*Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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United States Court of Appeals

Fifth Circuit

FILED

September 28, 2004

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 04-60118

Summary Calendar

_________________

CCC GROUP, INC.

Petitioner-Cross-Respondent,

V.

NATIONAL LABOR RELATIONS BOARD

Respondent-Cross-Petitioner.

____________________________________________

Petition for Review of an Order of the

 National Labor Relations Board 

 (12-CA-21800) 

 _________________________________________

 

Before DAVIS, SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

Petitioner CCC Group, Inc. appeals the National Labor

Relations Board (Board) order finding that Petitioner committed

unfair labor practices by refusing to hire Michael Kell (Kell)

because of his union affiliation. The only significant issue on

appeal is whether the finding is supported by substantial
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evidence.

After reviewing the record in this case, we are satisfied

that ample evidence supports the Board’s conclusion that CCC

Group, Inc. engaged in discriminatory hiring practices by

refusing to hire Kell because of his union affiliation. The Board

credited Kell’s testimony, particularly his account of his job

interview with Terry Atchley (Atchley), the Operations Manager of

CCC Group, Inc. On April 20, 2001 Kell filled out an application

for employment at the CCC Group, Inc. office in Bartow, FL. When

Kell returned the completed application to the secretary, she

asked him to wait for an interview. After a few minutes, Atchley

called Kell into his office. During the beginning of their

conversation, Atchley inquired about Kell’s prior work experience

and level of expertise with various machines. Atchley expressed

interest in Kell until he turned to the second page of the job

application and saw that Kell was a member of a union. According

to Kell’s testimony, upon reading that Kell was employed by the

Operating Engineers, Atchley’s attitude changed visibly and he

began to inquire as to whether Kell planned to leave the union if

employed by CCC Group, Inc. When Kell replied that he intended to

stay with the union and work at CCC Group, Inc. at the same time,

Atchley put down Kell’s job application and informed Kell that

the company did not hire crane operators. At the end of the

interview, as Kell moved toward the door to leave, Atchley said

“CCC’s non-union down here in Florida.” 
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A few weeks later, Kell learned that Petitioner was actively

recruiting crane operators by placing an ad in the “Ledger”, a

Lakeland, FL newspaper, which advertised a position for a

conventional/hydraulic crane operator in the Bartow office. This

ad ran from May 3 - 8, 2001, two weeks after Kell had filled out

an application and been told that the company did not hire crane

operators. After discovering this, Kell, on two later dates,

asked secretaries for CCC Group, Inc. how long the company kept

job applications active. He received two different answers, “six

months” and “for years”. Petitioner, however, did not call Kell

to fill the crane operator position. When Kell applied for the

crane operator position at CCC Group, Inc., he had 8 years

experience in hydraulic and conventional cranes, 5 years with

engine and heavy equipment repair, could operate several other

machines, and possessed a forklift operator’s license and

training in phosphate mine safety. These credentials qualified

Kell for the position of crane operator which Petitioner sought

to fill. 

The Board did not credit Petitioner’s employee Atchley’s

testimony. However, his refusal to admit that he interviewed Kell

and his description of their conversation demonstrated that

Petitioner never considered Kell as a job applicant, even though

he completed an application to be a crane operator and expressed

his interest throughout the interview. Additionally, the Board

credited the testimony of Robert Willis (Willis), who testified
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that John Matejek (Matejek), the regional manager of Bartow, FL,

when firing Willis, stated that CCC Group, Inc. was “a non-union

company and it was going to F’ing stay that way”. 

In arguing that the Board incorrectly held that CCC Group,

Inc. was unable to prove its affirmative defense that Kell would

not have been hired even in the absence of anti-union animus,

Petitioner relies primarily on the testimony of Matejek. At

bottom, Petitioner challenges the Board’s credibility call in

rejecting the testimony of Matajek who testified that the reason

Petitioner did not hire Kell was that there were several more

qualified applicants for the crane operating position. It is,

however, not the function of this Court to secondguess the

Board’s credibility calls with respect to witnesses. See NLRB v.

McCullough Envt’l Servs. Inc., 5 F.3d 923, 927-8 (5th Cir. 1991)

Because substantial evidence supports the Board’s Order, the

Board’s application for enforcement is granted.

Order enforced.