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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 11, 2003 Decided March 14, 2003
No. 01-1471
CASINO READY MIX, INC.,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
James T. Winkler argued the cause and filed the briefs for
petitioner.
Eric D. Duryea, 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 Meredith L. Jason,
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
Supervisory Attorney. Deirdre C. Fitzpatrick, Attorney, en-
tered an appearance.
Before: EDWARDS and ROGERS, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge EDWARDS.
EDWARDS, Circuit Judge: Petitioner Casino Ready Mix, Inc.
(‘‘Casino’’) seeks review of the Decision and Order of the
National Labor Relations Board (‘‘NLRB’’ or ‘‘Board’’) in
Casino Ready Mix, Inc., 335 N.L.R.B. No. 39, 2001 WL
1039902 (Aug. 27, 2001). The Board found that Casino com-
mitted unfair labor practices (‘‘ULPs’’) in violation of
§§ 8(a)(3) and (1) of the National Labor Relations Act (‘‘the
Act’’), 29 U.S.C. §§ 158(a)(3) and (1), in discriminatorily refus-
ing to assign work to complainant Charles Phillips and in
discriminatorily refusing to hire complainants Bill Dooley and
Wayne King, because the complainants were union organizers
for Teamsters, Chauffeurs, Warehousemen and Helpers, Lo-
cal 631 (the ‘‘Union’’). The Board also found that Casino
committed an ULP when Gary Bale, petitioner’s owner and
president, told an employee that the company would never
allow the Union to represent its employees and that he would
either move Casino’s operation or replace the company’s
truckdrivers with owner-operators before dealing with the
Union. The Board held that Bale’s statement violated
§ 8(a)(1), and also demonstrated petitioner’s animus against
the Union, a factor relevant to the complaint’s § 8(a)(3)
allegations.
In its petition for review, Casino argues that the Board
erred in excluding evidence offered to support petitioner’s
affirmative defense that Phillips, Dooley, and King were
properly denied work because of their ‘‘disabling conflicts’’ as
Union organizers; that the Board erred in finding an ULP
and adverse inference in connection with Bale’s antiunion
statement, because the General Counsel’s complaint before
the Board never expressly alleged that Bale’s statement was
an unfair labor practice; and that the Board erred in finding
that the Administrative Law Judge (‘‘ALJ’’) had conducted a
3
complete and fair review of the entire record. We find no
merit in these claims.
There is substantial evidence in the record to support the
Board’s finding that Casino was determined not to assign
Phillips any work and decided not to hire King and Dooley
because these men were union organizers. The Board also
properly rejected Casino’s ‘‘disabling conflict’’ defense. Un-
der established law, ‘‘salting’’ may be found to be a disabling
conflict when a union organizer seeks work while engaged in
an economic strike against the employer; or when the em-
ployer demonstrates that the purported organizational activi-
ty is a subterfuge used to further purposes unrelated to
organizing, undertaken in bad faith, designed to result in
sabotage, or designed to drive the employer out of the area or
out of business. The Board found that the evidence proffered
by Casino did not purport to demonstrate any of these
affirmative defenses. The Board also properly rejected Casi-
no’s objections to the § 8(a)(1) ULP charge implicating Bale.
The Board found that, although the General Counsel’s com-
plaint did not specifically allege that Bale’s statement violated
the Act, Casino had clear notice of the charge, and, in
addition, petitioner did not object to the testimony implicating
Bale and did not pursue an opportunity for cross-examination
to contest it. Finally, there is no credible evidence support-
ing Casino’s claim that the Board denied it a complete and
fair review of the entire record. Accordingly, we deny the
petition for review, and grant the NLRB’s cross-application
for enforcement.
I. BACKGROUND
Casino prepares, sells, and distributes ready-mix concrete
and related products in Las Vegas, Nevada. On September
29, 1997, the Regional Director for Region 28 of the NLRB
issued a Complaint and Notice of Hearing alleging that
petitioner had violated §§ 8(a)(3) and (1) of the Act. See 29
U.S.C. §§ 158(a)(3) and (1) (providing that it is an unfair
labor practice for an employer to ‘‘encourage or discourage
membership in any labor organization’’ through ‘‘discrimina-
4
tion in regard to hire or tenure of employment or any term or
condition of employment,’’ or ‘‘to interfere with, restrain, or
coerce employees in the exercise of’’ their rights to self-
organization and collective bargaining). On September 18,
1998, an ALJ issued a decision finding that petitioner had
violated both provisions. On August 27, 2001, the Board
issued a Decision and Order holding that petitioner had
violated §§ 8(a)(3) and (1) of the Act; the Board’s findings
and conclusions, however, differed somewhat from those of
the ALJ.
