National Labor Relations Board v. Pneu Electric, Inc.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-60360

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

VERSUS

PNEU ELECTRIC, INC./NAN YA PLASTICS CORP.,

Respondents.

Application for Enforcement of an Order
of the National Labor Relations Board

October 10, 2002

Before JONES, WIENER, and PARKER, Circuit Judges

ROBERT M. PARKER, Circuit Judge:

The National Labor Relations Board (“NLRB” or “the Board”), in

seeking enforcement of its order against Respondents Pneu-Electric,

Inc. (“Pneu-Elect”) and Nan Ya Plastics Corp. (“Nan Ya”), raises

three issues before us. First, whether substantial evidence

supports the Board’s finding that Pneu-Elect and Nan Ya violated

Section 8(a)(1) of the National Labor Relations Act (“the Act”), 29

U.S.C. § 151, et seq., by numerous coercive anti-union acts and

1
statements, including interrogation, threats, and imposition of

invalid no-solicitation rules. Second, whether substantial

evidence supports the Board’s finding that Pneu-Elect and Nan Ya

violated Section 8(a)(3) and (1) of the Act by discharging or

causing the discharge of Clifford Zylks and Andras Aycock because

of their union activities. Third, whether substantial evidence

supports the Board’s finding that Pneu-Elect violated Section

8(a)(3) and (1) of the Act by discriminatorily refusing to consider

known union supporters Russell, Longupee, and Goetzman for

employment. We grant the NLRB’s petition in part, except as to the

potential award of back pay associated with the third issue, and

vacate and remand its Order in part.

I. BACKGROUND.

Respondent Nan Ya operates a plastics plant in Batchelor,

Louisiana. In 1995, it hired respondent Pneu-Elect, an electrical

contracting company in Lafayette, Louisiana. Pneu-Elect performed

at the Nan Ya site via five contracts from spring to December 1996,

in which time it doubled its workforce to over 100 on that site.

Neither company recognized union representation of their employees.

On June 14, 1996, Pneu-Elect’s Field Manager Freddie Zeringue

interviewed Andras Aycock and Clifford Zylks and directed each to

report for work the following Monday at the Nan Ya site.

They did so on June 17. As they walked into the job site,

Pneu-Elect Foreman Mark Miller recognized Zylks as a union

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supporter and commented to a Pneu-Elect employee, “Here comes union

trash. They’re here to start trouble.” After filling out their W-

4 forms, Aycock and Zylks informed Zeringue that they were members

of the International Brotherhood of Electrical Workers, Local Union

No. 995, AFL-CIO (“the Union” or “IBEW”) and that they intended to

organize the Pneu-Elect employees. They put on IBEW buttons.

After they left Pneu-Elect’s trailer, Miller entered and asked

Zeringue if he had hired them. Zeringue said that he had. Miller

replied that they were “union guys,” that he did not want them on

his crew, and that he contemplated assigning them to “dirt work” in

an isolated location. The conversation occurred before Pneu-Elect

employee Simon Lopez, as did most of the conversations reported

herein. The two were assigned to work on a transformer, under

Miller’s supervision, isolated from other employees.

Miller later asked Zeringue, “What’s happening with the union

guys?” Zeringue said that he had spoken with the Nan Ya Safety

Manager, who would “run off” an otherwise-unidentified man and that

Nan Ya did not want a union on the site.

That same day, a 10-foot piece of conduit fell from above,

landing near Zylks and Aycock. Zeringue told them that it had

probably been dropped by the “elevator men” who did not like the

Union. He also told the two to take their Union buttons off. He

later told Miller, Lopez, and others that he had talked to Nan Ya

officials who said not to do or say anything, but that they would

“figure something out.”

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 While commuting together that evening, Miller told Lopez that

he had “started to wait 30 minutes and throw another piece of

conduit at them.” He also said that he would not allow Zylks and

Aycock to commute in the company van and that he would defecate in

their lunch boxes, as he had done at other job sites.

On June 18, Zylks introduced himself to Pneu-Elect’s owner,

president, and CEO, Lester Colomb, and identified himself as a

union organizer with a Union letter confirming that he and Aycock

were acting in that capacity. Also that morning, Pneu-Elect

Foreman Tim Benoit asked Miller if he could “find anybody on [your]

crew [we] could get rid of . . . before [we] get rid of the union

guys,” so that firing Zylks and Aycock “wouldn’t look so bad.”

