___________

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.

___________

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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 cont ractor from Wisconsin, obtained a contract to do electr ical work in International Falls, Minnesota. In the course of hiring Minnesota-licensed electricians , Town & Country refused to interview two full-time union organizers an d 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 Na tional Labor Relations Act (the Act), 29 U.S.C. §§ 158(a)(1) & (a)(3), by refusing to interview the applicants because of their unio n affiliation and by discharging the one hire for his union activities at th e jobsite. Town & Country Elec., Inc. , 309 N.L.R.B. 1250, 1992 WL 39010 6 (1992).

We denied enforcement of the Board's order, concluding that the paid union organizers and union members were not "emp loyees" 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 conclud ed that the Board's interpretation of "employees" as not exclu ding paid union organizers was lawful. NLRB v. Town & Countr y 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 e arly 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 tw o unlicensed electricians. Because Town & Country had no Minnesota-licensed electricians on its staff, it retained Ameristaff, a temporary personnel
serv ice, to recruit Minnesota-licensed electricians. Any electrician s hired would be carried as Ameristaff's employees but would be subject to Town & Country's plenary authority and control.

Ameristaf f placed ads in a Minneapolis newspaper on September 3 and planned to conduct in terviews at a Minneapolis hotel on September 7. Ron Sager, hu man resources manager for Town & Country, made it clear t o 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 aske d

1 potential applicants whether they preferred to work union or nonunion and if they pr eferred 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 Defferdin g and Am eristaff president Steven Buelow, flew from Town & Country' s headquarters in Apple ton, 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 wa s waiting. Also waiting were approximately one dozen members of Local 292 of the International Brotherhood of Electrical Workers. Local 29 2 officials had learned of the ads and encouraged their unemployed members to apply and, if hired, organize the jobsite.

The a pplicants accompanied the company officials to the intervie w rooms. Sager described Town & Country and explained its

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employee benefits plans. The applicants then filled out applications whil e Sager an d Defferding began interviews in another room. They firs t interview ed a union member who did not have an appointment and then th e sole appli cant who had scheduled an interview. Neither was offered a posit ion. Buelow told Sager that none of the remaining applicants ha d appointments for interviews. Sager asked how those present had known abou t the interviews. Buelow responded by showing Sager several applications an d stating, "I think they're union." Buelow returned to the other room and told the eleven remaining applicants that the job was nonunion. Th e applic ants generally replied that they were interested in any wor k 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 journey men present who could take the place of those with scheduled interviews.
Sager decided to return to Appleton without interviewing anyone else, all egedly because he had to attend an important meeting that afternoon

. He announced to the r emaining applicants that no further interviews would be conducted and requested that they leave. One of the union members , MalcolmHansen, protested that he had called Ameristaff that morning and scheduled an interview. After confirming that t his 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 C ounsel had established a prima facie case that Town & Country had discriminatoril y refused to consider for hire the ten applicants it had refused t o interview. The ALJ rejected Town & Country's defenses largely on the basi s of his determination that Sager's proffered reasons for his decision t o immediately end the

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interviews were implausible and not credible. T he ALJ concluded that Town & Country had violated section 8(a)(3) because i t failed to establish that it would not have interviewed and considered for hire the ten remainin g applicants in the absence of their union membership. See York Prods., Inc

. v. N LRB , 881 F.2d 542, 544-45 (8th Cir. 1989) (setting forth burden

shifting 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 ar e supported by substantial evidence on the record as a whole, even if w e 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). Se e also Ha ndicabs, Inc. v. NLRB , 95 F.3d 681, 684 (8th Cir. 1996)

. Credibility determinations are for the ALJ to ma ke. We have characterized the broad deference we extend to an ALJ's credibility determinations i n terms of a shock-the-conscience standard of review:

