# Power Incorporated v. National Labor Relations Board, United Mine Workers of America, International Union, Intervenor

> Court of Appeals for the D.C. Circuit · January 6, 1995 · 40 F.3d 409

URL: https://www.frixlaw.com/law-library/cases/9487518

## Case

- **Full name:** POWER INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, United Mine Workers of America, International Union, Intervenor
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** January 6, 1995
- **Citations:** 40 F.3d 409; 309 U.S. App. D.C. 153
- **Precedential status:** Published
- **Opinion:** Concurring in part by Henderson
- **Judges:** Wald, Silberman, Henderson
- **Cited by:** 36 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9487518

## How later opinions describe it (automated extraction)

- holding that “[o]nce unlawful contracting is found,” an order “to resume unlawfully subcontracted operations” is “presumptively a valid remedy”
- holding that coincident tim- ing and uncontested § 8(a)(1) violations was sufficient evi- dence to support Board’s finding
- holding that coincident timing and uncontested § 8(a)(1) violations was sufficient evidence to support Board's finding

## Opinion text

KAREN LeCRAFT HENDERSON, Circuit Judge,
concurring in part and dissenting in part:
I concur in the majority opinion except Parts 11(B) and 11(D). I agree with the majority’s ultimate conclusion in Part 11(D) that the NLRB’s issuance of a remedial bargaining order should be upheld but, given that “petitioner here does not dispute” the NLRB’s Gissel I classification, Majority Opinion at 421-28, I find unwarranted the discussion of Gissel II and non-Gissel cases, see id. at 423-24, and therefore decline to join it. In addition, I disagree with the majority’s disposition in Part 11(B) upholding the NLRB finding that Power’s decision not to rehire Robert Dillen violated section 8(a)(3) of the NLRA. “[Djetermining whether the employer’s actions were motivated by anti-union animus is necessarily the crucial first step in a § 8(a)(3) case.” Goldtex, Inc. v. NLRB, 14 F.3d 1008, 1011 (4th Cir.1994). Thus, “[ujnwise and even unfair decisions” will not be deemed unfair labor practices in violation of section 8(a)(3) “unless they are carried out with the intent of discouraging participation in union activities.” Id. The record here lacks substantial evidence of such intent in the Dillen rehiring decision. It is uncontroverted that Dillen made the short list for the two advertised mechanic positions and was in fact interviewed for them. By Dillen’s own testimony, the two interviewers, Andrews and Minor, seemed eager to hire him, without regard to his past union activity, and even to arrange for additional training if necessary. JA 1826-27, 1845-46. Further, undisputed testimony by Andrews reveals that Dillen was his and Minor’s third choice for the two openings and would have been offered employment had either of the first two declined it. Id. at 2020. Finally, I do not see how the reasons proffered for passing over Dillen in favor of the other two can possibly be termed “patently pretextual,” as the ALJ did. See ALJ Decision at 26. Those reasons reflect the business judgment of the two men charged with filling the openings, see JA 2011-12, and as such “must be respected by the Board,” Goldtex, 14 F.3d at 1012 . In any event, the question of pretext “does not even enter the picture until some evidence of a discriminatory discharge has been brought forward.” Id. In the absence of such evidence here I dissent from the majority decision regarding Dillen.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9487518. Public record. Not legal advice.