Prog Elec Inc v. NLRB

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 17, 2006 Decided July 14, 2006

No. 05-1127

PROGRESSIVE ELECTRIC, INC.,
PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD ,
RESPONDENT

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
LOCAL 265,
INTERVENOR

Consolidated with
05-1157

On Petition for Review
and Cross-Application for Enforcement
of an Order of the National Labor Relations Board

William A. Harding argued the cause and filed the briefs for
petitioner.
 2

Kira Dellinger Vol, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the brief
were Arthur F. Rosenfeld, Acting General Counsel, John H.
Ferguson, Assistant General Counsel, Aileen A. Armstrong,
Deputy Associate General Counsel, and Fred B. Jacob,
Attorney.

Michael J. Stapp was on the brief for intervenor.

Before: SENTELLE , BROWN and GRIFFITH , Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN .

BROWN , Circuit Judge: Progressive Electric, Inc. (“Progres-
sive”) petitions for review of the National Labor Relations Board
(“the Board”) decision and order finding that Progressive
violated Sections 8(a)(1) and 8(a)(3) of the National Labor
Relations Act (“the Act”), 29 U.S.C. § 158(a)(1), (3). The Board
concluded that Progressive committed unfair labor practices by
(1) threatening employees with job loss and facility closure on
account of union activities and (2) failing to consider and hire a
group of union members. Finding substantial evidence, we deny
the petition for review and grant the Board’s cross-application
for enforcement.

I

Progressive, located in Lincoln, Nebraska, is a non-union
electrical contractor in the construction business. Over a decade
ago, the International Brotherhood of Electrical Workers, Local
265 (“the Union”) targeted Progressive for organizational
purposes. Progressive did not go quietly.
 3

A

In February 1996, Progressive advertised in the local paper
that it was “accepting applications” for “electrician/technician,”
and directed interested parties to Progressive’s physical address.
At the behest of the Union, David Cousins responded to the ad
in order to organize Progressive. During the application process
Cousins did not reveal his Union affiliation. He was hired and
began work in early March. Around the same time, Charles
Randall, a member of an out-of-town union, also responded to
the ad and was hired. His past union affiliation was apparent on
his resume and he initiated a discussion of it at his job interview
with Randy Neeman, Progressive’s president. Randall started
work on February 20 and, in early March, he agreed to help the
Union in its organizational efforts. On March 27, Cousins
sought an application for a friend but was informed that there
were no longer open positions and that Progressive was not
accepting applications.

On March 29, pursuant to a decision by the Union’s
executive board, eight union journeymen electricians (“the
Union Applicants”) went as a group to Progressive’s office to
apply for jobs.1 They were “equipped with a video camera and
tape recorder” and were wearing clothing identifying their union
affiliation. Gathered outside the office, the Union Applicants,
talking among themselves, made statements such as “We should
go in there before they have a chance to react”; “That son-of-a-
bitch [Neeman]”; “‘He’s calling his attorney.’ ‘That’s all right.
That will cost him.’”; and “‘Do you know if he’s hiring or taking
applications?’ ‘No, but I got three salts. We have three salts in
here.’”

1
The Union Applicants were seven members of the Union and
one member of an affiliated union.
 4

When the Union Applicants entered Progressive’s office and
stated their desire to apply for employment, Neeman told them:

You guys, we are not hiring. We are not taking no [sic]
applications. We advertised three [or] four weeks ago. We
hired a couple of people and filled the spots. So I would
love to put you all on and as soon as I get an opening I will
give you guys a call.

The Union Applicants provided Neeman with a letter stating
they wished to be considered for employment and listing their
names and contact information. As soon as the Union Appli-
cants left, Neeman threw away the information. Neeman later
admitted that he never intended to call the Union Applicants, but
only made that statement to get them to leave. On April 2,
Progressive posted the following notice in its window: “Appli-
cations, as well as Names are not being accepted at this time.
Video Cameras and recording devices are prohibited. Sales
Reps. by appointment only.”

On April 8, Don Hildreth, a Progressive foreman, told
Cousins and one other employee that Neeman had called Randall
the “bad apple in the barrel, and [Neeman] didn’t want any union
crap around here.” Hildreth continued: “[I]f the Unions got into
Progressive, . . . Progressive would lose [certain] contracts, and
[Progressive] would go out of business . . . because [Progressive]
couldn’t afford the Union wages and benefits.” On April 26,
Randall walked off of a job site and announced that he was on
strike because he was not being paid union wages.

On May 1, Neeman held a company meeting. Just before it
began, Neeman informed Randall that when Randall had walked
off the job five days earlier it was not a “strike” but instead a
“voluntary quit.” Randall, now out of a job, was directed to
 5

leave. Shortly thereafter, Neeman addressed the remaining
employees, commented on Randall’s “recruiting” efforts, and
stated that Randall was trying “to cost all you guys your jobs . . .
and that’s why we have to put a stop to it.” Later, Neeman
spoke to the assembled employees:

Alright . . . I’ve been quiet up ’til now, which is strange for
me I know and because I had to get a lot of legal advi[c]e
before I could open my mouth. But now that we know what
we’re talking about[,] we’re gonna talk about this dirty
word . . . UNION . . . okay! Let’s talk about unions. Are
we for it, Bill and I? NO! Are you guys for it[?] I don’t
want to know. . . . I can’t ask ya, but I can give ya my
opinion on it.

Neeman’s presentation was punctuated by phrases such as “Mr.
Asshole Union Rep.” (describing a hypothetical union member)
and “bunch of dummies” (describing union members in general).
At some point in the presentation Neeman wrote the word
“union” on the board, drew a circle around it, and put a slash
through it. Perhaps in an effort to soften the edges, Neeman also
made statements to convey ambivalence toward union activities,
such as: “[Randall] didn’t lose his job, for the record, because of
some organization[.] . . . Far as I know, half you guys are with
some organization and I don’t care.”

