LOKEN, Circuit

Judges.

___________
-2-

WOLLMAN, Circuit Judge.

This matter returns to us on remand from the Supreme Court. We deny

the petition for review and enforce the Board's order. 

I.

Town & Country Electric, Inc. (Town & Country), a nonunion contractor

from Wisconsin, obtained a contract to do electrical work in International

Falls, Minnesota. In the course of hiring Minnesota-licensed electricians,

Town & Country refused to interview two full-time union organizers and

eight union members. It hired one union member, whom it later discharged.

The Board found that Town & Country violated sections 8(a)(1) and 8(a)(3)

of the National Labor Relations Act (the Act), 29 U.S.C. §§ 158(a)(1) &

(a)(3), by refusing to interview the applicants because of their union

affiliation and by discharging the one hire for his union activities at the

jobsite. Town & Country Elec., Inc., 309 N.L.R.B. 1250, 1992 WL 390106

(1992). 

We denied enforcement of the Board's order, concluding that the paid

union organizers and union members were not "employees" within the meaning

of section 2(3) of the Act, 29 U.S.C. § 152(3). Town & Country Elec., Inc.

v. NLRB, 34 F.3d 625, 628-29 (8th Cir. 1994). On writ of certiorari, the

Supreme Court concluded that the Board's interpretation of "employees" as

not excluding paid union organizers was lawful. NLRB v. Town & Country

Elec., Inc., 116 S. Ct. 450, 457 (1995). The Court vacated our judgment

and remanded the case to us for further proceedings. Id.

II.

Town & Country received the contract for the International Falls job

in early September 1989 and was to start work on September 11. Town &

Country learned that Minnesota law required
 Town & Country refers to itself as a "merit shop." We will 1

use the designation "nonunion employer" for clarity's sake. 

-3-

it to have one Minnesota-licensed electrician on the job for every two

unlicensed electricians. Because Town & Country had no Minnesota-licensed

electricians on its staff, it retained Ameristaff, a temporary personnel

service, to recruit Minnesota-licensed electricians. Any electricians

hired would be carried as Ameristaff's employees but would be subject to

Town & Country's plenary authority and control.

Ameristaff placed ads in a Minneapolis newspaper on September 3 and

planned to conduct interviews at a Minneapolis hotel on September 7. Ron

Sager, human resources manager for Town & Country, made it clear to

Ameristaff before the ad was placed that Town & Country needed more than

one electrician and that applicants had to be willing to work a nonunion

job. As part of the screening process, Ameristaff's receptionist asked

1

potential applicants whether they preferred to work union or nonunion and

if they preferred union work, whether they would work a nonunion job.

Ameristaff ultimately set up interviews for seven applicants.

Sager, along with Town & Country project manager Dennis Defferding

and Ameristaff president Steven Buelow, flew from Town & Country's

headquarters in Appleton, Wisconsin, to Minneapolis on September 7. They

did not arrive at the hotel until 11 a.m. because their flight was delayed.

When they arrived, only one applicant with a scheduled interview was

waiting. Also waiting were approximately one dozen members of Local 292

of the International Brotherhood of Electrical Workers. Local 292

officials had learned of the ads and encouraged their unemployed members

to apply and, if hired, organize the jobsite. 

The applicants accompanied the company officials to the interview

rooms. Sager described Town & Country and explained its
-4-

employee benefits plans. The applicants then filled out applications while

Sager and Defferding began interviews in another room. They first

interviewed a union member who did not have an appointment and then the

sole applicant who had scheduled an interview. Neither was offered a

position. Buelow told Sager that none of the remaining applicants had

appointments for interviews. Sager asked how those present had known about

the interviews. Buelow responded by showing Sager several applications and

stating, "I think they're union." Buelow returned to the other room and

told the eleven remaining applicants that the job was nonunion. The

applicants generally replied that they were interested in any work

available. Buelow read off a list of applicants with appointments, none

of whom was present. Buelow told the union members that he did not know

if anyone without an appointment would be interviewed. One of the union

members replied that there were licensed journeymen present who could take

the place of those with scheduled interviews.

Sager decided to return to Appleton without interviewing anyone else,

allegedly because he had to attend an important meeting that afternoon.

He announced to the remaining applicants that no further interviews would

be conducted and requested that they leave. One of the union members,

Malcolm Hansen, protested that he had called Ameristaff that morning and

scheduled an interview. After confirming that this was true, Sager agreed

to interview Hansen. He refused to interview anyone else and threatened

to call hotel security if the remaining union members did not leave.

