                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                   FILED
                       ________________________        U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            January 10, 2006
                             No. 04-16451                 THOMAS K. KAHN
                       ________________________               CLERK

                         NLRB No. 10-CA-32024


NATIONAL LABOR RELATIONS BOARD,


                                                           Petitioner-
                                                           Cross-Respondent,

                                  versus

CHUGACH MANAGEMENT SERVICES, INC.,


                                                           Respondent-
                                                           Cross-Petitioner.

                       ________________________

         Petitions for Review and Cross-Application for Enforcement
               of an Order of the National Labor Relations Board
                        _________________________

                            (January 10, 2006)


Before CARNES, HULL and PRYOR, Circuit Judges.

PER CURIAM:
      The National Labor Relations Board has applied to this Court for

enforcement of its order requiring Chugach Management Services, Inc., to take

remedial action, including full instatement of Anthony Jones and payment of

damages to him. That order resulted from the Board’s affirmance of an

administrative law judge’s finding that Chugach had discriminated against Jones in

violation of Section 8(a)(1) of the National Labor Relations Act (NLRA), 29

U.S.C. § 158(a)(1). A two-member majority of the Board agreed with the ALJ that

Chugach did not hire Jones because of animus towards Jones resulting from his

protected union activities. Chugach cross-petitions for review of the Board’s order

and asks that we deny the Board’s application for enforcement.

      In the course of its decision, the Board found that Chugach had failed to

meet its burden of showing that it would not have hired Jones even in the absence

of his union activities. Because we conclude that finding is not supported by

substantial evidence in the record as a whole, we grant Chugach’s petition for

review and deny the Board’s application for enforcement of its order.

                                         I.

      From 1994 through September 1999, Anthony Jones worked as a high

voltage lineman for Northrop Grumman at Redstone Arsenal, a United States

Army installation near Huntsville, Alabama. In 1999, Northrop employed nine



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other linemen at the Arsenal. Rex Moss supervised the linemen, and Billie Scillian

was program manager for Northrop at the Arsenal.

      While employed by Northrop, Jones and his fellow linemen were members

of the International Brotherhood of Electrical Workers, Local Union No. 558. In

1995, Northrop and the Union entered into a collective bargaining agreement

generally referred to as the “Red Book” by management and Union members.

      In 1996 and 1997, Northrop and the Union had several conflicts involving

Northrop’s overtime policies. Jones featured prominently in these conflicts. In

early 1996, Jones filed a grievance accusing Moss of failing to equalize overtime

among linemen. In May 1997, Jones filed another grievance after he was

suspended for declining to work overtime when he was off duty. Around the same

time, Jones and lineman Jeff Creel, who also had filed a grievance, sought the

support of other linemen in challenging Northrop’s overtime policies.

      In July 1997, Scillian and the Union executed an overtime agreement that

supplemented the Red Book by clarifying the procedures for allocating overtime.

Even after this agreement, Jones continued to complain to Moss and to other

employees about Northrop’s overtime policies. However, Jones never again

refused to work overtime.

      In August 1999, the Army contracted with the respondent, Chugach

Management Services, Inc., to replace Northrop effective October 1, 1999.
                                         3
Chugach initially hired several members of Northrop’s management at the Arsenal,

including Moss and Scillian. Scillian then directed the supervisors, including

Moss, to interview all of the applicants for jobs with Chugach, identify the best

people, and rank them.

      All ten of the Northrop linemen completed Chugach job applications, and

Moss interviewed them individually. During each interview, Moss gave a copy of

Chugach’s lineman job description, which was the same job description used by

Northrop, and read it to the applicant. The job description contained a number of

requirements, including: “When required, must be willing to work overtime and in

inclement weather.”

