                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
___________

No. 99-2121
___________

Wright Electric, Inc.,                    *
                                          *
             Petitioner,                  *
                                          *
      v.                                  *
                                          *
National Labor Relations Board,           *   Petition for Review
                                          *   of an Order of the
             Respondent.                  *   National Labor Relations Board
                                          *
International Brotherhood of Electrical   *
Workers, AFL-CIO, Local Union             *
No. 292,                                  *
                                          *
      Intervenor on Appeal.               *

____________

No. 99-2309
____________

Wright Electric, Inc.,                    *
                                          *
             Respondent,                  *
                                          *
      v.                                  *
                                          *   Application for Enforcement
National Labor Relations Board,           *   of an Order of the
                                          *   National Labor Relations Board
             Petitioner.                  *
                                          *
International Brotherhood of Electrical     *
Workers, AFL-CIO, Local Union               *
No. 292,                                    *
                                            *
      Intervenor on Appeal.                 *

                                    ___________

                              Submitted:     October 20, 1999

                                   Filed: January 19, 2000
                                    ___________

Before McMILLIAN, HEANEY and MURPHY, Circuit Judges.
                           ___________


McMILLIAN, Circuit Judge.

       Wright Electric, Inc., (“Wright Electric”) petitions this court for review of a
decision and order of the National Labor Relations Board (“Board”) entered pursuant
to the Board's authority under 29 U.S.C. § 160(c). See Wright Electric, Inc. &
International Brotherhood of Electrical Workers, Local 292, 327 N.L.R.B. No. 196,
1999 WL 195532 (Mar. 31, 1999) (hereinafter “NLRB order”). Wright Electric argues
that (1) the Board erred as a matter of law in concluding that Wright Electric violated
§ 8(a)(1) of the National Labor Relations Act (“the Act”), 29 U.S.C. § 158(a)(1), by
requesting signed union authorization cards in a state court lawsuit and (2) the Board's
conclusion that Wright Electric discriminated against applicant Louis Lutz due to his
union affiliation is not supported by substantial evidence on the record as a whole. The
Board has filed a cross-application for enforcement of its order. For the following
reasons, the Board's order is enforced and the petition for review is denied.




                                           -2-
                                     Background

       The following statement of facts is taken in large part from the Board's order and
attached appendix. In October 1992, Wright Electric, a non-unionized electric
contractor headquartered in Plymouth, Minnesota, sought to hire journeyman
electricians. Thomas A. Ouellette, a member of the International Brotherhood of
Electrical Workers, Local 292, AFL-CIO (“Local 292”), applied for the position.
However, he failed to state on his employment application that he had previously been
employed by union contractors. Michael J. Priem, Local 292's business agent, had
advised Ouellette that if Ouellette believed that listing a union contractor on the
application would prevent him from being hired, he may want to leave it off.
Nonetheless, Ouellette signed the application statement certifying that his answers were
“true and complete” and acknowledging that “false or misleading information” could
result in discharge. Ouellette was hired by Wright Electric and began work on
November 12, 1992.

       Wright Electric transferred Ouellette to a job site where supervisors knew of his
prior union employment. Ouellette notified Priem, and Priem faxed a letter to Wright
Electric stating that Ouellette was a union member and would be “engaging in protected
concerted activity.” Within hours of receiving the fax, Wright Electric contacted
Ouellette and sent him home due to “lack of work.” About three days later, on
February 5, 1993, Wright Electric called Ouellette back to work; he worked a portion
of the day and was then terminated. Wright Electric claimed that Ouellette was
discharged for concealing and misrepresenting his employment history on his
application.

      Local 292 filed an unfair labor practice charge, claiming that the discharge was
due to Ouellette's union activity and thus violated §§ 8(a)(1) and (3) of the Act.
However, the Regional Director dismissed the charge for lack of merit. Subsequently,
in August 1993, Wright Electric filed suit in Minnesota state court against Local 292,

                                          -3-
Ouellette, and Priem for fraudulently misrepresenting Ouellette's employment history
as part of a “pattern and practice of misrepresentation and concealment,” wrongful use
of property, and malicious prosecution. Against Ouellette alone, the complaint alleged
breach of contract, breach of fiduciary duty, and unjust enrichment, all based on
Ouellette's fraudulent employment application. With the complaint, Wright Electric
filed discovery requests directed at Local 292 requesting, among other things, all union
authorization cards signed by Wright Electric employees. Wright Electric claimed that
obtaining the signed union authorization cards could provide evidence of Local 292's
intent to destroy Wright Electric’s business rather than merely to organize its
employees. Wright Electric claimed the cards were discoverable under broad state
court discovery rules.

