Casino Ready Mix, Inc. v. National Labor Relations Board

Notice: This opinion is subject to formal revision before publication in the

Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify

the Clerk of any formal errors in order that corrections may be made

before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 11, 2003 Decided March 14, 2003

No. 01-1471

CASINO READY MIX, INC.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

On Petition for Review and Cross-Application

for Enforcement of an Order of the

National Labor Relations Board

James T. Winkler argued the cause and filed the briefs for

petitioner.

Eric D. Duryea, Attorney, National Labor Relations

Board, argued the cause for respondent. With him on the

brief were Arthur F. Rosenfeld, General Counsel, John H.

Ferguson, Associate General Counsel, Aileen A. Armstrong,

Deputy Associate General Counsel, and Meredith L. Jason,

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

2

Supervisory Attorney. Deirdre C. Fitzpatrick, Attorney, en-

tered an appearance.

Before: EDWARDS and ROGERS, Circuit Judges, and

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge EDWARDS.

EDWARDS, Circuit Judge: Petitioner Casino Ready Mix, Inc.

(‘‘Casino’’) seeks review of the Decision and Order of the

National Labor Relations Board (‘‘NLRB’’ or ‘‘Board’’) in

Casino Ready Mix, Inc., 335 N.L.R.B. No. 39, 2001 WL

1039902 (Aug. 27, 2001). The Board found that Casino com-

mitted unfair labor practices (‘‘ULPs’’) in violation of

§§ 8(a)(3) and (1) of the National Labor Relations Act (‘‘the

Act’’), 29 U.S.C. §§ 158(a)(3) and (1), in discriminatorily refus-

ing to assign work to complainant Charles Phillips and in

discriminatorily refusing to hire complainants Bill Dooley and

Wayne King, because the complainants were union organizers

for Teamsters, Chauffeurs, Warehousemen and Helpers, Lo-

cal 631 (the ‘‘Union’’). The Board also found that Casino

committed an ULP when Gary Bale, petitioner’s owner and

president, told an employee that the company would never

allow the Union to represent its employees and that he would

either move Casino’s operation or replace the company’s

truckdrivers with owner-operators before dealing with the

Union. The Board held that Bale’s statement violated

§ 8(a)(1), and also demonstrated petitioner’s animus against

the Union, a factor relevant to the complaint’s § 8(a)(3)

allegations.

In its petition for review, Casino argues that the Board

erred in excluding evidence offered to support petitioner’s

affirmative defense that Phillips, Dooley, and King were

properly denied work because of their ‘‘disabling conflicts’’ as

Union organizers; that the Board erred in finding an ULP

and adverse inference in connection with Bale’s antiunion

statement, because the General Counsel’s complaint before

the Board never expressly alleged that Bale’s statement was

an unfair labor practice; and that the Board erred in finding

that the Administrative Law Judge (‘‘ALJ’’) had conducted a

3

complete and fair review of the entire record. We find no

merit in these claims.

There is substantial evidence in the record to support the

Board’s finding that Casino was determined not to assign

Phillips any work and decided not to hire King and Dooley

because these men were union organizers. The Board also

properly rejected Casino’s ‘‘disabling conflict’’ defense. Un-

der established law, ‘‘salting’’ may be found to be a disabling

conflict when a union organizer seeks work while engaged in

an economic strike against the employer; or when the em-

ployer demonstrates that the purported organizational activi-

ty is a subterfuge used to further purposes unrelated to

organizing, undertaken in bad faith, designed to result in

sabotage, or designed to drive the employer out of the area or

out of business. The Board found that the evidence proffered

by Casino did not purport to demonstrate any of these

affirmative defenses. The Board also properly rejected Casi-

no’s objections to the § 8(a)(1) ULP charge implicating Bale.

The Board found that, although the General Counsel’s com-

plaint did not specifically allege that Bale’s statement violated

the Act, Casino had clear notice of the charge, and, in

addition, petitioner did not object to the testimony implicating

Bale and did not pursue an opportunity for cross-examination

to contest it. Finally, there is no credible evidence support-

ing Casino’s claim that the Board denied it a complete and

fair review of the entire record. Accordingly, we deny the

petition for review, and grant the NLRB’s cross-application

for enforcement.

