National Labor Relations Board v. Interstate Builders, Inc.

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 26 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

NATIONAL LABOR RELATIONS
BOARD,

Petitioner,
No. 02-9507
v.

INTERSTATE BUILDERS, INC.,

Respondent.

APPLICATION FOR ENFORCEMENT OF AN ORDER
OF THE NATIONAL LABOR RELATIONS BOARD
(Nos. 17-CA-19586, 17-CA-19620, 17-CA-19683)

Charles W. Ellis, Oklahoma City, Oklahoma, appearing for Respondent.

David B. Schwartz, Attorney (David Habenstreit, Supervisory Attorney, Arthur F.
Rosenfeld, General Counsel, John E. Higgins, Jr., Deputy General Counsel, John
H. Ferguson, Associate General Counsel, and Aileen A. Armstrong, Deputy
Associate General Counsel, with him on the brief), National Labor Relations
Board, Washington, DC, appearing for Petitioner.

Before TACHA, Chief Circuit Judge, McWILLIAMS and McCONNELL,
Circuit Judges.

TACHA, Chief Circuit Judge.
 This matter is before the court on the National Labor Relations Board’s

(“NLRB”) petition for an order enforcing its July 31, 2001, order. The order

concludes that Interstate Builders, Inc. (“Interstate”) committed unfair labor

practices in Oklahoma in violation of sections 8(a)(1) and (3) of the National

Labor Relations Act (the “Act” or “NLRA”), codified at 29 U.S.C. § 158(a)(1) &

(3). The Board adopted the rulings, findings, and conclusions of the

administrative law judge (“ALJ”) who conducted hearings on the alleged unfair

practices. We exercise jurisdiction pursuant to 29 U.S.C. § 160(e) and grant

enforcement of the order.

BACKGROUND

This case arises from an attempt by the International Association of Bridge,

Structural, Ornamental & Reinforcing Iron Workers Local 48 (the “Union”) to

unionize the employees at Interstate. Based solely on credibility determinations,

the Board found that Interstate coercively interrogated applicants and employees

about their union membership and activities, created the impression that

employees’ union activities were under surveillance, threatened to impose more

onerous working conditions if the employees unionized, implied that support of a

union would be futile, and violated sections 8(a)(1) and (3) of the Act by

imposing more onerous working conditions on – and ultimately laying off –

employee David Hibdon. Interstate does not object to these determinations.

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NLRB July 31, 2001 Final Order (“NLRB Order”) at 1 n.3. We therefore grant

the Board’s application for enforcement of the general cease-and-desist provisions

and the remedy provisions relating to Mr. Hibdon.

We address below Interstate’s objections to enforcement of the order

requiring Interstate to reinstate John Norman and make him whole as to backpay

and other benefits, and to offer John Buntin, Derrick Haggard, Wesley

Stillsmoking, and Floyd Woods the jobs for which they attempted to apply (or to

substantially equivalent positions) without prejudice to seniority or other benefits

and to make them whole “for any loss of earnings and other benefits suffered” as

a result of Interstate’s refusal to hire them. See id. at 3.

In February 1998, after eight or ten of his employees had signed union

cards, Bill Napier, Interstate’s president, met with the Union to discuss voluntary

unionization of the business. Napier, a former union member himself, told the

Union that he would sign a post-dated agreement (dated three months ahead) to

unionize, but Union officials refused the offer. The Union immediately assigned

the unionized Interstate employees to jobs with Union contractors competing with

Interstate, causing them to leave Interstate’s employ and raising concerns that the

Union would try to run Interstate out of business.

Interstate advertised for replacement certified welders or ironworkers in

February and May of 1998. During this period, the Union continued to engage in

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an active campaign to organize employees at Interstate. Norman, a full-time

Union employee and organizer who is also a journeyman ironworker, applied for

an ironworker job with Interstate on February 23, noting on his application that he

worked for the Union as an organizer. Norman listed $22.57/hour on his

application as “salary expected.” According to Norman, Tommy Young,

Interstate’s supervisor, interviewed him and, holding his thumb and index fingers

close together, stated that Interstate was “that close to signing a contract” with the

Union. Young also stated that Napier needed more time before signing a union

contract.

It is undisputed that Young told Norman that Interstate paid $16/hour, not

$22.57/hour, and Young memorialized that statement by writing “$16.00 an hour,

no benefits” in the corner of Norman’s application. Norman’s reply was, “[D]o

you want me to leave . . . . Or can I sit down and talk?” Norman stated that when

he asked if Young was going to hire him, Young responded, “no.” According to

Young, Norman asserted that “if he could not organize us, he was going to take

our employees.” Norman did not deny making that statement. Young testified

that he did not hire Norman because Norman demanded more on his application

than the $16/hour Interstate was offering for the position.

On March 2, Norman filed a complaint alleging that Interstate had

committed unfair labor practices, including unlawful interrogation of an unnamed

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employee about his union activity and subsequent refusal to provide work to the

employee. Norman did not, however, allege that he had been unlawfully denied

employment on February 23.

In response to notice of the interrogation charge, Interstate called Norman

on March 17, offering him the job for $16/hour, which Norman accepted.

Norman was not available to work until March 23; he started work on Tuesday,

March 24. Richard Hopper was assigned as his helper, grinding Norman’s welds.

During the course of their two and one-half days of working together, Norman

convinced Hopper to join the Union. Hopper testified that Norman “hound[ed]”

him up to four times a day while they worked together, telling him to leave

Interstate because the Union needed him.

Norman took half a day off work on Thursday, March 26 for a doctor’s

appointment. On March 27, a Friday rain day that closed the job site, Norman

saw Hopper at the Union offices, and the Union sent Hopper to work for a Union

contractor instead of Interstate. On Monday, March 30, when Norman returned to

work at Interstate for his first full week on the job, Harry Young, Interstate’s job

foreman and Tommy Young’s brother, asked where Hopper was. Norman told

him that he had “signed [Hopper] to the Union” and that Hopper would not be

returning to work at Interstate. Norman then complained that he could not do the

work assigned to him alone and asked for another helper. Young refused, saying

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that Norman would just organize whoever he hired and Interstate would lose him.

It is undisputed that Norman replied, “That’s my job. I’m a Union organizer.” It

is also undisputed that Norman then demanded a raise, stating that the job was

worth $22.57. Young told him that Interstate was not offering that wage.

According to Young, Norman said he had to have $22.57/hour or he could not

work. According to Norman, Young said, “I ain’t putting up with this shit” and

told Norman to go pick up his final paycheck.

John Dyer, a disinterested witness who overheard part of the conversation,

corroborated Young’s version of the incident. According to Dyer, Norman

became adamant, erroneously claimed that $22/hour was the prevailing job wage

for the job, and implied that if he didn’t get a $6/hour raise, he would quit and

walk off the job. Dyer also testified that he did not hear Norman state that he

would quit if he did not receive the requested pay raise.

Norman testified that he complained about the welding leads on the job to

Young immediately after Young told him to pick up his paycheck, implying that

the equipment violated OSHA requirements. Norman also claimed to have backed

down and told both Harry and Tommy Young that he would work for $16/hour, an

assertion the Youngs denied at trial.

Norman returned to his full-time job at the Union and filed an amended

charge for unfair labor practices against Interstate on April 1. In this amended

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charge, he alleged for the first time that Interstate had discriminated against him

since February 23 by refusing to consider him for employment. He also filed a

separate charge on the same day, alleging that he was fired for his union activity.

Hopper testified that, after he had joined the Union and worked on a couple

of union jobs, Norman called him in and asked him to work for Interstate again

and “get them on [OSHA] violations and call [Norman] every day at noon . . . [i]f

I found any violations.” He testified that Norman told him that if the Union could

not make Interstate go union, they wanted to put Interstate out of business.

Hopper’s testimony was unrebutted.

The Union mailed ironworker job applications of Union members to

Interstate in April. In a letter dated April 9, 1998, Napier informed the Union in

writing that it dealt directly with job applicants and did not recognize the Union

as the representative of job applicants. Napier invited any individual to come to

Interstate’s office, submit an application, and engage in a short interview. On

May 10, Interstate ran another ad seeking ironworkers. Norman spoke to Buntin

and Haggard (whose applications the Union had sent to Interstate in April) and

Woods and Stillsmoking, all members of the Union, asking if they “were willing

to serve as volunteer organizers.” When they agreed to apply for jobs at

Interstate, he had them fill out job applications, putting “ironworker” and

“volunteer organizer” in the spaces under “employment experience.” Norman

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then took the men to Interstate’s office on May 12.

