Prog Elec Inc v. NLRB

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 17, 2006 Decided July 14, 2006

No. 05-1127

PROGRESSIVE ELECTRIC, INC.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD ,

RESPONDENT

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

LOCAL 265,

INTERVENOR

Consolidated with

05-1157

On Petition for Review

and Cross-Application for Enforcement

of an Order of the National Labor Relations Board

William A. Harding argued the cause and filed the briefs for

petitioner.

2

Kira Dellinger Vol, Attorney, National Labor Relations

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

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

Ferguson, Assistant General Counsel, Aileen A. Armstrong,

Deputy Associate General Counsel, and Fred B. Jacob,

Attorney.

Michael J. Stapp was on the brief for intervenor.

Before: SENTELLE , BROWN and GRIFFITH , Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN .

BROWN , Circuit Judge: Progressive Electric, Inc. (“Progres-

sive”) petitions for review of the National Labor Relations Board

(“the Board”) decision and order finding that Progressive

violated Sections 8(a)(1) and 8(a)(3) of the National Labor

Relations Act (“the Act”), 29 U.S.C. § 158(a)(1), (3). The Board

concluded that Progressive committed unfair labor practices by

(1) threatening employees with job loss and facility closure on

account of union activities and (2) failing to consider and hire a

group of union members. Finding substantial evidence, we deny

the petition for review and grant the Board’s cross-application

for enforcement.

I

Progressive, located in Lincoln, Nebraska, is a non-union

electrical contractor in the construction business. Over a decade

ago, the International Brotherhood of Electrical Workers, Local

265 (“the Union”) targeted Progressive for organizational

purposes. Progressive did not go quietly.

3

A

In February 1996, Progressive advertised in the local paper

that it was “accepting applications” for “electrician/technician,”

and directed interested parties to Progressive’s physical address.

At the behest of the Union, David Cousins responded to the ad

in order to organize Progressive. During the application process

Cousins did not reveal his Union affiliation. He was hired and

began work in early March. Around the same time, Charles

Randall, a member of an out-of-town union, also responded to

the ad and was hired. His past union affiliation was apparent on

his resume and he initiated a discussion of it at his job interview

with Randy Neeman, Progressive’s president. Randall started

work on February 20 and, in early March, he agreed to help the

Union in its organizational efforts. On March 27, Cousins

sought an application for a friend but was informed that there

were no longer open positions and that Progressive was not

accepting applications.

On March 29, pursuant to a decision by the Union’s

executive board, eight union journeymen electricians (“the

Union Applicants”) went as a group to Progressive’s office to

apply for jobs.1 They were “equipped with a video camera and

tape recorder” and were wearing clothing identifying their union

affiliation. Gathered outside the office, the Union Applicants,

talking among themselves, made statements such as “We should

go in there before they have a chance to react”; “That son-of-a-

bitch [Neeman]”; “‘He’s calling his attorney.’ ‘That’s all right.

That will cost him.’”; and “‘Do you know if he’s hiring or taking

applications?’ ‘No, but I got three salts. We have three salts in

here.’”

1

The Union Applicants were seven members of the Union and

one member of an affiliated union.

4

When the Union Applicants entered Progressive’s office and

stated their desire to apply for employment, Neeman told them:

You guys, we are not hiring. We are not taking no [sic]

applications. We advertised three [or] four weeks ago. We

hired a couple of people and filled the spots. So I would

love to put you all on and as soon as I get an opening I will

give you guys a call.

The Union Applicants provided Neeman with a letter stating

they wished to be considered for employment and listing their

names and contact information. As soon as the Union Appli-

cants left, Neeman threw away the information. Neeman later

admitted that he never intended to call the Union Applicants, but

only made that statement to get them to leave. On April 2,

Progressive posted the following notice in its window: “Appli-

cations, as well as Names are not being accepted at this time.

Video Cameras and recording devices are prohibited. Sales

Reps. by appointment only.”

On April 8, Don Hildreth, a Progressive foreman, told

Cousins and one other employee that Neeman had called Randall

the “bad apple in the barrel, and [Neeman] didn’t want any union

crap around here.” Hildreth continued: “[I]f the Unions got into

Progressive, . . . Progressive would lose [certain] contracts, and

[Progressive] would go out of business . . . because [Progressive]

couldn’t afford the Union wages and benefits.” On April 26,

Randall walked off of a job site and announced that he was on

strike because he was not being paid union wages.

On May 1, Neeman held a company meeting. Just before it

began, Neeman informed Randall that when Randall had walked

off the job five days earlier it was not a “strike” but instead a

“voluntary quit.” Randall, now out of a job, was directed to

5

leave. Shortly thereafter, Neeman addressed the remaining

employees, commented on Randall’s “recruiting” efforts, and

stated that Randall was trying “to cost all you guys your jobs . . .

and that’s why we have to put a stop to it.” Later, Neeman

spoke to the assembled employees:

Alright . . . I’ve been quiet up ’til now, which is strange for

me I know and because I had to get a lot of legal advi[c]e

before I could open my mouth. But now that we know what

we’re talking about[,] we’re gonna talk about this dirty

word . . . UNION . . . okay! Let’s talk about unions. Are

we for it, Bill and I? NO! Are you guys for it[?] I don’t

want to know. . . . I can’t ask ya, but I can give ya my

opinion on it.

Neeman’s presentation was punctuated by phrases such as “Mr.

Asshole Union Rep.” (describing a hypothetical union member)

and “bunch of dummies” (describing union members in general).

