Moses Elec Svc Inc v. NLRB

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 16, 2002
• Docket: 02-60016
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 02-60016 Summary Calendar

MOSES ELECTRIC SERVICE, INC., and its agent EXPRESS PERSONNEL SERVICES,

Petitioner-Cross-Respondent,

VERSUS

NATIONAL LABOR RELATIONS BOARD,

Respondent-Cross-Petitioner.

Petition for Review & Cross-Petition for Enforcement of an Order of the National Labor Relations Board (26-CA-17904)

July 15, 2002

Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

This case is before the Court on the petition of Moses

Electric Service, Inc. (“the Company”) to review, and the cross-

application of the National Labor Relations Board (the “Board”) to

enforce the decision and order of the Board issued on July 16,

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 2001, in which the Board determined that the Company violated

§ 8(a)(3) and (1) of the National Labor Relations Act, as amended,

29 U.S.C. § 151, et seq. (“the Act”), by refusing to hire twelve

applicants because of their Union affiliation and by discharging

employee, Stephen Alexander, because of his Union activities. This

Court will not disturb the Board’s unfair labor practice findings

if substantial evidence supports the Board’s inferences and

conclusions, “even if the Court would justifiably have made a

different choice had the matter been before it de novo.” Universal

Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951), accord, NLRB v.

Thermon Heat Tracing Services, Inc., 143 F.3d 181, 185 (5th Cir.

1998). Because the Board’s findings with respect to the employer’s

motive in discrimination cases involves “drawing inferences from

the evidence” based on “the expertise of the Board,” this Court’s

review of such findings “is even more deferential.” Laro

Maintenance Corp. v. NLRB, 56 F.3d 224, 229 (D.C. Cir. 1995),

accord, Valmont Indus., Inc. v. NLRB, 244 F.3d 454, 463 (5th Cir.

2001). Finally, this Court has consistently held that it will not

displace the administrative law judge’s credibility determinations

or inferences, as adopted by the Board, except in the rare

circumstances when those credibility determinations are

unreasonable or are based on an inadequate or nonexistent reason.

NLRB v. McCullough Environmental Services, Inc., 5 F.3d 923 (5th

Cir. 1993).

2 Under these standards of review, we have carefully reviewed

the petition for review, the Board’s order, the briefs, the reply

brief, and relevant portions of the record itself. We conclude

that the Board’s findings of discrimination are supported by

substantial evidence and that the administrative law judge’s

credibility determinations are not unreasonable. Accordingly, we

dismiss the Company’s petition for review, and grant the cross-

application by the Board for enforcement of its order of July 16,

2001. The Company, its officers, agents, successors, and assigns

are hereby ordered to comply therewith.