Miller replied that it would not be a problem.

On June 19, in response to Pneu-Elect employee Walter Porche’s

concern of being laid off, Zeringue said, “I’m not going to lay

nobody off . . . The first ones to be gone will be those union guys

. . . Don’t worry about nothing . . . We got a lot of work that

needs to be done.” The same morning, Zylks and Aycock used the

phone in the company’s trailer, in Zeringue’s presence, to contact

a Union representative for OSHA’s phone number to report the

dropped conduit and other safety issues. Zeringue told them to

return to work and that Nan Ya’s Safety Manager would find them.

Nan Ya Safety Manager Paul Bergeron later introduced himself to

Zylks and Aycock and told them that, if they were organizing on the

job site, he would have to ask them to leave. He said that he

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would not allow any organizing activity to occur “on this site.”

The two replied that they were Pneu-Elect employees and entitled to

organize on the site and would continue to do so. Bergeron then

told them that they had to leave immediately. Zylks and Aycock

asked if he was firing them and Bergeron said that he was.

The two told Zeringue that Bergeron had fired them. Zeringue

asked them to cease their organizing activities. He said, “You

can’t [organize] on site,” and accused the two of disrupting work.

They replied that they had been working and not disrupting anyone.

Bergeron then joined in, repeating that he would not allow any

organizing on the site. Zeringue again claimed that they had

stopped others from working. Bergeron then said, “[I]t doesn’t

matter, done did and over with,” and again ordered Zylks and Aycock

to leave. They asked if Zeringue agreed they were being fired; he

stated that he could not override Bergeron’s order and accused them

again of interrupting work, which they again denied.

Colomb later called Zylks at home and said that he and Aycock

were not fired and that Nan Ya could ask them to leave the site,

but could not fire them. He also said he was continuing to pay the

two, at least until the matter was straightened out. Zylks said

that they wanted to return to work. Colomb thought he could put

them back to work, but because he was unsure if they could return

to Nan Ya immediately, they arranged to meet off-site the next

morning, June 20.

At the meeting, Zylks told Colomb that Bergeron had fired them

5
for organizing on-site. Colomb asked them, “if I can get y’all

back in the plant . . . will y’all agree not to organize during

work time?” Zylks replied that he would organize during working

hours without stopping anyone from working. Colomb indicated that

he had “documented cases that during work time y’all did go talk to

people about organizing.” Zylks said, “As long as I’m working I’m

going to talk. I’m not stopping anybody else from working. If I

go over there to pick up some pipe or go get some wire or whatever,

and the guys are in there terminating and I’m cutting wire, I’m

working . . . I’m not stopping nobody from working.” Both refused

to restrict themselves to breaks and lunches. Pneu-Elect employees

at the Nan Ya site had previously been allowed to talk about

anything on the job, not interfering with work.

The three disagreed whether Zylks and Aycock could be

prohibited from organizing if it did not interfere with work,

whether Bergeron’s prohibition applied to organizing on “work time”

or “on the site,” and whether Bergeron had told them they were

fired. Colomb again said he would talk to Nan Ya about returning

them to the site.

On June 21, Colomb told them that he had spoken to Nan Ya and

that he could not return them to Nan Ya as long as they refused to

stop organizing during work time. Zylks said that they would

continue to organize; Colomb said there was nothing he could do.

That was the last contact between Zylks and Aycock and Pneu-Elect.

Also on June 21, Zeringue asked Pneu-Elect employee Johnny

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Byrd, of whose union affiliation Zeringue was unaware, if employee

George Hughes was a “union man.” Byrd said he did not know.

On June 24, journeyman electrician Russell Anderson called

Zeringue to inquire about hiring. He identified himself as a

journeyman with an OSHA card. Zeringue said, “I pretty much need

people right now . . . If you’re ready to go to work, I need people

bad, got a lot working right now until the end of this week, for

sure this weekend.” Anderson said he would apply the next day.

On June 25, three individuals wearing Union organizer buttons

appeared at the Nan Ya gate. Kendrick Russell, Donald Longupee,

and Roland Goetzman wanted to apply for work with Pneu-Elect.

Russell was the Union’s business manager and organizer; the others

were electricians on its out-of-work list. Russell introduced

himself to Zeringue as the Union’s business manager and told him

that all three wanted to apply. Zeringue told them, “I’m kinda

caught up at the moment but I may be hiring . . . we’re fixing to

cut back some guys here” when the power station was energized. He

said that was where Zylks and Aycock had been working and added,

“Fixing to cut back today for sure, tomorrow once we energize it.”

