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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 11, 2003 Decided March 28, 2003
No. 01-1393
CONTRACTORS’ LABOR POOL, INC.,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
AFL–CIO, LOCAL 46, ET AL.,
INTERVENORS
On Petition for Review and Cross–Application
for Enforcement of an Order of the
National Labor Relations Board
Robert W. Tollen argued the cause and filed the briefs for
petitioner.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
William M. Bernstein, Senior 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. Arm-
strong, Deputy Associate General Counsel, and Meredith
Jason, Attorney. Deirdre C. Fitzpatrick and Julie F. Mar-
cus, Attorneys, entered appearances.
Robert D. Kurnick argued the cause for the intervenor
unions and amicus curiae International Brotherhood of Elec-
trical Workers, AFL–CIO in support of respondent. With
him on the brief was David Hannah.
Before: EDWARDS and ROGERS, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
SILBERMAN.
SILBERMAN, Senior Circuit Judge: Contractors’ Labor Pool
(CLP) challenges a Board determination that CLP’s policy of
refusing to hire applicants whose recent wages were 30%
higher or lower than its starting wages was discriminatory
within the meaning of § 8(a)(3) of the National Labor Rela-
tions Act. Also challenged is the Board’s conclusion that
CLP discriminated against several paid union organizers in
assignment because, according to petitioner, they were not its
‘‘employees’’ or, alternatively, because of a ‘‘disabling con-
flict,’’ they were engaged in unprotected activity. We agree
with petitioner’s first challenge but reject its second and
therefore grant the petition in part and deny it in part.
I.
CLP, a nonunion company, supplies, on a temporary basis,
several thousand construction workers a year to various
contractors in Arizona, California, Oregon, Washington, Ne-
vada, and Colorado.1 It operates 15 offices in those states.
1 The ALJ’s list of states, which takes account of CLP’s offices
at the time of the hearing (held on various days between September
11, 1995 and November 8, 1996), does not include Colorado. How-
3
Essentially, it employs a permanent labor pool from which
contractors draw skilled and unskilled workers as needed.
Its management believes that its success depends on its
ability to keep a large number of reliable employees. Accord-
ingly, it has adopted various measures to improve employee
retention (and productivity) since its inception in 1987.
For instance, it sought to improve its applicant screening
process in the early 1990s by examining applicants’ driving
records and references with greater care. And beginning in
1989, an applicant was asked to specify an acceptable hourly
rate. If the figure was substantially higher than CLP was
willing to pay, that person would not be hired for it was
assumed that the employee would soon become dissatisfied
and quit. Petitioner’s CEO Thomas McCune testified that
short-term employees, moreover, were prone to substandard
work and accidents.
In 1993 the company conducted a worker retention study
that served to further refine petitioner’s hiring policy. The
available data indicated that workers who had previously
earned wages that were either 30% higher or lower than
CLP’s wages would be significantly less likely to work for the
company for 100 hours or more within a 40–day period. The
study predicted that adopting a 30% rule (precluding appli-
cants whose prior wages deviated by 30% from CLP’s start-
ing salary) would eliminate some eligible workers. But it
would cause CLP’s important retention rate to rise 3.5%.
Accordingly, in 1994 CLP adopted the 30% hiring standard.
In the first full year following adoption of the 30% rule the
percentage of applicants deemed ineligible for hire increased
ever the Board granted CLP’s motion to add to the record Contrac-
tors Labor Pool, Inc. (IBEW Local Union 68), 1999 WL 33453678,
(July 21, 1999), which addresses similar unfair labor practice
charges raised against the company’s Denver, Colorado operations.
In addition, the ALJ recognized that CLP has recruited new
employees from neighboring states, such as Idaho, but the record
does not indicate that it has offices there. See In re W.D.D.W.
Commercial Systems & Investments, Inc., 335 N.L.R.B. No. 25,
2001 WL 1011927, at *91 (Aug. 27, 2001).
4
from 70 to 75%, but CLP’s retention rate increased from 57.6
to 63.9%, workers compensation costs were significantly re-
duced, and the company’s safety record showed substantial
improvement.