Progressive subsequently filled a number of positions, using
various means. On May 27, 1996, Steve Baumli became a
Progressive employee doing ladder rack work; he had been
performing work for Progressive on a temporary basis (via a
temp agency) for a couple of months. No job vacancy was
advertised for this position. On May 31 and June 13, Progres-
sive placed ads indicating that positions were available for
ladder rack installers. As a result of these ads, Progressive hired
 6

three ladder rack installers in the month of June. Each of the ads
provided a specific mailing address (a P.O. Box) for job-seekers
to submit their information and indicated applications would be
accepted for a set number of days. These “blind” advertise-
ments, unlike ones Progressive previously used, did not provide
any identifying information (such as Progressive’s name,
physical address, or phone number). In January and March of
1997, Progressive placed three ads for apprentice electricians
each of which provided job seekers with Progressive’s physical
address. As a result, Progressive hired two individuals on
January 27, 1997, and one more on March 10, 1997.

At no point from March 1996 to March 1997 was any Union
Applicant contacted or offered employment, even though the
Union Applicants were qualified for all seven positions de-
scribed above.2 From April to July of 1996, Jim Pelley (the
Union Business Manager, who was one of the Union Applicants)
sent three letters on Union letterhead via fax to Progressive in
order to follow up on the events of March 29, 1996; the letters
expressed the Union Applicants’ continuing interest in employ-
ment and included the same sheet of contact information as the
Union Applicants has previously submitted. Union records
show that Progressive received each fax. Pelley also sent these
letters via both certified and first class mail, but they were
refused and returned. Two of Pelley’s letters requested that
Neeman “please inform [the Union Applicants] of any efforts
[they] must undertake in order to be fully considered for employ-
ment.” A final letter was sent on March 27, 1997. Progressive’s
only response, on April 4, 1997, rejected the “renewed” request

2
On April 28, 1996, Progressive placed a blind ad for an
HVAC/Energy management system installer, a position requiring
higher qualifications than any of the Union Applicants possessed.
Jerry Hiestand filled that position on May 17, 1996.
 7

for consideration. The letter stated that Progressive had not
accepted any applications from the Union Applicants, either on
or after March 29, 1996. Neeman noted in the letter that “it is
not [his] policy to seek out individuals who have indicated a
desire to make application in the past whenever an opening
comes up in the future.”

B

On August 9, 1996, the Union filed an unfair labor practice
charge with the Board and amended it on September 18. On
September 30, the Board’s General Counsel issued a complaint
alleging various violations of Sections 8(a)(1) and 8(a)(3) of the
Act. The complaint was amended on May 13, 1997, and the
case was tried before an administrative law judge (“ALJ”) from
June 30 to July 3, 1997. On November 18, 1997, the ALJ found,
in relevant part, that Progressive committed unfair labor
practices by threatening employees with plant closure (on April
8, 1996) and job loss (on May 1, 1996) and by refusing to
consider and hire the Union Applicants. On August 23, 2000, at
the Board’s direction, the ALJ issued a supplemental decision in
light of FES (A Division of Thermo Power) (“FES”), 331
N.L.R.B. 9 (2000). Over four and a half years later, the Board
largely upheld the ALJ’s decision, albeit with some modifica-
tion. Progressive Elec., Inc., 344 N.L.R.B. No. 52, 2005 WL
762117 (Mar. 31, 2005). The Board, agreeing with the ALJ,
found that Progressive violated Section 8(a)(1) by “threatening
the loss of employment if employees engaged in union activities
and by threatening to close its facility,” and violated Sections
8(a)(3) and 8(a)(1) by “refusing to consider [the Union Appli-
cants] for employment, and by failing and refusing to hire them,
 8

because of their union affiliation.” Id. at *1.3 The Board ordered
various remedies, including a refusal-to-hire remedy for seven
of the eight Union Applicants and a refusal-to-consider remedy
for the eighth. Id. at *3-4. Progressive petitions for review, the
Board files a cross-application for enforcement, and the Union
intervenes.

II

Our role here is a limited one, as the Board’s factual
findings are “conclusive” if “supported by substantial evidence
on the record considered as a whole.” 29 U.S.C. § 160(e)-(f).
In making that determination, “we ask only whether on this
record it would have been possible for a reasonable jury to reach
the Board’s conclusion[s], giving substantial deference to the
inferences drawn by the [Board] from the facts.” Ceridian Corp.
v. NLRB, 435 F.3d 352, 357 (D.C. Cir. 2006) (internal quotation
marks and citation omitted); see Allentown Mack Sales & Serv.,
Inc. v. NLRB, 522 U.S. 359, 366-67 (1998). So long as the
Board’s findings are reasonable, we will not substitute our own
judgment even if we would have come to a different conclusion
in the first instance. Laro Maint. Corp. v. NLRB, 56 F.3d 224,
229 (D.C. Cir. 1995).

III

We turn first to Progressive’s threats. According to
Progressive, substantial evidence is lacking for the Board’s
conclusion that Progressive violated Section 8(a)(1) of the Act
by threatening employees with loss of employment and plant

3
The Board, however, rejected the ALJ’s decision insofar as it
found several additional unfair labor practices.
 9

closure on account of protected activity. We take a different
view.