Norman entered Tommy Young’s office with Buntin, an executive board

director for the Union. He told Young that he had four union men who wanted to

fill out applications in response to the ad. Young told Norman that Interstate did

not want union representation and asked whether Norman had received Napier’s

April 9 letter informing the Union it did not accept applications from the Union.

Norman told Young, “We’re not union representation. These guys will work for

what you put in the paper.” Buntin then asked Young, “You don’t need any

help?,” to which Young replied, “No.” Buntin then reminded Young about the

advertisement, and Norman said, “You’re not going to let these guys put their

applications in, Tommy?,” to which Young replied, “No.” Norman attempted to

hand Young the completed applications; Young refused to accept, telling the

applicants to “file another goddamn complaint” instead. Norman later

acknowledged that he “spoke for” some of the men at this meeting.

Tommy Young apparently contacted legal counsel after the incident, then

wrote a letter to Norman at his Union office the same day. In it, Young explained

that his impression had been that Norman had sought recognition of the Union as

the collective bargaining representative of the four applicants. He repeated

Napier’s explanation that Interstate did not recognize the Union as the

representative of job applicants. The letter stated that if any of the individuals

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who had come to the office wished to make application without conditioning the

application on Interstate recognizing the Union as their collective bargaining

representative, they should return with their applications and Interstate would

consider them for employment if they were qualified. The letter also stated that

Young had recently discovered that Norman had told agents of the NLRB that he

was willing to work for $16/hour, contrary to his previous statement on March 30

that he required $22.57/hour. He told Norman that, if he was willing to work for

$16/hour, to report for work the next morning. Norman denied having seen this

letter. Interstate hired several ironworkers between May 18 and September 15.

Norman filed another charge of unfair labor practices with the Board on

May 12 regarding Interstate’s refusal to hire the four men. All the charges were

consolidated, and the ALJ held a hearing in September 1998, from which we have

summarized the testimony set forth above.

Before the ALJ, Interstate officials testified that Norman was not

discharged. Instead, they testified that Norman quit his employment at Interstate

because he was not given the requested pay raise. The ALJ rejected Interstate’s

testimony, finding instead that Interstate discharged Norman because of his

“organizing efforts.” Interstate now concedes that it discharged Norman, arguing

on appeal that the order should not be enforced because Norman’s discharge was

for cause. In addition, Interstate contends that the Board erred in upholding the

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ALJ’s finding that Interstate violated the Act by refusing to hire Buntin, Haggard,

Stillsmoking, and Woods on May 12, 1998.

DISCUSSION

I. Overview of Applicable Law

A. “Unfair Labor Practice” Under the NLRA

Section 8(a) of the NLRA prohibits “discrimination in regard to hire or

tenure of employment or any term or condition of employment to encourage or

discourage membership in any labor organization.” 29 U.S.C. § 158(a)(3). In

general, for both refusal-to-hire and wrongful-termination cases, the critical

question is the company’s motivation for the challenged conduct; specifically, we

focus on whether “anti-union animus” motivated that conduct. NLRB v. Transp.

Mgmt. Corp., 462 U.S. 393 (1983), overruled in part on other grounds by Dir.,

Office of Workers’ Comp. Programs v. Greenwich Collieries, 512 U.S. 267, 276-

78 (1994); MJ Metal Prods., Inc. v. NLRB, 267 F.3d 1059, 1065-66 (10th Cir.

2001). As we have previously recognized, “[a]n employer’s antiunion motivation

often may be proven only by circumstantial evidence.” Ready Mixed Concrete

Co. v. NLRB, 81 F.3d 1546, 1550 (10th Cir. 1996). Thus, in determining a

company’s motivation, “[t]he NLRB may consider factors such as the employer’s

knowledge of the employee’s union activities, the employer’s commission of

other unfair labor practices, the timing of the employer’s action, and the

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credibility of its explanation of the reasons for the discharge.” MJ Metal Prods.,

267 F.3d at 1065.

We have previously approved the NLRB’s burden-shifting approach in

section 8(a) cases: “Initially, the [NLRB’s] General Counsel must establish that

the employee’s protected conduct was a substantial or motivating factor in the

discharge decision; thereafter the burden shifts to the employer to show that it

would have reached the same decision absent the protected conduct.” Ready

Mixed Concrete, 81 F.3d at 1550 (internal quotation marks omitted).

Thus, an employer “does not violate the NLRA . . . if any anti-union

animus that he might have entertained did not contribute at all to an otherwise

lawful discharge for good cause.” 1 Transp. Mgmt., 462 U.S. at 398 (emphasis

added). As we have previously noted, “[t]he Act does not allow [the] Board to

act as a ‘super-employer’ in derogation of the right of the employer to select its

employees or discharge them.” NLRB v. First Nat’l Bank of Pueblo, 623 F.2d

686, 693-94 (10th Cir. 1980) (citations omitted). “The statute does not touch the

normal exercise of the right of the employer to select its employees or to

discharge them. It is directed solely against the abuse of that right by interfering

1
This follows from 29 U.S.C. § 160(c), which provides: “[n]o order of the
Board shall require the reinstatement of any individual as an employee who has
been . . . discharged, or the payment to him of any back pay, if such individual
was . . . discharged for cause.”

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with the countervailing right of self-organization.” Phelps Doge Corp. v. NLRB,

313 U.S. 177, 187 (1941) (quotation omitted). In other words, “what the Act

purports to do is simply to withdraw a range of factors from the employer’s

consideration when exercising his otherwise unfettered discretion to discharge an

unwanted employee. In short, sections 8(a)(3) and (1) require that an employer

not terminate an employee out of hostility toward the latter’s union activities.”

First Nat’l Bank of Pueblo, 623 F.2d at 693-94. In sum, where “anti-union

animus actually contributed to the discharge decision,” an employer violates the

NLRA. Transp. Mgmt., 462 U.S. at 398 (emphasis added).

B. Standard of Review

“We will grant enforcement of an NLRB order when the agency has

correctly applied the law and its findings are supported by substantial evidence in

the record as a whole.” Miera v. NLRB, 982 F.2d 441, 444 (10th Cir. 1992).

“Substantial evidence is defined as such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Ready Mixed Concrete, 81

F.3d at 1551 (internal quotation marks omitted). Although substantial-evidence

review is “quite narrow,” id., in conducting our review, we must keep in mind

that “Congress has imposed on [us] responsibility for assuring that the Board

keeps within reasonable grounds,” Universal Camera Corp. v. NLRB, 340 U.S.

474, 490 (1951). As the Supreme Court has previously noted:

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 The substantiality of evidence must take into account whatever in the
record fairly detracts from its weight. . . . Congress has . . . made it
clear that a reviewing court is not barred from setting aside a Board
decision when it cannot conscientiously find the evidence supporting
that decision is substantial, when viewed in the light that the record
in its entirety furnishes, including the body of evidence opposed to
the Board’s view.

Id. at 488. That said, “[w]e may not overturn a Board decision just because we

might have decided the matter differently; rather, our function is to ascertain that

‘the Board acts within reasonable bounds and that the supporting evidence is truly

substantial.’” Ready Mixed Concrete, 81 F.3d at 1551 (internal quotation marks

and quotation omitted).

In this case, Interstate challenges three aspects of the NLRB’s enforcement

petition: first, the ALJ’s revocation of Interstate’s subpoena; second, the NLRB’s

conclusion that Interstate’s termination of John Norman violated the NLRA; and,

third, the NLRB’s conclusion that Interstate’s refusal to hire the four applicants

of May 12 violated the NLRA. We consider each question in turn.

II. Whether the NLRB Abused Its Discretion in Upholding the ALJ’s

Revocation of Interstate’s Subpoena.

A. Abuse of Discretion

We review the Board’s rulings on subpoenas for an abuse of discretion. 2

2
In this case, the Board’s order did not discuss the ALJ’s decision to
revoke the subpoena. Since the Board failed to provide any discussion relating to
(continued...)

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See, e.g., Glenn v. Shalala, 21 F.3d 983, 988 (10th Cir. 1994).

In exercising [its] discretion, . . . the Board must comply as far as
practicable with the rules of evidence applicable in federal courts.
Thus, unless the special characteristics of an administrative hearing
require otherwise, the Board may revoke a subpoena only if to do so
would be proper in federal district court. Such revocation generally
requires a valid evidentiary objection to the material sought under the
subpoena.