At some point in the presentation Neeman wrote the word

“union” on the board, drew a circle around it, and put a slash

through it. Perhaps in an effort to soften the edges, Neeman also

made statements to convey ambivalence toward union activities,

such as: “[Randall] didn’t lose his job, for the record, because of

some organization[.] . . . Far as I know, half you guys are with

some organization and I don’t care.”

Progressive subsequently filled a number of positions, using

various means. On May 27, 1996, Steve Baumli became a

Progressive employee doing ladder rack work; he had been

performing work for Progressive on a temporary basis (via a

temp agency) for a couple of months. No job vacancy was

advertised for this position. On May 31 and June 13, Progres-

sive placed ads indicating that positions were available for

ladder rack installers. As a result of these ads, Progressive hired

6

three ladder rack installers in the month of June. Each of the ads

provided a specific mailing address (a P.O. Box) for job-seekers

to submit their information and indicated applications would be

accepted for a set number of days. These “blind” advertise-

ments, unlike ones Progressive previously used, did not provide

any identifying information (such as Progressive’s name,

physical address, or phone number). In January and March of

1997, Progressive placed three ads for apprentice electricians

each of which provided job seekers with Progressive’s physical

address. As a result, Progressive hired two individuals on

January 27, 1997, and one more on March 10, 1997.

At no point from March 1996 to March 1997 was any Union

Applicant contacted or offered employment, even though the

Union Applicants were qualified for all seven positions de-

scribed above.2 From April to July of 1996, Jim Pelley (the

Union Business Manager, who was one of the Union Applicants)

sent three letters on Union letterhead via fax to Progressive in

order to follow up on the events of March 29, 1996; the letters

expressed the Union Applicants’ continuing interest in employ-

ment and included the same sheet of contact information as the

Union Applicants has previously submitted. Union records

show that Progressive received each fax. Pelley also sent these

letters via both certified and first class mail, but they were

refused and returned. Two of Pelley’s letters requested that

Neeman “please inform [the Union Applicants] of any efforts

[they] must undertake in order to be fully considered for employ-

ment.” A final letter was sent on March 27, 1997. Progressive’s

only response, on April 4, 1997, rejected the “renewed” request

2

On April 28, 1996, Progressive placed a blind ad for an

HVAC/Energy management system installer, a position requiring

higher qualifications than any of the Union Applicants possessed.

Jerry Hiestand filled that position on May 17, 1996.

7

for consideration. The letter stated that Progressive had not

accepted any applications from the Union Applicants, either on

or after March 29, 1996. Neeman noted in the letter that “it is

not [his] policy to seek out individuals who have indicated a

desire to make application in the past whenever an opening

comes up in the future.”

B

On August 9, 1996, the Union filed an unfair labor practice

charge with the Board and amended it on September 18. On

September 30, the Board’s General Counsel issued a complaint

alleging various violations of Sections 8(a)(1) and 8(a)(3) of the

Act. The complaint was amended on May 13, 1997, and the

case was tried before an administrative law judge (“ALJ”) from

June 30 to July 3, 1997. On November 18, 1997, the ALJ found,

in relevant part, that Progressive committed unfair labor

practices by threatening employees with plant closure (on April

8, 1996) and job loss (on May 1, 1996) and by refusing to

consider and hire the Union Applicants. On August 23, 2000, at

the Board’s direction, the ALJ issued a supplemental decision in

light of FES (A Division of Thermo Power) (“FES”), 331

N.L.R.B. 9 (2000). Over four and a half years later, the Board

largely upheld the ALJ’s decision, albeit with some modifica-

tion. Progressive Elec., Inc., 344 N.L.R.B. No. 52, 2005 WL

762117 (Mar. 31, 2005). The Board, agreeing with the ALJ,

found that Progressive violated Section 8(a)(1) by “threatening

the loss of employment if employees engaged in union activities

and by threatening to close its facility,” and violated Sections

8(a)(3) and 8(a)(1) by “refusing to consider [the Union Appli-

cants] for employment, and by failing and refusing to hire them,

8

because of their union affiliation.” Id. at *1.3 The Board ordered

various remedies, including a refusal-to-hire remedy for seven

of the eight Union Applicants and a refusal-to-consider remedy

for the eighth. Id. at *3-4. Progressive petitions for review, the

Board files a cross-application for enforcement, and the Union

intervenes.

II

Our role here is a limited one, as the Board’s factual

findings are “conclusive” if “supported by substantial evidence

on the record considered as a whole.” 29 U.S.C. § 160(e)-(f).

In making that determination, “we ask only whether on this

record it would have been possible for a reasonable jury to reach

the Board’s conclusion[s], giving substantial deference to the

inferences drawn by the [Board] from the facts.” Ceridian Corp.

v. NLRB, 435 F.3d 352, 357 (D.C. Cir. 2006) (internal quotation

marks and citation omitted); see Allentown Mack Sales & Serv.,

Inc. v. NLRB, 522 U.S. 359, 366-67 (1998). So long as the

Board’s findings are reasonable, we will not substitute our own

judgment even if we would have come to a different conclusion

in the first instance. Laro Maint. Corp. v. NLRB, 56 F.3d 224,

229 (D.C. Cir. 1995).

III

We turn first to Progressive’s threats. According to

Progressive, substantial evidence is lacking for the Board’s

conclusion that Progressive violated Section 8(a)(1) of the Act

by threatening employees with loss of employment and plant

3

The Board, however, rejected the ALJ’s decision insofar as it

found several additional unfair labor practices.

9

closure on account of protected activity. We take a different

view.