I. BACKGROUND

Casino prepares, sells, and distributes ready-mix concrete

and related products in Las Vegas, Nevada. On September

29, 1997, the Regional Director for Region 28 of the NLRB

issued a Complaint and Notice of Hearing alleging that

petitioner had violated §§ 8(a)(3) and (1) of the Act. See 29

U.S.C. §§ 158(a)(3) and (1) (providing that it is an unfair

labor practice for an employer to ‘‘encourage or discourage

membership in any labor organization’’ through ‘‘discrimina-

4

tion in regard to hire or tenure of employment or any term or

condition of employment,’’ or ‘‘to interfere with, restrain, or

coerce employees in the exercise of’’ their rights to self-

organization and collective bargaining). On September 18,

1998, an ALJ issued a decision finding that petitioner had

violated both provisions. On August 27, 2001, the Board

issued a Decision and Order holding that petitioner had

violated §§ 8(a)(3) and (1) of the Act; the Board’s findings

and conclusions, however, differed somewhat from those of

the ALJ.

The Board found, without dissent, that petitioner had dis-

criminatorily refused to hire both Dooley and King, and had

discriminatorily refused to assign work to Phillips. Dooley,

King, and Phillips all were union organizers. The Board’s

principal findings were that,

[w]hen Phillips applied for a driver position at

[Casino’s] office on March 28, he did not reveal that

he was a union organizer. He was hired on April 8.

Soon thereafter, [Casino] found out that he was an

organizer, and [petitioner] admitted at the hearing

that it did not assign work to him specifically be-

cause of that fact. Phillips did not receive work

assignments until on or about August 15, after unfair

labor practice charges had been filedTTTT

Alleged discriminatees Dooley and King applied

for driver positions on April 8, when [Casino] was

advertising to hire drivers. Both wore shirts identi-

fying themselves as organizers for the Union as well

as baseball caps with union logos. Each stated his

organizer status on his application; Dooley added on

his that he intended to organize [petitioner’s] em-

ployees. Although [Casino] accepted their applica-

tions, they were told that the Company was not

hiring at that time, and in fact they were not hired.

[Casino] hired four other drivers between April 8

and 21.

[Casino’s] newspaper advertisements required

that truckdriver applicants ‘‘must have CDL (a

5

chauffeur’s license) with clean record. Must know

pneumatics.’’ Dooley had 9 years experience in the

ready-mix concrete industry and a CDL with all

required endorsements. [Petitioner] admitted that

Dooley was qualified for the driver position being

advertised. King’s qualifications were comparable

to Dooley’s: 6 years experience in the ready-mix

industry and a CDL with all required endorsements.

[Casino] does not dispute, and we find, that King

was qualified for the advertised position as well.

Casino Ready Mix, 2001 WL 1039902, at *4. Based on these

findings (including Casino’s admission that Phillips did not

receive work assignments because he was a Union adherent),

the Board concluded that petitioner’s refusal to assign work

to Phillips was unlawfully discriminatory in violation of

§§ 8(a)(3) and (1) of the Act.

While the ALJ’s decision was pending before the Board on

exceptions, the Board issued FES (a Division of Thermo

Power), 331 N.L.R.B. 9 (2000). In that decision, the Board

clarified the legal elements of a discriminatory refusal-to-hire

violation. On June 13, 2000, the Board invited the parties in

this case to file briefs addressing the applicability of the FES

analytical framework to the refusal-to-hire issues raised by

the complaint in this case. Casino Ready Mix, 2001 WL

1039902, at *3.

In FES, the Board defined the elements of a refusal-to-hire

violation, as follows:

To establish a discriminatory refusal to hire, the

General Counsel must, under the allocation of bur-

dens set forth in Wright Line, 251 NLRB 1083

(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.

denied 455 U.S. 989 (1982), first show the following

at the hearing on the merits: (1) that the respondent

was hiring, or had concrete plans to hire, at the time

of the alleged unlawful conduct; (2) that the appli-

cants had experience or training relevant to the

announced or generally known requirements of the

positions for hire, or in the alternative, that the

6

employer has not adhered uniformly to such require-

ments, or that the requirements were themselves

pretextual or were applied as a pretext for discrimi-

nation; and (3) that antiunion animus contributed to

the decision not to hire the applicants. Once this is

established, the burden will shift to the respondent

to show that it would not have hired the applicants

even in the absence of their union activity or affilia-

tion.

FES, 331 N.L.R.B. at 12 (footnote references omitted). Ap-

plying the principles of FES to the record in this case, the

Board concluded that the General Counsel had established

the factors constituting a discriminatory refusal to hire viola-

tion with respect to Dooley and King. Because the Board

held that the FES factors had been established, the burden

shifted to petitioner to demonstrate that it would not have

hired either Dooley or King regardless of their status as

union organizers.