Canova v. NLRB, 708 F.2d 1498, 1501 (10th Cir. 1983) (citations omitted).

Section 11(1) of the Act governs the issuance of subpoenas in NLRB

proceedings. This section provides that “[t]he Board, or any member thereof,

shall upon application of any party to [its] proceedings, forthwith issue to such

party subpoenas requiring the attendance and testimony of witnesses . . . in such

proceedings . . . .” 29 U.S.C. § 161(1). On application of the subpoenaed party,

“the Board shall revoke[] such subpoena if in its opinion the evidence whose

production is required does not relate to . . . any matter in question in such

proceedings, or if in its opinion such subpoena does not describe with sufficient

particularity the evidence whose production is required.” Id. “Although the

statute explicitly permits the quashing of subpoenas only for irrelevance or lack

of particularity, it does not explicitly exclude other grounds.” Drukker

2
(...continued)
the subpoena revocation, we must assume that the Board relied on the same
grounds as the ALJ. For this reason, we review for abuse of discretion the
Board’s implicit affirmance of the ALJ’s analysis in revoking the subpoena. See
General Engineering, Inc. v. NLRB, 341 F.2d 367, 371-72 (9th Cir. 1965).

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Communications, Inc. v. NLRB, 700 F.2d 727, 730 (D.C. Cir. 1983). Rather, the

statute provides that the Board may also revoke a subpoena on any other ground

which is consistent with the overall powers and duties of the Board under the Act

considered as whole. “In short, section (11)(1) is not intended as a complete and

inclusive catalogue of all grounds upon which a Board subpoena may be

revoked.” General Engineering, Inc. v. NLRB, 341 F.2d 367, 373 (9th Cir. 1965).

In this case, Interstate requested several categories of Union documents and

records, including the following:

1. The current constitution of the International Union (“IU”)

2. The current by-laws of [the Union]

3. All current collective bargaining agreements to which [the
Union] is a party;

4. The following records generated between January 1, 1998 and
the present relating to Jerry Griffith, John Buntin, Wesley
Stillsmoking, Floyd Woods, and/or Derrick Haggard:
a. Records of the payment of dues and other financial
contributions to the [IU or Union].
b. Records of the payment of pension and other retirement
benefits made by the [IU or Union].
c. Records of referrals for work to any employer through
any hiring hall or other referral system operated by [the
Union].
d. Records of work performed for any employer.
e. All letters, memoranda, notes and reports relating to the
activities or status of such persons as members of the
[IU or Union].

4. [sic] All minutes of meetings of the membership of [the
Union] from January 1, 1998, to present.

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 5. All minutes of meetings of any committee of [the Union] from
January 1, 1998, to the present.

6. All resolutions passed by [the Union] from January 1, 1998 to
the present.

7. All manuals or other instructional material relating to means
and methods to organize employees for the purpose of
collective bargaining including so-called “salting” initiatives.

8. All newsletters and other publications of general distribution
to the membership of the [IU and Union] from January 1,
1997, to the present.

9. Documents and other material generated by, or for, John
Norman relating to his schedule of work and duties as an
employee of [the Union], including, but not limited to,
calendars, time slips, appointment books for the period of
March 23, 1998, to April 3, 1998.

10. All written reports or notes of any oral reports submitted by
John Norman between January 1, 1998, to the present in his
capacity as an employee of [the Union].

11. All letters written or received by [the Union], notes,
memoranda or other material referring to or relating to
Interstate Building, Inc.

Before the ALJ, Interstate argued that it needed these documents to support its

affirmative defense to the Union’s allegations. Specifically, Interstate sought to

demonstrate that the Union representatives aspired to “strip” Interstate’s

employees and thereby damage Interstate’s business. The Union objected to

production of these documents on relevancy and confidentiality grounds.

The ALJ revoked all the document requests except for numbers 9 and 10,

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finding the requests “too speculative in nature and that it was a fishing expedition

type of subpoena” or “at best, an attempt at pretrial discovery, which is not

allowed by the Board.” The ALJ alternatively justified the revocation by stating

that the requested materials were “not relevant or material to any issue bearing on

[Interstate’s] conduct in this case dealing with its interaction with the job

applicants,” but appeared instead to be a “collateral attack” on the Union’s salting

program. Based on these findings, the ALJ concluded that “the likelihood of it

producing any information that would tend to relate to any material fact in dispute

is so remote that it is an unjustified burden on the parties and the procedures of

the Board.”

Initially, we reject the ALJ’s conclusion that the requested documents were

irrelevant. The ALJ’s own discussion of the documents belies this conclusion.

The ALJ found that “[Interstate’s] request would appear to be a collateral attack

on the Union’s organizing practice or ‘salting’ program.” Although we are

uncertain what the ALJ meant by “collateral attack,” the ALJ correctly concluded

that Interstate sought the documents in order to determine the nature of Union’s

salting initiative, namely, whether Interstate was engaging in activity unprotected

under the NLRA. The ALJ also allowed Interstate to question the General

Counsel’s witnesses concerning the requested documents, further undermining his

relevancy conclusion. We agree with Interstate that “if questions about a

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particular subject are relevant to the issues then documents relating to that same

subject matter must likewise be relevant.” Finally, we also agree with Interstate

that the ALJ’s alternative justification – that the document requests were overly

burdensome and constituted a “fishing expedition” – is in tension with his

relevance conclusion. The protection afforded by Federal Rule of Civil Procedure

26(b)(2), which prohibits overly burdensome discovery, presupposes that the

materials are relevant.

Our determination that the ALJ’s stated grounds for revoking the subpoena

were inconsistent does not, however, conclude our analysis. If the ALJ based his

decision on two reasons, one correct (insufficient particularity) and one incorrect

(irrelevance), we would hesitate to find an abuse of discretion. Thus, while it is

true that some of the evidence sought may well have been relevant to Interstate’s

affirmative defense, we must also consider whether the ALJ was correct in

concluding that the subpoena, taken as a whole, constituted a “fishing

expedition.” See Drukker Communications, 700 F.2d at 732 (stating that “more

generalized ‘fishing expeditions’ for helpful evidence . . . have uniformly been

rejected”); J.H. Rutter Rex Mfg. Co., Inc. v. NLRB, 473 F.2d 223, 231 (5th Cir.

1973) (fact that Board’s files may have contained relevant evidence did not

“entitle company to a wholesale fishing expedition into the Board’s files”); but cf.

EEOC v. Dillon Companies, Inc., 310 F.3d 1271, 1275 (10th Cir. 2002) (finding

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in context of EEOC charge that “even some requests we previously considered to

be administrative ‘fishing expeditions’ are often permitted”) (internal quotation

marks omitted); NLRB v. Bakersfield Californian, 128 F.3d 1339, 1340 (9th Cir.

1997) (reversing district court’s holding that section 11(1) does not authorize the

Board to engage in fishing expeditions at the expense of the newspaper’s

legitimate business interest); EEOC v. University of New Mexico, 504 F.2d 1296,

1303 (10th Cir. 1974) (noting that some subpoenas “which we have previously

considered to be administrative ‘fishing expeditions’ are often permitted”).

Our review of the subpoena suggests that some of Interstate’s requests

were indeed overly broad; clearly, Interstate did not tailor its discovery request as

closely as it could have. We are not, however, convinced that the requests were

so overbroad so as to constitute a wholesale “fishing expedition” meriting

revocation in almost every particular. We therefore find that the ALJ abused his

discretion in summarily revoking the bulk of the subpoena.

B. Prejudice

Demonstrating that the ALJ abused his discretion in revoking the subpoena

does not, however, entitle Interstate to relief. Interstate must also demonstrate

that the ALJ’s abuse of discretion placed a prejudicial “barrier in the way of [its]

ability to present its case.” Joseph T. Ryerson & Son, Inc. v. NLRB, 216 F.3d

1146, 1154 (D.C. Cir. 2000); see NLRB v. Cent. Okla. Milk Producers Ass’n, 285

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F.2d 495, 498 (10th Cir. 1960 (“There can be no cause for reversal [based on

revocation of a subpoena] in the absence of some proof of resulting prejudice.”).

We conclude that Interstate failed to make a sufficient showing of prejudice with

respect to the termination of Norman and the refusal to hire the May 12

applicants.