Under Section 8(a)(1), it is an unfair labor practice “to
interfere with, restrain, or coerce employees in the exercise of
the rights guaranteed” in Section 7, to wit: “the right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protec-
tion.” 29 U.S.C. §§ 157, 158(a)(1). An employer’s statement
violates Section 8(a)(1) if, “considering the totality of the
circumstances, the statement has a reasonable tendency to coerce
or to interfere with those rights.” Tasty Baking Co. v. NLRB,
254 F.3d 114, 124 (D.C. Cir. 2001); cf. TIC–The Indus. Co. Se.
v. NLRB (“TIC”), 126 F.3d 334, 339 (D.C. Cir. 1997) (holding
that a “single, isolated comment” by a supervisor indicating the
employer’s preference for non-union hiring “d[oes] not consti-
tute substantial evidence of restraint, coercion, or interference
with employees exercising protected rights under section
8(a)(1)”).

While “an employer is free to communicate to his employ-
ees any of his general views about unionism or any of his
specific views about a particular union,” such communications
must not “contain a ‘threat of reprisal or force or promise of
benefit.’” NLRB v. Gissel Packing Co., 395 U.S. 575, 618
(1969) (quoting 29 U.S.C. § 158(c)); see Federated Logistics &
Operations v. NLRB, 400 F.3d 920, 924 (D.C. Cir. 2005). As
relevant to the present case, Section 8(a)(1) prohibits coercive
statements that threaten employees with job loss or plant closure
in retaliation for protected union activities. See Tasty Baking,
254 F.3d at 124; Teamsters Local Union No. 171 v. NLRB, 863
F.2d 946, 952-53 (D.C. Cir. 1988); Tom Rice Buick, Pontiac &
 10

GMC Truck, Inc., 334 N.L.R.B. 785, 792 (2001). We “must
recognize the Board’s competence in the first instance to judge
the impact of utterances made in the context of the employer-
employee relationship.” Gissel Packing, 395 U.S. at 620; see
Ark Las Vegas Rest. Corp. v. NLRB, 334 F.3d 99, 106 (D.C. Cir.
2003); Timsco, Inc. v. NLRB, 819 F.2d 1173, 1178 (D.C. Cir.
1987) (“[T]he line between prediction and threat is a thin one,
and in the field of labor relations that line is to be determined by
context and the expertise of the Board.”).

A

Progressive first challenges the Board’s finding that, at the
company meeting on May 1, 1996, Neeman unlawfully coerced
employees by threatening their jobs, in violation of Section
8(a)(1). As previously described, shortly after informing Randall
he no longer had a job at Progressive, Neeman told the remain-
ing employees assembled for the meeting that Randall’s actions
were going to “cost all you guys your jobs . . . and that’s why we
have to put a stop to it.” Neeman went on to offer his thoughts
about that “dirty word . . . UNION,” sprinkling in various
colorful epithets; his hostility was palpable throughout the
meeting.

We are persuaded that there is substantial evidence for the
Board to reasonably discern impermissible coercion. See, e.g.,
Timsco, 819 F.2d at 1178 (upholding a Board determination that
an interrogation of a non-union member was coercive based on
the employer’s statement that “union organizers were ‘going to
screw up a lot of jobs for a lot of people’”); see also United
Food & Commercial Workers Union Local 204, 447 F.3d 821,
825 (D.C. Cir. 2006) (“[A]n employer’s statement that union
support would ‘cause trouble’ can put an employee in a ‘defen-
sive posture’ and be unduly coercive under the right circum-
 11

stances[.]” (quoting Action Auto Stores, Inc., 298 N.L.R.B. 875,
901-02 (1990))). Employees, having heard such statements in
this context, on the heels of Randall’s termination,4 could
reasonably perceive a direct connection between union activities
and job loss. See H.B. Zachry Co., 319 N.L.R.B. 967, 969
(1995) (finding threat where employer’s statement connected
employee’s union activity with discharge: “I terminated you
yesterday. Your organizing days is [sic] over, boy.”), enforced in
part sub nom. Int’l Bhd. of Boilermakers v. NLRB, 127 F.3d
1300 (11th Cir. 1997). According to Neeman, his statements
simply reflected concern that Randall was badmouthing Progres-
sive at job sites, potentially causing the company to lose work
and, in turn, costing employees their jobs. Although Neeman’s
explanation is plausible, “we must uphold the Board’s findings
as long as they rest upon reasonable inferences, and we may not
reject them simply because other reasonable inferences may also
be drawn.” Tasty Baking, 254 F.3d at 124-25. We therefore
cannot accept Progressive’s argument on this point.

B

Progressive next challenges the finding that it violated
Section 8(a)(1) by virtue of Hildreth’s April 8, 1996 statements
threatening facility closure. Progressive’s opening gambit—that
Hildreth’s statements did not violate the Act because they were
simply an opinion protected by Section 8(c), 29 U.S.C.
§ 158(c)5—is not properly before us, having not been raised

4
There is no suggestion that Randall’s termination was itself a
violation of the Act.
5
This provision, which “merely implements the First
Amendment,” Gissel Packing, 395 U.S. at 617, states that “[t]he
expressing of any views, argument, or opinion, or the dissemination
 12

before the Board. See id. § 160(e); Woelke & Romero Framing,
Inc. v. NLRB, 456 U.S. 645, 665-66 (1982); Contractors’ Labor
Pool, Inc. v. NLRB, 323 F.3d 1051, 1061 (D.C. Cir. 2003).