The administrative law judge (ALJ) concluded that the General Counsel

had established a prima facie case that Town & Country had discriminatorily

refused to consider for hire the ten applicants it had refused to

interview. The ALJ rejected Town & Country's defenses largely on the basis

of his determination that Sager's proffered reasons for his decision to

immediately end the
-5-

interviews were implausible and not credible. The ALJ concluded that Town

& Country had violated section 8(a)(3) because it failed to establish that

it would not have interviewed and considered for hire the ten remaining

applicants in the absence of their union membership. See York Prods., Inc.

v. NLRB, 881 F.2d 542, 544-45 (8th Cir. 1989) (setting forth burdenshifting analysis). The Board affirmed the ALJ's findings and agreed with

the ALJ's conclusions. 

III.

Our standard of review affords great deference to the Board's

affirmation of the ALJ's findings. We will enforce the Board's order if

the Board has correctly applied the law and its factual findings are

supported by substantial evidence on the record as a whole, even if we

might have reached a different decision had the matter been before us de

novo. Wilson Trophy Co. v. NLRB, 989 F.2d 1502, 1507 (8th Cir. 1993). See

also Handicabs, Inc. v. NLRB, 95 F.3d 681, 684 (8th Cir. 1996).

Credibility determinations are for the ALJ to make. We have characterized

the broad deference we extend to an ALJ's credibility determinations in

terms of a shock-the-conscience standard of review:

The rule in this Circuit is that `the question of credibility

of witnesses and the weight to be given their testimony' in

labor cases is primarily one for determination by the trier of

facts. Paramount Cap Mfg. Co. v. NLRB, 260 F.2d 109 (8 Cir.

1958); Kitty Clover, Inc. v. NLRB, 208 F.2d 212, 214 (8 Cir.

1953). See also, NLRB v. Walton Mfg. Co., 369 U.S. 404, 407-08

(1961). This Court is not the place where that question can be

resolved, unless it is shocking to our conscience. It is not

so here.

NLRB v. Morrison Cafeteria Co. of Little Rock, Inc., 311 F.2d 534, 538 (8th

Cir. 1963). Although we have frequently applied the shock-the-conscience

standard of review, see, e.g., Golden Eagle Spotting Co. v. Brewery Drivers

and Helpers, Local Union 133, 93
-6-

F.3d 468 (8th Cir. 1996); NLRB v. Monark Boat Co., 800 F.2d 191 (8th Cir.

1986), we have cautioned against a blind application of the Morrison

Cafeteria test by saying that "this rule is not to be applied mechanically

so as to compel us to sustain any finding concerning conflicting

testimonial evidence." NLRB v. Midwest Hanger Co., 550 F.2d 1101, 1104

(8th Cir.), cert. denied, 434 U.S. 830 (1977). See also Buffalo

Bituminous, Inc. v. NLRB, 564 F.2d 267, 269 (8th Cir. 1977); NLRB v.

Payless Cashway Lumber Store of South St. Paul, 508 F.2d 24, 28 (8th Cir.

1974).

Under the standard of review announced in the Paramount and Kitty

Clover decisions cited in Morrison Cafeteria, an ALJ's credibility

determinations are considered with the rest of the NLRB's factual findings

under the general substantial evidence test derived from Universal Camera

Corp. v. NLRB, 340 U.S. 474 (1951).

In NLRB v. Fruin-Colnon Constr. Co., 330 F.2d 885, 889-90 (8th Cir.

1964), we said

[w]hile this Court respects the prerogative of the trier of

fact in an unfair labor practice case to resolve issues of the

witnesses' credibility in arriving at a decision based thereon,

we cannot avoid our greater responsibility under Universal

Camera to fairly weigh against the Board's findings the

countervailing evidence independent of and consistent with its

credibility determinations. (Cited cases omitted.)

Similarly, in NLRB v. Payless Cashway Lumber Store, we stated:

We reach this decision in full awareness of the rule that the

question of credibility of witnesses and the weight to be given

their testimony is primarily one for determination by the trier

of facts. But the rule is not one to be applied mechanically

for if we were to so apply it, the substantial evidence test

set forth in the Administrative Procedure Act, 5 U.S.C. §

706(2)(E), and in Universal Camera Corp. v. NLRB [citation

omitted], would be meaningless. The reviewing court would be

compelled to sustain any finding as to which testimonial
-7-

evidence was conflicting.