1. Prejudice with respect to the Norman termination claim

Regarding Norman’s termination, Interstate received the requests numbered

9 and 10. These documents included all materials generated by, or for, John

Norman relating to his schedule of work and duties as an employee of the Union,

including, but not limited to, calenders, time slips, appointment books for the

period of March 23, 1998, to April 3, 1998, and all written reports or notes of any

oral reports submitted by John Norman between January 1, 1998, to the time of

the hearing generated in Norman’s capacity as an employee of the Union.

Interstate concedes that documents contained in numbers 9 and 10 are not in

issue. Included in these documents was Norman’s written report, in which he

recited his March 30, 1998, conversation with Harry Young. In this report,

Norman stated that he told Young “that Hopper would not be back, that I signed

him to the Union, I told him that was my job.”

Furthermore, at the hearing, Norman testified that he induced Hopper to

leave Interstate, and Norman’s testimony was confirmed by the testimony of

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Hopper. As such, we cannot see how the ALJ’s revocation prejudiced Interstate’s

ability to assert an affirmative defense concerning Norman’s allegedly

unprotected activity. For this reason, we find that Interstate was not prejudiced

by the ALJ’s revocation of the subpoena as it related to the Norman termination

violation.

2. Prejudice with respect to the refusal-to-hire claim

We conclude, for several reasons, that Interstate failed to demonstrate

prejudice with respect to the ALJ’s conclusion that Interstate’s refusal to hire the

May 12 applicants violated the NLRA.

As an initial matter, we agree with Interstate that, in circumstances not

well-defined by the caselaw, employee 3 misconduct might rise to the level of a

“disabling conflict,” which in turn can justify a company’s termination of, or

refusal to hire, union employees. See, e.g., Contractors’ Labor Pool, Inc. v.

NLRB, 323 F.3d 1051, 1060 (D.C. Cir. 2003); Casino Ready Mix, Inc. v. NLRB,

321 F.3d 1190 (D.C. Cir. 2003). Thus, Interstate could have taken the position

that the May 12 applicants intended to engage in a sabotage campaign in order to

run Interstate out of business, and that this disabling conflict constituted its

motivation for refusing to hire them. But prevailing on this theory would have

3
At oral argument, Interstate conceded that it was not advancing the
separate legal argument that the May 12 applicants were not “employees” within
the meaning of the NLRA.

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required Interstate to show that it would have refused to hire the May 12

applicants for this reason alone, i.e., even in the absence of anti-union animus.

Ready Mixed Concrete, 81 F.3d at 1550 (emphasis added).

Interstate fails by a wide margin to provide the necessary support for this

argument. Before the ALJ, and before this court on appeal, Interstate relied on its

policy of dealing directly with job applications to justify its refusal to hire the

May 12 applicants. According to Interstate’s own brief, “[i]t is apparent from the

overall record that [Interstate’s] only reason for refusing to hire the four

individuals was their insistence on dealing with [Interstate] through a collective

bargaining representative.” (emphasis added). We cannot reconcile this statement

with Interstate’s prejudice argument on appeal, which appears to be as follows:

(1) Interstate’s “other” or “true” motivation for its refusal to hire the applicants

was the sabotage campaign in which Interstate argues the May 12 applicants

intended to engage; (2) the ALJ, by revoking the bulk of the subpoena, deprived

Interstate of documents that might have demonstrated the existence of such a

disabling conflict; (3) Interstate was thereby prevented from advancing its “other”

or “true” motivation because of the resulting absence of documentary support; and

(4) this obstacle to the presentation of its affirmative defense constitutes

prejudice requiring us to deny enforcement of the Board’s order.

We reject this argument for two reasons. First, denying Interstate access to

-22-
the documents at issue did not prevent the company from explaining its “true”

motivation for refusing to hire the May 12 applicants. Presumably, it was and

remains the ultimate authority on its own motivation and could have articulated it

absent “documentary support” from the Union’s files. The revocation at most

temporarily deprived Interstate of documents that might have provided evidence

supporting the reasonableness of that “other” or “true” motivation; and, as we

note below, even this possible deprivation was mitigated by the ALJ’s “curative”

statement that he would entertain additional document requests should the

relevance of the documents become apparent during examination. 4 Second, the

tension between the two positions Interstate advances makes it highly unlikely

that the ALJ would have concluded that either justification rebutted the General

Counsel’s prima facie showing of anti-union animus. 5 Cf. Dillon Stores, 643 F.2d

687, 693 (10th Cir. 1981) (finding that the employer’s proffer of “a flimsy or

unsupported explanation may affirmatively suggest that the employer has seized

upon a pretext to mask an antiunion motivation”).

Moreover, the record is replete with evidence supporting the ALJ’s

4
We acknowledge – and have already discussed as grounds for our finding
of an abuse of discretion – the ALJ’s internally inconsistent and legally erroneous
relevance discussion. The ALJ’s error did not, however, in our judgment deprive
Interstate of the ability to articulate its own motivation for the challenged
conduct.
5
See our discussion in Part IV, infra.

-23-
conclusion that Interstate refused to hire the May 12 applicants based on simple

anti-union animus, rather than concern about a sabotage campaign. 6 Indeed,

Interstate points to no evidence in the record that would support a finding that its

motivation for the refusal to hire was its belief that the May 12 applicants

intended to engage in a sabotage campaign. Thus, even if the requested

documents could have substantiated the reasonableness of Interstate’s ostensible

motivation, Interstate would have to first point to evidence that this was, in fact,

its motivation. Insofar as Interstate has failed to do anything of the kind, we

cannot conclude that the ALJ’s error prejudiced Interstate. Ready Mixed

Concrete, 81 F.3d at 1553 (“[O]ur review is limited to ascertaining whether

substantial evidence supported the Board’s conclusion that [the company] did not

carry its burden. It is not for [the company] to prove that it ‘could have

discharged [the employee for his actions], but whether it would have done so

regardless of [his] union activities.” ) (emphasis added).

Finally, the ALJ allowed Interstate to question Union members about the

6
See our discussion in Part IV, infra, discussing the General Counsel’s
prima facie case of a discriminatory refusal to hire and Interstate’s proffered
rebuttal. Although a disabling conflict can rebut the General Counsel’s prima
facie case, we again note that Interstate failed to articulate this alternative
explanation of its motivation below, and that the ALJ’s revocation of Interstate’s
document requests would have, at most, compromised Interstate’s ability to
demonstrate the reasonableness its (unarticulated) motivation, not its ability to
explain why it took the challenged action.

-24-
existence of the requested documents and the information, if any, that the

documents contained. Further, the ALJ specifically informed Interstate that it

could renew its request at a later point:

If some things come up during the examination of the witness that
would tend to indicate the presence of documents that are relevant to
some issue that will be decided here, then I will entertain any
subsequent motion by [Interstate] for the production of those
documents.

NLRB Order, at 7. Despite this offer, Interstate made no further requests for the

production of documents. Instead, it emphasized that its sole motivation in

refusing to hire the May 12 applicants was its firm policy of dealing directly with

job applicants as opposed to their representatives.

3. Conclusion

For the foregoing reasons, we conclude that Interstate failed to demonstrate

prejudice resulting from the ALJ’s revocation of its subpoena.

III. Whether Substantial Evidence Supported the NLRB’s Conclusion that

Interstate’s Termination of John Norman Violated the NLRA.

We next consider the NLRB’s conclusion that Interstate violated section

8(a)(3) and (1) of the NLRA by terminating John Norman’s employment. In its

July 31, 2001, order, the NLRB adopted the ALJ’s ruling, wherein the ALJ

concluded that “Norman was fired because [Interstate] would not put up with

Norman’s organizing efforts . . . [and Interstate] has failed to persuasively show

-25-
that Norman would have been terminated even in the absence of his union

activities.” NLRB Order, at 10 (emphasis added).

On appeal, Interstate raises two principal challenges to the NLRB’s

conclusion. First, Interstate contends that it discharged Norman because he

requested a wage increase, conduct which Interstate contends is not protected

under the NLRA. Second, Interstate argues that it discharged Norman for

inducing Richard Hopper to leave Interstate’s employment, conduct which

Interstate again contends is not protected under the NLRA. We consider each

contention in turn.

With respect to the former, the ALJ rejected Interstate’s contention that

Norman’s request for a pay raise constituted its “true” motivation for its

discharge. For the reasons set forth below, we conclude that substantial evidence

supports this finding.

