The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
No. 02-2302
FORSYTH ELECTRICAL COMPANY,
INCORPORATED,
Respondent.
On Application for Enforcement of an Order
of the National Labor Relations Board.
(11-CA-16631, 11-CA-1685)
Argued: June 3, 2003
Decided: June 30, 2003
Before WIDENER, NIEMEYER, and LUTTIG, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion. Judge
Niemeyer wrote a dissenting opinion.
COUNSEL
ARGUED: Melvin Hutson, MELVIN HUTSON, P.A., Greenville,
South Carolina, for Forsyth. Kira Dellinger Vol, NATIONAL
LABOR RELATIONS BOARD, Washington, D.C., for Board. ON
BRIEF: Arthur F. Rosenfeld, General Counsel, John E. Higgins, Jr.,
Deputy General Counsel, John H. Ferguson, Associate General Coun-
sel, Aileen A. Armstrong, Deputy Associate General Counsel, Charles
Donnelly, Supervisory Attorney, Siobhan M. Kelly, NATIONAL
LABOR RELATIONS BOARD, Washington, D.C., for Board.
2 NLRB v. FORSYTH ELECTRICAL COMPANY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
In this petition for enforcement, the National Labor Relations
Board ("NLRB") determined that Forsyth Electrical Company
("Forsyth") illegally refused to reinstate Douglas Hill, David Jones,
and John Kimball, three economic strikers, after their unconditional
offers to return to work. We conclude that the NLRB did not ade-
quately set forth its reasoning, and therefore vacate its decision and
order and remand the matter for further proceedings.
I.
Forsyth, a North Carolina corporation with an office located in
Winston-Salem, is an electrical contractor. In 1995, facing a shortage
of labor, with multiple jobs to complete, and with delays caused by
inclement weather, Forsyth sought to hire more electricians. At that
time, Gary Maurice, the Business Manager of Local Union 342 of the
International Brotherhood of Electrical Workers, AFL-CIO, began a
"salting"1 campaign directed at Forsyth. In early June, he encouraged
two unemployed union members, including Douglas Hill, to apply for
work at Forsyth. Forsyth hired these individuals, but, needing more
electricians, Forsyth continued to hire. In late June and early July,
Forsyth hired at least two more union workers, electricians David
Jones and John Kimball.
Allegedly due to poor working conditions arising out of the labor
shortage, Kimball and Jones told Forsyth on July 19 that they were
going on strike, and briefly picketed their jobsite. About a week later,
1
In the words of Maurice, "salting" is the "act of going to work for
non-Union employers for the purpose of organizing," coined from "the
phrase of salting of mines where [one] puts more valuable minerals in a
mine to raise its value." J.A. at 69.
NLRB v. FORSYTH ELECTRICAL COMPANY 3
Hill also told Forsyth that he was going on strike, although he never
picketed or engaged in any other open activity to indicate that he was
striking.
Jones, Hill, and Kimball made unconditional offers to return to
work on August 17, August 25, and November 10, respectively. For-
syth told Jones and Hill that there was no work available for them,
and did not respond to Kimball. Forsyth, in particular, never offered
to reinstate them.
Due to these and other incidents, the General Counsel issued a con-
solidated complaint against Forsyth, alleging violations of the
National Labor Relations Act, 29 U.S.C. § 151 et seq. ("NLRA").
Among the allegations were that Forsyth had unlawfully fired electri-
cian Douglas Summers for his labor activities, that Forsyth had
unlawfully failed to consider several potential employees because of
their union affiliation, and (directly relevant to the instant case) that
Forsyth had illegally failed to reinstate Jones, Kimball, and Hill fol-
lowing their unconditional offers to return to work. The Administra-
tive Law Judge ("ALJ") concluded that the union had engaged in a
"salting" campaign, including the initiation of an unprotected work
slowdown by the union workers, to try to force Forsyth to hire more
union electricians. Based on this conclusion, the ALJ rejected several
of the General Counsel’s charges of illegal activity, determining, for
instance, that Summers’ participation in the unprotected slowdown
justified his termination. The ALJ did conclude that Forsyth had vio-
lated the NLRA in several of its other actions, including in particular
its failure to reinstate the three alleged strikers.