The ALJ specifically determined that petitioner’s imple-
mentation of its 30% rule was not motivated by antiunion
animus; instead CLP had pursued a legitimate business
objective. The Board adopted that recommended finding.
Nevertheless, the ALJ and the Board concluded that petition-
er’s 30% rule operated to exclude workers in a number of
Western labor markets who previously had worked on jobs
covered by a union collective bargaining agreement.2 The
effect was most pronounced in Southern California; CLP’s
top hourly rate for journeymen electricians was $18.00 in that
market whereas the average union scale was $26.00. In
Seattle, on the other hand, the ALJ concluded that the
differential was less.
Petitioner contends that union rates are not 30% higher
than CLP’s in Idaho, parts of Washington state and Denver,
Colorado. It cites an ALJ determination to that effect—at
least respecting Denver—in a companion case against it, in
which the judge recommended against a finding of an
§ 8(a)(3) violation. See Contractors Labor Pool, Inc. (IBEW
Local Union 68), 1999 WL 33453678, at *11. However, it
does not appear that it produced clear evidence as to its rates
in Idaho and central and western Washington. The Board’s
brief is virtually silent on the matter and its decision, without
referring to the Denver case, only said that ‘‘it is no defense
that a few union members may have passed CLP’s 30% rule.’’
In re W.D.D.W. Commercial Sys., 2001 WL 1011927, at *5,
n.17.
The ALJ concluded, and three of the four Board members
agreed, relying upon the Supreme Court’s decision in NLRB
v. Great Dane Trailers, Inc., 388 U.S. 26 (1967), that CLP
2 The consolidated charges in this case were brought by local
unions in two of the states of operations: Orange County in
Southern California, San Mateo and Contra Costa counties in
Northern California, and the Seattle area in Washington.
5
violated § 8(a)(3) because the 30% rule excluded previously
organized workers and therefore had ‘‘inherently destructive’’
effects on employees’ § 7 rights. Chairman Hurtgen dissent-
ed from the Board’s order because, in his view, there was no
showing of discrimination or unlawful motive.
B.
The second issue in the case—the Board’s finding of peti-
tioner’s discriminatory assignment of two union organizers—
also has its genesis in the early 1990s when Local 441 began
targeting CLP as part of the broader campaign against
nonunion employers on the West Coast. The Local employed
what is called ‘‘salts,’’ paid organizers sent to job sites osten-
sibly to obtain employment but with the objective of inducing
union organization. The ALJ determined that some of these
salts were instructed not only to uncover unfair labor prac-
tices but to provoke them. As one organizer put it, their
presence on a jobsite was not necessarily ‘‘to build their damn
job,’’ but if organizing tactics were unsuccessful ‘‘to bankrupt
the contractors.’’ In re W.D.D.W. Commercial Sys., 2001
WL 1011927, at *13. Local 441 issued several newsletters
boasting of successful efforts in getting some of the larger
nonunion contractors to close their businesses. CLP claims
to have learned about the full extent of Local 441’s salting
activities only at the unfair labor practice hearing in this
case.3
As part of this salting campaign Local 441 President
Vaughn Hedges applied for employment with CLP in 1992
without making the company aware of his union affiliation.
After successfully passing the screening test he was referred
to CLP customer Aztech Electric in California and reported
3 However, the ALJ found that CLP had first learned of Local
441’s salting activities somewhat earlier because of an unfair labor
practice charge against another company. In response, CLP dis-
tributed guideline literature to its employees on how to deal with
such campaigns through lawful means, recognizing Local 441 specif-
ically as a union intent on generating unfair labor practice litigation
to hurt the company financially.
6
to its construction site in November 1992. Four days later he
was released from work at Aztech by foreman Adamik.
Aztech claimed that Hedges had completed a particular pro-
ject and it wanted to give additional work to some regular
employees. After being told that he was being laid off,
Hedges started talking about the union and how it would be
best for the employees if Aztech Electric unionized. He then
signed his timecard, left the site, and went to his truck, where
he picked up some union literature and began to distribute it
to other electricians. Adamik then told Hedges to leave the
jobsite and Hedges complied.