In attempting to prove that Dooley and King would not

otherwise have been hired, petitioner argued that it had

never received King’s application. The Board rejected this

contention. Like the ALJ, the Board credited the testimony

of Dooley and King that they had filled out their applications

at petitioner’s office and submitted them personally to peti-

tioner’s general manager, Doug Anderson. Thus, the NLRB

held that petitioner’s refusal to hire King violated §§ 8(a)(3)

and (1) of the Act. Casino Ready Mix, 2001 WL 1039902, at

*4.

As to Dooley, petitioner had asserted that he was not hired

because he lacked recent driver experience, his applications

contained inaccuracies, and his then-current job with the

Union paid more than he would earn as a driver for petition-

er. However, at the hearing before the ALJ, General Manag-

er Anderson testified that the first two proffered points were

not actually the reason that petitioner had not hired Dooley.

Anderson initially stated that the salary issue was the true

reason, but he later testified ‘‘that Dooley’s arrogance at the

time he submitted his application was also a significant reason

7

for denying him employment.’’ Id. at *5. Both the ALJ and

the Board found that Anderson’s testimony was not credible

because he put forward ‘‘shifting, pretextual rationales for not

hiring Dooley.’’ Id. The NLRB thus held that petitioner’s

refusal to hire Dooley also violated §§ 8(a)(3) and (1) of the

Act.

A majority of the Board (with then-Chairman Hurtgen

dissenting) also found that petitioner had violated the Act

through an antiunion threat made by its owner and president,

Gary Bale. In finding that Bale had made an antiunion

threat, the Board credited the testimony of Scott Newcomb, a

Casino employee. Newcomb testified that, in the late sum-

mer or early fall of 1997, Bale had stated that petitioner

‘‘would never allow the Union to represent its employees, that

instead he would either move the Respondent’s Las Vegas

operation or replace the truckdrivers with owner-operators.’’

Id. at *2. The Board found that this statement constituted a

threat in violation of § 8(a)(1) of the Act. Id. at *2-*3.

Casino now petitions for review of the NLRB’s order, and

the Board cross-applies for enforcement.

II. ANALYSIS

A. Disabling Conflict Defense

The most important issue in this case concerns the Board’s

rejection of petitioner’s ‘‘disabling conflict’’ defense. As noted

above, the Board found that the General Counsel had estab-

lished, consistent with the three elements set forth in FES,

that Casino discriminatorily refused to hire Dooley and King,

and that petitioner had not met its burden of demonstrating

that it would not have hired either of them regardless of their

protected status. Casino Ready Mix, 2001 WL 1039902, at

*3-*5. The Board also found that Phillips had been denied

work because he was a Union organizer. Casino admitted at

the hearing before the ALJ that, once the company found out

that Phillips was a Union organizer, company officials did not

assign work to him ‘‘specifically because of that fact.’’ Id. at

*4. The Board thus found, ‘‘based primarily on [Casino’s]

8

admission, that the refusal to assign work to Phillips was

discriminatory and violated Section 8(a)(3) and (1).’’ Id. The

Board also held that Casino’s ‘‘discrimination against Phillips

because of his union status lends support to a finding of

antiunion animus with respect to the complaint allegations

involving Dooley and King.’’ Id. The Board’s findings are

fully supported by substantial evidence in the record and,

therefore, command our deference. See Universal Camera

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

Petitioner nonetheless claims that the unfair labor practice

findings should be overturned, because Phillips, Dooley, and

King, as paid union organizers, had ‘‘disabling conflicts.’’

This claim is meritless.

In Sunland Construction Co., 309 N.L.R.B. 1224, 1228

(1992), the Board held that, ‘‘[u]pon reexamination of our

analysis of the scope of Section 2(3) in Oak Apparel [218

N.LR.B. 701 (1975)] and its progeny, we conclude that the

definition of ‘employee’ encompasses paid union organizers.’’

The Board went on to hold that:

While working for the employer, the paid organiz-

er is subject to its direction and control, and is

responsible for performing assigned work. The or-

ganizer’s activities, like those of any employee, may

be limited pursuant to lawful no-solicitation rules.