Under Section 8(a)(1), it is an unfair labor practice “to

interfere with, restrain, or coerce employees in the exercise of

the rights guaranteed” in Section 7, to wit: “the right to self-

organization, to form, join, or assist labor organizations, to

bargain collectively through representatives of their own

choosing, and to engage in other concerted activities for the

purpose of collective bargaining or other mutual aid or protec-

tion.” 29 U.S.C. §§ 157, 158(a)(1). An employer’s statement

violates Section 8(a)(1) if, “considering the totality of the

circumstances, the statement has a reasonable tendency to coerce

or to interfere with those rights.” Tasty Baking Co. v. NLRB,

254 F.3d 114, 124 (D.C. Cir. 2001); cf. TIC–The Indus. Co. Se.

v. NLRB (“TIC”), 126 F.3d 334, 339 (D.C. Cir. 1997) (holding

that a “single, isolated comment” by a supervisor indicating the

employer’s preference for non-union hiring “d[oes] not consti-

tute substantial evidence of restraint, coercion, or interference

with employees exercising protected rights under section

8(a)(1)”).

While “an employer is free to communicate to his employ-

ees any of his general views about unionism or any of his

specific views about a particular union,” such communications

must not “contain a ‘threat of reprisal or force or promise of

benefit.’” NLRB v. Gissel Packing Co., 395 U.S. 575, 618

(1969) (quoting 29 U.S.C. § 158(c)); see Federated Logistics &

Operations v. NLRB, 400 F.3d 920, 924 (D.C. Cir. 2005). As

relevant to the present case, Section 8(a)(1) prohibits coercive

statements that threaten employees with job loss or plant closure

in retaliation for protected union activities. See Tasty Baking,

254 F.3d at 124; Teamsters Local Union No. 171 v. NLRB, 863

F.2d 946, 952-53 (D.C. Cir. 1988); Tom Rice Buick, Pontiac &

10

GMC Truck, Inc., 334 N.L.R.B. 785, 792 (2001). We “must

recognize the Board’s competence in the first instance to judge

the impact of utterances made in the context of the employer-

employee relationship.” Gissel Packing, 395 U.S. at 620; see

Ark Las Vegas Rest. Corp. v. NLRB, 334 F.3d 99, 106 (D.C. Cir.

2003); Timsco, Inc. v. NLRB, 819 F.2d 1173, 1178 (D.C. Cir.

1987) (“[T]he line between prediction and threat is a thin one,

and in the field of labor relations that line is to be determined by

context and the expertise of the Board.”).

A

Progressive first challenges the Board’s finding that, at the

company meeting on May 1, 1996, Neeman unlawfully coerced

employees by threatening their jobs, in violation of Section

8(a)(1). As previously described, shortly after informing Randall

he no longer had a job at Progressive, Neeman told the remain-

ing employees assembled for the meeting that Randall’s actions

were going to “cost all you guys your jobs . . . and that’s why we

have to put a stop to it.” Neeman went on to offer his thoughts

about that “dirty word . . . UNION,” sprinkling in various

colorful epithets; his hostility was palpable throughout the

meeting.

We are persuaded that there is substantial evidence for the

Board to reasonably discern impermissible coercion. See, e.g.,

Timsco, 819 F.2d at 1178 (upholding a Board determination that

an interrogation of a non-union member was coercive based on

the employer’s statement that “union organizers were ‘going to

screw up a lot of jobs for a lot of people’”); see also United

Food & Commercial Workers Union Local 204, 447 F.3d 821,

825 (D.C. Cir. 2006) (“[A]n employer’s statement that union

support would ‘cause trouble’ can put an employee in a ‘defen-

sive posture’ and be unduly coercive under the right circum-

11

stances[.]” (quoting Action Auto Stores, Inc., 298 N.L.R.B. 875,

901-02 (1990))). Employees, having heard such statements in

this context, on the heels of Randall’s termination,4 could

reasonably perceive a direct connection between union activities

and job loss. See H.B. Zachry Co., 319 N.L.R.B. 967, 969

(1995) (finding threat where employer’s statement connected

employee’s union activity with discharge: “I terminated you

yesterday. Your organizing days is [sic] over, boy.”), enforced in

part sub nom. Int’l Bhd. of Boilermakers v. NLRB, 127 F.3d

1300 (11th Cir. 1997). According to Neeman, his statements

simply reflected concern that Randall was badmouthing Progres-

sive at job sites, potentially causing the company to lose work

and, in turn, costing employees their jobs. Although Neeman’s

explanation is plausible, “we must uphold the Board’s findings

as long as they rest upon reasonable inferences, and we may not

reject them simply because other reasonable inferences may also

be drawn.” Tasty Baking, 254 F.3d at 124-25. We therefore

cannot accept Progressive’s argument on this point.

B

Progressive next challenges the finding that it violated

Section 8(a)(1) by virtue of Hildreth’s April 8, 1996 statements

threatening facility closure. Progressive’s opening gambit—that

Hildreth’s statements did not violate the Act because they were

simply an opinion protected by Section 8(c), 29 U.S.C.

§ 158(c)5—is not properly before us, having not been raised

4

There is no suggestion that Randall’s termination was itself a

violation of the Act.

5

This provision, which “merely implements the First

Amendment,” Gissel Packing, 395 U.S. at 617, states that “[t]he

expressing of any views, argument, or opinion, or the dissemination

12

before the Board. See id. § 160(e); Woelke & Romero Framing,

Inc. v. NLRB, 456 U.S. 645, 665-66 (1982); Contractors’ Labor

Pool, Inc. v. NLRB, 323 F.3d 1051, 1061 (D.C. Cir. 2003).