The rule in this Circuit is that `the question of credibility of witn esses and the weight to be given their testimony' i n 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); K itty 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 que stion 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 (8t h Cir. 1963). Although we have frequently applied the shock-the-conscience standard of review, see, e.g. , Golden Eagle Spotting Co. v. Brewery Driver s and Helpers, Local Union 133 , 93

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F.3d 468 (8th Cir. 19 96); NLRB v. Monark Boat Co. , 800 F.2d 191 (8th Cir. 1986 ), we have cautioned against a blind application of the Morriso n Cafeteria test by saying that "this rule is not to be applied mechanically
so as to compel us to sustain any finding concerning conflictin g testimonial evidence." NLRB v. Midwest Hanger Co. , 550 F.2d 1101, 110 4 (8 th Cir.), cert. denied , 434 U.S. 830 (1977). See also Buffal o Bitumi nous, Inc. v. NLRB , 564 F.2d 267, 269 (8th Cir. 1977); NLRB v
. Payless Cashway Lumbe r Store of South St. Paul , 508 F.2d 24, 28 (8th Cir. 1974).

Under the standard of review announced in the Paramount and Kitt y Clover decisions cited in Morrison Cafeteria , an ALJ's credibilit y determinations are considered with the rest of t he NLRB's factual findings under the general sub stantial 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 o f fact in an unfair labor practice case to resolve issues of the witnesses' credibility in arriving at a decision ba sed thereon, we cannot avoid our greater responsibility under Universa l Camer a to fairly weigh against the Board's findings th e 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 w e were to so apply it, the substantial evidence tes t set forth in the Administrative Procedure Act, 5 U.S.C. § 706( 2)(E), and in Universal Camera Corp. v. NLRB [citatio n 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-cons cience standa rd of review and the earlier and more traditional standar d articulated in Paramount , Kitty Clover , and Fruin-Colnon Constr. Co. , we prefer to apply the latter standard, based as it is on the teachings o f Universal Camera . Viewing the record in the light of that standard o f review, we conclude that the Board's findings ar e supported by substantial evide nce, and we agree with the Board's conclusion that Town & Countr y violated sections 8(a)(1) and (a)(3) with respec t to the ten applicants it refused to interview and consider for hire. On Thursday, September 7, Tow n & Country did not have a single licensed electrician for a job that starte d the next Tuesday, September 11. When Sager, Buelow, and Defferding arrive d 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 inter views, only after Buelow told him that the remaining applicants were union members. Sager testified that he suspected that Tow n & Country was being harassed or set up. The ALJ's decision to discredit Sager's various explanations for why he decided to terminate the interview s is not so lacking in evidentiary support as to r equire us to set it aside.

IV.
Sager int erviewed and hired Hansen for the International Falls job, knowing that Hansen was a union member. Although Hansen was technically an Ameristaff employe e, Town & Country retained sole discretion regarding his supervision and discharge.

### -8- Hansen reported to the jobsite on Monday, September 11. The fi ve-man
crew (Supervisor Rod Smithback, Mike Grow, Randy Reinders, Tom Steiner, an d Hansen) began work Tuesday, September 12. Hansen hinted about his union membership that day. During a morning break the following day he openly
announce d that he was a union member and was there to organize for th e union. Smithback and Sager repeatedly told Hansen not to talk about the union, whether at wor k 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 unio n and asked Hansen what it would take for Hansen to drop his union membershi p 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 la w prevented Town & Country from using Ameristaff's temporary personnel on th e jobsite, i t could no longer use Hansen to meet the state requirement s unless it directly hired him, which it did not intend to do. After this conversation, Buelow discharged Hansen that afternoon. Hansen called Sage r to ask if Town & Country would hire him directly onto its payroll, to whic h Sager responded, "Absolutely not."