508 F.2d at 28 (citations omitted).

Although we see no inherent conflict between the shock-the-conscience

standard of review and the earlier and more traditional standard

articulated in Paramount, Kitty Clover, and Fruin-Colnon Constr. Co., we

prefer to apply the latter standard, based as it is on the teachings of

Universal Camera. Viewing the record in the light of that standard of

review, we conclude that the Board's findings are supported by substantial

evidence, and we agree with the Board's conclusion that Town & Country

violated sections 8(a)(1) and (a)(3) with respect to the ten applicants it

refused to interview and consider for hire. On Thursday, September 7, Town

& Country did not have a single licensed electrician for a job that started

the next Tuesday, September 11. When Sager, Buelow, and Defferding arrived

at the hotel, they were pleased with the size of the turnout even though

it was larger than the number of scheduled appointments. Sager made his

decision to interview only those applicants with appointments, effectively

terminating the interviews, only after Buelow told him that the remaining

applicants were union members. Sager testified that he suspected that Town

& Country was being harassed or set up. The ALJ's decision to discredit

Sager's various explanations for why he decided to terminate the interviews

is not so lacking in evidentiary support as to require us to set it aside.

IV.

Sager interviewed and hired Hansen for the International Falls job,

knowing that Hansen was a union member. Although Hansen was technically

an Ameristaff employee, Town & Country retained sole discretion regarding

his supervision and discharge. 
-8-

Hansen reported to the jobsite on Monday, September 11. The five-man

crew (Supervisor Rod Smithback, Mike Grow, Randy Reinders, Tom Steiner, and

Hansen) began work Tuesday, September 12. Hansen hinted about his union

membership that day. During a morning break the following day he openly

announced that he was a union member and was there to organize for the

union. Smithback and Sager repeatedly told Hansen not to talk about the

union, whether at work or at the cabin where the crew was staying. Grow,

Reinders, and Steiner repeatedly told Hansen they were not interested in

joining the union and complained to Smithback about Hansen's talking and

pressure. Smithback told Hansen he was not interested in joining the union

and asked Hansen what it would take for Hansen to drop his union membership

and "come over" to Town & Country's side. With tensions already high, a

confrontation occurred at lunch on September 14 between Hansen and other

crew members about Hansen's organizing pressure. 

On September 14, Sager informed Buelow that because state law

prevented Town & Country from using Ameristaff's temporary personnel on the

jobsite, it could no longer use Hansen to meet the state requirements

unless it directly hired him, which it did not intend to do. After this

conversation, Buelow discharged Hansen that afternoon. Hansen called Sager

to ask if Town & Country would hire him directly onto its payroll, to which

Sager responded, "Absolutely not." 

The ALJ found that the General Counsel made a prima facie case that

Town & Country's decision not to retain Hansen was motivated by Hansen's

union activity. Town & Country offered the defenses that Hansen was a poor

worker who failed to meet productivity standards and failed to perform in

a craftsmanlike manner. See Mississippi Transport, Inc. v. NLRB, 33 F.3d

972, 979 (8th Cir. 1994) (elements of unlawful discharge case and

employer's defense). The ALJ discredited these defenses, characterizing

Town & Country's case as "shifting, replete with contradiction," its

witnesses as
-9-

"biased," and its defense as "structured upon a composite of lies." The

ALJ concluded that Town & Country's decision to not retain Hansen was based

upon Hansen's union activities, in violation of sections 8(a)(1) and

(a)(3). 

The record supports the ALJ's rejection of Town & Country's defenses.

At the time of Hansen's termination, the only objective complaint Smithback

documented was Hansen's lack of productivity. Town & Country's allegations

that Hansen's work was not of craftsmanlike quality and that Hansen misused

and abused Town & Country's tools were not documented during Hansen's

tenure, and the ALJ found that they were post-hoc justifications. Sager

admitted at the hearing that Hansen's alleged violation of safety rules was

not a factor in the decision to terminate him. Town & Country claimed it

would have discharged Hansen earlier in the week due to his lack of

productivity except that it needed his Minnesota license. The ALJ found,

however, that at the time of Hansen's discharge, Town & Country needed at

least two licensed electricians at the jobsite, did not have a replacement

for Hansen, and risked not being able to work without having a licensed

electrician. 

Town & Country stated that one factor in its decision not to retain

Hansen was the crew's low morale and the disharmony Hansen was causing.

We agree with the ALJ that the evidence clearly showed that the disharmony

was due to Hansen's organizing activities. Furthermore, while the

disharmony set the stage for the noontime confrontation that occurred on

September 14, the confrontation was directly the product of Hansen's

organizing activities on nonworking time, which was protected activity.