Hedges did not talk to CLP about the incident until the
next day. The staff manager Margo Nezrab accused Hedges
of distributing literature on CLP’s time after he had been laid
off. Hedges admitted this was true. Nezrab then added that
CLP gets contracts from companies like Aztech precisely
because it is a nonunion employer. She made it clear that
union literature was not welcome on the job, but did suggest
that Hedges would continue to get work if available. Hedges
received his paycheck later that week. CLP never contacted
him regarding work again, and testimony revealed that a
‘‘DNU (Do Not Use) until further notice’’ was entered into
Hedges’ CLP computer file after the episode. In re
W.D.D.W. Commercial Sys., 2001 WL 1011927, at *61.
Shawn Smith was also a Local 441 member at the time
these events occurred. In September 1992, Local 441 Busi-
ness Manager Doug Saunders told him to apply with CLP.
He applied and was accepted for employment. Smith was let
go from his second assignment with Aztech Electric on No-
vember 25, 1992, the day after Hedges was released, also
because his job had been completed. The ALJ noted that
Aztech foreman Adamik was aware of his union affiliation and
intent to distribute union literature. Smith, like Hedges,
received a ‘‘DNU’’ code and was not referred another job.
Based on this record, the ALJ determined that CLP’s
actions against these employees would be violative of
§ 8(a)(1) and (3) of the Act, but decided that because Local
441 paid union organizers purposed to engage in activities
7
inimical to the employers’ operations, a ‘‘disabling conflict’’
had been created. Accordingly, the salts were no longer
‘‘employees’’ within the meaning of § 2(3) of the Act. The
Board majority disagreed, holding that even if a disabling
conflict had existed between Local 441 and CLP, which would
mean their activity was ‘‘unprotected,’’ the salts nevertheless
had statutory employee status under NLRB v. Town &
Country Elec., 516 U.S. 85 (1995). The Board did not actual-
ly decide whether a disabling conflict had been created,
because CLP had argued that salts were not statutory em-
ployees. Nevertheless, the Board went on to hold that even
assuming arguendo that such a conflict existed,4 and there-
fore the employees were engaged in unprotected activity,
CLP did not demonstrate that it actually relied on this
conflict in making its workplace decision; accordingly it could
not raise it as a defense. (Chairman Hurtgen dissented only
on the limited issue whether petitioner would be entitled to
toll its backpay liability if it could show that once it discover-
ed—at the unfair labor practice hearing—that Hedges and
Smith were engaged in a disabling conflict it would not have
assigned work to them). The Board ordered CLP to immedi-
ately reinstate the employees and make them whole for any
losses suffered as a result of the discriminatory activity. And
the order precluded the ALJ from opening up the record on
the question of whether CLP could rely on the alleged
4 The Board in dicta split on whether Local 441’s behavior
constituted a disabling conflict. See, e.g., Sunland Construction
Co., 309 N.L.R.B. 1224 (1992). Members Liebman and Walsh wrote
separately to state their belief that Local 441’s objective of generat-
ing litigation costs to cause CLP economic hardship did not amount
to a disabling conflict, as long as it could not be shown that the salts
were performing their jobs incompetently or engaging in ‘‘violence,
sabotage, or disparagement of the business.’’ In re W.D.D.W.
Commercial Sys., 2001 WL 1011927, at *15. Member Truesdale
believed that if an employer can show that a union’s ‘‘overarching
objective’’ is to drive the company out of business, this goal would
be ‘‘separate from and indeed in conflict with organizational objec-
tives,’’ and would entitle the employer to lawfully decline to hire, or
retain its salts. Id. at *24 (Member Truesdale, concurring). Chair-
man Hurtgen agreed with Truesdale.
8
disabling conflict to toll backpay liability or for any other
purpose.
II.
A.
Section 8(a)(3) makes it unlawful for an employee ‘‘by
discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or discour-
age membership in any labor organization.’’ 29 U.S.C.A.
§ 158(a)(3) (emphasis added). Petitioner’s main challenge is
to the Board’s determination that the 30% rule is ‘‘inherently
destructive’’ of employees’ § 7 rights to engage in protected
activity, and therefore the employer’s motive—whether to
encourage or discourage membership in any labor organiza-
tion—is irrelevant. (All but two employees are affected by
this determination.) In support of this challenge, petitioner
raises two arguments; its 30% rule is not inherently destruc-
tive and, in any event, the Board’s explicit finding that the
employer’s motivation, in adopting the 30% rule, was not
tainted by antiunion animus makes a § 8(a)(3) violation ana-
lytically impossible.