Republic Aviation Corp. v. NLRB, [324 U.S. 793,

802-03 n.10 (1945)]. Outside work time, however,

the organizer—like other workers—is free to solicit

for the union. Id. The fact that a paid organizer

may approach his nonwork time organizing activities

with greater vigor than an unpaid union adherent is

not an acceptable basis for denying the organizer

statutory protectionsTTTT

If the organizer violates valid work rules, or fails

to perform adequately, the organizer lawfully may

be subjected to the same nondiscriminatory disci-

pline as any other employee. See Wellington Mills

Div. v. NLRB, 330 F.2d 579 (4th Cir. 1964), cert.

denied 379 U.S. 882; Sears, Roebuck & Co., 170

9

NLRB 533 (1968). In the absence of objective

evidence, however, we will not infer a disabling

conflict or presume that, if hired, paid union organiz-

ers will engage in activities inimical to the employ-

er’s operations. Thus, we find no policy reason to

disregard present decisional law to find that since a

union organizer serves the union as well as the

company he is eliminated from the definition of

employee under Section 2(3) of the Act.

Id. at 1229-30.

The Board’s judgment in Sunland Construction accords

with the opinion issued by the Supreme Court three years

later in NLRB v. Town & Country Electric, Inc., 516 U.S. 85

(1995). In Town & Country, the Court held that a worker

may be an ‘‘employee,’’ within the terms of the NLRA, even

if, at the same time, a union pays that worker to help the

union organize the company. The Court’s discussion of this

point is illuminating:

[The employer] argues that, when the paid union

organizer serves the union—at least at certain times

in certain ways—he organizer is acting adversely to

the company. Indeed, it says, the organizer may

stand ready to desert the company upon request by

the union, in which case, the union, not the company,

would have ‘‘the right TTT to control the conduct of

the servant.’’ Thus, it concludes, the worker must

be the servant (i.e., the ‘‘employee’’) of the union

alone. See [RESTATEMENT (SECOND) OF AGENCY] § 1,

and Comment a, p. 8 (‘‘agent’’ is one who agrees to

act ‘‘subject to [a principal’s] control’’).

As Town & Country correctly notes, in the context

of reviewing lower courts’ interpretations of statuto-

ry terms, we have said on several occasions that

when Congress uses the term ‘‘employee’’ in a stat-

ute that does not define the term, courts interpret-

ing the statute ‘‘ ‘must infer, unless the statute oth-

erwise dictates, that Congress means to incorporate

the established meaning of th[at] ter[m]TTTT In the

10

past, when Congress has used the term ‘‘employee’’

without defining it, we have concluded that Congress

intended to describe the conventional master-servant

relationship as understood by common-law agency

doctrine.’ ’’ TTT At the same time, when reviewing

the Board’s interpretation of the term ‘‘employee’’ as

it is used in the Act, we have repeatedly said that

‘‘[s]ince the task of defining the term ‘employee’ is

one that ‘has been assigned primarily to the agency

created by Congress to administer the Act,’ TTT the

Board’s construction of that term is entitled to con-

siderable deferenceTTTT’’ In some cases, there may

be a question about whether the Board’s departure

from the common law of agency with respect to

particular questions and in a particular statutory

context, renders its interpretation unreasonableTTTT

But no such question is presented here since the

Board’s interpretation of the term ‘‘employee’’ is

consistent with the common law.

Town & Country’s common-law argument fails,

quite simply, because, in our view, the Board cor-

rectly found that it lacks sufficient support in com-

mon law. The Restatement’s hornbook rule (to which

the quoted commentary is appended) says that a

‘‘person may be the servant of two masters TTT

at one time as to one act, if the service to one

does not involve abandonment of the service to

the other.’’ Restatement (Second) of Agency

§ 226, at 498 (emphasis added).

The Board, in quoting this rule, concluded that

service to the union for pay does not ‘‘involve aban-

donment of TTT service’’ to the company. 309

N.L.R.B., at 1254.

And, that conclusion seems correct. Common

sense suggests that as a worker goes about his or

her ordinary tasks during a working day, say, wir-

ing sockets or laying cable, he or she is subject to

the control of the company employer, whether or not

11

the union also pays the worker. The company, the

worker, the union, all would expect that to be so.

And, that being so, that union and company interests

or control might sometimes differ should make no

difference. As Prof. Seavey pointed out many years

ago, ‘‘[o]ne can be a servant of one person for some

acts and the servant of another person for other

acts, even when done at the same time,’’ for exam-

ple, where ‘‘a city detective, in search of clues, finds

employment as a waiter and, while serving the

meals, searches the customer’s pockets.’’ W. Seav-

ey, Handbook of the Law of Agency § 85, p. 146

(1964). The detective is the servant both ‘‘of the

restaurateur’’ (as to the table waiting) and ‘‘of the

city’’ (as to the pocket searching). Ibid. How does

it differ from Prof. Seavey’s example for the compa-

ny to pay the worker for electrical work, and the

union to pay him for organizing? Moreover, union

organizers may limit their organizing to nonwork

hoursTTTT If so, union organizing, when done for

pay but during nonwork hours, would seem equiva-

lent to simple moonlighting, a practice wholly consis-

tent with a company’s control over its workers as to

their assigned duties.