       In March 1994, while the state court lawsuit was pending, Wright Electric again
sought to hire an electrician. Earl Standafer, Wright Electric's human resources
manager, placed a newspaper ad in the Minneapolis Star Tribune. Louis J. Lutz, an
unemployed Local 292 member, saw the ad and discussed the position with Priem.
Priem prepared and signed a cover letter in which he asserted that Lutz was licensed
as a journeyman electrician, that Lutz had been a union member for fifteen years, and
that “any protected activity in which Mr. Lutz may choose to engage following his
employment by you will be conducted strictly within the guidelines established by law
and the National Labor Relations Board and will not interfere with his efficiency or
productivity.” The cover letter was mailed along with Lutz's resume to the post office
box specified in the newspaper ad.

       Wright Electric received Lutz's resume along with the resumes of six other
individuals. Standafer attempted to contact two of the applicants who purportedly had
the appropriate qualifications, recent experience working on residential (as compared
with commercial) sites, and a journeyman license. No attempt was made to contact
Lutz. Standafer testified that he alone made the decision not to contact Lutz, and his
decision was based on two factors: (1) Lutz's recent experience was commercial rather

                                          -4-
than residential, and (2) due to Lutz's recent commercial work, which generally pays
better than residential work, Lutz was likely to quit if commercial work became
available. Ultimately, Standafer hired an electrician who had not responded to the
newspaper ad.

       On July 13, 1994, Local 292 filed an unfair labor practice charge alleging that
Wright Electric refused to consider Lutz's application due to his union affiliation. On
November 9, 1994, Local 292 filed a separate unfair labor practice charge challenging
Wright Electric's discovery request in the state court litigation seeking signed union
authorization cards.1 The General Counsel for the Board investigated Local 292's
allegations and, based upon the above-mentioned charges, filed a consolidated
complaint asserting that Wright Electric had violated § 8(a)(1) and (3) of the Act.

       The matter was tried before an Administrative Law Judge (“ALJ”). The ALJ
made findings of fact and conclusions of law, which were in turn reviewed by the
Board. See NLRB Order at *7-30 (decision of the ALJ); id. at *1-5 (decision and order
of the Board).

        Regarding Wright Electric's state court discovery request, the ALJ concluded
that, "in light of the Supreme Court's holding in Bill Johnson's[ Restaurants v. NLRB,
461 U.S. 731 (1983) (“Bill Johnson's")], it is not possible to locate an independent
basis under the Act for enjoining [Wright Electric] from seeking the requested
information in the course of the state proceeding." NLRB order at *22. The ALJ went
on to explain:




      1
        Local 292 also filed an unfair labor practice charge on September 13, 1993,
amended February 18, 1994, challenging Wright Electric's state court lawsuit generally.
The Board decided to hold that charge "in abeyance pending disposition of the state
court litigation," NLRB order at *2, and it is not presently before us.

                                         -5-
                      Rules governing litigation under the Act cannot serve
              as a device for overriding First Amendment and compelling
              state interests which the Supreme Court already has held
              outweigh the inherently coercive and retaliatory effects of
              state lawsuits. A contrary conclusion would eviscerate the
              holding of that case, by allowing through indirection a
              result – control of state litigation – which the Court has
              barred from being exercised by direction.

Id. at 23 (internal citation omitted).

        On review, the Board disagreed with the ALJ's determination that the discovery
request was beyond its reach. Citing National Telephone Directory Corp., 319
N.L.R.B. 420, 421 (1995), the Board noted that it “zealously seeks to protect the
confidentiality interests of employees because of the possibility of intimidation by
employers who obtain the identity of employees engaged in organizing.” NLRB order
at *3. The Board further observed that the Supreme Court, in Bill Johnson's,
specifically recognized the Board's "authority to enjoin a lawsuit ‘that has an objective
that is illegal under federal law.’” Id. at *4 (quoting 461 U.S. at 738 n.5). The Board
reasoned in the present case that Wright Electric's discovery request had an illegal
objective because it intruded upon the confidentiality interests of the employees who
had signed union authorization cards. The Board also rejected Wright Electric's
contention that a lack of signed union authorization cards would tend to demonstrate
Local 292's goal to disrupt Wright Electric's business rather than to organize Wright
Electric's employees. See id. at *3. In any event, the Board reasoned, Wright
Electric's inquiry could be limited to finding out whether or not any cards had been
signed, without allowing Wright Electric to obtain access to the identities of those
employees who had signed, if any. See id. The Board concluded that the discovery
request fell within the "illegal objective exception" to the general holding in Bill
Johnson's and "enjoy[ed] no special protection." Id. at *4.