The ALJ found that this was the event that sealed Town & Country's decision

not to retain Hansen, a finding that supports the inference of improper

motivation. See Hall v. NLRB, 941 F.2d 684, 689 (8th Cir. 1991)

(coincidence between protected activity and discharge supports inference

of illegal motive). 
 Indeed, had the ALJ credited the testimony of Hansen's co2

workers, he would have found that Hansen failed to accurately bend

and cut lengths of conduit; that he broke an inordinate number of

blades because of his improper use of a portable bandsaw; that he

chipped and dulled a large number of drill bits by failing to first

drill a pilot hole and then enlarge the hole with a larger bit;

that he improperly cut and threaded pieces of pipe; and that he

abused a pipe-threading machine by pounding on it with a hammer

rather than by tightening the locking mechanism by hand. Under

this view of the testimony, Hansen was either an incompetent or a

saboteur.

-10-

Although Hansen may not have been a model employee, Town & Country 2

failed to establish that it decided to discharge Hansen on the basis of his

level of productivity. As we stated in Mississippi Transport, 33 F.3d at

979, it is the employer's burden of proving by a preponderance of the

evidence "that it would have discharged [the employee] even in the absence

of his union activities." We conclude that substantial evidence supports

the ALJ's conclusion that Town & Country's failure to retain Hansen was

motivated by Hansen's protected union activities. Cf. Hall, 941 F.2d at

689 (evidence supported finding of illegal discharge where, among other

things, employer's testimony regarding poor work was discredited, shifting

reasons were given for discharge, chronological proximity existed between

discharge and employee's protected union activities, and employee was

interrogated regarding union sentiments and activities).

V.

Town & Country argues that the ALJ's credibility determinations and

resulting factual findings were based on a presumption that Town & Country

was motivated by anti-union bias because it is a nonunion employer. Town

& Country argues that because the ALJ used this presumption to discredit

its witnesses, the presumption was effectively irrebuttable. Contrary to

what Town & Country cites in its brief, however, the ALJ used no such

express presumption. Furthermore, a fair reading of the ALJ's
 Salting is a practice whereby a union local authorizes its

3

members to work on nonunion projects in order to organize the

project. The members, or "salts," are reimbursed for the

differences in wage scales and benefits, and their expenses. The

salts work at the jobsite until it is organized or when directed to

leave by the union. See Town & Country, 34 F.3d at 629; Herbert R.

Northrup, "Salting" the Contractors' Labor Force: Construction

Unions Organizing with NLRB Assistance, 14 J. Lab. Res. 469 (1993).

-11-

opinion and his questioning of witnesses at the hearing does not reveal the

implicit use of such a presumption. See Hall, 941 F.2d at 689 (rejecting

employer argument that ALJ's findings were the result of bias when only

basis for claim was ALJ's adverse credibility determinations and findings

of fact). Moreover, an ALJ may properly use an employer's attitudes about

unions as one factor in evaluating the credibility of the employer's

witnesses and drawing inferences regarding the employer's motive. See id.

at 688; York Prods. Inc., 881 F.2d at 546; Ballou Brick Co. v. NLRB, 798

F.2d 339, 342 (8th Cir. 1986); McGraw-Edison Co. v. NLRB, 419 F.2d 67, 75

(8th Cir. 1969).

 VI.

Town & Country argues that Hansen was not retained because he

violated a company rule against union solicitation on work time. Town &

Country also argues that it had a legitimate business reason for not hiring

the union members or retaining Hansen in that their obligations under the

union's "salting" resolution created an irreconcilable and disqualifying

conflict of interest with the obligations they owed Town & Country as their

employer. Town & Country raises both of these arguments for the first

3

time on remand. Objections not urged before the Board are not to be

considered by a reviewing court absent extraordinary circumstances. 29

U.S.C. § 160(e); Radisson Plaza Minneapolis v. NLRB, 987 F.2d 1376, 1382-83

(8th Cir. 1993). The conflict-of-interest argument was previously raised

only in the context of whether the union organizers were statutorily

defined "employees," not as a defense
-12-

for Town & Country's actions. The no-solicitation-rule argument was not

raised in the exceptions Town & Country filed with the Board, and our

review of the record shows that no evidence of such a rule was presented

at the hearing. Town & Country has not demonstrated extraordinary

circumstances requiring our examination of these arguments, and we decline

to do so.

The Board's order is enforced.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.