Colomb then went to the gate and told the three, “We’re laying

off, we don’t have any positions or nothing right here now . . . We

laid off some people yesterday and we are continuing laying off all

the way through Thursday.” He said he had no applications to hand

out but that they could go to the Lafayette office where they could

apply. He also said that they had completed one contract with Nan

7
Ya and would finish the rest that week.

Colomb subsequently told Zeringue and Miller, in front of

Lopez, that he told the “union guys” at the gate that Pneu-Elect

was not hiring and was laying-off. He said that Miller should tell

them the same. Miller suggested offering them jobs at $6.50 per

hour and Zeringue suggested giving them “a thorough ass-whipping.”

Later that day, Russell Anderson appeared to apply for a job

with Pneu-Elect. He did not identify himself as a Union member and

was given a job application by a Pneu-Elect employee.

Based on these circumstances, the Union filed unfair labor

practice charges and the Board’s General Counsel issued a complaint

alleging that Pneu-Elect and Nan Ya violated § 8(a)(1) and (3) of

the Act. After a hearing, an Administrative Law Judge (“ALJ”)

issued a recommended decision and order sustaining several of the

complaint’s allegations. The General Counsel, Pneu-Elect, and Nan

Ya each filed with the Board exceptions to the ALJ’s decision.

On September 29, 2000, the Board agreed with the ALJ that

Pneu-Elect violated § 8(a)(1) of the Act by threatening employees

with discharge, loss of benefits or privileges, isolation from

coworkers and assignment of more onerous work, and interrogating

employees about the union activities of other employees, all to

discourage them from engaging in union activities. Further, that

Pneu-Elect violated § 8(a)(3) and (1) of the Act by discharging

Zylks and Aycock because of their union activities, and by denying

union-affiliated applicants consideration for employment because of

8
their union membership. Additionally, that Nan Ya violated §

8(a)(1) of the Act by telling Pneu-Elect employees that they could

not engage in union activities on its premises and violated §

8(a)(3) and (1) of the Act by discharging or causing the discharge

of Zylks and Aycock because of their union activities.

The Board’s order directs Pneu-Elect and Nan Ya to cease and

desist from engaging in the unfair labor practices found and from

interfering with, restraining, or coercing employees in the

exercise of their rights protected by § 7 of the Act in any like or

related manner. Affirmatively, the Board’s order requires Pneu-

Elect to offer reinstatement to Zylks and Aycock and, jointly and

severally with Nan Ya, to make them whole for losses suffered as a

result of the discrimination against them; to consider applicant

Russell, Longupee, and Goetzman for future job openings in a non-

discriminatory manner; and to post an appropriate remedial notice.

The Board’s order also requires Pneu-Elect to make Russell,

Longupee, and Goetzman “whole” for lost back pay, if it is shown in

a future compliance proceeding that Pneu-Elect would have hired

them but for its discriminatory refusal-to-consider on June 25,

1996. Further, the order affirmatively requires Nan Ya to notify

Zylks and Aycock that it has no objection to their working for

Pneu-Elect on Nan Ya projects, and to post an appropriate remedial

notice.

The Board seeks enforcement of these orders here.

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II. STANDARD OF REVIEW.

The Act provides that the Board’s findings of fact shall be

conclusive, “if supported by substantial evidence on the record

considered as a whole.” See 29 U.S.C. § 160(e); Mississippi Power

Co. v. NLRB, No. 00-60794, 2002 U.S. App. LEXIS 4142, at *15 (5th

Cir. Mar. 14, 2002)(citing NLRB v. Pinkston-Hollar Constr. Servs.,

Inc., 954 F.2d 306, 309 (5th Cir. 1992)). Substantial evidence is

evidence a reasonable mind might accept as adequate to support a

conclusion. Entergy Gulf States, Inc. v. NLRB, 253 F.3d 203, 208

(5th Cir. 2001).

III. ANALYSIS.

A. Violation of § 8(a)(1) by coercive anti-union acts and

statements.