Progressive’s followup salvo—that Hildreth was not its
agent—also misfires. The Board applies common law principles
of agency when assigning liability under the Act. Overnite
Transp. Co. v. NLRB, 140 F.3d 259, 265 (D.C. Cir. 1998). Even
if the “specific acts performed” have not been “actually autho-
rized or subsequently ratified,” 29 U.S.C. § 152(13), the
employer will be bound by an individual having “apparent
authority.” Overnite Transp., 140 F.3d at 265-66. As we have
explained:

“Apparent authority” exists where the principal engages in
conduct that “reasonably interpreted, causes the third person
to believe that the principal consents to have the act done on
his behalf by the person purporting to act for him.” For
there to be apparent authority, however, the third party must
not only believe that the individual acts on behalf of the
principal but, in addition, “either the principal must intend
to cause the third person to believe that the agent is autho-
rized to act for him, or he should realize that his conduct is
likely to create such belief.”

Id. at 266 (quoting Restatement (Second) of Agency § 27 &
cmt. a (1992)).

thereof, whether in written, printed, graphic, or visual form, shall not
constitute or be evidence of an unfair labor practice . . . if such
expression contains no threat of reprisal or force or promise of
benefit.” 29 U.S.C. § 158(c).
 13

The Board finds apparent authority for an individual’s
actions, such as threatening retaliation for union activities, when
the individual is placed “in a position where employees could
reasonably believe that he spoke on behalf of management.”
Indus. Constr. Servs., Inc., 323 N.L.R.B. 1037, 1039 (1997); see
Garvey Marine, Inc. v. NLRB, 245 F.3d 819, 823-24 (D.C. Cir.
2001); K.W. Elec., Inc., 342 N.L.R.B. No. 126, 2004 WL
2183528, at *19 (Sept. 24, 2004); Triple H Elec. Co., 323
N.L.R.B. 549, 552 (1997); GM Elecs., 323 N.L.R.B. 125, 125
(1997); Delta Mech., Inc., 323 N.L.R.B. 76, 77-78 (1997).
While we grant “only limited deference” to the Board’s determi-
nation whether an individual was acting with apparent authority,
“the standard of review is not de novo” as it is a factual matter
that “cannot be disturbed if supported by substantial evidence on
the record considered as a whole.” Garvey Marine, 245 F.3d at
824 (quoting Overnite Transp., 140 F.3d at 265) (internal
quotation marks omitted).

The ALJ explained that Hildreth’s statements were attribut-
able to Progressive because

[w]hen Cousins began working for [Progressive], Randy
Neeman assigned Cousins to work with Hildreth whom
Randy Neeman described as “running a few jobs for him.”
Randy Neeman told Cousins that if Cousins had any
questions, he should ask Hildreth. Randy Neeman de-
scribed Hildreth’s duties as overseeing the projects. This
manifestation by [Progressive] to employees created a
reasonable basis for employees to believe that Hildreth was
reflecting company policy and speaking for [Progressive].

Progressive Elec., 344 N.L.R.B. No. 52, 2005 WL 762117, at
*11 (citing GM Elecs., 323 N.L.R.B. at 128); see also Peti-
tioner’s Br. at 6 (acknowledging Hildreth was a “job foreman”).
 14

We have little difficulty concluding this is sufficient. Although
there was some evidence to the contrary, the Board permissibly
found a reasonable employee could believe from Neeman’s
actions that Hildreth spoke on behalf of management on April 8,
1996.6

IV

Next we examine the Board’s conclusion that Progressive
violated Sections 8(a)(3) and 8(a)(1) of the Act by failing to
consider and hire the Union Applicants because of their union
affiliation. Progressive contends this finding is not supported by
substantial evidence. We disagree.

Under Section 8(a)(3), it is “an unfair labor practice for an
employer . . . by discrimination in regard to hire or tenure of
employment . . . to encourage or discourage membership in any
labor organization.” 29 U.S.C. § 158(a)(3). An employer
violates this provision, and in turn Section 8(a)(1), by refusing
to consider or hire job applicants on account of their union
affiliation. Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 185-87
(1941); Sw. Merch. Corp. v. NLRB, 943 F.2d 1354, 1359 (D.C.
Cir. 1991); FES, 331 N.L.R.B. at 12, enforced, 301 F.3d 83 (3d
Cir. 2002). This protection extends even to applicants that are
union “salts,” or union members sent in “ostensibly to obtain
employment but with the objective of inducing union organiza-
tion.” Contractors’ Labor Pool, 323 F.3d at 1055, 1060; see
NLRB v. Town & Country Elec., Inc., 516 U.S. 85, 87 (1995);
Casino Ready Mix, Inc. v. NLRB, 321 F.3d 1190, 1197 (D.C.
Cir. 2003). We are, however, mindful that Congress “did not
intend to make unlawful all acts that might have the effect of

6
The Board has not asserted that Hildreth is a statutory
supervisor under 29 U.S.C. § 152(11).
 15

discouraging union membership” but instead “only those acts
that are motivated by an antiunion animus.” Metro. Edison Co.
v. NLRB, 460 U.S. 693, 700 (1983).

To establish violations of Section 8(a)(3) in an antiunion
animus case such as this, the General Counsel, per the Board’s
two-step Wright Line framework, has the initial burden to show
that the “protected activity was a motivating factor in the adverse
employment decision.” Int’l Union of Operating Eng’rs, Local
470 v. NLRB, 350 F.3d 105, 110 (D.C. Cir. 2003) (internal
quotation marks and citation omitted); see Wright Line, 251
N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir. 1981).
More specifically, under the Board’s test for refusal-to-hire
violations, the General Counsel must establish:

(1) that the [employer] 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 an-
nounced 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 require-
ments 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.