The Board found, without dissent, that petitioner had dis-
criminatorily refused to hire both Dooley and King, and had
discriminatorily refused to assign work to Phillips. Dooley,
King, and Phillips all were union organizers. The Board’s
principal findings were that,
[w]hen Phillips applied for a driver position at
[Casino’s] office on March 28, he did not reveal that
he was a union organizer. He was hired on April 8.
Soon thereafter, [Casino] found out that he was an
organizer, and [petitioner] admitted at the hearing
that it did not assign work to him specifically be-
cause of that fact. Phillips did not receive work
assignments until on or about August 15, after unfair
labor practice charges had been filedTTTT
Alleged discriminatees Dooley and King applied
for driver positions on April 8, when [Casino] was
advertising to hire drivers. Both wore shirts identi-
fying themselves as organizers for the Union as well
as baseball caps with union logos. Each stated his
organizer status on his application; Dooley added on
his that he intended to organize [petitioner’s] em-
ployees. Although [Casino] accepted their applica-
tions, they were told that the Company was not
hiring at that time, and in fact they were not hired.
[Casino] hired four other drivers between April 8
and 21.
[Casino’s] newspaper advertisements required
that truckdriver applicants ‘‘must have CDL (a
5
chauffeur’s license) with clean record. Must know
pneumatics.’’ Dooley had 9 years experience in the
ready-mix concrete industry and a CDL with all
required endorsements. [Petitioner] admitted that
Dooley was qualified for the driver position being
advertised. King’s qualifications were comparable
to Dooley’s: 6 years experience in the ready-mix
industry and a CDL with all required endorsements.
[Casino] does not dispute, and we find, that King
was qualified for the advertised position as well.
Casino Ready Mix, 2001 WL 1039902, at *4. Based on these
findings (including Casino’s admission that Phillips did not
receive work assignments because he was a Union adherent),
the Board concluded that petitioner’s refusal to assign work
to Phillips was unlawfully discriminatory in violation of
§§ 8(a)(3) and (1) of the Act.
While the ALJ’s decision was pending before the Board on
exceptions, the Board issued FES (a Division of Thermo
Power), 331 N.L.R.B. 9 (2000). In that decision, the Board
clarified the legal elements of a discriminatory refusal-to-hire
violation. On June 13, 2000, the Board invited the parties in
this case to file briefs addressing the applicability of the FES
analytical framework to the refusal-to-hire issues raised by
the complaint in this case. Casino Ready Mix, 2001 WL
1039902, at *3.
In FES, the Board defined the elements of a refusal-to-hire
violation, as follows:
To establish a discriminatory refusal to hire, the
General Counsel must, under the allocation of bur-
dens 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 appli-
cants had experience or training relevant to the
announced or generally known requirements of the
positions for hire, or in the alternative, that the
6
employer has not adhered uniformly to such require-
ments, or that the requirements were themselves
pretextual or were applied as a pretext for discrimi-
nation; 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 affilia-
tion.
FES, 331 N.L.R.B. at 12 (footnote references omitted). Ap-
plying the principles of FES to the record in this case, the
Board concluded that the General Counsel had established
the factors constituting a discriminatory refusal to hire viola-
tion with respect to Dooley and King. Because the Board
held that the FES factors had been established, the burden
shifted to petitioner to demonstrate that it would not have
hired either Dooley or King regardless of their status as
union organizers.
In attempting to prove that Dooley and King would not
otherwise have been hired, petitioner argued that it had
never received King’s application. The Board rejected this
contention. Like the ALJ, the Board credited the testimony
of Dooley and King that they had filled out their applications
at petitioner’s office and submitted them personally to peti-
tioner’s general manager, Doug Anderson. Thus, the NLRB
held that petitioner’s refusal to hire King violated §§ 8(a)(3)
and (1) of the Act. Casino Ready Mix, 2001 WL 1039902, at
*4.
As to Dooley, petitioner had asserted that he was not hired
because he lacked recent driver experience, his applications
contained inaccuracies, and his then-current job with the
Union paid more than he would earn as a driver for petition-
er. However, at the hearing before the ALJ, General Manag-
er Anderson testified that the first two proffered points were
not actually the reason that petitioner had not hired Dooley.