                                          -6-
       As to Wright Electric's refusal to consider Lutz for employment, the ALJ found
that several factors provided “objective indicia of discriminatory motivation.” Id. at
*25. The ALJ noted that Lutz would have been the “lone activist on behalf of the
Union” and, moreover, at the time of Lutz's application, Wright Electric was already
involved in litigation with Local 292, a circumstance which would “hardly dispose an
employer to view with favor an applicant whose resume had been submitted by the very
labor organization which was being sued by that employer.” Id. at *26. The ALJ also
found that the explanations advanced by Standafer for failing to consider Lutz's
application were “not advanced credibly” and “were contradicted by his own admitted
actions in connection with his procedure for hiring an electrician.” Id. at *25. For
example, Standafer stated that Lutz was not considered because his electrical
experience was largely commercial rather than residential; however, Wright Electric
contacted (although did not hire) an applicant with less residential experience and a
lower license level than Lutz. See id. Furthermore, Standafer stated that he did not
consider Lutz because he believed Lutz would not remain on the job for long, having
recently worked on higher paying commercial jobs; however, the individual hired for
the position had also recently worked on commercial jobs. See id. The ALJ repeatedly
suggested that Lutz's union membership was the only significant difference between his
application and that of the others who were contacted or hired. See id. at *20, 25, 26.
The ALJ concluded that Wright Electric's refusal to consider Lutz for employment was
discriminatorily based on his union affiliation, in violation of § 8(a)(1) and (3) the Act.
See id. at *26.

        On review of the ALJ's determinations related to Lutz, the Board adopted the
ALJ's findings and conclusions. The Board ordered Wright Electric to offer Lutz
employment with backpay for loss of earnings suffered as a result of the discrimination.
Id. at *5.

      Wright Electric timely petitioned this court for review, and the Board
cross-petitioned for enforcement of its order.

                                           -7-
                                      Discussion

      We will enforce the Board's order if it correctly applied the law and its findings
are based upon substantial evidence on the record as a whole. See Universal Camera
Corp. v. NLRB, 340 U.S. 474 (1951). When determining if the Board's factual findings
are supported by substantial evidence on the record as a whole, we give great deference
to the credibility determinations made by the ALJ. See Town & Country Electric, Inc.
v. NLRB, 106 F.3d 816, 819 (8th Cir. 1997) (order of the Board enforced where ALJ
discredited the employer's proffered reasons for refusing to consider union members for
hire).

Discovery Request

        Wright Electric argues that the Board erred in holding that its discovery request
in the state court lawsuit, seeking employees' signed union authorization cards, violated
§ 8(a)(1) of the Act. See NLRB order at *3. Wright Electric disputes the Board's
interpretation and application of the pertinent case law. Wright Electric also maintains
that the information requested would be relevant to prove its theory, advanced in the
underlying state court lawsuit, that Local 292 has acted with the intent to disrupt
Wright Electric's business.

      Section 8(a)(1) of the Act provides that it is an unfair labor practice for an
employer “to interfere with, restrain, or coerce" employees in their exercise of rights
to organize and engage in processes such as collective bargaining. 29 U.S.C.
§ 158(a)(1). In National Telephone Directory Corp., 319 N.L.R.B. at 421, the Board,
on interlocutory review of an administrative law judge's ruling, considered the question
of whether an employer, through the use of a subpoena duces tecum, a motion to
produce, or cross-examination, could obtain the names of employees who had signed
union authorization cards or attended union meetings. Noting that several courts have
recognized the risk that "'employees would be "chilled" when asked to sign a union