The contention that the 30% rule is not inherently destruc-
tive is not completely fleshed out.
Petitioner points to Chairman Hurtgen’s dissent which
argued:
[T]here is no showing of discrimination and thus the
Great Dane analysis TTT does not even apply. Re-
spondent did not discriminate along section 7 lines.
Rather, Respondent CLP drew a line between high-
wage earners and low-wage earners. A high-wage
earner with a non-union background (e.g., based on
skill and experience) was not eligible for hire. A
non-high-wage earner with a union background was
eligible for hire. Thus there was no discrimination
prohibited by the Act.
In re W.D.D.W. Commercial Sys., 2001 WL 1011927, at *28
(Chairman Hurtgen, dissenting). We take the Chairman to
9
mean that the 30% rule, by itself, is not evidence of discrimi-
nation. If evidence had been presented that petitioner had
adopted the rule for the very purpose of excluding applicants
who had recently been covered by union contracts that would
be a different matter, even if the operation of the rule
excluded nonunion applicants as well. See, e.g., Birch Run
Welding & Fabricating, Inc. v. NLRB, 761 F.2d 1175, 1180
(6th Cir. 1985) (ordering general layoffs to discourage or
retaliate against union activity is unlawful discrimination,
even though some employees opposed to the union were laid-
off as well). Moreover, it would seem to us that, at least
theoretically, even a facially nondiscriminatory rule could be
shown to invariably discriminate against union adherents and
therefore might be termed ‘‘inherently destructive.’’ Be that
as it may, the Chairman’s dissent does not squarely respond
to the majority’s contention that petitioner’s rule is inherent-
ly destructive.
Petitioner emphasizes, however, that its company-wide 30%
rule does not adversely impact applicants recently covered by
union contracts in all of its labor markets. In other words, as
we would re-characterize petitioner’s argument, an employ-
er’s practice can hardly be described as inherently destruc-
tive of § 7 rights if its very destructiveness depends on
independent variables—in this case actual evidence of the
differential between petitioner’s starting wages and the union
wages in any particular locality. In the line of Supreme
Court cases that have endorsed Board findings that particular
practices are inherently destructive, and therefore § 8(a)(3)
violations are made out without further evidence of an em-
ployer’s antiunion animus, those practices can be regarded as
having an inevitable negative impact on union adherents—
without regard to any other facts. See, e.g., NLRB v. Great
Dane Trailers, Inc., 388 U.S. 26 (1967) (employer’s refusal to
pay vacation benefits accrued under terminated collective
bargaining agreement to strikers while giving such payments
to nonstrikers and replacements); Metropolitan Edison Co.
v. NLRB, 460 U.S. 693 (1983) (employer disciplined union
officials more severely than other employees for participation
in a work stoppage).
Still, given the record confusion as to the actual situation in
petitioner’s various labor markets as well as the imprecise
10
nature of both petitioner’s and the Board’s arguments on this
issue, we think it preferable not to decide whether petitioner’s
practice could be described as inherently destructive and
instead to pass on to petitioner’s main point: that once the
Board found explicitly that it had acted without an antiunion
animus it was not possible for the Board to rely on the
inherently destructive rationale.
The keystone of the Board’s decision is its reliance on a
discrete quotation from Great Dane:
First, if it can reasonably be concluded that the
employer’s discriminatory conduct was ‘inherently
destructive’ of important employee rights no proof of
an antiunion motivation is needed and the Board
can find an unfair labor practice even if the employ-
er introduces evidence that conduct was motivated
by business considerations.
Great Dane Trailers, 388 U.S. at 34 (emphasis added).