Anderson initially stated that the salary issue was the true
reason, but he later testified ‘‘that Dooley’s arrogance at the
time he submitted his application was also a significant reason
7
for denying him employment.’’ Id. at *5. Both the ALJ and
the Board found that Anderson’s testimony was not credible
because he put forward ‘‘shifting, pretextual rationales for not
hiring Dooley.’’ Id. The NLRB thus held that petitioner’s
refusal to hire Dooley also violated §§ 8(a)(3) and (1) of the
Act.
A majority of the Board (with then-Chairman Hurtgen
dissenting) also found that petitioner had violated the Act
through an antiunion threat made by its owner and president,
Gary Bale. In finding that Bale had made an antiunion
threat, the Board credited the testimony of Scott Newcomb, a
Casino employee. Newcomb testified that, in the late sum-
mer or early fall of 1997, Bale had stated that petitioner
‘‘would never allow the Union to represent its employees, that
instead he would either move the Respondent’s Las Vegas
operation or replace the truckdrivers with owner-operators.’’
Id. at *2. The Board found that this statement constituted a
threat in violation of § 8(a)(1) of the Act. Id. at *2-*3.
Casino now petitions for review of the NLRB’s order, and
the Board cross-applies for enforcement.
II. ANALYSIS
A. Disabling Conflict Defense
The most important issue in this case concerns the Board’s
rejection of petitioner’s ‘‘disabling conflict’’ defense. As noted
above, the Board found that the General Counsel had estab-
lished, consistent with the three elements set forth in FES,
that Casino discriminatorily refused to hire Dooley and King,
and that petitioner had not met its burden of demonstrating
that it would not have hired either of them regardless of their
protected status. Casino Ready Mix, 2001 WL 1039902, at
*3-*5. The Board also found that Phillips had been denied
work because he was a Union organizer. Casino admitted at
the hearing before the ALJ that, once the company found out
that Phillips was a Union organizer, company officials did not
assign work to him ‘‘specifically because of that fact.’’ Id. at
*4. The Board thus found, ‘‘based primarily on [Casino’s]
8
admission, that the refusal to assign work to Phillips was
discriminatory and violated Section 8(a)(3) and (1).’’ Id. The
Board also held that Casino’s ‘‘discrimination against Phillips
because of his union status lends support to a finding of
antiunion animus with respect to the complaint allegations
involving Dooley and King.’’ Id. The Board’s findings are
fully supported by substantial evidence in the record and,
therefore, command our deference. See Universal Camera
Corp. v. NLRB, 340 U.S. 474, 488 (1951).
Petitioner nonetheless claims that the unfair labor practice
findings should be overturned, because Phillips, Dooley, and
King, as paid union organizers, had ‘‘disabling conflicts.’’
This claim is meritless.
In Sunland Construction Co., 309 N.L.R.B. 1224, 1228
(1992), the Board held that, ‘‘[u]pon reexamination of our
analysis of the scope of Section 2(3) in Oak Apparel [218
N.LR.B. 701 (1975)] and its progeny, we conclude that the
definition of ‘employee’ encompasses paid union organizers.’’
The Board went on to hold that:
While working for the employer, the paid organiz-
er is subject to its direction and control, and is
responsible for performing assigned work. The or-
ganizer’s activities, like those of any employee, may
be limited pursuant to lawful no-solicitation rules.
Republic Aviation Corp. v. NLRB, [324 U.S. 793,
802-03 n.10 (1945)]. Outside work time, however,
the organizer—like other workers—is free to solicit
for the union. Id. The fact that a paid organizer
may approach his nonwork time organizing activities
with greater vigor than an unpaid union adherent is
not an acceptable basis for denying the organizer
statutory protectionsTTTT
If the organizer violates valid work rules, or fails
to perform adequately, the organizer lawfully may
be subjected to the same nondiscriminatory disci-
pline as any other employee. See Wellington Mills
Div. v. NLRB, 330 F.2d 579 (4th Cir. 1964), cert.
denied 379 U.S. 882; Sears, Roebuck & Co., 170
9
NLRB 533 (1968). In the absence of objective
evidence, however, we will not infer a disabling
conflict or presume that, if hired, paid union organiz-
ers will engage in activities inimical to the employ-
er’s operations. Thus, we find no policy reason to
disregard present decisional law to find that since a
union organizer serves the union as well as the
company he is eliminated from the definition of
employee under Section 2(3) of the Act.