                                          -8-
card if they knew the employer could see who signed,'" id. (citing cases and quoting
Committee on Masonic Homes v. NLRB, 556 F.2d 214, 221 (3d Cir. 1977)), the Board
reasoned that "the danger of employee intimidation would be severely heightened if an
employer could obtain the names of employees who signed cards or attended
meetings." Id. at 421 & n.6. The Board held that, to allow an employer with no
overriding business interest to obtain such protected information indirectly through
litigation tactics (rather than directly through surveillance or interrogation), would
violate the purpose and meaning of the Act. See id. at 421. Accordingly, the Board
ruled that the employer could not use a subpoena duces tecum, a motion to produce,
or cross-examination to learn the identities of employees who had signed union
authorization cards or attended union meetings. See id. at 422; cf. Madeira Nursing
Center v. NLRB, 615 F.2d 728, 731 (6th Cir. 1980) (employer may not obtain
employees' signed union authorization cards under Freedom of Information Act);
Pacific Molasses Co. v. NLRB, 577 F.2d 1172, 1183 (5th Cir. 1978) (same).

       Wright Electric's attempt in the present case to obtain signed union authorization
cards through a state court discovery request is essentially no different from the efforts
of the employer in National Telephone Directory Corp. Because it is unlawful under
§ 8(a)(1) of the Act for an employer to discover or attempt to discover the identities of
employees who have signed union authorization cards, Wright Electric's discovery
request has an illegal objective. Moreover, we agree with the Board that the
information Wright Electric seeks is not relevant to its state law claims. Contrary to
the argument advanced by Wright Electric, evidence that there were no employees with
a union affiliation prior to Oullette's application would not tend to prove that Local 292
was motivated by an intent to disrupt Wright Electric's business. In sum, because the
discovery request has an illegal objective and has no overriding business justification,
the Board did not err in enjoining it. See Bill Johnson's, 461 U.S. at 738 n.5 (lawsuit
having an illegal objective under the federal labor laws may be enjoined as an unfair
labor practice).


                                           -9-
Refusal to Hire

        Wright Electric next argues that the Board lacked substantial evidence on the
record as a whole to conclude that Wright Electric violated § 8(a)(1) and (3) of the Act
in refusing to consider Lutz's job application. Wright Electric relies on Standafer's
testimony that Lutz was not considered for employment due to his lack of recent
residential experience and the likelihood that he would quit for higher paying
commercial employment. Wright Electric also argues that the Board erred in refusing
to consider certain evidence – including evidence of Lutz's employment and educational
history and Local 292's alleged prior falsifications – on the ground that it was not
relevant. Wright Electric maintains that evidence of Lutz's background would have
shown that Lutz was unqualified for the position and that evidence of Local 292's prior
falsifications would have shown that Wright Electric was justified in refusing to
consider additional Local 292 referrals.

       Section 8(a)(3) of the Act provides that it is an unfair labor practice for an
employer “by discrimination in regard to hire or tenure of employment . . . to encourage
or discourage membership in any labor organization.” 29 U.S.C. § 158(a)(3). When
an employer's refusal to hire an applicant is motivated by anti-union animus, § 8(a)(3)
is violated. See Hall v. NLRB, 941 F.2d 684 (8th Cir. 1991).
       In the present case, the ALJ found, and the Board agreed, that Standafer's
proffered business reasons for not hiring Lutz were not credible and were a pretext for
Wright Electric's anti-union animus. We afford those findings great deference and
perceive no basis on which to set them aside. See Town & Country Electric, 106 F.3d
at 819 (discussing deferential standard of review). Moreover, the ALJ declined to
consider certain evidence regarding Lutz's background and alleged falsifications by
Local 292 because Standafer himself testified that, in deciding not to consider Lutz for
the job, he relied solely upon Lutz's resume and cover letter. The ALJ's evidentiary
ruling was not an abuse of discretion. See NLRB v. Kolkka, 170 F.3d 939, 942 (9th
Cir. 1999) (applying abuse of discretion standard). In sum, in light of the ALJ's

                                         -10-
credibility findings and having considered the entire record – including evidence related
to the ongoing state court litigation, Wright Electric's history of refusing to hire union
members, and the clear disclosure of Lutz's union affiliation in his application (which
distinguished him from the applicants whom Standafer contacted or hired) – we
conclude that substantial evidence exists to support the Board's finding that Wright
Electric was motivated by anti-union animus when it failed to consider Lutz for
employment.

                                      Conclusion

      For the reasons stated, the petition for review is denied and the order of the
Board is enforced.

      A true copy.

             Attest:

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




                                          -11-