First, although Harry Young fired Norman immediately after Norman

requested a pay raise, Young’s comments to Norman did not focus on the pay-

raise request; rather, as the ALJ noted, “Young clearly express[ed] his irritation

with Norman by commenting that Norman would just organize any new [worker]

(and induce him to leave as Hopper did).” Id. at 9-10. In other words, Norman’s

“organizing efforts,” rather than his request for a pay raise, appear to have been

Young’s primary concern.

-26-
 Second, as the ALJ noted, Interstate had initially refused to hire Norman on

February 23, 2001, based on his position as a “union organizer.” 7 In addition,

Interstate contemporaneously engaged in numerous other unfair labor practices,

including its unlawful interrogation of employees and its imposition of more

onerous working conditions on those affiliated with the Union. The ALJ properly

considered Interstate’s contemporaneous unfair labor practices, MJ Metal Prods.,

267 F.3d at 1065, and we agree that these acts support a finding of anti-union

animus on the part on Interstate.

Third, before the ALJ, Interstate advanced pretextual explanations for

Norman’s departure, arguing that Norman quit and suggesting that Interstate fired

Norman based on his poor work-attendance record. NLRB Order, at 9. As we

have previously noted, the NLRB may properly consider the “credibility of [the

company’s] explanation of the reasons for the discharge,” MJ Metal Prods., 267

F.3d at 1065, and “a flimsy or unsupported explanation may affirmatively suggest

that the employer has seized upon a pretext to mask an anti-union motivation,”

NLRB v. Dillon Stores, a Division of Dillon Cos., Inc., 643 F.2d 687, 693 (10th

Cir. 1981).

7
Based on the briefs submitted by Interstate to this court, it does not appear
that Interstate challenges on appeal the Board’s finding that Interstate violated the
Act by initially refusing to hire John Norman on February 23, 1998. We simply
note that substantial evidence clearly supports the finding. Accordingly, the
NLRB is entitled to enforcement of this aspect of its July 31, 2001, order.

-27-
 We next consider Interstate’s alternative justification for its termination of

Norman: the fact that Norman induced Richard Hopper to join the union and

leave Interstate’s employment. 8 For purposes of argument only, we assume, as

Interstate contends, that the ALJ concluded that Interstate terminated Norman

based in part on the fact that he induced Richard Hopper to leave Interstate’s

employment. 9 We further assume, as Interstate suggests, that Norman’s conduct

in inducing Hopper to leave Interstate’s employment was separable from his

other, protected “organizing efforts,” and that Interstate therefore could have

terminated Norman on this basis without violating the NLRA.

But even making these two assumptions, we must still conclude that

8
Initially, we note that Interstate did not raise this theory before the ALJ
and arguably failed to do so with sufficient clarity in its exceptions before the
NLRB. Ordinarily, an “objection that has not been urged before the Board, its
member, agent, or agency, shall [not] be considered by the court, unless the
failure or neglect to urge such objection shall be excused because of extraordinary
circumstances.” 29 U.S.C. § 160(e). Further, a party must raise its objection
“with sufficient specificity and clarity [so] that the tribunal is aware that it must
decide the issue, and in sufficient time that the agency can do so.” Kachanis v.
Dep’t of Treasury, 212 F.3d 1289, 1293 (Fed. Cir. 2000). As we do with the rest
of the elements of Interstate’s alternative justification theory, we assume – for
purposes of argument – that Interstate raised the argument with the requisite
particularity before the Board.
9
Interstate erroneously contends that the ALJ found this to be Interstate’s
sole motivation for discharging Norman. To the contrary, the NLRB
unambiguously concluded that “Norman was fired because [Interstate] would not
put up with Norman’s organizing efforts . . . [and Interstate] has failed to
persuasively show that Norman would have been terminated even in the absence
of his union activities.” NLRB Order, at 10 (emphasis added).

-28-
substantial evidence supported the ALJ’s finding of a violation. As we noted in

Ready Mixed Concrete, “[i]t is not [sufficient] for [Interstate] to prove that it

could have discharged [Norman for his actions], but whether it would have done

so regardless of [his] union activities.” 81 F.3d at 1553 (quoting Presbyterian/St.

Luke’s Med. Center v. NLRB, 723 F.2d 1468, 1480 (10th Cir. 1983)) (internal

quotation marks omitted) (second emphasis added). Thus, even assuming that

Norman’s inducing Hopper to leave precipitated Interstate’s termination of

Norman in part – making this a“mixed motive,” 10 or even a “disabling conflict” 11

case – we agree with the ALJ that Interstate “failed to persuasively show that

Norman would have been terminated even in the absence of his union activities.”

NLRB Order, at 10.

In sum, “substantial evidence supports the Board’s determination that the

General Counsel for the Board proved a prima facie case of unlawful

discriminatory discharge, and that [Interstate] did not meet its burden of showing

that [Norman] would have been discharged in the absence of his protected union

activity.” Miera v. NLRB, 982 F.2d 441, 446 (10th Cir. 1992). Accordingly, the

NLRB is entitled to enforcement of this portion of its July 31, 2001, order.

10
See, e.g., Miera v. NLRB, 982 F.2d 441, 446 (10th Cir. 1992).
11
See, e.g., Contractors’ Labor Pool, Inc. v. NLRB, 323 F.3d 1051, 1060
(D.C. Cir. 2003); Casino Ready Mix, Inc. v. NLRB, 321 F.3d 1190 (D.C. Cir.
2003).

-29-
IV. Whether Substantial Evidence Supported the NLRB’s Conclusion that

Interstate’s Refusal to Hire the May 12 Applicants Violated the NLRA.

Substantial evidence clearly supports the Board’s conclusion that Interstate

violated the Act when it refused to hire the four May 12 applicants. The elements

of a refusal-to-hire violation are as follows:

To establish a discriminatory refusal to hire, the General Counsel
must, under the allocation of burdens 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
applicants had experience or training relevant to the announced 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 requirements 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. 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 affiliation.

FES (a Division of Thermo Power) v. NLRB, 2000 WL 627640, at *6 (footnotes

omitted). The Board agreed with the ALJ that (1) the General Counsel carried its

burden of proof as to the elements of the requisite prima facie case, and (2)

Interstate failed to establish that it would not have hired the applicants absent

their affiliation with the Union.

The Board cited ample evidence supporting its conclusion that the General

Counsel had carried its burden as to each element of its prima facie case. As to

-30-
the first element, the Board noted the following: (1) Interstate had advertised its

need for ironworkers; (2) Interstate stipulated that it hired 59 ironworkers

between February 23 and September 15; and (3) Interstate continued to hire

employees after refusing to hire the May 12 applicants. As to the second element,

the Board noted that (1) the record establishes that the four applicants were

experienced journeyman ironworkers, and (2) Interstate did not contend that the

applicants were not qualified. And as to the third element, the Board noted

Young’s hostile reaction to the applicants’ attempts to submit their applications.

It found especially pertinent Young’s questioning of the applicants as to their

union status and his statement that they should “file another goddamn complaint.”

Once the General Counsel has established a prima facie case, the burden

shifts to the company to demonstrate that it would not have hired the applicants

absent their union affiliation or activities. Id.; Wright Line, 251 NLRB 1083

(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).

Substantial evidence clearly supports the Board’s conclusion that Interstate failed

to carry this burden.

According to Interstate, “[t]he basis for the Company’s refusal to consider

the employment applications submitted by five (5) [sic] individuals on May 10

[sic] was that they sought to be represented by Union official John Hunter [sic]

during the application process.” Respondent Br. at 25. While it is true that

-31-
Napier sent the Union a letter articulating its firm policy of dealing directly with

job applicants rather than with representatives, the existence of such a policy does

not render the Board’s conclusion – that the proffered explanation was pretextual

– incapable of satisfying a reasonable factfinder. See MJ Metal Products, 267

F.3d at 1065. Quite the contrary.

As the ALJ pointed out, evidence of Interstate’s anti-union animus was

plentiful. 12 We note that it included several violations of the NLRA that

Interstate does not challenge before this court, but which the ALJ and the Board

properly considered as circumstantial evidence of the employment decision at

issue. Id. (“The NLRB may consider factors such as the employer’s knowledge of

the employee’s union activities, the employer’s commission of other unfair labor

practices, the timing of the employer’s action, and the credibility of its

explanation of the reasons for the discharge.”) (emphasis added). Furthermore, as

we have already discussed, the contemporaneous circumstances of Interstate’s

refusal to accept the written applications strongly supports an inference that the

refusal was motivated by anti-union animus: Young interrogated the applicants

about their union status, and in refusing to accept their written applications told

them to “file another goddamn complaint.” Moreover, in response to Buntin’s

12
The Board incorporated the ALJ’s comments by reference. NLRB Order,
at 2.

-32-
direct question about the newspaper advertisement inviting applications, Interstate

provided the applicants with a false explanation for its refusal to accept the

written applications, i.e., that it was not hiring. See NLRB v. Dillon Stores, 643

F.2d 687, 693 (10th Cir. 1987) (proffer of false reason supports inference that

true reason is anti-union animus).