Drawing on this language the Board concluded it was free to
hold that petitioner violated § 8(a)(3) even if it also found that
petitioner’s motive was blameless. The Board analogized its
new legal rationale to ‘‘the disparate impact theory long
applied in cases prosecuted under Title VII of the Civil
Rights Act of 1964.’’ In re Commercial Sys., 2001 WL
1011927, at *5. Petitioner argues, and we agree, that the
Board over reads the quotation from Great Dane, particularly
in light of Supreme Court cases upon which Great Dane
relied as well as cases that followed Great Dane and inter-
preted it.
In Great Dane an employer refused to pay strikers vaca-
tion benefits accrued under an expired collective bargaining
agreement yet at the same time paying equivalent benefits to
non-strikers. The Court of Appeals had refused to enforce
the Board’s order because of a lack of explicit evidence of the
employers’ antiunion motivation. The Supreme Court ac-
knowledged that although the employer’s practice was clearly
discriminatory (on its face) and that it was obviously ‘‘capable
of discouraging membership in a labor organization’’ the
statute usually requires more—specific evidence of an anti-
union purpose. NLRB v. Great Dane Trailers, 388 U.S. at
11
32. Reviewing its past cases, however, it pointed out that
some conduct carries with it ‘‘unavoidable consequences which
the employer not only foresaw but which he must have
intended and thus bears its own indices of intent.’’ Id. at 33
(quoting NLRB v. Erie Resistor Corp., 373 U.S. 221, 231
(1963)).
That articulation makes clear that certain employer prac-
tices permit the Board to draw what is often referred to as a
‘‘secondary inference,’’ see, e.g., NLRB v. Universal Camera
Corp., 190 F.2d 429, 432 (2d Cir. 1951) (Frank, J. concurring),
of a discriminatory motive without any other evidence. To be
sure, the quote upon which the Board relies, if read alone,
could support the notion that, given certain conduct, an
employer’s motive is not relevant (although even the quote
does not suggest that an explicit finding of a benign motive
would be of no significance). However, the wording upon
which the Board relies is in the paragraph immediately
following the Court’s discussion of its prior cases and its
quote from Erie Resistor. Moreover, it is preceded by the
sentence (which the Board does not quote): ‘‘[f]rom this
review of our recent decisions, several principles of control-
ling importance here can be distilled.’’ Great Dane Trailers,
388 U.S. at 34. It seems rather plain to us, therefore, that
the Court did not mean to deviate from its past line of cases;
when it said, ‘‘no proof of an antiunion motivation is needed.’’
Id. It obviously meant no further proof of antiunion motiva-
tion, because if the employer’s conduct was inherently de-
structive of union rights the Board could legitimately draw
the inference that the employer had the proscribed motiva-
tion. If there were any doubt as to the Court’s meaning in
Great Dane—which we do not harbor—some years later in
Metropolitan Edison, the Court described Great Dane as
holding that ‘‘[s]ome conduct is so inherently destructive of
employee interests that it carries with it a strong inference of
impermissible motive.’’ Metropolitan Edison, 460 U.S. at
701 (emphasis added).5
5 Of course, in most instances finding an employer’s discrimina-
tory intent against union workers in regard to hire or tenure of
12
The intervenors, but not the Board’s decision, rely heavily
on another rather old Supreme Court case, Republic Aviation
Corp. v. NLRB, 324 U.S. 793 (1945), to support the argument
that a § 8(a)(3) violation can be made out without regard to
an employer’s motivation. There an employer enforced an
overly broad no solicitation rule, (on nonworking time), which
the Board held violated § 8(a)(1) because it interfered with
union organizing attempts and therefore the employees’ § 7
rights. Although the Court recognized that the employer’s
adoption and enforcement of the rule was not motivated by
antiunion animus nor did it discriminate against union solici-
tation, it nevertheless affirmed the Board’s holding that dis-
charging employees who violated the rule was in turn a
violation of § 8(a)(3). Subsequently, in Radio Officers Union
v. NLRB, 347 U.S. 17 (1954), the Court ‘‘explained’’ its prior
holding as follows: ‘‘Since the rules were no defense and the
employers intended to discriminate solely on the ground of
such protected activity, it did not matter that they did not
intend to discourage membership since such was a foresee-
able result.’’ Id. at 46. The difficulty with that description is
that the union solicitation was treated as protected activity as
a matter of law; there was no showing that the employer’s
policy, which applied to all kinds of solicitation, was directed
at union organization. To say then, that the employer ‘‘in-
tended to discriminate solely on the grounds of TTT protective
activity’’ is somewhat of a bootstrap analysis. Id.