FES, 331 N.L.R.B. at 12 (refining the Wright Line framework)
(footnotes omitted). Similarly, under the Board’s test for
refusal-to-consider violations, the General Counsel must show
“(1) that the [employer] excluded applicants from a hiring
process; and (2) that antiunion animus contributed to the
decision not to consider the applicants for employment.” Id. at
 16

15;7 see Int’l Union of Operating Eng’rs, Local 147 v. NLRB,
294 F.3d 186, 189 (D.C. Cir. 2002). Then, once the General
Counsel has made its initial showing, the burden shifts to the
employer to show that it would not have considered or hired the
applicants even in the absence of their union activity or affilia-
tion. FES, 331 N.L.R.B. at 12, 15. As Progressive’s arguments
are essentially the same as to both the refusal-to-hire and refusal-
to-consider violations, we will not distinguish between the two
in our analysis.

A

Progressive first argues that substantial evidence is lacking
to support the General Counsel’s case because the Union
Applicants were not applying during a time when Progressive
was hiring. Although the ALJ found no evidence that Progres-
sive was hiring on March 29, 1996, Progressive’s argument
misses the import of the Board’s decision. By virtue of
Neeman’s deliberate misrepresentation and the events of the
following year, the Board found an “overall scheme” of refusing
to consider and hire the Union Applicants. Progressive Elec.,
344 N.L.R.B. No. 52, 2005 WL 762117, at *1 n.3. Given that
several suitable positions opened up and were filled over that

7
The Third Circuit, in upholding the Board’s FES decision,
found it unnecessary to reach the employer’s argument that “the
Board’s refusal to consider doctrine . . . is an impermissible
interpretation of § 8(a)(3) of the Act.” FES, 301 F.3d at 96 n.7. But
cf. Fluor Daniel, Inc. v. NLRB, 332 F.3d 961, 975 (6th Cir. 2003)
(“[T]he standard set forth in FES for ‘refusal-to-consider’ claims, as
applied in this case by the [Board] . . ., is in conflict with our
caselaw.”). In the present case, Progressive has not challenged the
Board’s interpretation of the Act, see Petitioner’s Br. at 23 (quoting
Board’s refusal-to-consider test), focusing instead on whether there is
substantial evidence to uphold the Board’s factual findings.
 17

period, there were jobs available during the relevant time. Cf.
Fluor Daniel, Inc. v. NLRB, 332 F.3d 961, 975 (6th Cir. 2003)
(“[V]iolations of Section 8(a)(3) can only occur when an
employer is hiring for the position(s) at issue.”); Bay Control
Servs., Inc., 315 N.L.R.B. 30, 30 n.2 (1994).

The Board’s finding is reasonable. On March 29, 1996,
after Neeman accepted a sheet containing the Union Applicants’
information, he lied to them, assuring them he would call them
“as soon as [there is] an opening” when in fact he had no such
intention. In the ALJ’s words, this falsehood had the “effect of
luring the applicants into complacency.” Progressive Elec., 344
N.L.R.B. No. 52, 2005 WL 762117, at *14; cf. Commercial
Erectors, Inc., 342 N.L.R.B. No. 94, 2004 WL 1967543, at *7
(Aug. 31, 2004) (explaining that applicants “reasonably would
have [been] dissuaded . . . from coming to the site frequently”
where employer assured them he would call them after calling
others on employer’s “master list”). The Board also pointed to
various events over the course of the subsequent year, including
the appearance of the notice in the window; the multiple Union
letters, which Progressive received via fax but refused via
certified mail; the decision to use blind advertisements; and the
failure to hire the Union Applicants to any of the seven suitable
positions that became available. While we doubt any of these
actions—including the initial misrepresentation—would be
independently sufficient, the Board reasonably found they were
collectively “part and parcel of [Progressive’s] overall scheme
to refuse to consider and hire” the Union Applicants. Progres-
sive Elec., 344 N.L.R.B. No. 52, 2005 WL 762117, at *1 n.3.

Progressive’s proffer of a 45-day application period is also
unavailing, regardless of whether it normally employed such a
retention policy. Having deliberately sought to divert the Union
Applicants from its normal hiring process, Progressive cannot
 18

now take refuge therein. Nothing in Neeman’s statements on
March 29, 1996, would have alerted the Union Applicants of an
expiration date or of the need to take further action. See Fluor
Daniel, 332 F.3d at 970 (noting that the Board found the
employer “failed to advise the discriminatees that the period for
which their application would be valid had changed” and that the
“applications themselves lacked such notification”); Commercial
Erectors, 342 N.L.R.B. No. 94, 2004 WL 1967543, at *6
(finding that employer, having promised to call when something
opened up, failed to tell applicants they needed to take further
affirmative steps to comply with employer’s gate hiring policy).
Nor did Progressive respond to the various follow-up letters that
expressed the Union Applicants’ continuing interest in employ-
ment and asked that Neeman inform them if any further efforts
were needed for them to be considered. It was not until April 4,
1997, that Progressive came clean and informed the Union
Applicants they actually were not being—and had never
been—considered.8

Contrary to Progressive’s suggestion, the Board nowhere
indicates that employers must favor union applicants. See Phelps
Dodge, 313 U.S. at 186. We readily acknowledge that the Board
is not authorized to function as a “ubiquitous ‘personnel man-
ager,’” and, indeed, “[i]t is well recognized that an employer is
free to lawfully run its business as it pleases.” Detroit Newspa-
per Agency v. NLRB, 435 F.3d 302, 310 (D.C. Cir. 2006)
(quoting Epilepsy Found. of Ne. Oh. v. NLRB, 268 F.3d 1095,
1105 (D.C. Cir. 2001)); see Phelps Dodge, 313 U.S. at 187
(explaining that the Act “does not touch ‘the normal exercise of