Under the applicable standard of review, the Board’s conclusion need only

constitute a “plausible inference” from the evidence. MJ Metal Products, 267

F.3d at 1065. Interstate’s stated policy of dealing directly with applicants fails,

by a wide margin, to render implausible the Board’s conclusion that anti-union

animus motivated its refusal to consider the May 12 applicants. Accordingly, the

NLRB is entitled to enforcement of this aspect of its July 31, 2001, order.

CONCLUSION

Based on the foregoing, we GRANT enforcement of the Board’s July 31,

2001 order.

-33-
02-9507, National Labor Relations Board v. Interstate Builders
McConnell, J., concurring in part and dissenting in part

In labor parlance, a “salt” is a volunteer or professional organizer for a

labor union who takes a job with an employer for the purpose of helping the union

organize the workplace. In NLRB v. Town & Country Electric, Inc., 516 U.S. 85

(1995), the Supreme Court held that a “salt” falls within the statutory definition

of an “employee” under the National Labor Relations Act, 29 U.S.C. § 151 et

seq., and thus is protected against discharge for engaging in protected union

organizing activity. The Court emphasized, however, that employers have ample

means for protecting themselves from the abuses that can arise from “salting”

campaigns. The Court took note of what it called “the practical considerations”

raised by the employer in that case, namely that “‘salts’ might try to harm the

company, perhaps quitting when the company needs them, perhaps disparaging

the company to others, perhaps even sabotaging the firm or its products.” Id. at

96. The court explained that “the law offers alternative remedies for [the

company’s] concerns.” Id. One of these is: “A company faced with unlawful (or

possibly unlawful) activity can discipline or dismiss the worker.” Id. at 97; see

also NLRB v. Washington Aluminum Co., 370 U.S. 9, 17 (1962) (allowing

discharge for union-related acts that “show a disloyalty to the workers’

employer”). In my view, the case before us tests whether that remedy is truly

available.

When an employer is charged with an unfair labor practice on account of
discharging an employee, it is essential to distinguish between that worker’s

protected and unprotected labor organizing activity. Timpte, Inc. v. NLRB, 590

F.2d 871 (10th Cir. 1979); see Ready Mixed Concrete Co. v. NLRB, 81 F.3d 1546,

1550 (10th Cir. 1996) (the General Counsel “must establish that the employee’s

protected conduct was a substantial or motivating factor in the discharge

decision”) (emphasis added). The Supreme Court made clear in Town & Country

that a worker has no protected right to engage in acts designed to harm the

company, even if these might have the indirect effect of pressuring the company

to unionize. 516 U.S. at 96-97; see also Technicolor Gov’t Servs., Inc., 276

N.L.R.B. 383, 387 (1985) (employees’ activity “designed to injure their

employer’s business have been found to be without the protection of the Act”).

An employer is entitled to discharge a worker for disloyalty, even if his acts of

disloyalty are part of a union organizing campaign. As the Supreme Court stated

in NLRB v. Local Union No. 1229, IBEW, 346 U.S. 464, 472 (1953):

There is no more elemental cause for discharge of an employee than
disloyalty to his employer. It is equally elemental that the Taft-Hartley Act
seeks to strengthen, rather than to weaken, that cooperation, continuity of
service and cordial contractual relation between employer and employee
that is born of loyalty to their common enterprise.

To hold the company liable when it discharges a worker for unprotected acts of

disloyalty would upset the careful balance struck by Congress and described by

the Court in Town & Country.

-2-
 Disturbingly, in this case the administrative law judge (ALJ), affirmed by

the Board, made no attempt to distinguish between legitimate labor organizing

activity, which is protected by the Act, and the possibly unprotected acts of union

“salts” that the employer contends were designed to harm the Company and thus

to increase the pressure to give in to a unionization campaign. The ALJ lumped

all of the activity together under the single rubric of “organizing activity,”

without explaining why the relevant acts were protected. The decision below thus

deprived the Company of the “alternative remedies” guaranteed under the labor

laws. Town & Country, 516 U.S. at 96-97.

I

The first issue in this case involves the discharge by Interstate Builders of

John Norman, a full-time employee of the Ironworkers Union assigned to organize

at the Company. The Company claims he was discharged for engaging in

unprotected activity, namely persuading a fellow employee to join the Union, quit

the company, and go work for a competitor. 1 The ALJ, affirmed by a three-

member decision of the Board, found that the discharge was motivated by anti-

1
The Company also asserted a second justification for the discharge: that
Norman demanded a $6 per hour pay raise. Respondent’s Br. 24. The majority
affirms the finding below that this was a pretext. Op. 26-27. Because I believe
there was substantial evidence to support the ALJ’s conclusion that “it is clear
that Norman was fired because [the Interstate official who fired Norman] would
not put up with Norman’s organizing efforts,” NLRB Order 10, I will not further
discuss this alternative ground.

-3-
union animus.

Uncontradicted evidence in the record shows that in February, 1998,

Interstate Builders President Bill Napier, a former Union member, offered to sign

an agreement to unionize, provided it would take effect three months thence. The

Union refused this offer. The Union then initiated a campaign that the Company

claims was designed to force it out of business. The Union instructed the eight or

ten unionized iron workers at Interstate Builders to leave Interstate and to move

to jobs with its competitors. They did so, leaving the Company short of workers

to fulfill its contracts. Norman then applied for a job with Interstate. On his

application form, despite almost twenty years of experience in ironwork, the sole

“employment history” he mentioned was “Ironworker Local 48.” He also listed as

“salary expected” an amount $6 per hour higher than the wage the Company paid

for that position, $16 per hour. Tommy Young, an Interstate supervisor, testified,

and Norman did not deny, that Norman told him “if he could not organize us, he

was going to take our employees.”

Although not hired on his first application, 2 Norman was hired a month

later, for $16 per hour. He was assigned to work on a two-man job with Richard

Hopper. Hopper testified that during their two-and-one-half days working

2
The ALJ found and the Board affirmed that the Company’s refusal to hire
Norman on this occasion was an unfair labor practice. Interstate does not
challenge that finding on appeal.

-4-
together, Norman “hound[ed]” him up to four times a day, telling him to stop

working for Interstate because the Union needed him. Hopper also testified that

Norman said that, “[I]f they can’t be a union company then we’ll want to get them

out of business. We’ve got to get something on them.” The following Monday,

Norman informed the Interstate foreman, Harry Young, that he had “signed

[Hopper] to the Union” and that Hopper would not be returning to Interstate.

Norman then complained that he could not do the work assigned alone and asked

for another helper. Young asked why he should hire another worker, when

Norman would just organize him and the Union would assign him to work for

another company. Norman said that was his job as a Union organizer. Norman

then demanded a pay increase. Young fired him. The question before us is

whether Norman’s discharge was an unfair labor practice.

The ALJ specifically found that Norman was fired for persuading Hopper to

join the Union and leave the Company:

Harry Young clearly express[ed] his irritation with Norman by commenting
that Norman would just organize any new helper (and induce him to leave
as Hopper did), said he wouldn’t put up with “this shit,” and he then
terminated him by telling Norman to get his check. Under these
circumstances it is clear that Norman was fired because Young would not
put up with Norman’s organizing efforts.

NLRB Order 9-10 (paragraph break omitted); see also id. at 9 (finding that the

Company “became annoyed with [Norman] after lea[rn]ing that his coworker had

left for a union job”). It is important to note that the ALJ makes no mention of

-5-
any organizing activity by Norman other than these conversations with Hopper.

Indeed, the record contains no evidence of any other organizing activity in which

Norman was engaged during his brief stint with the Company. Neither the ALJ

nor the Board suggested that Norman was discharged for labor organizing activity

prior to his employment with Interstate. In any event, since the Company hired

him in full awareness of his organizing activity, that would not be a plausible

explanation of the facts.