      Moss’ and Jones’ accounts of the interview differ, but they are similar

enough in describing Jones’ reaction to the Chugach job description. Moss states

that when he asked Jones whether Jones would abide by the job description, Jones

said that “he would have to go by the Red Book . . . because the job description

meant nothing to him.” Moss states that Jones repeatedly referred to the Red Book

throughout the interview with Moss. Jones testified that he did not refer to the

“Red Book” but that he did say “I’ll just go by the Bargaining Agreement” when

Moss started to read the job description to him.

      Moss submitted the following written recommendation of Jones after the

interview:
                                          4
                    When interviewed Anthony said he would not
            work over time, callouts or [i]n inclement weather.
            Anthony was very uncooperative and did not want to
            answer any questions.
                    Anthony is very disruptive and tries to keep
            creating problem[s] with myself and the other linemen.
                    I recommend that Anthony not be rehired, and
            replaced with another lineman. Anthony does not put
            forth any effort to help the company or any one else to
            make this job easier for every one. Anthony seems
            total[l]y unsatisfied with his job and with [the] company.

      In an affidavit, Moss offered the following explanation of the comments in

his written recommendation not to hire Jones:

                   During the interview, I specifically asked Anthony
            if he would be willing . . . to work overtime and in
            inclement weather. Anthony said NO. It meant nothing
            to him, that he would go by the Red Book. From those
            comments from Anthony I based the first comment of my
            interviewer comments.
                   I continued to ask him questions and he would
            only say that it didn’t matter to him, he would just go by
            the Red Book. No other employees referred to the Red
            Book.
                   The basis of my second statement, that Anthony
            was very uncooperative and didn’t want to answer any
            questions, was by his answering that he just wanted to go
            by the Red Book on a number of questions.
                   In the interview results section, I commented that
            Anthony is very disruptive and tries to keep creating
            problems. This comment was not based on the interview,
            but just from working with him for the past 5-10 years.
            A number of employees talking to me about Anthony
            griping is what I was referring to.
                   On one occasion, when Jeff Creel and Anthony
            refused to work overtime, they encouraged other
            employees to back them and their efforts and refuse to
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             work overtime. A number of employees . . . came to me
             to tell me what Jeff and Anthony were saying and that
             they did not support Anthony and Jeff in refusing to work
             overtime. It was Anthony and Jeff’s refusal to work
             overtime that led to their discipline and then led to the
             grievance that led to the July 24, 1997 Memo/agreement.
                     Anthony kept picking on this . . . agreement about
             overtime. He came to me and, he went to others and
             complained.

      Moss favorably recommended the other nine linemen, all of whom accepted

Chugach’s lineman job description requirements without qualification. In late

August or early September, after the interviews were completed, Scillian informed

Moss that Chugach was only going to hire nine linemen. Scillian then reviewed

Moss’ recommendations and spoke with Moss and another Northrop supervisor

about each applicant. Chugach hired all of the Northrop linemen except Jones.

      Chugach and the Union entered into a new collective bargaining agreement

on September 30, 1999. On October 20, 1999, the Union filed with the NLRB a

charge against Chugach arising from the Jones situation.

      On July 10, 2000, the administrative law judge issued a decision finding that

Chugach violated NLRA § 8(a)(1), 29 U.S.C. § 158(a)(1). Two years after the

ALJ’s decision, the Board remanded for additional credibility determinations and

factual findings. On September 24, 2002, the ALJ issued a supplemental decision

and order, again finding that Chugach violated § 8(a)(1).



                                         6
         In a split decision dated July 30, 2004, the Board affirmed the ALJ’s rulings,

findings, and conclusions and ordered full instatement of Jones with back pay.

Chugach Mgmt. Servs., Inc., 342 NLRB No. 69 (2004). The Board subsequently

denied Chugach’s motion for reconsideration. The Board applied to this Court for

enforcement of the Board’s order, and Chugach cross-petitioned for review of that

order.

                                           II.