Progressive’s followup salvo—that Hildreth was not its

agent—also misfires. The Board applies common law principles

of agency when assigning liability under the Act. Overnite

Transp. Co. v. NLRB, 140 F.3d 259, 265 (D.C. Cir. 1998). Even

if the “specific acts performed” have not been “actually autho-

rized or subsequently ratified,” 29 U.S.C. § 152(13), the

employer will be bound by an individual having “apparent

authority.” Overnite Transp., 140 F.3d at 265-66. As we have

explained:

“Apparent authority” exists where the principal engages in

conduct that “reasonably interpreted, causes the third person

to believe that the principal consents to have the act done on

his behalf by the person purporting to act for him.” For

there to be apparent authority, however, the third party must

not only believe that the individual acts on behalf of the

principal but, in addition, “either the principal must intend

to cause the third person to believe that the agent is autho-

rized to act for him, or he should realize that his conduct is

likely to create such belief.”

Id. at 266 (quoting Restatement (Second) of Agency § 27 &

cmt. a (1992)).

thereof, whether in written, printed, graphic, or visual form, shall not

constitute or be evidence of an unfair labor practice . . . if such

expression contains no threat of reprisal or force or promise of

benefit.” 29 U.S.C. § 158(c).

13

The Board finds apparent authority for an individual’s

actions, such as threatening retaliation for union activities, when

the individual is placed “in a position where employees could

reasonably believe that he spoke on behalf of management.”

Indus. Constr. Servs., Inc., 323 N.L.R.B. 1037, 1039 (1997); see

Garvey Marine, Inc. v. NLRB, 245 F.3d 819, 823-24 (D.C. Cir.

2001); K.W. Elec., Inc., 342 N.L.R.B. No. 126, 2004 WL

2183528, at *19 (Sept. 24, 2004); Triple H Elec. Co., 323

N.L.R.B. 549, 552 (1997); GM Elecs., 323 N.L.R.B. 125, 125

(1997); Delta Mech., Inc., 323 N.L.R.B. 76, 77-78 (1997).

While we grant “only limited deference” to the Board’s determi-

nation whether an individual was acting with apparent authority,

“the standard of review is not de novo” as it is a factual matter

that “cannot be disturbed if supported by substantial evidence on

the record considered as a whole.” Garvey Marine, 245 F.3d at

824 (quoting Overnite Transp., 140 F.3d at 265) (internal

quotation marks omitted).

The ALJ explained that Hildreth’s statements were attribut-

able to Progressive because

[w]hen Cousins began working for [Progressive], Randy

Neeman assigned Cousins to work with Hildreth whom

Randy Neeman described as “running a few jobs for him.”

Randy Neeman told Cousins that if Cousins had any

questions, he should ask Hildreth. Randy Neeman de-

scribed Hildreth’s duties as overseeing the projects. This

manifestation by [Progressive] to employees created a

reasonable basis for employees to believe that Hildreth was

reflecting company policy and speaking for [Progressive].

Progressive Elec., 344 N.L.R.B. No. 52, 2005 WL 762117, at

*11 (citing GM Elecs., 323 N.L.R.B. at 128); see also Peti-

tioner’s Br. at 6 (acknowledging Hildreth was a “job foreman”).

14

We have little difficulty concluding this is sufficient. Although

there was some evidence to the contrary, the Board permissibly

found a reasonable employee could believe from Neeman’s

actions that Hildreth spoke on behalf of management on April 8,

1996.6

IV

Next we examine the Board’s conclusion that Progressive

violated Sections 8(a)(3) and 8(a)(1) of the Act by failing to

consider and hire the Union Applicants because of their union

affiliation. Progressive contends this finding is not supported by

substantial evidence. We disagree.

Under Section 8(a)(3), 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). An employer

violates this provision, and in turn Section 8(a)(1), by refusing

to consider or hire job applicants on account of their union

affiliation. Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 185-87

(1941); Sw. Merch. Corp. v. NLRB, 943 F.2d 1354, 1359 (D.C.

Cir. 1991); FES, 331 N.L.R.B. at 12, enforced, 301 F.3d 83 (3d

Cir. 2002). This protection extends even to applicants that are

union “salts,” or union members sent in “ostensibly to obtain

employment but with the objective of inducing union organiza-

tion.” Contractors’ Labor Pool, 323 F.3d at 1055, 1060; see

NLRB v. Town & Country Elec., Inc., 516 U.S. 85, 87 (1995);

Casino Ready Mix, Inc. v. NLRB, 321 F.3d 1190, 1197 (D.C.

Cir. 2003). We are, however, mindful that Congress “did not

intend to make unlawful all acts that might have the effect of

6

The Board has not asserted that Hildreth is a statutory

supervisor under 29 U.S.C. § 152(11).

15

discouraging union membership” but instead “only those acts

that are motivated by an antiunion animus.” Metro. Edison Co.

v. NLRB, 460 U.S. 693, 700 (1983).

To establish violations of Section 8(a)(3) in an antiunion

animus case such as this, the General Counsel, per the Board’s

two-step Wright Line framework, has the initial burden to show

that the “protected activity was a motivating factor in the adverse

employment decision.” Int’l Union of Operating Eng’rs, Local

470 v. NLRB, 350 F.3d 105, 110 (D.C. Cir. 2003) (internal

quotation marks and citation omitted); see Wright Line, 251

N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir. 1981).

More specifically, under the Board’s test for refusal-to-hire

violations, the General Counsel must establish:

(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 an-

nounced or generally known requirements of the positions

for hire, or in the alternative, that the employer has not

adhered uniformly to such requirements, or that the require-

ments were themselves pretextual or were applied as a

pretext for discrimination; and (3) that antiunion animus

contributed to the decision not to hire the applicants.