Proper resolution of this case, then, hinges on the following legal question:

Was Norman’s conduct in persuading Hopper to join the Union and quit the

Company protected activity under the Act? The answer is unquestionably “no.”

The Board has squarely held that inducing employees to quit is not protected

labor organizing activity under the Act. Clinton Corn Processing Co., 194

N.L.R.B. 184, 185-86 (1971) (company’s actions were not unfair labor practices

because they were motivated only by complainant’s “unprotected conduct in

inducing [the company’s] employees to quit”); see also Technicolor Gov’t Servs.,

276 N.L.R.B. at 389 (stating that a “solicitation to quit” by a union steward to

fellow employees “would remove the Act’s protection”); Boeing Airplane Co. v.

NLRB, 238 F.2d 188, 193-95 (9th Cir. 1956) (employee’s service as agent seeking

to place employer’s engineers with competitors was unprotected activity and valid

ground for discharge). To convince other workers to quit and to work for

-6-
competitors is an act of disloyalty, injurious to the employer, and is a legitimate

basis for discharge.

In its brief in this Court, the Board does not argue that persuading other

employees to quit is protected conduct under the Act. Instead, the Board disputes

the Company’s factual contention that this was the reason for Norman’s

termination. See Petitioner’s Br. 19 (“The Company failed to demonstrate that

those reasons [the second of which was “Norman had induced another employee

to quit the Company and work for a union contractor”] motivated it to fire

Norman . . . .”); id. at 21 (“The Company’s newly minted assertion that it fired

Norman because he ‘induced’ employee Hopper to quit is unsupported by any

testimony from company decisionmakers that they discharged Norman for that

reason.”) (citation omitted). However, the ALJ expressly found that this was the

Company’s reason for firing Norman, and the Board affirmed. 3 The Board may

3
The Board’s argument in its brief, “that Harry Young’s complaint to
Norman—that ‘you’ll just organize’ any new workers that would be assigned to
Norman—was, by its own terms, directed at Norman’s organizing activity and not
at his inducing Hopper to leave,” Petitioner’s Br. 21, is inconsistent with the
ALJ’s finding that the Company “became annoyed with [Norman] after lea[rn]ing
that his coworker had left for a union job.” NLRB Order 9. The Board’s three-
word quotation of Young (“you’ll just organize”) strips those words of their
context. After persuading Hopper to quit – just as all other members of the Union
had quit – Norman asked Young to hire another worker to work with him. When
Young asked “why, because Norman would just organize them,” id., it is apparent
from the context that Young understood that Norman’s intention was to persuade
workers who joined the Union to quit, making it pointless to hire new co-workers
(continued...)

-7-
not make arguments on appeal, nor could this Court affirm, on a legal basis that

differs from the findings below. NLRB v. Kentucky River Community Care, Inc.,

532 U.S. 706, 714 n.1 (2001); NLRB v. Bell Aerospace Co., 416 U.S. 267, 289-90

(1974); see generally SEC v. Chenery Corp., 332 U.S. 194, 196 (1947); INS v.

Mickeviciute, 327 F.3d 1159, 1162-63 (10th Cir. 2003); St. Anthony Hosp. v.

United States Dep’t of Health and Human Servs., 309 F.3d 680, 699 (10th Cir.

2002). 4 Because the ALJ’s decision, affirmed by the Board, rested on an

erroneous proposition of law, it must be reversed.

3
(...continued)
for him. To the extent the Board now argues otherwise, the argument is
precluded by the ALJ’s finding, affirmed by the Board, that “Harry Young clearly
expresse[ed] his irritation with Norman by commenting that Norman would just
organize any new helper (and induce him to leave as Hopper did),” NLRB Order
9-10 (emphasis added).
4
The Board also argues that we may not consider Interstate’s argument that
it fired Norman because he induced Hopper to quit because Interstate failed to
preserve that argument in proceedings before the Board. Generally, an “objection
that has not been urged before the Board, its member, agent, or agency, shall [not]
be considered by the court.” 29 U.S.C. § 160(e). However, Interstate was not
required to object to the ALJ’s finding that it fired Norman because of his
activities with respect to Hopper, because Interstate now agrees with that finding.
The relevant inquiry is whether Interstate objected to the ALJ’s legal conclusion
that Norman’s activities were protected under the Act. It clearly did so. In its
brief to the Board in support of exceptions to the ALJ opinion, Interstate pointed
to Norman’s statements regarding the Union’s campaign to drive Interstate out of
business by stripping its employees and specifically argued that inducing
employees to quit is unprotected conduct. Respondent’s Br. in Support of
Exceptions to the Decision of the ALJ, 25-26. This objection was sufficiently
specific to allow the Board to consider and rule on the issue, which the Board did
by affirming the ALJ. See May Dept. Stores Co. v. NLRB, 326 U.S. 376, 386 n.5
(1945).

-8-
 The majority states that “even assuming that Norman’s inducing Hopper to

leave precipitated Interstate’s termination of Norman in part . . . we agree with

the ALJ that Interstate ‘failed to persuasively show that Norman would have been

terminated even in the absence of his union activities.’” Op. 28-29 (quoting

NLRB Order 10). With all respect, this misses the argument. The question is not

whether Norman was discharged for engaging in “union activities”; the question

is whether the particular “union activities” in which Norman engaged were

protected conduct under the Act. It is established – and neither the Board nor the

majority disputes – that inducing other employees to quit is unprotected conduct.

Clinton Corn Processing, 194 N.L.R.B. at 186-87. The ALJ found – and neither

the Board nor the majority disputes – that Norman persuaded Hopper to quit and

that this incident was the reason for Norman’s termination. The ALJ’s opinion

provides no basis for a holding that Norman would have been terminated in the

absence of his activities toward Hopper. Because the only “union activities”

identified by the ALJ were unprotected, it follows that there is no legal basis for

affirming the enforcement order.

II

Whether the Board properly concluded that Interstate violated the Act when

it refused to hire the four May 12 applicants is a closer question. I agree with the

majority that the General Counsel established a prima facie case. But at the next

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stage of the analysis, Interstate makes a powerful claim that its refusal to hire was

based on a firm rule against hiring workers through the Union. Because hiring

through a union is incident to collective bargaining, an employer is not required

under the labor laws to do so unless the union has been certified as the bargaining

agent by majority vote of the workers in the relevant unit. NLRB v. Local Union

No. 103, 434 U.S. 335, 344 (1978). Section 8(f) of the NLRA permits, but does

not require, employers in the construction industry to enter into “pre-hire”

agreements with a union that has not attained majority status. 29 U.S.C. § 158(f).

Interstate has entered into no such agreement in this case, and accordingly is not

required to accept applications through the Union.

The principal dispute revolves around whether the four workers applied

independently. In April, 1998, the Union mailed applications of the four workers

directly to the Company. The Union was informed in writing that the Company

did not accept the Union as representative of the applicants. The letter suggested

that the applicants apply individually. On May 12, the applicants came to

Interstate’s offices accompanied by Union agent Norman, who was not a job

applicant. Only one of the applicants, John “Gib” Buntin, who was an executive

board director for the Union, said anything at this meeting. Instead, Norman

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spoke for them. 5 Norman informed Tommy Young, the Company supervisor, that

“he had four guys who wanted to fill out applications for employment.” Young

asked whether the applicants were from the Union and on learning that they were,

whether they had received the letter of April 9, informing the Union that the

Company would not hire through Union representatives. Norman acknowledged

receiving the letter, and replied that they were not “union representation.” Young

answered that the Company “did not need any help” and that he would not accept

the applications. As the men left Young’s office, Norman attempted to hand

Young the applications. Young rejected them and said, “go file another goddamn

complaint.”

To establish a prima facie case that an employer’s refusal to hire an

applicant is an unfair labor practice, the General Counsel must show, among other

things, that the employer’s anti-union animus contributed to the refusal to hire.

FES (a division of Thermo Power), 331 N.L.R.B. 9, 12 (2000). If the General

Counsel establishes a prima facie case, the burden shifts to the employer to

establish that the applicant would not have been hired even in the absence of the

discriminatory motive. In this case, the ALJ found and the Board affirmed that

there was substantial evidence of anti-union animus, based on other conduct by

5
On cross-examination, Norman was asked whether he spoke for the
applicants at the meeting. He responded: “Some of them.” R. vol. I, 69.

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Interstate roughly contemporaneous with the events in question. NLRB Order 10.