8
While the passage of time might at some point make it
unreasonable for the Board to discern an “overall scheme” from a
series of attenuated events, the Board reasonably took a different view
in this case given the totality of the circumstances.
 19

the right of the employer to select its employees or to discharge
them’” (quoting NLRB v. Jones & Laughlin Steel Corp., 301
U.S. 1, 45 (1937))). The Board, too, routinely acknowledges the
employer’s discretion to set its own non-discriminatory hiring
practices. E.g., Watkins Eng’rs & Constructors, Inc., 333
N.L.R.B. 818, 818 n.6 (2001) (“[T]here is no basis for finding a
violation with respect to union members who failed to comply
with the [employer’s] hiring procedures.”); see also Dalton
Roofing Serv., Inc., 344 N.L.R.B. No. 108, 2005 WL 1492881,
at *5 (June 21, 2005) (applications to be completed on the
employer’s premises); C.T. Taylor Co., 342 N.L.R.B. No. 102,
2004 WL 2053015, at *15 (Sept. 10, 2004) (“two-step hiring
process” whereby job seekers were required to fill out applica-
tions and then to follow up with a phone call to request an
interview); Indus. Constr. Servs., 323 N.L.R.B. at 1040 (applica-
tions not accepted via fax); Delta Mech., 323 N.L.R.B. at 80-81
(applications not accepted when no positions available); Bay
Control Servs., 315 N.L.R.B. at 35, 37 (“gate hiring” practice,
preferring applicants “standing at the gate” over past applicants);
Int’l Union of Operating Eng’rs, Local 150, 325 F.3d 818, 830
n.17 (7th Cir. 2003); cf. Starcon, Inc., 323 N.L.R.B. 977, 982
(1997), enforced in part, 176 F.3d 948 (7th Cir. 1999). This
does not mean, however, that the Board will allow employers to
toy with union job seekers by deliberately misdirecting and
excluding them.

B

Whether there is sufficient evidence to conclude Progressive
was motivated by antiunion animus is a closer question.
“Motive is a question of fact, and the [Board] may rely on both
direct and circumstantial evidence to establish an employer’s
motive, considering such factors as the employer’s knowledge
of the employee’s union activities, the employer’s hostility
 20

toward the union, and the timing of the employer’s action.”
Power, Inc. v. NLRB, 40 F.3d 409, 418 (D.C. Cir. 1994). “[O]ur
review of the Board’s motive determinations, including infer-
ences of improper motive drawn from the evidence, is especially
deferential.” Cadbury Beverages, Inc. v. NLRB, 160 F.3d 24, 31
(D.C. Cir. 1998); see Citizens Inv. Servs. Corp. v. NLRB, 430
F.3d 1195, 1198 (D.C. Cir. 2005); Vincent Indus. Plastics, Inc.
v. NLRB, 209 F.3d 727, 734 (D.C. Cir. 2000).

There are, of course, limits to our deference. See Universal
Camera Corp. v. NLRB, 340 U.S. 474, 487-88 (1951); Epilepsy
Found. of Ne. Oh., 268 F.3d at 1103. For example, in TIC, we
held that a “showing of animus requires greater proof than a
single comment by a supervisor to the effect that the company
preferred to hire non-union personnel” and that “[t]he mere fact
that the [employer] knew the applications were from Union
applicants does not show animus.” 126 F.3d at 338; see also
Detroit Newspaper Agency, 435 F.3d at 310; BE & K Constr.
Co. v. NLRB, 133 F.3d 1372, 1376 (11th Cir. 1997) (“[W]e will
not allow the Board to punish an employer simply because that
employer is anti-union.”). We also noted that a prohibited
motive will not be inferred “where job applicants fail to follow
regularly applied, facially neutral application procedures.” TIC,
126 F.3d at 338.

The record before us, however, permits a finding that the
actions in question were motivated by antiunion animus. The
evidence, appropriately centered on Neeman as the
decisionmaker in personnel matters,9 includes his deliberate

9
Compare Commercial Erectors, 342 N.L.R.B. No. 94, 2004 WL
1967543, at *6-7 (finding violation based on actions of job supervisor
where he “was in complete charge of hiring”), with Brown & Root
Indus. Servs., 337 N.L.R.B. 619, 619 (2002) (finding no improper
 21

misrepresentation to the Union Applicants on March 29, 1996,
and his admission that he never intended to hire them;10 the
timing of his placing the notice in the window on April 2, as a
“result of the [Union Applicants] appearing with video cameras
and a recording device,” Progressive Elec., 344 N.L.R.B. No.
52, 2005 WL 762117, at *14;11 his overt hostility at the May 1
meeting;12 and his failure to contact or hire any of the Union

motivation where there was no “nexus” between the employer’s hiring
decision and the statements of a “supervisory foreman” who “had no
role in processing” the applications in question).
10
See Int’l Union of Operating Eng’rs, Local 147, 294 F.3d at
190 (where employer “falsely told each of the applicants ‘there was
no work available’ rather than telling them they were locked out,”
Board could infer from this “misrepresentation” that employer had
“unlawful motive”); Commercial Erectors, 342 N.L.R.B. No. 94,
2004 WL 1967543, at *5 (basing animus on, inter alia, employer’s
“promise[] to call [job seekers] . . . as soon as he had opening” but
where he “never had any intention of hiring them”); cf. Sw. Merch.,
943 F.2d at 1362. To be sure, while the Board might well have seen
Neeman’s actions on March 29 as little more than an innocuous
attempt to rid the office of unwanted guests, the Board reasonably
thought otherwise.
11
See Power, 40 F.3d at 418.
12
See Power, 40 F.3d at 418 (“[T]he Board was entitled to rely
on [a company official’s] anti-union statements as evidence of anti-
union motivation, even though [his] statements, made in private
conversations to [the office manager], were not themselves
unlawful.”); John W. Hancock, Jr., Inc., 337 N.L.R.B. 1223, 1224 n.8
(2002) (“Under extant Board law . . . noncoercive statements may, in
limited circumstances, be used as evidence of an unfair labor
practice.”), enforced, 73 Fed. Appx. 617 (4th Cir. 2003)
(unpublished); Tualatin Elec., Inc., 319 N.L.R.B. 1237, 1239, 1241
 22