         The parties both argue this case under the analytical framework set out in

FES (A Division of Thermo Power), 331 NLRB 9 (2000), enforced 301 F.3d 83

(3rd Cir. 2002). That is also the framework the ALJ and the Board applied. We

will, as well. Under FES, in a discriminatory refusal-to-hire case, the NLRB

General Counsel has the initial burden to show: “(1) that the [employer] was

hiring, or had concrete plans to hire, at the time of the alleged unlawful conduct;

(2) that the applicants had experience or training relevant to the announced or

generally known requirements of the positions for hire . . . ; and (3) that antiunion

animus contributed to the decision not to hire the applicants.” FES, 331 NLRB at

12. After the General Counsel establishes a prima facie case of discriminatory

refusal to hire, “the burden will shift to the [employer] to show that it would not

have hired the applicant[] even in the absence of [his] union activity or affiliation.”

Id. Because an employer has the opportunity to shoulder that burden, we have
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stated that an ALJ and the Board “may not attribute dispositive force to an

employer’s unlawful motivation.” Northport Health Servs., Inc. v. NLRB, 961

F.2d 1547, 1551 (11th Cir. 1992) (remanding a case where the Board did not

discuss whether the company proved that it would have discharged the employees

regardless of their union involvement).

                                         III.

      Addressing the prima facie case, the Board found that Jones had relevant

training and experience for the lineman position since he had worked at that

position for several years. The Board also found that the General Counsel had

shown that Jones’ protected conduct contributed to Moss’ decision not to

recommend Jones for a job with Chugach. The Board agreed with the ALJ that

Jones’ repeated references to the Red Book during the interview “reminded” Moss

of Jones’ protected union activities protesting Northrop’s overtime policies in

1997. Direct evidence supported this conclusion. Moss admitted in his affidavit

that his comment in the written recommendation that Jones “is very disruptive” and

“tries to keep creating problem[s]” referred to both (1) Jones’ refusal to work

overtime, done in concert with another lineman, and (2) Jones’ attempts to get

other employees to join their protest.

      The Board found that Chugach failed to meet its rebuttal burden because the

two primary reasons given by Moss for not hiring Jones did not establish a
                                            8
legitimate defense. First, the Board reasoned that Moss’ statement that Jones “is

very disruptive and tries to keep creating problem[s]” constituted the violation, not

a defense. Second, the Board found that Moss’ statement that Jones would not

work overtime or in inclement weather was simply untrue.

      The Board’s dissenting member focused on the fact that “Jones [was] the

only one of the job applicants who did not answer affirmatively when asked

whether he would be willing to work overtime or in inclement weather.” He

believed that “Moss reasonably interpreted Jones’ responses to his questions as, at

a minimum, an unwillingness to work overtime . . . .” The dissenter would have

reversed the ALJ on the ground that Moss’ statement in his written

recommendation that Jones “said he would not work over time, callouts or [i]n

inclement weather” reflected Jones’ “repudiation” of the job requirements and

provided Chugach with a legitimate reason for not hiring Jones.

      Responding to the dissent, the Board’s majority acknowledged that Chugach

“might lawfully have refused to hire Jones because he placed a limitation on his

willingness to work overtime . . . or because he insisted on working in accordance

with the Northrop collective bargaining agreement, which [Chugach] was not

bound to adopt.” The Board reasoned, however, that Chugach “did not assert

either of those reasons” and that since Moss’ only stated ground—“that Jones



                                          9
would not work overtime”—was untrue, Chugach had failed to meet its rebuttal

burden.

                                          IV.

      In this type of proceeding, we “will accept the Board’s factual

determinations and reasonable inferences derived from these factual determinations

if they are supported by substantial evidence on the record considered as a whole.”

BE&K Constr. Co. v. NLRB, 133 F.3d 1372, 1375 (11th Cir. 1997). Not only that,

but “[w]e must also give special deference to the ALJ’s credibility determinations

. . . unless they are inherently unreasonable or self-contradictory.” NLRB v.

