United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 16, 2002 Decided July 9, 2002
No. 01-1301
International Union of Operating Engineers,
Local 147, AFL-CIO,
Petitioner
v.
National Labor Relations Board,
Respondent
On Petition for Review of an Order of the
National Labor Relations Board
Richard F. Griffin argued the cause for petitioner. With
him on the briefs was Helen L. Morgan. John M. Singleton
entered an appearance.
William M. Bernstein, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the
brief were Arthur F. Rosenfeld, General Counsel, John H.
Ferguson, Associate General Counsel, Aileen A. Armstrong,
Deputy Associate General Counsel, and Frederick Havard,
Supervisory Attorney. David A. Fleischer, Senior Attorney,
and Frederick L. Cornnell, Jr., Attorney, entered appear-
ances.
Before: Ginsburg, Chief Judge, and Randolph and Tatel,
Circuit Judges.
Opinion for the Court filed by Chief Judge Ginsburg.
Ginsburg, Chief Judge: The International Union of Operat-
ing Engineers, Local 147, petitions for review of a Decision
and Order of the National Labor Relations Board dismissing
a complaint issued by the General Counsel against Tidewater
Construction Co. The complaint alleged that Tidewater vio-
lated ss 8(a)(1) & (3) of the National Labor Relations Act, 29
U.S.C. ss 158(a)(1) & (3), by refusing to consider for hire six
applicants, who Tidewater claims were lawfully locked out.
We hold that the Board failed adequately to explain why
evidence presented by the Union did not demonstrate that
Tidewater had unlawfully refused to consider the applicants
due to antiunion animus.
I. Background
Tidewater does heavy industrial and highway bridge con-
struction in the southeastern United States. Until Decem-
ber, 1993 Tidewater was a member of the Virginia Association
of Contractors and was a party to successive collective bar-
gaining agreements between the Union and the VAC. Pursu-
ant to this arrangement, Tidewater hired heavy equipment
operating engineers from the Union's hiring hall, and from
January, 1992 to October, 1994 all of Tidewater's operating
engineers were members of the Union. After Tidewater
withdrew from the VAC, the Union filed a petition for a
representation election, as the result of which it was certified
as the representative of Tidewater's operating engineers in
March, 1994. In October, following months of unsuccessful
bargaining, the Union called a strike. In December the
strikers offered unconditionally to return to work but Tide-
water informed the Union it was "locking out the bargaining
unit employees in support of [its] contract demand."
To aid in the process of hiring replacements, Tidewater
created a "lockout list" of: (1) the 25 striking employees; (2)
40 other individuals who had been on the Excelsior list of
those eligible to vote in the representation election in March,
see Excelsior Underwear Inc., 156 N.L.R.B. 1236 (1966); and
(3) 16 individuals who were neither strikers nor on the
Excelsior list. Ten of the individuals on the Excelsior list
would not have been on such a list compiled in December,
1994 rather than in February of that year.
Tidewater hired 40 replacement workers but refused to
consider for employment six applicants who were on the
lockout list because they had been eligible to vote in the
March election. Those applicants were falsely told they were
being denied employment because there was no work avail-
able. One of the six rejected applicants would not have been
on an updated Excelsior list.
The Union filed an unfair labor practice charge with the
Board, and the General Counsel filed a complaint alleging
that Tidewater violated ss 8(a)(1) & (3) of the Act by failing
to consider for hire the six applicants. An Administrative
Law Judge dismissed the complaint, see Tidewater Constr.
Co. and Int'l Union of Operating Eng'rs., Local 147, 33
N.L.R.B. No. 147 at 4-7 (2001), and the Board affirmed,
stating:
[W]e find that the lockout did not become unlawful
because [Tidewater] expanded the lockout beyond cur-
rent employees who had participated in the strike and
refused to consider for hire six job applicants who, by
virtue of their prior history of employment in the bar-
gaining unit, were eligible to vote in a Board election
held 9 months prior to the start of the lockout....
Id. at 1. The Board concluded that Tidewater's reliance upon
an outdated Excelsior list to determine the scope of the
lockout was reasonable. Id. at 1-2. In dissent, Member
Liebman pointed to evidence of antiunion animus and reject-
ed Tidewater's argument that extension of the lockout to all
employees eligible to vote in the representation election
brought legitimate economic pressure to bear in support of its
bargaining position. Id. at 3.
II. Analysis
The court reviews the Board's decision deferentially. We
uphold its findings of fact if they are supported by substantial
evidence, see Pac. Micronesia Corp. v. NLRB, 219 F.3d 661,
665 (D.C. Cir. 2000), and accept its interpretation of the Act if
it is reasonable and consistent with controlling precedent, see
Tualatin Elec., Inc. v. NLRB, 253 F.3d 714, 717 (D.C. Cir.
2001). The Board has an obligation to engage in reasoned
decisionmaking, see Penrod v. NLRB, 203 F.3d 41, 46 (D.C.