Admittedly, the holding in Republic Aviation and the rath-
er unsatisfactory explanation of that case in Radio Officers
does not seem consistent with the Erie Resister, Great Dane,
Metropolitan line of cases. We think Republic Aviation
should be regarded as something of an anomaly. It stands
for the limited proposition that if an employer adopts an
illegal rule (a violation of § 8(a)(1) as a matter of law) and
then fires an employee for transgressing the rule, it automati-
employment will demonstrate intent to encourage or discourage
union membership. The facts in Great Dane, paying accrued
benefits to nonunion employees while extinguishing the same bene-
fits for union employees, are a prime example. See Great Dane
Trailers, 388 U.S. at 32.
13
cally violates § 8(a)(3) even though it adopted the rule for
wholly benign reasons. See Republic Aviation, 324 U.S. at
805.
In sum, the Supreme Court’s long-standing interpretation
of § 8(a)(3) is plainly at odds with the Board’s reasoning in
this case. Indispensable to a determination of a violation of
§ 8(a)(3)—at least outside the Republican Aviation excep-
tion—is a finding that an employer acted out of an anti- (or
pro-union) motivation. Whatever legitimate inference that
might be drawn from petitioner’s adoption of the 30% rule the
Board certainly cannot conclude explicitly that petitioner’s
motivation is benign and then hold that its practice indepen-
dently violates § 8(a)(3).
It also follows that the Board may not draw support for its
decision from the disparate impact line of cases under Title
VII. For one thing, the statutory language is different.
Title VII is broader than § 8(a)(3), for it is unlawful for an
employer
(1) to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or national
origin; or
(2) to limit, segregate, or classify his employees in
any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise
adversely affect his status as an employee, because
of such individual’s race, color, religion, sex, or na-
tional origin.
42 U.S.C.A. § 2000e–2(a) (emphasis added). Second, as we
have noted, the Court has never imported that concept into
its cases interpreting § 8(a)(3). Indeed, the Court has been
reluctant to extend the disparate impact theory to other laws
prohibiting discrimination even where the statutory language
bears greater resemblance. See, e.g., Hazen Paper Company
v. Biggins, 507 U.S. 604, 610 (1993) (‘‘Disparate treatment,
14
thus defined, captures the essence of what Congress sought
to prohibit in the Age Discrimination in Employment Act’’);
Alexander v. Sonderval, 532 U.S. 275, 280–81 (2001) (‘‘It is
similarly beyond dispute TTT that § 601 prohibits only inten-
tional discrimination TTT [although] regulations promulgated
under § 602 of Title VI may validly proscribe activities that
have a disparate impact on racial groups); Washington v.
Davis, 426 U.S. 220, 247–48 (1976) (‘‘We are not disposed to
adopt this more rigorous standard [disparate impact] for the
purposes of applying the Fifth and Fourteenth Amend-
ments’’).
III.
There remains the question whether the Board’s finding
that petitioner discriminated against Hedges and Smith is
vulnerable. That finding led to a Board determination that
petitioner violated § 8(a)(3) quite independently of its 30%
rule. Petitioner’s main argument, that these two ‘‘salts,’’ and
other paid organizers, as a matter of law were not petitioner’s
employees under the NLRA, but were rather employees of
the union, is foreclosed essentially by the Supreme Court’s
opinion in Town & Country Electric, Inc., 516 U.S. 85, 98
(1995), holding that paid union organizers are nevertheless
employees under the Act. The Court explicitly contemplated
that such organizers would engage in activities that might
‘‘hurt the company through unlawful acts,’’ but it found that
they were no less employees than ‘‘unpaid zealots’’ or ‘‘dissat-
isfied workers’’ engaged in such behavior. Id. at 96–97. See
also Tualatin Elec. v. NLRB, 253 F.3d 714, 717 (D.C. Cir.
2001) (upholding NLRB order awarding backpay to union
salts unlawfully fired by a nonunion contractor because of
organizing activity).