The ALJ f ound 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 poo r worker who failed to meet productivity standards and failed to perform in a craftsmanlike manne r. See Mississippi Transport, Inc. v. NLRB , 33 F.3d 972, 979 (8th Cir. 1994) (elements of unlawful discharge case an d employer's defense). The ALJ discredited these defenses, characterizing Town & Country's case as "shifting, replete with contradiction," it s witnesses as

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"biased," and its defense as "structured upon a composite of lies." The ALJ concluded that Town & Country's decision to not retain Hansen was base d upon H ansen's union activities, in violation of sections 8(a)(1) an d (a)(3).
The record supports the ALJ's rejection of Town & Country's def enses. At the time of Hansen's termination, the only objective complaint Smithbac k documented was Hansen's lack of productivity. Town & Country's allegation s that Hansen's work was not of craftsmanlike quality and that Hansen misuse d and abu sed 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 wa s not a factor in the d ecision to terminate him. Town & Country claimed it would hav e discharged Hansen earlier in the week due to his lack o f productivity except t hat 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 Hanse n, and risked not being able to work without having a license d electrician.

Town & Co untry 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 du e to Hansen's organizing activities. Furthermore, while th e disharmony set the stage for the noontime confrontation that occurred on Septem ber 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 decisio n not to retain Hansen, a finding that supports the inference of imprope r motiva tion. 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 co

2 

### workers, he would have found t hat 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 t o 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 h e abused a pipe-threading machine by pounding on it with a hamme r rather than by tightening the locking mechanism by hand. Unde r 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 hi s 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 th e evidence "that it would have discharged [the emp loyee] even in the absence of his union activiti es." We conclude that substantial evidence supports the ALJ's conclusion that Town & Country's failure to retain Hansen wa s motivated by Hansen's protected union activities. Cf. Hall , 941 F.2d at 689 (e vidence supported finding of illegal discharge where, among othe r things, employer's testimony regarding poor work was discredited, shifting reasons were given fo r discharge, chronological proximity existed between dischar ge and employee's protected union activities, and employee wa s interrogated regarding union sentiments and activities).

V.

Town & Co untry argues that the ALJ's credibility determinations and resulting factual findings were based on a presu mption 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 pr esumption was effectively irrebuttable. Contrary to what Town & Country cites in its brief, however, the ALJ used no suc h express presumption. Furthermore, a fair reading of the ALJ's

### Salting is a practice whereby a union local authorizes it s 3 

### members to work on nonunion projects in order to organize th e projec t. The members, or "salts," are reimbursed for th e differences in wage scales and benefits, and their expenses. The salts work at the jobsite until it is organized or when dire cted to leave by the union. See Town & Country , 34 F.3d at 629; Her bert R. Nort hrup, "Salting" the Contractors' Labor Force: Constructio n Unions Organizing with NLRB Assistance , 14 J. Lab. Res. 469 (1993).
-11- opinion and his questioning of witnesses at the hearing does not reveal th e 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 onl y basis for claim was A LJ's adverse credibility determinations and findings of fact). Moreover, an ALJ may properly use an employer's attitudes about unio ns as one factor in evaluating the credibility of the employer' s witnesses and drawing inferences regarding the e mployer'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 Ci r. 1986); McGraw-Edison Co. v. NLRB , 419 F.2d 67, 75 (8th Cir. 1969).

VI.

Tow n & Country argues that Hansen was not retained because h e violated a company rule against union solicitation on work time. Town & Country also argues that it had a legitimate business reason for not hirin g 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 thei r employer

. Town & Country raises both of these arguments for the firs t

3 time on re mand. Objections not urged before the Board are not to b e consid ered by a reviewing court absent extraordinary circumstances. 2 9 U.S.C. § 160(e); Radisson Plaza Minneapolis v. NLRB , 987 F.2d 1376, 1382-8 3 (8th Cir. 1993). The conflict-of-interest argument was previously raised only in the context of whether the union organizers were statutoril y defined "employees," not as a defense

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for Town & Country's actions. The no-solicitation-rule argument was not rai sed in the exceptions Town & Country filed with the Board, and ou r review of the record shows that no evidence of such a rule was presented at the h earing. Town & Country has not demonstrated extraordinar y 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.