FES, 331 N.L.R.B. at 12 (refining the Wright Line framework)

(footnotes omitted). Similarly, under the Board’s test for

refusal-to-consider violations, the General Counsel must show

“(1) that the [employer] excluded applicants from a hiring

process; and (2) that antiunion animus contributed to the

decision not to consider the applicants for employment.” Id. at

16

15;7 see Int’l Union of Operating Eng’rs, Local 147 v. NLRB,

294 F.3d 186, 189 (D.C. Cir. 2002). Then, once the General

Counsel has made its initial showing, the burden shifts to the

employer to show that it would not have considered or hired the

applicants even in the absence of their union activity or affilia-

tion. FES, 331 N.L.R.B. at 12, 15. As Progressive’s arguments

are essentially the same as to both the refusal-to-hire and refusal-

to-consider violations, we will not distinguish between the two

in our analysis.

A

Progressive first argues that substantial evidence is lacking

to support the General Counsel’s case because the Union

Applicants were not applying during a time when Progressive

was hiring. Although the ALJ found no evidence that Progres-

sive was hiring on March 29, 1996, Progressive’s argument

misses the import of the Board’s decision. By virtue of

Neeman’s deliberate misrepresentation and the events of the

following year, the Board found an “overall scheme” of refusing

to consider and hire the Union Applicants. Progressive Elec.,

344 N.L.R.B. No. 52, 2005 WL 762117, at *1 n.3. Given that

several suitable positions opened up and were filled over that

7

The Third Circuit, in upholding the Board’s FES decision,

found it unnecessary to reach the employer’s argument that “the

Board’s refusal to consider doctrine . . . is an impermissible

interpretation of § 8(a)(3) of the Act.” FES, 301 F.3d at 96 n.7. But

cf. Fluor Daniel, Inc. v. NLRB, 332 F.3d 961, 975 (6th Cir. 2003)

(“[T]he standard set forth in FES for ‘refusal-to-consider’ claims, as

applied in this case by the [Board] . . ., is in conflict with our

caselaw.”). In the present case, Progressive has not challenged the

Board’s interpretation of the Act, see Petitioner’s Br. at 23 (quoting

Board’s refusal-to-consider test), focusing instead on whether there is

substantial evidence to uphold the Board’s factual findings.

17

period, there were jobs available during the relevant time. Cf.

Fluor Daniel, Inc. v. NLRB, 332 F.3d 961, 975 (6th Cir. 2003)

(“[V]iolations of Section 8(a)(3) can only occur when an

employer is hiring for the position(s) at issue.”); Bay Control

Servs., Inc., 315 N.L.R.B. 30, 30 n.2 (1994).

The Board’s finding is reasonable. On March 29, 1996,

after Neeman accepted a sheet containing the Union Applicants’

information, he lied to them, assuring them he would call them

“as soon as [there is] an opening” when in fact he had no such

intention. In the ALJ’s words, this falsehood had the “effect of

luring the applicants into complacency.” Progressive Elec., 344

N.L.R.B. No. 52, 2005 WL 762117, at *14; cf. Commercial

Erectors, Inc., 342 N.L.R.B. No. 94, 2004 WL 1967543, at *7

(Aug. 31, 2004) (explaining that applicants “reasonably would

have [been] dissuaded . . . from coming to the site frequently”

where employer assured them he would call them after calling

others on employer’s “master list”). The Board also pointed to

various events over the course of the subsequent year, including

the appearance of the notice in the window; the multiple Union

letters, which Progressive received via fax but refused via

certified mail; the decision to use blind advertisements; and the

failure to hire the Union Applicants to any of the seven suitable

positions that became available. While we doubt any of these

actions—including the initial misrepresentation—would be

independently sufficient, the Board reasonably found they were

collectively “part and parcel of [Progressive’s] overall scheme

to refuse to consider and hire” the Union Applicants. Progres-

sive Elec., 344 N.L.R.B. No. 52, 2005 WL 762117, at *1 n.3.

Progressive’s proffer of a 45-day application period is also

unavailing, regardless of whether it normally employed such a

retention policy. Having deliberately sought to divert the Union

Applicants from its normal hiring process, Progressive cannot

18

now take refuge therein. Nothing in Neeman’s statements on

March 29, 1996, would have alerted the Union Applicants of an

expiration date or of the need to take further action. See Fluor

Daniel, 332 F.3d at 970 (noting that the Board found the

employer “failed to advise the discriminatees that the period for

which their application would be valid had changed” and that the

“applications themselves lacked such notification”); Commercial

Erectors, 342 N.L.R.B. No. 94, 2004 WL 1967543, at *6

(finding that employer, having promised to call when something

opened up, failed to tell applicants they needed to take further

affirmative steps to comply with employer’s gate hiring policy).

Nor did Progressive respond to the various follow-up letters that

expressed the Union Applicants’ continuing interest in employ-

ment and asked that Neeman inform them if any further efforts

were needed for them to be considered. It was not until April 4,

1997, that Progressive came clean and informed the Union

Applicants they actually were not being—and had never

been—considered.8

Contrary to Progressive’s suggestion, the Board nowhere

indicates that employers must favor union applicants. See Phelps

Dodge, 313 U.S. at 186. We readily acknowledge that the Board

is not authorized to function as a “ubiquitous ‘personnel man-

ager,’” and, indeed, “[i]t is well recognized that an employer is

free to lawfully run its business as it pleases.” Detroit Newspa-

per Agency v. NLRB, 435 F.3d 302, 310 (D.C. Cir. 2006)

(quoting Epilepsy Found. of Ne. Oh. v. NLRB, 268 F.3d 1095,

1105 (D.C. Cir. 2001)); see Phelps Dodge, 313 U.S. at 187

(explaining that the Act “does not touch ‘the normal exercise of

8

While the passage of time might at some point make it

unreasonable for the Board to discern an “overall scheme” from a

series of attenuated events, the Board reasonably took a different view

in this case given the totality of the circumstances.