Id. at 1229-30.
The Board’s judgment in Sunland Construction accords
with the opinion issued by the Supreme Court three years
later in NLRB v. Town & Country Electric, Inc., 516 U.S. 85
(1995). In Town & Country, the Court held that a worker
may be an ‘‘employee,’’ within the terms of the NLRA, even
if, at the same time, a union pays that worker to help the
union organize the company. The Court’s discussion of this
point is illuminating:
[The employer] argues that, when the paid union
organizer serves the union—at least at certain times
in certain ways—he organizer is acting adversely to
the company. Indeed, it says, the organizer may
stand ready to desert the company upon request by
the union, in which case, the union, not the company,
would have ‘‘the right TTT to control the conduct of
the servant.’’ Thus, it concludes, the worker must
be the servant (i.e., the ‘‘employee’’) of the union
alone. See [RESTATEMENT (SECOND) OF AGENCY] § 1,
and Comment a, p. 8 (‘‘agent’’ is one who agrees to
act ‘‘subject to [a principal’s] control’’).
As Town & Country correctly notes, in the context
of reviewing lower courts’ interpretations of statuto-
ry terms, we have said on several occasions that
when Congress uses the term ‘‘employee’’ in a stat-
ute that does not define the term, courts interpret-
ing the statute ‘‘ ‘must infer, unless the statute oth-
erwise dictates, that Congress means to incorporate
the established meaning of th[at] ter[m]TTTT In the
10
past, when Congress has used the term ‘‘employee’’
without defining it, we have concluded that Congress
intended to describe the conventional master-servant
relationship as understood by common-law agency
doctrine.’ ’’ TTT At the same time, when reviewing
the Board’s interpretation of the term ‘‘employee’’ as
it is used in the Act, we have repeatedly said that
‘‘[s]ince the task of defining the term ‘employee’ is
one that ‘has been assigned primarily to the agency
created by Congress to administer the Act,’ TTT the
Board’s construction of that term is entitled to con-
siderable deferenceTTTT’’ In some cases, there may
be a question about whether the Board’s departure
from the common law of agency with respect to
particular questions and in a particular statutory
context, renders its interpretation unreasonableTTTT
But no such question is presented here since the
Board’s interpretation of the term ‘‘employee’’ is
consistent with the common law.
Town & Country’s common-law argument fails,
quite simply, because, in our view, the Board cor-
rectly found that it lacks sufficient support in com-
mon law. The Restatement’s hornbook rule (to which
the quoted commentary is appended) says that a
‘‘person may be the servant of two masters TTT
at one time as to one act, if the service to one
does not involve abandonment of the service to
the other.’’ Restatement (Second) of Agency
§ 226, at 498 (emphasis added).
The Board, in quoting this rule, concluded that
service to the union for pay does not ‘‘involve aban-
donment of TTT service’’ to the company. 309
N.L.R.B., at 1254.
And, that conclusion seems correct. Common
sense suggests that as a worker goes about his or
her ordinary tasks during a working day, say, wir-
ing sockets or laying cable, he or she is subject to
the control of the company employer, whether or not
11
the union also pays the worker. The company, the
worker, the union, all would expect that to be so.
And, that being so, that union and company interests
or control might sometimes differ should make no
difference. As Prof. Seavey pointed out many years
ago, ‘‘[o]ne can be a servant of one person for some
acts and the servant of another person for other
acts, even when done at the same time,’’ for exam-
ple, where ‘‘a city detective, in search of clues, finds
employment as a waiter and, while serving the
meals, searches the customer’s pockets.’’ W. Seav-
ey, Handbook of the Law of Agency § 85, p. 146
(1964). The detective is the servant both ‘‘of the
restaurateur’’ (as to the table waiting) and ‘‘of the
city’’ (as to the pocket searching). Ibid. How does
it differ from Prof. Seavey’s example for the compa-
ny to pay the worker for electrical work, and the
union to pay him for organizing? Moreover, union
organizers may limit their organizing to nonwork
hoursTTTT If so, union organizing, when done for
pay but during nonwork hours, would seem equiva-
lent to simple moonlighting, a practice wholly consis-
tent with a company’s control over its workers as to
their assigned duties.
Id. at 93-95. Although Sunland Construction was decided
before Town & Country, it is perfectly consistent with the
Court’s views. And the Board has followed this line of
analysis in its subsequent decisions. See, e.g., Braun Elec.