Id. at 93-95. Although Sunland Construction was decided

before Town & Country, it is perfectly consistent with the

Court’s views. And the Board has followed this line of

analysis in its subsequent decisions. See, e.g., Braun Elec.

Co., 324 N.L.R.B. 1 (1997); M.J. Mech. Servs., 324 N.L.R.B.

812 (1997).

Under Braun Electric, M.J. Mechanical Services, and Sun-

land Construction, it is clear that individuals seeking jobs

from an employer pursuant to a union’s ‘‘salting’’ program are

statutory employees entitled to protections under the Act.

Braun Elec., 324 N.L.R.B. at 3; M.J. Mech. Servs., 324

N.L.R.B. at 816. The fact that individuals are being subsi-

dized by a union or are on the job to organize does not

deprive them of the Act’s protections. Braun Elec., 324

N.L.R.B. at 3; Sunland Constr. Co., 309 N.L.R.B. at 1225-26.

12

Moreover, even when a salting campaign is intended in part

to provoke an employer to commit unfair labor practices,

union organizers retain their status as employees. M.J.

Mech. Servs., 324 N.L.R.B. at 813-14; see also Godsell Con-

tracting, 320 N.L.R.B. 871, 874 (1996).

‘‘This is not to say that the law treats paid union organizers

like other company employees in every labor law context.’’

Town & Country, 516 U.S. at 97. Thus, for example, in

Sunland Construction the Board held that an ‘‘employer

should not be required during a strike to hire a paid organiz-

er whose role is inherently and unmistakably inconsistent

with employment behind a picket line.’’ Sunland Constr. Co.,

309 N.L.R.B. at 1230 (internal quotations omitted). The

Board reasoned that

an employer faced with a strike can take steps

aimed at protecting itself from economic injury.

For example, an employer can permanently replace

the strikers, it can lock out the unit employees and it

can hire temporary replacement for the locked-out

employees. Consistent with these principles, we

believe that the employer can refuse to hire, during

the dispute, an agent of the striking union.

Id. at 1231. Moreover, in M.J. Mechanical Services and

Braun Electric, the Board indicated that ‘‘salting’’ also may

be found to be unprotected if the purported organizational

activity is a subterfuge used to further purposes unrelated to

organizing, undertaken in bad faith, designed to result in

sabotage, or designed to drive the employer out of the area or

out of business. Braun Elec., 324 N.L.R.B. at 3 n.3; M.J.

Mech. Servs., 324 N.L.R.B. at 813-14.

In the instant case, petitioner claims that the ALJ improp-

erly denied it an opportunity to offer evidence to demonstrate

that the Union salts sought to engage in unprotected activity

and, thus, were properly denied work because of their disabl-

ing conflicts. The Board found no merit in this claim. Given

the somewhat imprecise boundaries of activities that consti-

tute unprotected disabling conduct, an ALJ normally would

be expected to allow evidence in permitting an employer to

13

make an argument on disabling conflict based on slightly

different facts than have been previously recognized as mak-

ing out the legal defense. Still, we have little difficulty in

agreeing with the Board that petitioner’s proffer here does

not raise a serious issue.

The Board noted that

[Casino] sought to establish that (1) Phillips filed

applications with several employers at the same time

in April 1997 and that in October 1997, while em-

ployed by the [petitioner], he engaged in a short

economic strike and a subsequent unfair labor prac-

tice strike; (2) that after being denied employment,

Dooley attempted to convince an employee of the

Respondent to go to work for a union contractor;

and (3) that 30 applicants appeared outside the

Respondent’s office when King and Dooley applied

for work.

Casino Ready Mix, 2001 WL 1039902 at *4 n.7. The Board,

citing Town & Country, M.J. Mechanical Services, and

Braun Electric, held that Casino’s proffer was properly re-

jected by the ALJ, because the evidence offered would not

have demonstrated disabling conflicts. Id. The Board plain-

ly did not err in this conclusion. The Board’s judgment rests

on the agency’s reasonable interpretation of ‘‘employee.’’

And as the Court in Town & Country noted, ‘‘the Board’s

construction of [‘employee’] is entitled to considerable defer-

ence.’’ 516 U.S. at 94 (internal quotations omitted).