Applicants over the time period in question.13 Furthermore, that
Neeman’s actions at the May 1 meeting were themselves found
to be an unfair labor practice in the form of a threat, as discussed
above, is yet more fuel to the fire. Frazier Indus. Co., Inc. v.
NLRB, 213 F.3d 750, 756 (D.C. Cir. 2000); Power, 40 F.3d at
418. In the aggregate, refracted through our deferential lens, the
Board’s inference of animus meets the minimum threshold of
reasonableness. The contrary evidence—such as Neeman’s
friendly relationships with union members, his hiring of a small
number of union members in the past, and his comments in the
May 1 meeting indicating that employees were free to decide
whether to participate in union activities—does not compel a
contrary conclusion in this case. Further, the Board does not
suggest that, having found an illegal motivation for an adverse
action, an employer risks liability for all subsequent adverse
decisions as to the same individuals, regardless of how far in the
future, with no further showing of animus. Cf. Richardson v.
Sugg, 448 F.3d 1046, 1058 (8th Cir. 2006) (holding, in Title VII
case, that “the span of time between [an employer’s racially-
charged] remarks and the decision to fire [the plaintiff] [is]
relevant to a determination of whether discriminatory animus
motivated the firing”); BE & K Constr., 133 F.3d at 1376 n.10

(1995) (owner evinced “deep hostility” toward union, calling it
“organized crime”); see also United Food & Commercial Workers,
447 F.3d at 825 (holding that stating “I’m just tired of this Union shit
and I’m ready to get my company back where it belong[s]” two days
before firing a union election observer “exhibits powerful antiunion
animus”). But see Brown & Root, Inc. v. NLRB, 333 F.3d 628, 639
n.7 (5th Cir. 2003) (“A lawful statement of a lawful position does not
in itself allow inference that one is willing to enforce that position
through illegal means.”).
13
See Commercial Erectors, 342 N.L.R.B. No. 94, 2004 WL
1967543, at *5.
 23

(“Given that there is no evidence linking such past [labor
violations] to any present anti-union animus of [the employer],
we find the past transgressions too remote in time to be relevant
to this dispute.”); Oil Capital Elec., 337 N.L.R.B. 947, 948
(2002) (declining to infer that a refusal to hire was improperly
motivated given that the only evidence of animus was an
interrogation that occurred more than two months later).

C

Finally, Progressive argues that, even if the General Coun-
sel’s initial showing was sufficient, Progressive met its burden
to demonstrate it would not have considered or hired the Union
Applicants even in the absence of their union affiliation.
Progressive advances three defenses: (1) the Union Applicants
were overqualified;14 (2) some of the Union Applicants were
employed by Progressive’s competitors; and (3) the Union
Applicants were not legitimate applicants for employment. We
find substantial evidence for the Board’s conclusion that
Progressive failed to carry its burden.

As the Board correctly observes, the first two arguments rest
on the “unremarkable proposition that an employer can apply
neutral criteria and hiring procedures to job applicants without
regard to union affiliation.” Respondent’s Br. at 42; see, e.g.,
Dalton Roofing Serv., 344 N.L.R.B. No. 108, 2005 WL 149288-
1, at *4 (employer can use wage history as neutral factor in
determining whether applicants are overqualified); Bay Control

14
Progressive does not argue in its petition that the Union
Applicants were underqualified for any of the positions—except for
the HVAC position, which the Board acknowledged would not have
been suitable for any of them. Progressive Elec., 344 N.L.R.B. No.
52, 2005 WL 762117, at *1 n.2.
 24

Servs., 315 N.L.R.B. at 30 (employer had policy of rejecting
overqualified applicants); Wireways, Inc., 309 N.L.R.B. 245,
245-53 (1992) (employer gave preference to applicants whose
desired wages were comparable to its budgeted wages); Willmar
Elec. Serv. Inc., 303 N.L.R.B. 245, 246 n.2 (1991) (“An em-
ployer may . . . lawfully refuse to hire a statutorily protected
employee applicant . . . on the basis of a nondiscriminatory
policy against hiring any individual who . . . applies while
working for another employer . . . .”), enforced, 968 F.2d 1327
(D.C. Cir. 1992). We reject Progressive’s first defense, as
Progressive makes no effort to show it actually had a policy of
rejecting overqualified applicants. In any case, the ALJ discred-
ited Neeman’s testimony that Progressive had such a policy and
we are offered no basis for upsetting that determination. Cf.
TIC, 126 F.3d at 334 (“Where a company has consistently
followed neutral guidelines, and does so in the case in question,
it has met its burden of showing it would have refused to
consider applications that deviated from the normal proce-
dure.”). And contrary to Progressive’s suggestion, there is no
indication the Union Applicants were unwilling to accept
positions beneath their skill level, having expressed a general
interest in being “considered for employment.” Progressive’s
second defense—that it has a policy of not hiring competitors’
employees—is not properly before us, having not been urged
before the Board. 29 U.S.C. § 160(e).

