Review of a Decision and on Cross Application for Enforcement of the National Labor Relations Board, Washington, D.C.
Pell, Stevens, Circuit Judges, and Perry, Senior District Judge.*fn*
This is a petition for review and a cross-petition for enforcement of an order of the National Labor Relations Board (Board). In issue are 1) whether the Board can only overturn the decision of an Administrative Law Judge (ALJ) when that decision is clearly erroneous and 2) whether the evidence sufficiently supports the decision of the Board.
On March 14, 1973, William Dean O'Bannon, the charging party, began work for the Glenroy Construction Company on a construction job. O'Bannon worked for the next three days and became Union Steward for the job. On March 19 O'Bannon was laid off. Petitioner alleges that the reason was lack of parts, but O'Bannon testified that reference was made at the time of the layoff to someone coming to the project from another job. O'Bannon kept the jobsite under surveillance on March 20 and 21. No one was on the job because of rain on the twentieth, but on the twenty-first O'Bannon saw a black ironworker trainee working. O'Bannon complained to the foreman, Alfred Hanks, that a black trainee should not be working while he, a white journeyman, was laid off. O'Bannon then went to the Union Hall and complained to Jack Muir, a Union Business Representative, that he had been improperly laid off. Muir told O'Bannon that he would check into the matter. O'Bannon then filed charges with the Board against the Company. These charges were not received by the Company until the following day. Meanwhile, Muir called Walter Jackson, the job superintendent, and complained about the situation. After some discussion, Jackson agreed to reinstate O'Bannon the next day. Muir told Jackson that he would call O'Bannon about 7:00 P.M. and told Jackson to call him about 7:30. Muir talked to O'Bannon about 7:00, but Jackson never got in touch with O'Bannon although there is testimony that he tried.
On the morning of March 22, Hanks called Muir at the Union Hall and left word to send O'Bannon to the jobsite to go to work. A little later O'Bannon arrived at the Union Hall and complained to Muir about Jackson not having called. Muir told O'Bannon about Hanks' call, but an argument ensued because O'Bannon did not believe Muir was doing his job properly. Muir eventually ordered O'Bannon to leave the Hall under the threat of enforcing a provision of the union's by-laws pertaining to a disorderly person in the Union Hall. O'Bannon heeded the invitation, parting with the observation, "If you want to look nice in Court, buy yourself a new suit because that is where you are going." O'Bannon then drove to a spot near the jobsite and viewed it with binoculars. He did not go to the jobsite or communicate with anyone on it. After O'Bannon left the Hall, Muir called Jackson and complained about Jackson not having called the previous night. Jackson again agreed to put O'Bannon to work. O'Bannon was, apparently, never directly told of this conversation. Muir said he expected to tell O'Bannon of it the next day at the Hall, but O'Bannon did not appear there.
On the evening of the twenty-second, O'Bannon telephoned Hanks to find out if he could go to work. Hanks testified that he could not remember the conversation in detail, but he remembered he was tired and had consumed a few drinks. O'Bannon testified that Hanks told him that he did not want him on the job, in essence, because he was a troublemaker. When asked to explain, Hanks referred to the charges which O'Bannon had filed. O'Bannon explained that the charges were not against him but rather against the company. O'Bannon then suggested that Hanks call Curt Wooten, a Union Business Agent. Hanks did so but did not call O'Bannon back. After about 30 minutes, O'Bannon called Hanks again. Hanks said that the business agent had told him to run the job as he pleased but told O'Bannon to come to the jobsite in the morning to discuss the problem. According to O'Bannon, he then asked Hanks whether he meant that there was a possibility of returning to work. Hanks told him, "No, I don't want you back on the job."
At the hearing before the ALJ it was stipulated by all parties that O'Bannon's original layoff was non-discriminatory. The ALJ found as an ultimate fact that the Union's efforts to secure O'Bannon's immediate recall had been successful and that this was communicated to O'Bannon. In connection with O'Bannon's driving around the jobsite area and viewing it with binoculars from time to time, the ALJ's decision stated the following:
"The Respondent's analysis of this particular circumstance is well stated:
'Considering the undisputed fact that O'Bannon knew he had a job and that Respondent wanted him to return to work, O'Bannon's response affect [sic] his entire credibility and motivation. Had O'Bannon simply gone to the job site and reported for work as instructed by his Union representative, this would never have been.'"
This incorporated reference and a threshold stereotype footnote -- "All credibility resolutions made herein are based on a composite evaluation of the demeanor of the witnesses and the probabilities of the evidence as a whole" -- are the only direct references in the ALJ decision to the credibility or lack thereof of any witnesses.
The ALJ found that Muir informed Jackson that O'Bannon had filed at least some kind of charges with the Board and that after learning this Jackson had still told Muir to send O'Bannon to work. The ALJ then proceeded to discuss O'Bannon's conversations with Hanks on the evening of March 22 before reaching his final conclusion:
"Through the Union and by direct communications, the Respondent made adequate efforts to recall or reinstate O'Bannon, and in accordance therewith I find that the General Counsel had failed to establish by a preponderance of the evidence that the Respondent violated the Act."
The Board overruled the ALJ, focused almost exclusively on telephone conversations between Hanks and O'Bannon, and found that Hanks fired him because he filed charges with the Board. The Board therefore held that the Company violated §§ 8(a)(1), (3), (4) of the National Labor Relations Act.*fn1 This petition followed. Before considering the issues, we are constrained to remark that the record as a whole demonstrates rather a clear lack of charismatic characteristics on O'Bannon's part throughout all pertinent episodes. Irrespective of the ultimate inheritance accorded to the meek by ...