Before this court, Casino argues that the Board should be

reversed, because its holding in this case impermissibly ex-

tends established precedent. To support this claim, petition-

er notes that, at the hearing before the ALJ, the Board’s

General Counsel argued that the employer’s offer of evidence

should be rejected, in part, because a union’s ‘‘campaigning or

organizational tactics as they relate to other employers’’ are

‘‘completely irrelevant.’’ Counsel for the Acting General

Counsel’s Motion in Limine at 2, App. 22. The ALJ, appear-

ing to agree with the General Counsel, rejected petitioner’s

evidentiary proffer, because, in his view,

14

the current state of the law is merely that a ‘‘salter’’

will lose his ‘‘protected’’ status during the time that

he is engaged in ‘‘bad faith’’ activity. Nothing more.

I see no warrant for me to go further and find that a

‘‘salter’’ who may have engaged in ‘‘bad faith’’ activi-

ty in some other situation at some other place with

some other employer in the past has lost his protect-

ed status for all time, much less in the specific case I

am hearing.

Order Denying Motion in Limine at 5, App. 55.

The ALJ’s holding does not correspond with prevailing law,

so it is unsurprising that the Board did not endorse either the

General Counsel’s or the ALJ’s view of the law regarding the

standards governing ‘‘salting’’ activity and the evidence neces-

sary for an employer to establish a disabling conflict. The

Board did not hold that evidence regarding a union’s cam-

paigning tactics is irrelevant, nor did the Board hold that

evidence that a ‘‘salter’’ who may have engaged in ‘‘bad faith’’

activity in some other situation at some other place with some

other employer in the past is always immaterial. Rather, the

Board merely found ‘‘no merit in [Casino’s] contention that

the [ALJ] improperly limited its ability to prove that [the

union organizers] were not protected by the Act.’’ Casino

Ready Mix, 2001 WL 1039902, at *4 n.7 (citing Town &

Country, 516 U.S. 85; M.J. Mech. Servs., 324 N.L.R.B. at

813-14; Braun Elec., 324 N.L.R.B. at 3). As noted above,

neither Town & Country, M.J. Mechanical Services, nor

Braun Electric endorses the contested views of the General

Counsel or the ALJ, so the Board apparently knew what it

was doing in citing those authorities, and not the ALJ. The

Board obviously meant only to apply the principles enunciat-

ed in those cases to uphold the ALJ’s evidentiary exclusion.

On the merits, we can find no fault with the Board’s

judgment. The evidence that the employer proffered did not

purport to show a Sunland Construction economic strike

situation, or any other potentially disabling conflict, such as

subterfuge, bad faith, sabotage, or an attempt to drive the

employer out of the area or out of business. Thus, even if the

15

evidence were admitted, it would not have been sufficient to

establish a disabling conflict. See Casino Ready Mix, 2001

WL 1039902, at *4 n.7.

B. Bale’s Antiunion Threat

Casino next objects to the Board’s finding that Bale’s

antiunion threat was an ULP. Petitioner argues that, be-

cause the complaint did not allege that Bale’s statement

violated the Act, and because the General Counsel did not

move to amend the complaint to include such an allegation,

petitioner was deprived of a full and fair hearing on the issue.

We disagree. On the record at hand, the Board findings that

Bale’s statement violated § 8(a)(1) and also demonstrated

petitioner’s animus against the Union, a factor relevant to the

complaint’s § 8(a)(3) allegations, were fully justified.

The Board’s Rules and Regulations require that the com-

plaint include ‘‘[a] clear and concise description of the acts

which are claimed to constitute unfair labor practices,’’ 29

C.F.R. § 102.15(b). Although Bale’s statement was not spe-

cifically alleged in the General Counsel’s complaint, ‘‘[i]t is

well settled that the Board may find and remedy a violation

even in the absence of a specified allegation in the complaint

if the issue is closely connected to the subject matter of the

complaint and has been fully litigated.’’ Pergament United

Sales, 296 N.L.R.B. 333, 334 (1989), enf’d, 920 F.2d 130 (2d

Cir. 1990); see also Tasty Baking Co. v. NLRB, 254 F.3d 114,

122 (D.C. Cir. 2001). Consistent with this established legal

standard, the Board properly held that a close connection

existed between Bale’s statement and the subject matter of

the complaint, and that petitioner had an opportunity to

litigate the issue fully. Casino Ready Mix, 2001 WL

1039902, at *2-*3.