Co., 324 N.L.R.B. 1 (1997); M.J. Mech. Servs., 324 N.L.R.B.
812 (1997).
Under Braun Electric, M.J. Mechanical Services, and Sun-
land Construction, it is clear that individuals seeking jobs
from an employer pursuant to a union’s ‘‘salting’’ program are
statutory employees entitled to protections under the Act.
Braun Elec., 324 N.L.R.B. at 3; M.J. Mech. Servs., 324
N.L.R.B. at 816. The fact that individuals are being subsi-
dized by a union or are on the job to organize does not
deprive them of the Act’s protections. Braun Elec., 324
N.L.R.B. at 3; Sunland Constr. Co., 309 N.L.R.B. at 1225-26.
12
Moreover, even when a salting campaign is intended in part
to provoke an employer to commit unfair labor practices,
union organizers retain their status as employees. M.J.
Mech. Servs., 324 N.L.R.B. at 813-14; see also Godsell Con-
tracting, 320 N.L.R.B. 871, 874 (1996).
‘‘This is not to say that the law treats paid union organizers
like other company employees in every labor law context.’’
Town & Country, 516 U.S. at 97. Thus, for example, in
Sunland Construction the Board held that an ‘‘employer
should not be required during a strike to hire a paid organiz-
er whose role is inherently and unmistakably inconsistent
with employment behind a picket line.’’ Sunland Constr. Co.,
309 N.L.R.B. at 1230 (internal quotations omitted). The
Board reasoned that
an employer faced with a strike can take steps
aimed at protecting itself from economic injury.
For example, an employer can permanently replace
the strikers, it can lock out the unit employees and it
can hire temporary replacement for the locked-out
employees. Consistent with these principles, we
believe that the employer can refuse to hire, during
the dispute, an agent of the striking union.
Id. at 1231. Moreover, in M.J. Mechanical Services and
Braun Electric, the Board indicated that ‘‘salting’’ also may
be found to be unprotected if the purported organizational
activity is a subterfuge used to further purposes unrelated to
organizing, undertaken in bad faith, designed to result in
sabotage, or designed to drive the employer out of the area or
out of business. Braun Elec., 324 N.L.R.B. at 3 n.3; M.J.
Mech. Servs., 324 N.L.R.B. at 813-14.
In the instant case, petitioner claims that the ALJ improp-
erly denied it an opportunity to offer evidence to demonstrate
that the Union salts sought to engage in unprotected activity
and, thus, were properly denied work because of their disabl-
ing conflicts. The Board found no merit in this claim. Given
the somewhat imprecise boundaries of activities that consti-
tute unprotected disabling conduct, an ALJ normally would
be expected to allow evidence in permitting an employer to
13
make an argument on disabling conflict based on slightly
different facts than have been previously recognized as mak-
ing out the legal defense. Still, we have little difficulty in
agreeing with the Board that petitioner’s proffer here does
not raise a serious issue.
The Board noted that
[Casino] sought to establish that (1) Phillips filed
applications with several employers at the same time
in April 1997 and that in October 1997, while em-
ployed by the [petitioner], he engaged in a short
economic strike and a subsequent unfair labor prac-
tice strike; (2) that after being denied employment,
Dooley attempted to convince an employee of the
Respondent to go to work for a union contractor;
and (3) that 30 applicants appeared outside the
Respondent’s office when King and Dooley applied
for work.
Casino Ready Mix, 2001 WL 1039902 at *4 n.7. The Board,
citing Town & Country, M.J. Mechanical Services, and
Braun Electric, held that Casino’s proffer was properly re-
jected by the ALJ, because the evidence offered would not
have demonstrated disabling conflicts. Id. The Board plain-
ly did not err in this conclusion. The Board’s judgment rests
on the agency’s reasonable interpretation of ‘‘employee.’’
And as the Court in Town & Country noted, ‘‘the Board’s
construction of [‘employee’] is entitled to considerable defer-
ence.’’ 516 U.S. at 94 (internal quotations omitted).
