dissenting:
I respectfully dissent from so much of the majority’s ruling as holds that there was not substantial evidence to support the Board’s finding that four employees were not temporary employees. The majority reverses the Board’s decision that Fleming, McCrea, Net-to, and Ormasen were permanent employees whose ballots should therefore be counted because the majority finds that these four employees were temporary employees either because they had been hired only until a “date certain,” Majority Opinion ante at 1424, 1425, or because they had no “reasonable expectations” of being other than temporary employees, id. at 1425, 1426. In my view there was substantial evidence to support the Board’s rulings under both tests.
The majority, in support of its conclusion that the four employees in question were temporary under the “date certain” test, states that “Kinney’s personnel documents provide substantial evidence that they were hired on a temporary basis while work was being done on the IBM project, that they received no benefits, and that they were classified as temporary in Kinney’s files.” Majority Opinion ante at 1425, 1426. The majority states that “their term of employment was certain to end when the IBM project was completed,” id., and that “substantial evidence under the ‘date certain’ test supports the conclusion that the four employees were hired as temporary employees, and no evidence supports the opposite conclusion,” id. at 1425-1426. I have several difficulties with this ruling.
First, the fact that there may be substantial evidence to support one view does not mean that there is not substantial evidence to support the contrary view. “[E]ven as to matters not requiring expertise a court may [not] displace the [NLRB’s] choice between two fairly conflicting views, even though 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, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951). “[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966).
Second, the company’s personnel records on which the majority relies were viewed by the Board with skepticism: “The document ... was prepared and revised periodically on a word processor [and] does not have the traditional reliability of business records that are immutable in nature and integrated in a business system that makes alteration less convenient than a stroke of a pen or a punch at the keyboard.” Opinion of the Administrative Law Judge dated June 18, 1993, as adopted by the Board (“Board Decision”), at 21 n. 97. The Board noted that the company’s president Cognetti, though alert that changes in computer data could be made, had not been able to verify when the proffered record was made, or by whom, and could say only that it was in the computer a month after the election. See id. at 22 n. 98. We are not entitled to second-guess the Board’s evaluation of the credibility of the evidence.
Third, there was substantial evidence to support the, view that these four employees had not been hired to work only until a “date certain.” None of the cases relied on by the majority found the “date certain” test met by hiring for a project whose completion target date was continually put off and, before the election in question, had disappeared from sight. Here, the IBM project had initially been scheduled for completion in September 1991, prior to the November election; that target was not met. Completion was rescheduled for January 1992, which also soon proved unrealistic, for “labor demands intensified in late October, with no apparent relief in sight.” Board Decision at 21. The ALJ noted that even as of the date of the hearing before him, “I.B.M. still ha[d] not been able to complete the system,” and that “[t]he record does not reflect that a new target date had been set.” Id. (emphasis added). The Board found that “[t]here is no doubt that [these four employees] were hired pursuant to increased labor demands that have continued to the instant hearing, and whose abate*1438ment has not been defined with any precision.” Id. at 20. The fact that before the election there was no foreseeable point at which the demand for the employees would abate, and the fact that no new target date was set, provide substantial evidence to support the Board’s finding that these employees were not hired for a period that was to end on a “date certain.”
In support of the conclusion that the four employees had no “reasonable expectations” of being other than temporary employees, the majority states that although these employees
testified that at no point during their job interviews were they specifically told that they were being hired solely in connection with the IBM project[,] they never testified that they were actually given assurances of indefinite employment.... And the fact that they did not learn of their temporary status during their job interviews says nothing about information they may have received later....
Majority Opinion ante at 1425 (emphasis in original). The majority concludes that “[tjhere is simply no record evidence to support the affirmative conclusion that it would have been reasonable for these employees to think that they were permanent employees.” Id. (emphasis added). I have difficulties with the majority’s factual and legal premises and its conclusion.
There was evidence that in some instances the Company did treat these four employees the same as permanent employees. For example, in addition to assigning them the same type of work and the same working hours as permanent employees, shortly prior to the election the employer invited the challenged employees to attend meetings of small groups of employees toward whom the company was directing its anti-union campaign. See Board Decision at 20 n. 90. As the Board noted, see id., this would have indicated to the challenged employees, before the election, that the employer viewed them as eligible to vote and wanted their vote.
The majority states that these four employees “should have known that they had been hired only in connection with the IBM project” because Cognetti’s October 25, 1991 speech indicated “that a group of employees had been hired to assist until the completion of the IBM project.” Majority Opinion ante at 1425. The Board found, however, and I know of no contrary evidence, that Cognetti’s
speech does not identify the individuals affected. Although one might infer that the reference is to some or all the six challenged voters, [Kinney] did not sponsor that document, more importantly, does not contend that this was the case. In this light, it would be hazardous to disenfranchise these employees on this basis.
Board Decision at 22 n. 101.
Most importantly, in ruling that the record was insufficient to support “the affirmative conclusion” that these four employees did not learn of their temporary status, the majority has in effect placed the burden of proof on the employees. In contrast, the principles framing the Board’s decision of this issue were (a) that the temporary nature of employment is governed by mutual understanding rather than the employer’s unilateral and uncommunicated intention, and (b) that the burden is on the employer to establish mutuality, at least by showing that it somehow communicated its intention to the employee. These principles are sound. It is a routine application of contract doctrine to refuse to allow an employer’s uncommunicated conditions to control the terms of the employment contract. And traditionally, principles as to the allocation of burden of proof rest on goals and access, and a party with an affirmative goal and presumptive access to proof on a given issue has the burden of proof as to that issue. See generally 9 J. Wigmore, Evidence §§ 2485-2486 (Chadbourn rev. 1981). I would conclude that the Board’s allocation of burden of proof was plainly permissible and hence is entitled to deference. See generally NLRB v. Transportation Management Corp., 462 U.S. 393, 402-03, 103 S.Ct. 2469, 2474-75, 76 L.Ed.2d 667 (1983).
Within this legal framework, as to the four employees who testified that they were not told when hired that they were to be employed only temporarily, the Board found, inter alia, that they “worked regular hours, performing duties identical to those of other than temporary coworkers,” Board Decision at 22; that Cognetti “never informed any of the six challenged voters that their employ*1439-1459ment would be for a fixed term,” id.; that there was “no evidence that anyone from management did so,” id.; that there was “no evidence that the [company’s internal personnel] documents ... were ever shown to the employees in question,” id.; that Fleming was told she was fired for having a poor attitude, apparently with no mention of her supposed temporary status, id. at 21 n. 94; that “[a]t no time, prior to the election, did the Employer ever see fit to inform the disputed employees that their employment was anything short of indefinite,” id. at 22; and that the status of these employees “was never the subject of agreement or overt declaration,” id. These findings are unimpeachable.
I am not prepared to say that the Board erred in placing on the employer the burden of proving that it communicated its intent to the employees, especially in light of the employees’ testimony that they were not informed when hired that the company meant their employment to be temporary. And given that the employer had the burden of showing that it communicated its temporary-status intentions to the employees, I would conclude that the Board’s decision is supported by substantial evidence.