Cir. 2000), which obligation requires it to give a reasoned
explanation when it departs from its own precedent, see
Chelsea Indus., Inc. v. NLRB, 285 F.3d 1073, 1075-76 (D.C.
Cir. 2002).
The Union contends that the Board, in dismissing the
allegation that Tidewater unlawfully rejected the employment
applications of six of its members, "failed to consider over-
whelming evidence of [Tidewater's] unlawful motivation."*
Tidewater argues that the Board properly upheld its action as
part of a legitimate lockout of bargaining unit employees.
The Board has recently set forth the elements of a refusal-
to-consider violation as follows:
To establish a discriminatory refusal to consider ... the
General Counsel bears the burden of showing ... (1)
that the respondent excluded applicants from a hiring
process; and (2) that antiunion animus contributed to the
decision not to consider the applicants for employment.
__________
* Insofar as the Union contends that Tidewater also violated the
Act by placing on its lockout list individuals who never sought
employment with Tidewater and never knew they were on the list,
the Board properly dismissed the complaint. Tidewater's actions
neither abridged the s 7 rights of these individuals nor discouraged
them from union activity.
Once this is established, the burden will shift to the
respondent to show that it would not have considered the
applicants even in the absence of their union activity or
affiliation. If the respondent fails to meet its burden,
then a violation of Section 8(a)(3) is established.
FES (A Division of Thermo Power) and Plumbers and
Pipefitters Local 520 of the United Assoc., 331 N.L.R.B. No.
20, 2000 WL 627640 *10 (2000). It is also well established
that "an employer violates neither s 8(a)(1) nor s 8(a)(3)
when, after a bargaining impasse has been reached, he tem-
porarily shuts down his plant and lays off his employees for
the sole purpose of bringing economic pressure to bear in
support of his legitimate bargaining position." Am. Ship
Bldg. Co. v. NLRB, 380 U.S. 300, 318 (1965). We have made
clear, however, that "a lockout is unlawful under the Labor
Act ... if [it is] motivated by antiunion animus." Int'l Bhd.
of Boilermakers, Local 88 v. NLRB, 858 F.2d 756, 760 (1988).
Thus, whether Tidewater "locked out the six applicant em-
ployees ... 'because of their union membership or affilia-
tion' " became the "key contested issue in this case." Tide-
water Constr. Co., 33 N.L.R.B. No. 147 at 1.
As the Union shows on review, the Board, having correctly
framed the dispositive question, failed reasonably to address
it. In particular, the Board failed adequately to consider
three indications that Tidewater was motivated by antiunion
animus.
First, the Union argues that the Board unreasonably disre-
garded Tidewater's inability to explain why 10 of the 16
individuals who were neither strikers nor on the Excelsior list
were included on the lockout list. See Southwest Merch.
Corp. v. NLRB, 53 F.3d 1334, 1340 (D.C. Cir. 1995) ("[T]he
absence of any legitimate basis for an action--i.e., the ab-
sence of a credible explanation from the employer--may form
part of the proof of the General Counsel's case"). We agree.
The ALJ, whose reasoning the Board adopted, noted that
after "numerous shifts in position" Tidewater had still provid-
ed "no explanation for the inclusion of 10 of the 16 names" on
the list. 33 N.L.R.B. No. 147 at 6. The ALJ ultimately
concluded that their being listed did not evidence antiunion
animus because the 10 individuals did not apply for employ-
ment and there was "no proof that the 10 were even union
members." Id. Whether the 10 applied for employment,
however, is irrelevant to whether their unexplained inclusion
on the list bespeaks antiunion animus. Indeed, it is also
irrelevant whether they were actually members of the Union,
so long as Tidewater thought they were. As the Union points
out, the "locator list" maintained by Tidewater described each
of the 10 as follows: "Operating Engineers Local 147 --
LOCKED OUT EMPLOYEE." The Board argues lamely
that "[t]his ambiguous notation does not prove union member-
ship," Brief at 26 n.10 (emphasis deleted), but the list certain-
ly seems to show that Tidewater thought the 10 individuals
were members of the Union, and this is what counts.
The Board also argues that Tidewater's inability to explain
why the 10 were on the list does not "alone ... sustain a
finding of unlawful motivation." Perhaps not. On the ques-
tion of animus, however, as we shall see, the Board did not
have this evidence "alone" -- which may be why neither the
Board nor the ALJ gave this rationale in their respective
decisions.
Second, the Union argues that the Board failed to explain
why Tidewater's statements to the six applicants were not
also evidence of an antiunion animus, and how, in light of
these false statements, the Board's decision could be recon-
ciled with Eads Transfer, Inc., 304 N.L.R.B. 711 (1991).
Again, we agree.