19

the right of the employer to select its employees or to discharge

them’” (quoting NLRB v. Jones & Laughlin Steel Corp., 301

U.S. 1, 45 (1937))). The Board, too, routinely acknowledges the

employer’s discretion to set its own non-discriminatory hiring

practices. E.g., Watkins Eng’rs & Constructors, Inc., 333

N.L.R.B. 818, 818 n.6 (2001) (“[T]here is no basis for finding a

violation with respect to union members who failed to comply

with the [employer’s] hiring procedures.”); see also Dalton

Roofing Serv., Inc., 344 N.L.R.B. No. 108, 2005 WL 1492881,

at *5 (June 21, 2005) (applications to be completed on the

employer’s premises); C.T. Taylor Co., 342 N.L.R.B. No. 102,

2004 WL 2053015, at *15 (Sept. 10, 2004) (“two-step hiring

process” whereby job seekers were required to fill out applica-

tions and then to follow up with a phone call to request an

interview); Indus. Constr. Servs., 323 N.L.R.B. at 1040 (applica-

tions not accepted via fax); Delta Mech., 323 N.L.R.B. at 80-81

(applications not accepted when no positions available); Bay

Control Servs., 315 N.L.R.B. at 35, 37 (“gate hiring” practice,

preferring applicants “standing at the gate” over past applicants);

Int’l Union of Operating Eng’rs, Local 150, 325 F.3d 818, 830

n.17 (7th Cir. 2003); cf. Starcon, Inc., 323 N.L.R.B. 977, 982

(1997), enforced in part, 176 F.3d 948 (7th Cir. 1999). This

does not mean, however, that the Board will allow employers to

toy with union job seekers by deliberately misdirecting and

excluding them.

B

Whether there is sufficient evidence to conclude Progressive

was motivated by antiunion animus is a closer question.

“Motive is a question of fact, and the [Board] may rely on both

direct and circumstantial evidence to establish an employer’s

motive, considering such factors as the employer’s knowledge

of the employee’s union activities, the employer’s hostility

20

toward the union, and the timing of the employer’s action.”

Power, Inc. v. NLRB, 40 F.3d 409, 418 (D.C. Cir. 1994). “[O]ur

review of the Board’s motive determinations, including infer-

ences of improper motive drawn from the evidence, is especially

deferential.” Cadbury Beverages, Inc. v. NLRB, 160 F.3d 24, 31

(D.C. Cir. 1998); see Citizens Inv. Servs. Corp. v. NLRB, 430

F.3d 1195, 1198 (D.C. Cir. 2005); Vincent Indus. Plastics, Inc.

v. NLRB, 209 F.3d 727, 734 (D.C. Cir. 2000).

There are, of course, limits to our deference. See Universal

Camera Corp. v. NLRB, 340 U.S. 474, 487-88 (1951); Epilepsy

Found. of Ne. Oh., 268 F.3d at 1103. For example, in TIC, we

held that a “showing of animus requires greater proof than a

single comment by a supervisor to the effect that the company

preferred to hire non-union personnel” and that “[t]he mere fact

that the [employer] knew the applications were from Union

applicants does not show animus.” 126 F.3d at 338; see also

Detroit Newspaper Agency, 435 F.3d at 310; BE & K Constr.

Co. v. NLRB, 133 F.3d 1372, 1376 (11th Cir. 1997) (“[W]e will

not allow the Board to punish an employer simply because that

employer is anti-union.”). We also noted that a prohibited

motive will not be inferred “where job applicants fail to follow

regularly applied, facially neutral application procedures.” TIC,

126 F.3d at 338.

The record before us, however, permits a finding that the

actions in question were motivated by antiunion animus. The

evidence, appropriately centered on Neeman as the

decisionmaker in personnel matters,9 includes his deliberate

9

Compare Commercial Erectors, 342 N.L.R.B. No. 94, 2004 WL

1967543, at *6-7 (finding violation based on actions of job supervisor

where he “was in complete charge of hiring”), with Brown & Root

Indus. Servs., 337 N.L.R.B. 619, 619 (2002) (finding no improper

21

misrepresentation to the Union Applicants on March 29, 1996,

and his admission that he never intended to hire them;10 the

timing of his placing the notice in the window on April 2, as a

“result of the [Union Applicants] appearing with video cameras

and a recording device,” Progressive Elec., 344 N.L.R.B. No.

52, 2005 WL 762117, at *14;11 his overt hostility at the May 1

meeting;12 and his failure to contact or hire any of the Union

motivation where there was no “nexus” between the employer’s hiring

decision and the statements of a “supervisory foreman” who “had no

role in processing” the applications in question).

10

See Int’l Union of Operating Eng’rs, Local 147, 294 F.3d at

190 (where employer “falsely told each of the applicants ‘there was

no work available’ rather than telling them they were locked out,”

Board could infer from this “misrepresentation” that employer had

“unlawful motive”); Commercial Erectors, 342 N.L.R.B. No. 94,

2004 WL 1967543, at *5 (basing animus on, inter alia, employer’s

“promise[] to call [job seekers] . . . as soon as he had opening” but

where he “never had any intention of hiring them”); cf. Sw. Merch.,

943 F.2d at 1362. To be sure, while the Board might well have seen

Neeman’s actions on March 29 as little more than an innocuous

attempt to rid the office of unwanted guests, the Board reasonably

thought otherwise.

11

See Power, 40 F.3d at 418.