Before this court, Casino argues that the Board should be
reversed, because its holding in this case impermissibly ex-
tends established precedent. To support this claim, petition-
er notes that, at the hearing before the ALJ, the Board’s
General Counsel argued that the employer’s offer of evidence
should be rejected, in part, because a union’s ‘‘campaigning or
organizational tactics as they relate to other employers’’ are
‘‘completely irrelevant.’’ Counsel for the Acting General
Counsel’s Motion in Limine at 2, App. 22. The ALJ, appear-
ing to agree with the General Counsel, rejected petitioner’s
evidentiary proffer, because, in his view,
14
the current state of the law is merely that a ‘‘salter’’
will lose his ‘‘protected’’ status during the time that
he is engaged in ‘‘bad faith’’ activity. Nothing more.
I see no warrant for me to go further and find that a
‘‘salter’’ who may have engaged in ‘‘bad faith’’ activi-
ty in some other situation at some other place with
some other employer in the past has lost his protect-
ed status for all time, much less in the specific case I
am hearing.
Order Denying Motion in Limine at 5, App. 55.
The ALJ’s holding does not correspond with prevailing law,
so it is unsurprising that the Board did not endorse either the
General Counsel’s or the ALJ’s view of the law regarding the
standards governing ‘‘salting’’ activity and the evidence neces-
sary for an employer to establish a disabling conflict. The
Board did not hold that evidence regarding a union’s cam-
paigning tactics is irrelevant, nor did the Board hold that
evidence that a ‘‘salter’’ who may have engaged in ‘‘bad faith’’
activity in some other situation at some other place with some
other employer in the past is always immaterial. Rather, the
Board merely found ‘‘no merit in [Casino’s] contention that
the [ALJ] improperly limited its ability to prove that [the
union organizers] were not protected by the Act.’’ Casino
Ready Mix, 2001 WL 1039902, at *4 n.7 (citing Town &
Country, 516 U.S. 85; M.J. Mech. Servs., 324 N.L.R.B. at
813-14; Braun Elec., 324 N.L.R.B. at 3). As noted above,
neither Town & Country, M.J. Mechanical Services, nor
Braun Electric endorses the contested views of the General
Counsel or the ALJ, so the Board apparently knew what it
was doing in citing those authorities, and not the ALJ. The
Board obviously meant only to apply the principles enunciat-
ed in those cases to uphold the ALJ’s evidentiary exclusion.
On the merits, we can find no fault with the Board’s
judgment. The evidence that the employer proffered did not
purport to show a Sunland Construction economic strike
situation, or any other potentially disabling conflict, such as
subterfuge, bad faith, sabotage, or an attempt to drive the
employer out of the area or out of business. Thus, even if the
15
evidence were admitted, it would not have been sufficient to
establish a disabling conflict. See Casino Ready Mix, 2001
WL 1039902, at *4 n.7.
B. Bale’s Antiunion Threat
Casino next objects to the Board’s finding that Bale’s
antiunion threat was an ULP. Petitioner argues that, be-
cause the complaint did not allege that Bale’s statement
violated the Act, and because the General Counsel did not
move to amend the complaint to include such an allegation,
petitioner was deprived of a full and fair hearing on the issue.
We disagree. On the record at hand, the Board findings that
Bale’s statement violated § 8(a)(1) and also demonstrated
petitioner’s animus against the Union, a factor relevant to the
complaint’s § 8(a)(3) allegations, were fully justified.
The Board’s Rules and Regulations require that the com-
plaint include ‘‘[a] clear and concise description of the acts
which are claimed to constitute unfair labor practices,’’ 29
C.F.R. § 102.15(b). Although Bale’s statement was not spe-
cifically alleged in the General Counsel’s complaint, ‘‘[i]t is
well settled that the Board may find and remedy a violation
even in the absence of a specified allegation in the complaint
if the issue is closely connected to the subject matter of the
complaint and has been fully litigated.’’ Pergament United
Sales, 296 N.L.R.B. 333, 334 (1989), enf’d, 920 F.2d 130 (2d
Cir. 1990); see also Tasty Baking Co. v. NLRB, 254 F.3d 114,
122 (D.C. Cir. 2001). Consistent with this established legal
standard, the Board properly held that a close connection
existed between Bale’s statement and the subject matter of
the complaint, and that petitioner had an opportunity to
litigate the issue fully. Casino Ready Mix, 2001 WL
1039902, at *2-*3.