McClain of Ga., Inc., 138 F.3d 1418, 1422 (11th Cir. 1998) (citation omitted).

Nonetheless, we keep in mind that “this Court is an independent appellate court

and does not function simply as the Board’s enforcement arm.” Ona Corp. v.

NLRB, 729 F.2d 713, 719 (11th Cir. 1984).

                                          V.

      For the purposes of this opinion, we will assume that the NLRB General

Counsel met its burden of establishing a prima facie case and will focus our

attention on whether Chugach carried its rebuttal burden of showing that it would

not have hired Jones regardless of his protected activities.

      Essential to the Board’s decision on the rebuttal issue is its finding that,

despite Moss’ assertion to the contrary, Jones never flatly refused to work
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overtime. The Board did acknowledge that Chugach “might lawfully have refused

to hire Jones” if he had limited his willingness to work overtime or had agreed to

work overtime only as provided in the Northrop collective bargaining agreement.

To the extent the Board meant to hedge with “might,” that hedging is unjustified.

There simply is no question that an employer can make hiring decisions on the

basis of whether a prospective employee is willing to make an unconditional

commitment to comply with the lawful requirements of the job. Nor is there any

question that one of the requirements for this job was a willingness to work

overtime. Jones does not dispute that the written job description said: “When

required, must be willing to work overtime and in inclement weather.”

      As to Jones’ not committing to work overtime unless it was required by the

collective bargaining agreement, it is undisputed that there was no collective

bargaining agreement between Chugach and the Union at the time. Nothing

prevents an employer from declining to hire an applicant because he conditions his

willingness to comply with job requirements on an agreement that is not in force.

      Nonetheless, the Board rejected Chugach’s contention that even if there was

anti-union animosity it would not have hired Jones anyway because of the answer

he gave to whether he would comply with the job requirements, which included

working overtime. The sole reason the Board gave for rejecting that rebuttal

contention is that Moss stated, and Chugach asserted, that Jones had refused to
                                         11
work overtime. That was not true, the Board reasoned, because Jones did not flatly

refuse to work overtime; he simply refused to commit to working overtime unless

it was required under the collective bargaining agreement—an agreement that was

not then in effect.

       The Board’s reasoning elevates form over substance and ignores the

obvious. Moss’ interpretation of the answer Jones admits giving seems reasonable

to us. But even if Moss did read more limitation than he should have into Jones’

failure to give a straight answer to whether he would be willing to abide by the job

requirements, that still does not justify the Board’s decision. The undisputed fact

remains that Jones, and Jones alone out of all the applicants, did not commit

without qualification to the job requirements including working overtime. The

ALJ found that, “[b]ased on Jones’ testimony and Moss’[] pretrial affidavit, . . .

Jones only refused to work overtime which would be inconsistent with the

[collective bargaining agreement].” Even under that interpretation of the facts,

which we accept, the point is that Jones alone qualified his willingness to work

overtime on a contract not in force at the time, a contract whose protections he

could not claim.

       There is no dispute in the record that a willingness to work overtime was, as

the “Redstone Arsenal Program Job Description” for “High Voltage

Electrician/Lineman” put it, one of the five “Essential Job
                                          12
Elements/Requirements.” Moreover, there is no evidence in the record that any of

the other job applicants qualified in any way his willingness to accept the five

essential job elements or requirements including working overtime. Jones singled

himself out in that respect.

      The situation confronting Chugach was that it had ten applicants for nine

positions. Nine applicants had committed without qualification to the essential

requirements of the job, and one had not. It is irrational to decide, as the Board

implicitly did, that an employer in that situation would hire the one who had not

committed to the job requirements in place of one of those who had. It follows that

the Board’s decision does not make sense, or to put it more technically, that the

decision is not supported by substantial evidence in the record as a whole.

      Chugach’s cross-petition is GRANTED. The Board’s application for

enforcement of its order is DENIED.




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