12

See Power, 40 F.3d at 418 (“[T]he Board was entitled to rely

on [a company official’s] anti-union statements as evidence of anti-

union motivation, even though [his] statements, made in private

conversations to [the office manager], were not themselves

unlawful.”); John W. Hancock, Jr., Inc., 337 N.L.R.B. 1223, 1224 n.8

(2002) (“Under extant Board law . . . noncoercive statements may, in

limited circumstances, be used as evidence of an unfair labor

practice.”), enforced, 73 Fed. Appx. 617 (4th Cir. 2003)

(unpublished); Tualatin Elec., Inc., 319 N.L.R.B. 1237, 1239, 1241

22

Applicants over the time period in question.13 Furthermore, that

Neeman’s actions at the May 1 meeting were themselves found

to be an unfair labor practice in the form of a threat, as discussed

above, is yet more fuel to the fire. Frazier Indus. Co., Inc. v.

NLRB, 213 F.3d 750, 756 (D.C. Cir. 2000); Power, 40 F.3d at

418. In the aggregate, refracted through our deferential lens, the

Board’s inference of animus meets the minimum threshold of

reasonableness. The contrary evidence—such as Neeman’s

friendly relationships with union members, his hiring of a small

number of union members in the past, and his comments in the

May 1 meeting indicating that employees were free to decide

whether to participate in union activities—does not compel a

contrary conclusion in this case. Further, the Board does not

suggest that, having found an illegal motivation for an adverse

action, an employer risks liability for all subsequent adverse

decisions as to the same individuals, regardless of how far in the

future, with no further showing of animus. Cf. Richardson v.

Sugg, 448 F.3d 1046, 1058 (8th Cir. 2006) (holding, in Title VII

case, that “the span of time between [an employer’s racially-

charged] remarks and the decision to fire [the plaintiff] [is]

relevant to a determination of whether discriminatory animus

motivated the firing”); BE & K Constr., 133 F.3d at 1376 n.10

(1995) (owner evinced “deep hostility” toward union, calling it

“organized crime”); see also United Food & Commercial Workers,

447 F.3d at 825 (holding that stating “I’m just tired of this Union shit

and I’m ready to get my company back where it belong[s]” two days

before firing a union election observer “exhibits powerful antiunion

animus”). But see Brown & Root, Inc. v. NLRB, 333 F.3d 628, 639

n.7 (5th Cir. 2003) (“A lawful statement of a lawful position does not

in itself allow inference that one is willing to enforce that position

through illegal means.”).

13

See Commercial Erectors, 342 N.L.R.B. No. 94, 2004 WL

1967543, at *5.

23

(“Given that there is no evidence linking such past [labor

violations] to any present anti-union animus of [the employer],

we find the past transgressions too remote in time to be relevant

to this dispute.”); Oil Capital Elec., 337 N.L.R.B. 947, 948

(2002) (declining to infer that a refusal to hire was improperly

motivated given that the only evidence of animus was an

interrogation that occurred more than two months later).

C

Finally, Progressive argues that, even if the General Coun-

sel’s initial showing was sufficient, Progressive met its burden

to demonstrate it would not have considered or hired the Union

Applicants even in the absence of their union affiliation.

Progressive advances three defenses: (1) the Union Applicants

were overqualified;14 (2) some of the Union Applicants were

employed by Progressive’s competitors; and (3) the Union

Applicants were not legitimate applicants for employment. We

find substantial evidence for the Board’s conclusion that

Progressive failed to carry its burden.

As the Board correctly observes, the first two arguments rest

on the “unremarkable proposition that an employer can apply

neutral criteria and hiring procedures to job applicants without

regard to union affiliation.” Respondent’s Br. at 42; see, e.g.,

Dalton Roofing Serv., 344 N.L.R.B. No. 108, 2005 WL 149288-

1, at *4 (employer can use wage history as neutral factor in

determining whether applicants are overqualified); Bay Control

14

Progressive does not argue in its petition that the Union

Applicants were underqualified for any of the positions—except for

the HVAC position, which the Board acknowledged would not have

been suitable for any of them. Progressive Elec., 344 N.L.R.B. No.

52, 2005 WL 762117, at *1 n.2.

24

Servs., 315 N.L.R.B. at 30 (employer had policy of rejecting

overqualified applicants); Wireways, Inc., 309 N.L.R.B. 245,

245-53 (1992) (employer gave preference to applicants whose

desired wages were comparable to its budgeted wages); Willmar

Elec. Serv. Inc., 303 N.L.R.B. 245, 246 n.2 (1991) (“An em-

ployer may . . . lawfully refuse to hire a statutorily protected

employee applicant . . . on the basis of a nondiscriminatory

policy against hiring any individual who . . . applies while

working for another employer . . . .”), enforced, 968 F.2d 1327

(D.C. Cir. 1992). We reject Progressive’s first defense, as

Progressive makes no effort to show it actually had a policy of

rejecting overqualified applicants. In any case, the ALJ discred-

ited Neeman’s testimony that Progressive had such a policy and

we are offered no basis for upsetting that determination. Cf.

TIC, 126 F.3d at 334 (“Where a company has consistently

followed neutral guidelines, and does so in the case in question,

it has met its burden of showing it would have refused to

consider applications that deviated from the normal proce-

dure.”). And contrary to Progressive’s suggestion, there is no

indication the Union Applicants were unwilling to accept

positions beneath their skill level, having expressed a general

interest in being “considered for employment.” Progressive’s

second defense—that it has a policy of not hiring competitors’

employees—is not properly before us, having not been urged

before the Board. 29 U.S.C. § 160(e).