The close connection between Bale’s statement and the
subject matter of the complaint is demonstrated in three
ways. First, the complaint alleged that supervisor Larry
Hildebrand threatened that Casino ‘‘would close down its
Nevada operation to avoid unionization.’’ Id. at *1. Thus,
Casino knew that it was being charged with a § 8(a)(1)
violation for the same kind of threats that Newcomb’s testi-
16
mony suggested that Bale had made. Second, the complaint
alleged that ‘‘Bale was the president of the Company, a
statutory supervisor, and an agent acting on [petitioner’s]
behalf.’’ Id. at *2. This put petitioner on notice that it could
be held accountable for Bale’s actions. Finally, Bale’s threats
were obviously relevant to the complaint’s allegations that
petitioner discriminated against Union members in its em-
ployment policies, as the threats ‘‘clearly demonstrated union
animus.’’ Id. These circumstances clearly support the
Board’s finding that a close connection existed between Bale’s
threats and the subject matter of the complaint.
Petitioner also had the opportunity to litigate the issue
fully. Petitioner did not object to Newcomb’s testimony, and
had an opportunity to cross-examine Newcomb about Bale’s
statement. This furnished ample opportunity to litigate the
issue. See Williams Pipeline Co., 315 N.L.R.B. 630, 630
(1994) (‘‘At the hearing, there was no objection to [the
accusing witness’s] testimony, and the Respondent had an
opportunity to cross-examine the witness and further explore
the issue. Accordingly, we find that the issue was fairly and
fully litigated.’’). It may be that, in not questioning New-
comb, Casino’s counsel made a calculated decision not to
pursue the matter during the hearing, either because counsel
knew that what Newcomb alleged was in fact true or because
counsel hoped to discredit Newcomb’s testimony by reference
to other evidence in the record. In any event, it is clear that
Casino purposely allowed Newcomb’s testimony to stand un-
challenged, without either objection or cross-examination.
When such a decision backfires, a party cannot be heard on
appeal to claim that it was denied a ‘‘fair hearing.’’ The claim
rings hollow.
Finally, petitioner’s contention that the Board did not
adhere to its precedent in Germinsky Electrical Co., 331
N.L.R.B. 1365 (2000), is without merit, because that case
dealt with an entirely different issue. Petitioner argues that,
in dismissing allegations of discriminatory refusal-to-hire un-
ion applicants, the ALJ in Germinsky refused to consider a
letter written by the company president as evidence of anti-
union animus, because it was not alleged to violate § 8(a)(1).
17
Id. at 1366. A three-member panel of the Board unanimously
upheld the ALJ’s dismissal of the complaint against the
employer, and only one of the three members – then-
Chairman Truesdale – chose to disavow the ALJ’s refusal to
consider the letter. Id. at 1365 n.1. Thus, petitioner states
that ‘‘[i]t is logical to infer that the majority of the Board
approved of the judge’s refusal to consider such evidence to
prove antiunion animus.’’ Br. of Petitioner at 34. The Board
saw no need to explain or otherwise address Germinsky in its
opinion in this case. This is hardly surprising, for even a
cursory examination of Germinsky reveals that it does not
support petitioner’s attempted use of the case.
In Germinsky, the company president met with union
representatives, and claimed ‘‘that they told him that the
[union] was going to step up its union activity and that if
Germinsky did not sign a contract, they were going to put his
company out of business.’’ Germinsky, 331 N.L.R.B. at 1366.
Thereafter, the president sent out a letter to his employees
‘‘which asserted that the [union] was trying to coerce the
Company into signing a contract and that it was out to
destroy the Company if necessary.’’ Id. The ALJ stated
that, given the context in which it was sent, the letter did not
demonstrate union animus. Id. A majority of the Board
accepted this conclusion. Thus, the circumstances in Ger-
minksy – focusing on the appropriate use of the employer’s
protected speech to provide evidence of antiunion animus –
are far different from the circumstances here. This case
involves an employer’s statement that clearly reflects an
antiunion threat and plainly bears a close connection to the
subject matter of the complaint. Thus, Germinsky provides
absolutely no support for petitioner’s position.
C. The ALJ’s Review of the Record
Last, and certainly least, petitioner contends that the
Board erred in holding that the ALJ had made an indepen-
dent analysis of the factual and legal arguments in this case.
We find no merit in this contention. Indeed, the record in
this case makes it perfectly clear that the Board itself re-
viewed the record with care and reached well-informed judg-
18
ments with respect to all of the challenged ULPs. The Board
also properly discounted any missteps by the ALJ. On the
record at hand, there is no serious doubt that the Board’s
findings, which are before the court on review, are supported
by substantial evidence and are fully consistent with control-
ling law.