The close connection between Bale’s statement and the

subject matter of the complaint is demonstrated in three

ways. First, the complaint alleged that supervisor Larry

Hildebrand threatened that Casino ‘‘would close down its

Nevada operation to avoid unionization.’’ Id. at *1. Thus,

Casino knew that it was being charged with a § 8(a)(1)

violation for the same kind of threats that Newcomb’s testi-

16

mony suggested that Bale had made. Second, the complaint

alleged that ‘‘Bale was the president of the Company, a

statutory supervisor, and an agent acting on [petitioner’s]

behalf.’’ Id. at *2. This put petitioner on notice that it could

be held accountable for Bale’s actions. Finally, Bale’s threats

were obviously relevant to the complaint’s allegations that

petitioner discriminated against Union members in its em-

ployment policies, as the threats ‘‘clearly demonstrated union

animus.’’ Id. These circumstances clearly support the

Board’s finding that a close connection existed between Bale’s

threats and the subject matter of the complaint.

Petitioner also had the opportunity to litigate the issue

fully. Petitioner did not object to Newcomb’s testimony, and

had an opportunity to cross-examine Newcomb about Bale’s

statement. This furnished ample opportunity to litigate the

issue. See Williams Pipeline Co., 315 N.L.R.B. 630, 630

(1994) (‘‘At the hearing, there was no objection to [the

accusing witness’s] testimony, and the Respondent had an

opportunity to cross-examine the witness and further explore

the issue. Accordingly, we find that the issue was fairly and

fully litigated.’’). It may be that, in not questioning New-

comb, Casino’s counsel made a calculated decision not to

pursue the matter during the hearing, either because counsel

knew that what Newcomb alleged was in fact true or because

counsel hoped to discredit Newcomb’s testimony by reference

to other evidence in the record. In any event, it is clear that

Casino purposely allowed Newcomb’s testimony to stand un-

challenged, without either objection or cross-examination.

When such a decision backfires, a party cannot be heard on

appeal to claim that it was denied a ‘‘fair hearing.’’ The claim

rings hollow.

Finally, petitioner’s contention that the Board did not

adhere to its precedent in Germinsky Electrical Co., 331

N.L.R.B. 1365 (2000), is without merit, because that case

dealt with an entirely different issue. Petitioner argues that,

in dismissing allegations of discriminatory refusal-to-hire un-

ion applicants, the ALJ in Germinsky refused to consider a

letter written by the company president as evidence of anti-

union animus, because it was not alleged to violate § 8(a)(1).

17

Id. at 1366. A three-member panel of the Board unanimously

upheld the ALJ’s dismissal of the complaint against the

employer, and only one of the three members – then-

Chairman Truesdale – chose to disavow the ALJ’s refusal to

consider the letter. Id. at 1365 n.1. Thus, petitioner states

that ‘‘[i]t is logical to infer that the majority of the Board

approved of the judge’s refusal to consider such evidence to

prove antiunion animus.’’ Br. of Petitioner at 34. The Board

saw no need to explain or otherwise address Germinsky in its

opinion in this case. This is hardly surprising, for even a

cursory examination of Germinsky reveals that it does not

support petitioner’s attempted use of the case.

In Germinsky, the company president met with union

representatives, and claimed ‘‘that they told him that the

[union] was going to step up its union activity and that if

Germinsky did not sign a contract, they were going to put his

company out of business.’’ Germinsky, 331 N.L.R.B. at 1366.

Thereafter, the president sent out a letter to his employees

‘‘which asserted that the [union] was trying to coerce the

Company into signing a contract and that it was out to

destroy the Company if necessary.’’ Id. The ALJ stated

that, given the context in which it was sent, the letter did not

demonstrate union animus. Id. A majority of the Board

accepted this conclusion. Thus, the circumstances in Ger-

minksy – focusing on the appropriate use of the employer’s

protected speech to provide evidence of antiunion animus –

are far different from the circumstances here. This case

involves an employer’s statement that clearly reflects an

antiunion threat and plainly bears a close connection to the

subject matter of the complaint. Thus, Germinsky provides

absolutely no support for petitioner’s position.

C. The ALJ’s Review of the Record

Last, and certainly least, petitioner contends that the

Board erred in holding that the ALJ had made an indepen-

dent analysis of the factual and legal arguments in this case.

We find no merit in this contention. Indeed, the record in

this case makes it perfectly clear that the Board itself re-

viewed the record with care and reached well-informed judg-

18

ments with respect to all of the challenged ULPs. The Board

also properly discounted any missteps by the ALJ. On the

record at hand, there is no serious doubt that the Board’s

findings, which are before the court on review, are supported

by substantial evidence and are fully consistent with control-

ling law.