Progressive’s third defense—that the Union Applicants

“who came to [Progressive] armed with a video camera were not

involved in an activity that was protected by the Act because

they were not truly seeking employment,” Petitioner’s Br. at

21—also falls short.15 Progressive acknowledges that, under

15

Insofar as Progressive also raises this issue to argue that it was

not improperly motivated in declining to hire and consider the Union

25

well-established Board precedent, “individuals seeking jobs

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

statutory employees entitled to protections under the Act.”

Casino Ready Mix, 321 F.3d at 1197; see Town & Country Elec.,

516 U.S. at 87. “[E]ven when a salting campaign is intended in

part to provoke an employer to commit unfair labor practices,

union organizers retain their status as employees.” Casino

Ready Mix, 321 F.3d at 1197. Nonetheless, Progressive asserts

that, regardless of the Union Applicants’ union affiliation,

Progressive would not have hired anyone exhibiting such

behavior—behavior indicating “they were not interested in

working hard for [Progressive].” Petitioner’s Br. at 22.

In raising the Union Applicants’ bona fides as a defense,

Progressive marshals only an ALJ opinion that has been specifi-

cally disavowed in relevant part by the Board. See W.D.D.W.

Commercial Sys. & Invs., Inc., 335 N.L.R.B. 260, 263-65

(2001), enforced in relevant part sub nom. Contractors’ Labor

Pool, 323 F.3d at 1060-61; accord A. Montano Elec., 335

N.L.R.B. 612, 614 & nn.9-10 (2001). Equally curious is Progres-

sive’s passing citation to a Sixth Circuit opinion that was

superseded by a subsequent opinion. See NLRB v. Fluor Daniel,

Inc., 102 F.3d 818, 832 (6th Cir. 1996), superseded by 161 F.3d

953 (6th Cir. 1998). We are underwhelmed.

Although Progressive might find it unpalatable that appli-

cants furthering their own agenda without regard for Progres-

sive’s well-being stand on equal footing with job seekers who

are just seeking jobs, the Board does not perceive anything

problematic per se with a salting effort that involves a group of

union members (often called “batch applicants”) arriving en

Applicants, and that they are not even “employees” within the

meaning of the Act in the first place, it is equally unavailing.

26

masse with a video camera and pursuing employment. See, e.g.,

Heiliger Elec. Corp., 325 N.L.R.B. 966, 967 (1998) (“Such

group activity normally enjoys the full protection of the Act.”);

Braun Elec. Co., 324 N.L.R.B. 1, 3 (1997) (“[V]isiting the

[employer’s] office to present employment applications,

videotaping the employment application encounter, and filing an

unfair labor practice charge . . . constitutes protected activity”).16

It is a dance that has been repeated on several occasions, see,

e.g., FES, 301 F.3d at 85, and there is no indication that the steps

are different in the present case. The Board, while highlighting

one Member’s sympathy for Progressive’s position, acknowl-

edged the futility of the argument under current Board precedent.

Progressive Elec., 344 N.L.R.B. No. 52, 2005 WL 762117, at *1

n.2 (noting the “absence of a three-member majority of the

Board willing to revisit the parameters of applicant status under

FES”).

It is true the Board has recognized that, under certain

circumstances, an employer can justify its refusal to hire by

showing the applicant has a “disabling conflict.” See Contrac-

tors’ Labor Pool, 323 F.3d at 1060 (noting that the “Board

likened a disabling conflict defense to a Wright Line defense”);

Sunland Constr. Co., 309 N.L.R.B. 1224, 1230 (1992) (noting

that employer in certain circumstances need not “hire a paid

organizer whose role is inherently and unmistakably inconsistent

with employment” (internal quotation marks omitted)). In that

vein, the Board has indicated that “‘salting’ . . . 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

16

In Heiliger Elec. and Braun Elec., the Board did not find the

videotaping itself to be a protected activity. Heiliger Elec., 325

N.L.R.B. at 966 n.3; Braun Elec., 324 N.L.R.B. at 3 n.4.

27

designed to drive the employer out of the area or out of busi-

ness.” Casino Ready Mix, 321 F.3d at 1198 (citing Braun Elec.,

324 N.L.R.B. at 3 n.3; M.J. Mech. Servs., 324 N.L.R.B. 812,

813-14 (1997)). Whatever the exact contours of a “disabling

conflict,” we have little difficulty upholding the Board’s refusal

to find one here, given the paucity of evidence suggesting this

salting effort is anything other than ordinary. See Contractors’

Labor Pool, 323 F.3d at 1061 (“An employee does not lose his

protected status merely because he is a salt. Rather, he may lose

it if he engages in unprotected activity that emanates from

disabling conflicts arising in connection with salting.”).

The Board has also previously found that where “the overall

environment created by the applicants” in attempting to gain

employment was “sufficiently intimidating and disrespectful,”

an employer is “privilege[d] . . . to not hire” them. Heiliger

Elec. Corp., 325 N.L.R.B. at 966 n.3. In Heiliger Electric, for

example, the Board determined that an employer was justified in

refusing to hire applicants who refused to leave when asked,

refused to stop videotaping when asked, and videotaped personal

and private papers on the employer’s desk. Id. at 968. In the

present case, the Board reasonably declined to find any such

disruption. See Commercial Erectors, Inc., 342 N.L.R.B. No.

94, 2004 WL 1967543, at *7 & n.9 (finding applicants “at no

time engaged in disruptive, intimidating, or disrespectful

behavior,” and distinguishing Heiliger Electric). Indeed, at no

point did Neeman ask the Union Applicants to leave or to stop

recording.

In short, Progressive offers us insufficient reason to disturb

the Board’s findings as to the refusal-to-hire and refusal-to-

consider violations.

28

V

For the foregoing reasons, we deny Progressive’s petition

for review and grant the Board’s cross-application for enforce-

ment.

So ordered.