The NLRB affirmed in part and reversed in part. The NLRB
rejected, without discussion, the ALJ’s finding that there was a labor
slowdown, but agreed with the ALJ that Forsyth unlawfully refused
to reinstate the three economic strikers. The NLRB ordered that the
three strikers be reinstated to their former jobs or to substantially
equivalent jobs, and be made whole for the discrimination they suf-
fered.
The NLRB now petitions this court for enforcement of its order,
pursuant to Section 10(e) of the NLRA, 29 U.S.C. § 160(e).
4 NLRB v. FORSYTH ELECTRICAL COMPANY
II.
An employee who refuses to work in protest of working conditions
is an economic striker and retains his status as an "employee" under
Section 2(3) of the NLRA. See NLRB v. Mackay Radio & Telegraph
Co., 304 U.S. 333, 345 (1938). A striking employee is entitled to rein-
statement to his former job upon making an unconditional offer to
return to work. See NLRB v. Fleetwood Trailer Co., 389 U.S. 375,
378 (1967). An employer’s failure to reinstate violates Sections
8(a)(1) and 8(a)(3) of the NLRA, unless it can show that its action had
"legitimate and substantial business justifications." Id. at 379. In this
case, there is no dispute that Forsyth failed to reinstate the three work-
ers upon their offer to return to work, and that Forsyth had not perma-
nently replaced them.
The NLRB must also adequately explain the basis of its decision,
and a failure to do so necessitates a vacatur of the NLRB’s decision
and order. See, e.g., International Union of Operating Engineers,
Local 147, AFL-CIO v. NLRB, 294 F.3d 186, 189, 191 (D.C. Cir.
2002); NLRB v. The Madison Courier, Inc., 472 F.2d 1307, 1323-24
(D.C. Cir. 1972). The NLRB’s order in the instant case must be
vacated and the matter remanded since the NLRB failed to adequately
explain the basis of its decision in at least three distinct ways.
First, the NLRB inexplicably failed to address some of Forsyth’s
most critical arguments. Forsyth argued that it did not have to rein-
state the three strikers since it no longer had openings for electricians.
A "bona fide absence of available work for the strikers in their pre-
strike or substantially equivalent positions" is a legitimate and sub-
stantial justification for failure to reinstate. See Zimmerman Plumbing
& Heating Co., 334 N.L.R.B. 586, 2001 NLRB LEXIS 498, at *11
(July 18, 2001); Randall, Burkart/Randall, 257 N.L.R.B. 1, 6-7
(1981). Not a single word can be found in the NLRB’s opinion
addressing this argument.
Forsyth also argued that the ALJ erred by concluding that the three
employees were strikers, rather than individuals who had simply quit
and merely claimed to be on strike. Forsyth pointed to several facts
in the record supporting its argument, in addition to an apparent
inconsistency between the ALJ’s treatment of employees Ray Single-
NLRB v. FORSYTH ELECTRICAL COMPANY 5
2
ton and Hill. As well, the NLRB’s opinion is silent as to this argu-
ment.
Second, the NLRB failed to explain why it seemingly interpreted
particular evidence cited and relied upon by the ALJ very differently
at different times. The ALJ had found that Forsyth refused to consider
several union-affiliated applicants due to Forsyth’s anti-union animus.
The only proof of antiunion animus, however, was that Forsyth had
rehired Jimmy Brewer, a nonunion, but admittedly poor employee.
The ALJ also used this fact (and only this fact) to discount Forsyth’s
explanation for why it refused to reinstate the three strikers (that they
were "lazy, unproductive, and ineffective workers," J.A. 1), conclud-
ing that the Brewer rehiring "undercut[] this asserted justification."
J.A. 23.