Tidewater falsely told each of the applicants "there was no
work available" rather than telling them they were locked
out, as it now claims they were. Tidewater Constr. Co., 33
N.L.R.B. No. 147 at 6. From this misrepresentation the
Board could have inferred that Tidewater had an unlawful
motive. See Property Resources Corp. v. NLRB, 863 F.2d
964, 967 (D.C. Cir. 1988). Instead, the ALJ merely observed
that Tidewater gave false reasons without explaining why
that did not tend to indicate an unlawful motive, and the
Board itself did not even mention this evidence. In its brief
the Board argues (echoes?) that "standing alone" the giving
of false reasons is "insufficient to establish discriminatory
motivation." Again, this evidence did not stand alone, and
neither the Board nor the ALJ, unlike the General Counsel
on review, implied otherwise.
The Board's decision in this case also appears to be in some
tension with its decision in Eads Transfer, though perhaps
not in direct conflict, as the Union claims. There the Board
said:
[A]n employer can only justify its failure to reinstate
economic strikers "for legitimate and substantial busi-
ness reasons" based on a "lockout" by its timely an-
nouncement to the strikers that it is locking them out in
support of its bargaining position. For only after the
employer has informed the strikers of the lockout can the
strikers knowingly reevaluate their position and decide
whether to accept the employer's terms and end the
strike or to take other appropriate action. In the ab-
sence of notification, we conclude that an employer's
failure to reinstate economic strikers based on a claimed
lockout on their unconditional offer to return to work is
inherently destructive of employee rights ... and is a
violation of Section 8(a)(3) and (1) of the Act.
304 N.L.R.B. at 712-13. In this case the ALJ held, 33
N.L.R.B. No. 147 at 5-6, and the Board contends in its brief,
that Tidewater complied with the notice requirement of Eads
Transfer because it informed the Union by letter that it was
"locking out the bargaining unit employees in support of [its]
contract demand." We think this explanation incomplete.
The six applicants, who were members of the Union but not
striking employees, had no reason to believe that Tidewater
considered them part of the bargaining unit being locked out.
Therefore, when Tidewater falsely told the applicants there
was no work available rather than telling them they were
locked out, it deprived them of whatever ability they may
have had to "reevaluate their position" and act accordingly.
Eads Transfer, 304 N.L.R.B. at 712. Although the six appli-
cants obviously could not have offered "to accept the employ-
er's terms" and return to work, as members of the Union
they may have had some influence in the Union's decision
whether to accept Tidewater's last offer and end the lockout.
On the other hand, if the applicants were in no position to
influence the Union, the rationale of Eads Transfer may not
be implicated. We need not decide now, however, whether
Eads Transfer controls this case. Having found incomplete
the Board's explanation why Eads Transfer is inapplicable,
we must remand that question to the Board for further
consideration.
Third, the Union claims the Board gave an inadequate
explanation why Tidewater's lockout of the 10 individuals who
appeared only on the outdated Excelsior list was not evidence
of antiunion animus. Yet again, we agree.
The Supreme Court in American Ship Building held that
absent antiunion animus an employer may lawfully lockout its
employees. 380 U.S. at 318. Board precedent makes clear,
however, that a lockout that goes beyond excluding employ-
ees to refusing to hire union members as replacements is
indicative of antiunion animus. See Schenck Packing Co., 301
N.L.R.B. 487, 489 (1991). In this case, in addition to the
striking employees, Tidewater locked out everyone on the
outdated Excelsior list which, in keeping with Board practice
in the construction industry, see Steiny & Co., Inc., 308
N.L.R.B. 1323, 1326 (1992), included every operator of heavy
equipment who had worked for Tidewater 30 days or more in
the year prior to the compilation of the list, or for at least one
day in the previous year and 45 days in the previous two
years.
For the purpose of this case, the Union concedes that
Tidewater could have locked out anyone on an Excelsior list
compiled at the time of the lockout. The Union argues,
however, that because all of Tidewater's employees before the
March election were members of the Union -- as Tidewater
well knew -- Tidewater's use of a list that was 10 months old
was evidence of antiunion animus.
The Board held that Tidewater could lock out any employee
having a "reasonable employment nexus with the bargaining
unit" and that, because there is no way to "define with
absolute accuracy the outer limits of a former employee's
reasonable expectation of reemployment in a bargaining unit
with a fluctuating work force," Tidewater could rely upon the
outdated Excelsior list. 33 N.L.R.B. No. 147 at 1-2. The
non-sequitur in this is apparent: Because an Excelsior list is
an approximation even when first made, the Board allows an
employer still to use it when it is further removed from being
accurate by the passage of ten months. The logical gap is
equally glaring: The Board has not said why it does not
require the use of an updated list. Would such a requirement
would be too burdensome? To be sure, Tidewater made this
and other claims in its brief to the ALJ, but neither he nor
the Board adopted Tidewater's argument or gave any other
reason for their complacency on this score.
III. Conclusion
Because the Board failed in three respects adequately to
explain why it did not find convincing evidence of Tidewater's
antiunion animus, the Decision and Order of the Board is
vacated and this matter is remanded to the Agency for
further proceedings consistent with this opinion.
So ordered.