The ALJ also found and the Board affirmed that Interstate’s anti-union animus

“was a motivating factor in its decision to not hire or not accept applications from

the alleged discriminatees.” Id. The ALJ explained:

Here, Norman and the applicants engaged in a courteous and non disruptive
effort to submit application[s] and, otherwise, the Respondent made no
effort to ask Norman to leave or ask that it be allowed to see or interview
the applicants alone. Instead, it asked if they were union workers, it
adamantly stated it did not want union representation, it rejected any
explanation that they were there only to seek the jobs offered in the
newspaper, it pretextually told them it didn’t need any help (when it was
hiring other iron workers), and, with a display of rancor, it rejected an
attempt to leave applications for consideration.

Id. at 11. The majority concludes, and I agree, that this constitutes substantial

evidence supporting a prima facie case. 6

6
Under the NLRB’s current jurisprudence, there is some uncertainty
whether the General Counsel must also show, as an additional element, that the
applicants were genuinely interested in gaining employment and not attempting to
provoke the employer into not hiring them so as to provide grounds for an unfair
labor practice charge. In Exterior Systems Inc., 338 N.L.R.B. No. 82, 2002 WL
31753333 (November 22, 2002), the Board held that an employer did not commit
an unfair labor practice when it refused to hire a Union “salt” who behaved
disrespectfully toward company officials when he applied for a job. Two
members of the Board stated in separate concurrences that, under Supreme Court
and NLRB precedent, the General Counsel must show that the intent of the
“applicant” is to gain employment rather than to provoke a grievance. See id. at
*11, *16. In this case, there is considerable evidence that the May 12 applicants
intended such a provocation. It seems unlikely that genuine job seekers would
come to the site with union representation in direct violation of instructions the
Company had sent the previous month. In addition, if their goal was to obtain a
job rather than to generate controversy, it was highly imprudent of them to select
(continued...)

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 But I depart from the majority at the next stage: the analysis of the

Company’s defense. The Company claims that it had a legitimate

nondiscriminatory justification for not hiring the four applicants: namely, its firm

policy against hiring workers who apply through Union representatives rather than

individually. Neither the Board nor the majority questions that the Company has

such a policy or that the policy is lawful. Neither the Board nor the majority

questions that the policy applied to the situation on May 12. At the meeting on

May 12, Norman, a Union representative, spoke for the applicants (three of whom

said nothing during the meeting), and it was Norman – not the applicants – who

attempted to hand Young the job applications. None of the individual applicants

either spoke to Young to request a job or attempted on their own to submit an

application.

The majority concludes that “the proffered explanation was pretextual.”

Op. 31. Yet the sole evidence cited in support of this conclusion is a recitation of

6
(...continued)
as their spokesman a man whom the Company had fired less than two months
previously and who was actively involved in litigation against the Company.
Finally, Norman’s instructions to Hopper, in which he asked Hopper to help the
Union get Interstate on OSHA violations and insisted “we’ve got to get something
on them,” suggested that creating grounds for litigation was one of the goals of
the Union’s “salting” campaign. Nevertheless, because the Company does not
press this argument on appeal, and in light of the deference due to the ALJ’s
conclusion that the four men were “bona fide applicants,” I concur with the
majority’s conclusion regarding the Board’s prima facie case.

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precisely the same evidence that constituted the prima facie case: evidence that

Interstate harbored anti-union animus and that this animus was a contributing

factor in the refusal to hire. Op. 32. The Board offered no evidence that the

Company’s explanation was pretextual and no reason for weighing the evidence

as it did. Where, as here, an employer has offered evidence that its challenged

actions were based on a legitimate and non-discriminatory policy, the Board may

not conclude that those actions were an unfair labor practice without taking the

Company’s evidence into account. The Board is under no obligation to accept the

Company’s justification, but it must consider the Company’s evidence and explain

why it is unworthy of belief. The Board cannot simply look at the evidence on

one side of the equation – the evidence of the Company’s anti-union bias – and

disregard “contradictory evidence or evidence from which conflicting inferences

could be drawn.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951).

After the prima facie case is established and the Company has offered

evidence of a legitimate reason for its actions, the relevant inquiry is no longer

whether the Company harbored anti-union animus, but, as the majority

acknowledges, whether it would have refused to hire the applicants even in the

absence of anti-union animus. Op. at 21 (citing Ready Mixed Concrete, 81 F.3d

at 1550). To rebut the Company’s defense, there must be some evidence that the

Company was inconsistent or insincere in its application of the policy, or perhaps

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– in an extreme case – that the Company’s anti-union animus was so predominant

that any other reason for its actions is purely window-dressing. See NLRB v.

Instrument Corp., 714 F.2d 324, 327-28 (4th Cir. 1983) (“it is not enough for the

Board simply to declare that the reasons offered by the employer were pretextual;

the Board must advert to tangible evidence demonstrating why the good motive

was not the sole reason” for the employer’s actions.). Neither the Board nor the

majority has pointed to any such evidence in this case.

The ALJ focused exclusively on the words exchanged at the meeting on

May 12. But nothing said at that meeting has any bearing on whether the

Company’s policy of not hiring through the Union was pretextual. The ALJ found

that Norman had declared that if Interstate “can’t be a union company then we’ll

want to get them out of business.” NLRB Order 10. Young became angry at the

meeting of May 12, suspecting the applicants of setting the company up for a

“goddamn complaint” and sarcastically stating that the Company did not “need

any help.” The ALJ, seemingly inconsistently, dismissed Norman’s threat as mere

“braggado,” while treating Young’s “display of rancor” as evidence of

impermissible motivation. NLRB Order 10, 11. It is often difficult to distinguish

an employer’s anger at a union’s tactics from the generic anti-union animus that

the labor laws seek to remedy. One of the established tactics of a “salting”

campaign is to provoke an employer to refuse to hire an applicant, and then to file

-15-
an unfair labor practices charge with the Board. See Exterior Systems Inc., 338

N.L.R.B. No. 82, 2002 WL 31753333, at *13 (November 22, 2002) (Member

Cowen, concurring) (referring to “a rising tide of cases in which union salts have

behaved in a hostile, disrespectful, and/or intimidating manner during the

application process with a clear purpose of inducing the employer not to hire them

so that they could file unfair labor practices with the Board”). But an employer

does not forfeit its right not to hire through a union merely because, in the heat of

confrontation, company officers grow angry at what union representatives say or

do.

Here, the evidence showed that Interstate has a policy of not hiring through

a union that has not been chosen by the workers as their bargaining agent. There

is no evidence that enforcement of the policy in this instance was pretextual.

There was evidence that the union representative, Norman, was trying to drive the

Company out of business, and that a Company official became angry at Norman

during the meeting and said things he should not have said. I cannot agree with

the majority that this is a sufficient basis for holding the Company liable for an

unfair labor practice.

III

Because I conclude that the decision below is not entitled to enforcement

on substantive legal grounds, it is not necessary for me to discuss in detail the

-16-
procedural issue raised by the Company. I agree with the majority that the ALJ

abused his discretion in revoking substantial portions of the Company’s subpoena.

I point out only that the ALJ’s explanation for this decision was of a piece with

his treatment of the Company’s defenses both as to Norman and as to the four job

applicants. The ALJ found that the subpoena was “not relevant” because the

Company’s “request would appear to be a collateral attack on the Union’s

organizing practices or ‘salting’ program.” NLRB Order 8. Like the majority

(Op. 17), I am uncertain what the ALJ meant by a “collateral attack,” but the gist

is clear. The ALJ did not consider the Company’s defense – that its discharge of

Norman and refusal to hire the four applicants were related to its resistance to the

abuses of a “salting” campaign – relevant to the unfair labor practices charge. In

much the same vein, the ALJ dismissed Norman’s explicit statement that if

Interstate “can’t be a union company then we’ll want to get them out of business”

as mere “braggado.”

The Company believed that the documents it subpoenaed would corroborate

its side of the story: that the Union was attempting to drive it out of business by

stripping the Company of workers, and that the four applicants were not bona fide

applicants for a job, but simply attempting to provoke an unfair labor practices

complaint. The ALJ held that the documents were “not relevant” and that the

Company’s subpoena was a “fishing expedition.” As the majority correctly holds,

-17-
those explanations do not stand up to scrutiny. Worse yet, they suggest that the

ALJ was simply not receptive to hearing the Company’s side of the story.

I therefore join the majority insofar as it grants enforcement of the portions

of the order below that are not challenged by the Company, and otherwise

respectfully dissent.

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