The NLRB overturned the ALJ’s findings as to the refusal-to-
consider claims, concluding:
[W]e are unwilling to draw an inference of antiunion animus
based solely on [Forsyth’s] decision to rehire Jimmy
Brewer. We note that [Forsyth] offered an explanation for
its willingness to give Brewer a second chance. Thus, [For-
syth] offered unrebutted testimony that Brewer did a good
job when he first worked for [Forsyth], before he started
drinking. Brewer was rehired only after he assured [Forsyth]
that he had straightened out. No evidence was offered to
rebut this explanation.
J.A. 1. Yet, in affirming the ALJ’s conclusion that Forsyth unlawfully
failed to reinstate the three strikers, the NLRB stated:
The judge found, and we agree, that [Forsyth] unlawfully
refused to grant preferential reinstatement rights to eco-
2
The ALJ had concluded that Singleton did no more than go "to work
for another company and called it a strike," J.A. 22, but did not so con-
clude for Hill, despite the fact that the only apparent difference between
the two was that Hill allegedly went on strike five days after Jones and
Kimball picketed their jobsite, while Singleton allegedly went on strike
about a week before Jones and Kimball picketed.
6 NLRB v. FORSYTH ELECTRICAL COMPANY
nomic strikers David Jones, John Kimball, and Douglas Hill
upon their unconditional offers to return to work. The judge
rejected [Forsyth’s] argument that it was justified in denying
reinstatement because these employees were lazy, unpro-
ductive, and ineffective workers. We agree with the judge.
Id. Hence, by rejecting the ALJ’s interpretation of the Brewer rehiring
in one instance, but accepting it in another, the NLRB’s reasoning —
at least without explanation, of which none was provided — appears
self-contradictory. Thus, the NLRB failed in this regard as well to
adequately explain its decision.
Third, the NLRB also rejected certain findings of the ALJ with
similarly inadequate explanation. The ALJ found that the "union busi-
ness manager orchestrated the activities of these employees including
the speed at which they worked to create a crescendo of pressure on
[Forsyth] with the crescendo reaching its peak from July 14 to 24,
1995. During this 10 day period Kimball, Jones, and Hill announced
they were going ‘on strike,’ and ceased work. In each case, the indi-
vidual discussed it with Maurice first." J.A. 13. The ALJ also found
that "the Union’s strategy included creating the need for [Forsyth] to
hire more workers, a need it might then satisfy by referring its mem-
bers once Benson decided to do as he was told and call Maurice. The
Union would create this demand by having the employees it had
already ‘salted’ into [Forsyth] work slowly and unproductively." Id.
The ALJ based these findings on a careful consideration of the record,
and presented compelling arguments for them. Notwithstanding this,
the NLRB rejected these findings, stating, without explanation, only
that it "did not find sufficient record evidence to support a finding that
there was a generalized work slowdown," J.A. 2, and that Forsyth
"ha[d] not shown that Jones, Kimball, and Hill participated" in any
slowdown. Id.
There is nothing improper about the NLRB rejecting findings made
and conclusions drawn by the ALJ. See Standard Dry Wall Products,
Inc., 91 N.L.R.B. 544, 545 (1950) ("Accordingly, in all cases which
come before us for decision we base our findings as to the facts upon
a de novo review of the entire record, and do not deem ourselves
bound by the Trial Examiner’s findings."). But, in the instant case, the
ALJ made an extensive review of the record, and justified its conclu-
NLRB v. FORSYTH ELECTRICAL COMPANY 7
sions and findings with a thorough analysis. If these conclusions and
findings are to be rejected, there must be a thorough explanation for
so doing. The Board may not, as it did, rely upon mere conclusory
assertions that the ALJ’s findings were without adequate support.
CONCLUSION
For the reasons stated, the NLRB’s decision and order is vacated
and the case is remanded for further proceedings not inconsistent with
this opinion.
VACATED AND REMANDED
NIEMEYER, Circuit Judge, dissenting:
Under the more careful review that we give to the Board’s findings
when they amount to a rejection of the ALJ’s findings of fact, I con-
clude that the Board’s findings in this case are not supported by sub-
stantial evidence, and therefore I would deny enforcement.