Section 7 of the Act, 29 U.S.C. § 157, guarantees employees

the right “to form, join, or assist labor organizations . . . and

to engage in other concerted activities for the purpose of . . .

mutual aid or protection.” Section 8(a)(1)1 implements § 7 by

making it an unfair labor practice for an employer to interfere

with, restrain, or coerce employees in the free exercise of their

§ 7 rights. NLRB v. Brookwood Furniture, 701 F.2d 452, 459 (5th

1
(a) Unfair labor practices by employer
It shall be an unfair labor practice for an employer--
(1) to interfere with, restrain, or coerce employees in the exercise of
the rights guaranteed in section 157 of this title[.]
29 U.S.C. § 158(a)(1).

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Cir. 1983). “The test for determining whether an employer has

violated § 8(a)(1) is whether the employer’s questions, threats, or

statements tend to be coercive, not whether the employees are in

fact coerced.” Id. (quoting TRW - United Greenfield Division v.

NLRB, 637 F.2d 410, 415 (5th Cir. 1981)). The coercive tendencies

of an employer’s conduct must be assessed within the totality of

circumstances surrounding the occurrence at issue. Id.; Selkirk

Metalbestos, North America, Eljer Mfg., Inc. v. NLRB, 116 F.3d 782,

788 (5th Cir. 1997)(citing Brookwood Furniture). An unlawful

threat is established if, under the totality of the circumstances,

an employee could reasonably conclude that the employer is

threatening economic reprisals if the employee supports the union.

An employer may not issue a blanket prohibition on

solicitation by employees at the work site, without special

circumstances. Valmont Indus., Inc., v. NLRB, 244 F.3d 454, 469

(5th Cir. 2001)(“[i]t is not within the province of an employer to

promulgate and enforce a rule prohibiting [] solicitation by an

employee outside of working hours, although on company

property”)(citing Cooper Tire & Rubber v. NLRB, 957 F.2d 1245, 1249

(5th Cir. 1992)). An employer must permit solicitation during

meals, breaks, and other nonworking time, even if the employee

remains “clocked in” during such times. 957 F.2d at 1249 n.7.

Even during “paid working hours,” an employer must allow

solicitation en route to and from the timeclock, in the break room,

11
and in the rest rooms. Valmont Indus., 244 F.3d at 469 (citing 957

F.2d at 1248-50).

Although it is “well-settled that it is within the province of

an employer to promulgate and enforce a rule prohibiting []

solicitation during working hours,” see 244 F.3d at 469 (citing 957

F.2d at 1249), the presumed validity of such a narrowly-constructed

rule evaporates when it is applied discriminatorily. If a no-

solicitation rule is discriminatorily applied or enforced, i.e.,

applied to union activities as opposed to nonunion activities, that

discriminatory application violates § 8(a)(1) of the Act. NLRB v.

Trailways, Inc., 729 F.2d 1013, 1021 (5th Cir. 1984).

Nan Ya’s posted no-solicitation rule was purported to apply at

all times on the Nan Ya work site. On its face, the rule is a

blanket prohibition against any solicitation on the work site,

which would include union-related solicitation. Such a blanket no-

solicitation rule applied to employee attempts to organize is

improper under the Act. Furthermore, the Board examined evidence

supporting its conclusion that other forms of solicitation were not

excluded, whether during working or non-working hours, so long as

work was not impacted. See PNEU Electric, Inc./Nan Ya Plastics

Corp. and Int’l Brotherhood of Elec. Workers, 332 N.L.R.B. No. 60,

2000 WL 1517680, at *8 (Sept. 29, 2000). Even to the extent that

an employer may regulate the times in which such solicitation may

take place on its property, such a discriminatory application

12
violates § 8(a)(1). Nan Ya went further and, through Safety

Manager Bergeron, openly informed Zylks and Aycock that no union-

related activity would be tolerated at Nan Ya on the pain of being

fired.

Additionally, Pneu-Elect made it clear that Union activities

and members were not welcome. Its attitude was reflected in the

comments about “union trash” coming “to start trouble” by Foreman

Miller; Zylks’s and Aycock’s segregation from other workers; their

being given “dirt work”; the apparently deliberate dropping of a

piece of conduit near them from above and Miller’s subsequent

comments appearing to acknowledge responsibility for the incident;

their being told to remove their Union badges; the interrogation of

employees regarding union status by Pneu-Elect supervisors; and the

obvious efforts to prevent Union members from entering the Pneu-

Elect work force.

Under the totality of the circumstances, these acts can only

be viewed as an active anti-union animus by Nan Ya and Pneu-Elect,

intended to coerce employees away from union organizing activities

through a reasonable belief that economic reprisals would result

from support for a union.