Petitioner’s attempts to show otherwise are frail. For

example, petitioner points out that the ALJ’s reliance on the

testimony of employee Paul Swisher to find that Supervisor

Hildebrand had made antiunion threats made no sense. The

ALJ had declared to counsel for both sides that Swisher was

simply not a credible witness; yet, the ALJ relied solely on

Swisher’s testimony to find that Hildenbrand’s statements

violated § 8(a)(1). However, the Board found ‘‘that Swisher’s

testimony remains discredited, and thus the evidence regard-

ing statements made by Hildebrand is no longer competent to

support the alleged violations of Section 8(a)(1).’’ Casino

Ready Mix, 2001 WL 1039902, at *2. The Board thus

dismissed those allegations.

Petitioner also points out that the ALJ’s decision incorpo-

rated substantial portions of the General Counsel’s brief,

suggesting that the ALJ’s impartiality was subject to ques-

tion. The Board specifically addressed this matter:

We observe that the judge’s decision incorporates

substantial portions of the Charging Party’s post-

hearing brief. While this practice may raise ques-

tions about the independence of a judge’s analysis, it

is not inherently prejudicial or otherwise reversible

error. Based on a careful review of the record, we

are satisfied that the judge provided an independent

analysis of the factual issues and legal arguments in

this case. Accordingly, we find that disregard of his

findings is not warranted. See Waterbury Hotel

Management LLC, 333 NLRB No. 60, slip op. 1

(2001), and cases cited there.

Casino Ready Mix, 2001 WL 1039902, at *1 n.2. The Board’s

holding on this issue is supported in the record and perfectly

reasonable.

19

Petitioner nonetheless argues that the Board’s decision not

to disregard the ALJ’s findings was a departure from Water-

bury Hotel, 2001 N.L.R.B. LEXIS 136 (Mar. 9, 2001). Peti-

tioner notes that the Board in Waterbury Hotel stated that

‘‘[i]t is the special function of the administrative law judge to

prepare for the Board an independent and careful analysis of

the factual issues and legal arguments in the case over which

the judge presides.’’ Id. at *4. The ALJ in Waterbury Hotel

had, like the ALJ here, extensively relied on the General

Counsel’s brief in making his factual findings. In determin-

ing that the ALJ had performed the independent and careful

review expected of him, the Board specifically pointed to a

portion of the judge’s decision that ‘‘manifest[ed] full consid-

eration of the record, witness credibility, and the posthearing

briefs filed by both the General Counsel and the Respon-

dent.’’ Id. at *6. Moreover, the NLRB noted that the

employer had ‘‘cite[d] no specific basis, apart from the chal-

lenged decisional practice, to disbelieve the judge’s declara-

tion of a full and independent review.’’ Id. Petitioner here

argues that the NLRB departed from the teachings of Water-

bury Hotel in this case, because the Board did not specifically

point to any portion of the ALJ’s decision to support its

assertion that the ALJ had ‘‘provided an independent analysis

of the factual issues and legal arguments,’’ and because the

employer had provided specific reasons to disbelieve the

ALJ’s declaration of a full and independent review.

Petitioner’s argument lacks merit. The major problem

with petitioner’s argument is that it reads far too much into

Waterbury Hotel. The holding in that case did not set forth a

‘‘mandated’’ process of analysis, nor did it claim that the

factors relied upon there were necessary to establish the

independence of the ALJ’s analysis. Instead, the Board

resolves such questions on a case-by-case basis. Waterbury

Hotel merely supplied an analysis of why, in that particular

case, the Board determined that the ALJ had conducted a

sufficient review of the record.

In the present case, we find that the Board dealt fairly with

petitioner’s challenges to the ALJ’s review of the facts. The

Board adopted the ALJ’s findings only to the extent that they

20

were consistent with the Board’s Decision and Order. The

Decision and Order reflects the Board’s own independent

review of the record, which the Board affirmatively states

that it conducted. Casino Ready Mix, 2001 WL 1039902, at

*1 n.2. The Board’s correction of the ALJ’s mistake with

respect to Swisher’s testimony supports the Board’s claim

that it conducted an independent review. Moreover, the

Board’s opinion carefully discusses the disputed ULPs and

the factual predicates for each. Id. at *3-*5. In short, we

can find no merit in petitioner’s argument.

III. CONCLUSION

For the foregoing reasons, we deny the petition for review

and grant the NLRB’s cross-application for enforcement.