Progressive’s third defense—that the Union Applicants
“who came to [Progressive] armed with a video camera were not
involved in an activity that was protected by the Act because
they were not truly seeking employment,” Petitioner’s Br. at
21—also falls short.15 Progressive acknowledges that, under

15
Insofar as Progressive also raises this issue to argue that it was
not improperly motivated in declining to hire and consider the Union
 25

well-established Board precedent, “individuals seeking jobs
from an employer pursuant to a union’s ‘salting’ program are
statutory employees entitled to protections under the Act.”
Casino Ready Mix, 321 F.3d at 1197; see Town & Country Elec.,
516 U.S. at 87. “[E]ven when a salting campaign is intended in
part to provoke an employer to commit unfair labor practices,
union organizers retain their status as employees.” Casino
Ready Mix, 321 F.3d at 1197. Nonetheless, Progressive asserts
that, regardless of the Union Applicants’ union affiliation,
Progressive would not have hired anyone exhibiting such
behavior—behavior indicating “they were not interested in
working hard for [Progressive].” Petitioner’s Br. at 22.

In raising the Union Applicants’ bona fides as a defense,
Progressive marshals only an ALJ opinion that has been specifi-
cally disavowed in relevant part by the Board. See W.D.D.W.
Commercial Sys. & Invs., Inc., 335 N.L.R.B. 260, 263-65
(2001), enforced in relevant part sub nom. Contractors’ Labor
Pool, 323 F.3d at 1060-61; accord A. Montano Elec., 335
N.L.R.B. 612, 614 & nn.9-10 (2001). Equally curious is Progres-
sive’s passing citation to a Sixth Circuit opinion that was
superseded by a subsequent opinion. See NLRB v. Fluor Daniel,
Inc., 102 F.3d 818, 832 (6th Cir. 1996), superseded by 161 F.3d
953 (6th Cir. 1998). We are underwhelmed.

Although Progressive might find it unpalatable that appli-
cants furthering their own agenda without regard for Progres-
sive’s well-being stand on equal footing with job seekers who
are just seeking jobs, the Board does not perceive anything
problematic per se with a salting effort that involves a group of
union members (often called “batch applicants”) arriving en

Applicants, and that they are not even “employees” within the
meaning of the Act in the first place, it is equally unavailing.
 26

masse with a video camera and pursuing employment. See, e.g.,
Heiliger Elec. Corp., 325 N.L.R.B. 966, 967 (1998) (“Such
group activity normally enjoys the full protection of the Act.”);
Braun Elec. Co., 324 N.L.R.B. 1, 3 (1997) (“[V]isiting the
[employer’s] office to present employment applications,
videotaping the employment application encounter, and filing an
unfair labor practice charge . . . constitutes protected activity”).16
It is a dance that has been repeated on several occasions, see,
e.g., FES, 301 F.3d at 85, and there is no indication that the steps
are different in the present case. The Board, while highlighting
one Member’s sympathy for Progressive’s position, acknowl-
edged the futility of the argument under current Board precedent.
Progressive Elec., 344 N.L.R.B. No. 52, 2005 WL 762117, at *1
n.2 (noting the “absence of a three-member majority of the
Board willing to revisit the parameters of applicant status under
FES”).

It is true the Board has recognized that, under certain
circumstances, an employer can justify its refusal to hire by
showing the applicant has a “disabling conflict.” See Contrac-
tors’ Labor Pool, 323 F.3d at 1060 (noting that the “Board
likened a disabling conflict defense to a Wright Line defense”);
Sunland Constr. Co., 309 N.L.R.B. 1224, 1230 (1992) (noting
that employer in certain circumstances need not “hire a paid
organizer whose role is inherently and unmistakably inconsistent
with employment” (internal quotation marks omitted)). In that
vein, the Board has indicated that “‘salting’ . . . 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

16
In Heiliger Elec. and Braun Elec., the Board did not find the
videotaping itself to be a protected activity. Heiliger Elec., 325
N.L.R.B. at 966 n.3; Braun Elec., 324 N.L.R.B. at 3 n.4.
 27

designed to drive the employer out of the area or out of busi-
ness.” Casino Ready Mix, 321 F.3d at 1198 (citing Braun Elec.,
324 N.L.R.B. at 3 n.3; M.J. Mech. Servs., 324 N.L.R.B. 812,
813-14 (1997)). Whatever the exact contours of a “disabling
conflict,” we have little difficulty upholding the Board’s refusal
to find one here, given the paucity of evidence suggesting this
salting effort is anything other than ordinary. See Contractors’
Labor Pool, 323 F.3d at 1061 (“An employee does not lose his
protected 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.”).

The Board has also previously found that where “the overall
environment created by the applicants” in attempting to gain
employment was “sufficiently intimidating and disrespectful,”
an employer is “privilege[d] . . . to not hire” them. Heiliger
Elec. Corp., 325 N.L.R.B. at 966 n.3. In Heiliger Electric, for
example, the Board determined that an employer was justified in
refusing to hire applicants who refused to leave when asked,
refused to stop videotaping when asked, and videotaped personal
and private papers on the employer’s desk. Id. at 968. In the
present case, the Board reasonably declined to find any such
disruption. See Commercial Erectors, Inc., 342 N.L.R.B. No.
94, 2004 WL 1967543, at *7 & n.9 (finding applicants “at no
time engaged in disruptive, intimidating, or disrespectful
behavior,” and distinguishing Heiliger Electric). Indeed, at no
point did Neeman ask the Union Applicants to leave or to stop
recording.

In short, Progressive offers us insufficient reason to disturb
the Board’s findings as to the refusal-to-hire and refusal-to-
consider violations.
 28

V

For the foregoing reasons, we deny Progressive’s petition
for review and grant the Board’s cross-application for enforce-
ment.

So ordered.