To be sure, as we have recently noted in Casino Ready
Mix, Inc. v. NLRB, No. 01–1471, (D.C. Cir. Mar. 14, 2003),
the Board recognizes that employed union organizers might
engage in conduct that raises a disabling conflict with their
employer and is therefore unprotected. Whether the conduct
15
at issue in this case was unprotected, as we have noted,
caused a sharp division amongst the Board members. But it
is unnecessary for us to resolve the issue because we think
the Board reasonably determined (all four members appar-
ently agreed) that an employer who wishes to assert that its
otherwise discriminatory conduct is justified by the employ-
ee’s unprotected activity must show that the employee’s un-
protected conduct caused the employer’s action. The Board
likened a disabling conflict defense to a Wright Line defense
whereby an employer must demonstrate initially in a mixed
motive case, that it relied at least in part on considerations
unrelated to protected activity in imposing discipline on an
employee. See Wright Line, a Div. of Wright Line Inc., 251
N.L.R.B. 1083, enf’d 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982). Since petitioner never asserted that it
was aware of Hedges’ and Smith’s ‘‘salt’’ status (or any
allegedly disabling conflicts) at the time it engaged in discrim-
inatory conduct this defense was unavailable.
During the unfair labor practice hearing, however, petition-
er, as we have noted, did hear testimony which showed that
Hedges and Smith were salts—although we are not told how
they interacted with other salts or what was their actual
conduct. From that testimony, alone, petitioner alternatively
argues that its backpay liability should be tolled from the
time it discovered Hedges and Smith were salts. This is an
untenable proposition. An employee does not lose his pro-
tected status merely because he is a salt. Rather, he may
lose it if he engages in unprotected activity that emanates
from disabling conflicts arising in connection with salting.
See Casino Ready Mix, No. 01–1471, slip op. at 12. Maybe
this is what petitioner meant to say in arguing that backpay
should be tolled. We will assume as much in addressing this
claim.
In support of this argument, petitioner relies on Chairman
Hurtgen’s dissent that argued petitioner should be at least
entitled to litigate that issue in a subsequent backpay pro-
16
ceeding—a position that the majority rejected. Whatever the
merits of the Chairman’s position,6 we may not consider it—
let alone the broader argument petitioner makes—because we
are without jurisdiction to consider the issue. As the interve-
nors point out, this tolling question was not raised to the
Board and ‘‘[n]o objection that has not been urged before the
Board TTT shall 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.A. § 160(e).
Petitioner contends that Chairman Hurtgen satisfied this
requirement by raising the backpay tolling issue in his dis-
sent. The company relies on § 10(e)’s passive voice as an
indication that Congress did not require that the parties
themselves actually raise the issue before the Board, as long
as the members themselves engage in its discussion. CLP,
however, offers no support for its view and probably for good
reason—there is not any. The company had full opportunity
to present the argument regarding backpay tolling in a
motion for reconsideration, and the mere inconvenience of
severing the issues or delaying a petition for review does not
constitute an extraordinary circumstance. See Woelke &
Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665–66 (1982)
(holding that an employer cannot challenge the Board’s sua
sponte conclusion that its conduct did not violate § 8(b)(4)(A)
because a motion of rehearing or reconsideration could have
been filed); see also Alwin Mfg. Co., Inc. v. NLRB, 192 F.3d
133, 143 (D.C. Cir. 1999).
6 We do not believe the majority adequately responded to
Chairman Hurtgen’s dissent on the tolling issue. The three mem-
bers argued that CLP already had the opportunity to prove that it
relied on a disabling conflict in defending against the unfair labor
practice charges in this proceeding, and precluded CLP a second
opportunity to do so on remand or in subsequent compliance
proceedings. See In re W.D.D.W. Commercial Sys., 2001 WL
1011927, at *9, n.29. The difficulty with that response is it confuses
the petitioner’s failure to demonstrate that it had initially relied on
the alleged disabling conflict with the entirely separate tolling
question.
17
* * * *
For the foregoing reasons, the petition for review is partial-
ly granted and partially denied, and the Board’s cross-
application for enforcement of its order is partially granted.
So ordered.