Petitioner’s attempts to show otherwise are frail. For
example, petitioner points out that the ALJ’s reliance on the
testimony of employee Paul Swisher to find that Supervisor
Hildebrand had made antiunion threats made no sense. The
ALJ had declared to counsel for both sides that Swisher was
simply not a credible witness; yet, the ALJ relied solely on
Swisher’s testimony to find that Hildenbrand’s statements
violated § 8(a)(1). However, the Board found ‘‘that Swisher’s
testimony remains discredited, and thus the evidence regard-
ing statements made by Hildebrand is no longer competent to
support the alleged violations of Section 8(a)(1).’’ Casino
Ready Mix, 2001 WL 1039902, at *2. The Board thus
dismissed those allegations.
Petitioner also points out that the ALJ’s decision incorpo-
rated substantial portions of the General Counsel’s brief,
suggesting that the ALJ’s impartiality was subject to ques-
tion. The Board specifically addressed this matter:
We observe that the judge’s decision incorporates
substantial portions of the Charging Party’s post-
hearing brief. While this practice may raise ques-
tions about the independence of a judge’s analysis, it
is not inherently prejudicial or otherwise reversible
error. Based on a careful review of the record, we
are satisfied that the judge provided an independent
analysis of the factual issues and legal arguments in
this case. Accordingly, we find that disregard of his
findings is not warranted. See Waterbury Hotel
Management LLC, 333 NLRB No. 60, slip op. 1
(2001), and cases cited there.
Casino Ready Mix, 2001 WL 1039902, at *1 n.2. The Board’s
holding on this issue is supported in the record and perfectly
reasonable.
19
Petitioner nonetheless argues that the Board’s decision not
to disregard the ALJ’s findings was a departure from Water-
bury Hotel, 2001 N.L.R.B. LEXIS 136 (Mar. 9, 2001). Peti-
tioner notes that the Board in Waterbury Hotel stated that
‘‘[i]t is the special function of the administrative law judge to
prepare for the Board an independent and careful analysis of
the factual issues and legal arguments in the case over which
the judge presides.’’ Id. at *4. The ALJ in Waterbury Hotel
had, like the ALJ here, extensively relied on the General
Counsel’s brief in making his factual findings. In determin-
ing that the ALJ had performed the independent and careful
review expected of him, the Board specifically pointed to a
portion of the judge’s decision that ‘‘manifest[ed] full consid-
eration of the record, witness credibility, and the posthearing
briefs filed by both the General Counsel and the Respon-
dent.’’ Id. at *6. Moreover, the NLRB noted that the
employer had ‘‘cite[d] no specific basis, apart from the chal-
lenged decisional practice, to disbelieve the judge’s declara-
tion of a full and independent review.’’ Id. Petitioner here
argues that the NLRB departed from the teachings of Water-
bury Hotel in this case, because the Board did not specifically
point to any portion of the ALJ’s decision to support its
assertion that the ALJ had ‘‘provided an independent analysis
of the factual issues and legal arguments,’’ and because the
employer had provided specific reasons to disbelieve the
ALJ’s declaration of a full and independent review.
Petitioner’s argument lacks merit. The major problem
with petitioner’s argument is that it reads far too much into
Waterbury Hotel. The holding in that case did not set forth a
‘‘mandated’’ process of analysis, nor did it claim that the
factors relied upon there were necessary to establish the
independence of the ALJ’s analysis. Instead, the Board
resolves such questions on a case-by-case basis. Waterbury
Hotel merely supplied an analysis of why, in that particular
case, the Board determined that the ALJ had conducted a
sufficient review of the record.
In the present case, we find that the Board dealt fairly with
petitioner’s challenges to the ALJ’s review of the facts. The
Board adopted the ALJ’s findings only to the extent that they
20
were consistent with the Board’s Decision and Order. The
Decision and Order reflects the Board’s own independent
review of the record, which the Board affirmatively states
that it conducted. Casino Ready Mix, 2001 WL 1039902, at
*1 n.2. The Board’s correction of the ALJ’s mistake with
respect to Swisher’s testimony supports the Board’s claim
that it conducted an independent review. Moreover, the
Board’s opinion carefully discusses the disputed ULPs and
the factual predicates for each. Id. at *3-*5. In short, we
can find no merit in petitioner’s argument.
III. CONCLUSION
For the foregoing reasons, we deny the petition for review
and grant the NLRB’s cross-application for enforcement.