Before finding whether both Pneu-Elect and Nan Ya have

violated § 8(a)(1), however, we must consider whether Nan Ya may be

statutorily liable under the Act in this circumstance. Board and

Supreme Court precedent recognize that an entity may be an employer

within the meaning of the Act without being the direct employer of

13
the affected employees. See Hudgens v. NLRB, 424 U.S. 507, 510 n.3

(“[w]hile Hudgens was not the employer of the employees involved in

this case, it seems to be undisputed that he was an employer

engaged in commerce within the meaning of §§ 2(6) and (7) of the

Act. . . . The Board has held that a statutory ‘employer’ may

violate § 8(a)(1) with respect to employees other than his

own”)(citations omitted) and 522 n.11. The Board in this case

specifically identified both Pneu-Elect and Nan Ya as “employers

engaged in commerce within the meaning of Section 2(2), (6), and

(7) of the Act” in its Order. See 332 N.L.R.B. No. 60, 2000 WL

1517680, at *20 (Conclusions of Law).

Although Nan Ya is a statutory employer, of concern is whether

Pneu-Elect’s employee-organizers fall into the employee or

nonemployee status with respect to Nan Ya, and whether they were

trespassers while organizing. In the context of conducting

organizing activities on an employer’s property, the Supreme Court

has drawn a “distinction [] of substance” between the organizing

rights afforded to employees and to nonemployees. N.L.R.B. v.

Babcock and Wilcox Co., 351 U.S. 105, 113 (1956). There, the Court

reviewed a series of individual cases, all involving union

organizers who entered the property of various employers, without

permission, for the purpose of distributing literature or leaflets

providing information about the respective unions and organizing.

In each case, the union organizers were not employees of the

14
targeted employers. Also in each case, the Board had found that it

was unreasonably difficult for the union organizer to reach the

employees off company property and assessed a violation of §

8(a)(1) against the employers for refusing the organizers access.

Id. at 107. The Court rejected the Board’s interpretation because

the Board had not taken the difference between employee and

nonemployee into account when determining the organizers’ access

rights. Id. at 112-13. With certain exceptions, the Court held,

“an employer may validly post his property against nonemployee

distribution of union literature. . . .” Id. at 112. It

categorically stated that, “[n]o restriction may be placed on the

employees’ right to discuss self-organization among themselves,

unless the employer can demonstrate that a restriction is necessary

to maintain production or discipline,” citing Republic Aviation

Corp. v. N.L.R.B., 324 U.S. 793, 803 (1945), “[b]ut no such

obligation is owed nonemployee organizers.” 351 U.S. at 113.

In Lechmere, Inc. v. N.L.R.B., 502 U.S. 527 (1992), the Court

again distinguished employees’ from nonemployees’ right to access

an employer’s property for the purpose of union organizing. There,

nonemployee union organizers entered an employer’s property,

without permission, to post handbills on employees’ cars, and

related organizing activity. Id. at 529-30. The Board approved an

ALJ’s cease and desist order against the employer, based on Jean

Country, 291 N.L.R.B. 11 (1988). Id. at 531. The Court reviewed

15
whether Jean Country, “as applied to nonemployee organizational

trespassing [was] consistent with [the Court’s] past interpretation

of § 7.” Id. at 536. It determined that Jean Country was being

“applie[d] broadly to all access cases” by the Board Id. at 538

(internal quotation and citation omitted). Further, under Jean

Country, the Board approached every case by balancing § 7 rights

against an employer’s property rights, regardless whether the

organizers were employees or nonemployees, and relegating the

Babcock alternative access analysis to being no more than an

“especially significant” consideration. Id. The Court rejected

the Board’s casting of the Babcock rule as a “multifactor balancing

test” and emphasized the applicability and narrowness of Babcock’s

inaccessibility exception to the rule that an employer may post his

property against nonemployee distribution of union literature. Id.

at 539-41.

We note that another circuit court has recently reviewed the

issue of nonemployee access to an employer’s property for union

organizing activities. In ITT Indus., Inc. v. N.L.R.B., 251 F.3d

995 (D.C. Cir. 2001), the court vacated and remanded a Board order

granting nonderivative access rights for offsite employees.

Employees in that case were employed at several different job

sites. On two occasions, employee-organizers from one plant

attempted to handbill in the parking lot of another plant, both of

which belonged to the same employer. Id. at 996. Citing, inter

16
alia, the property interest concerns articulated in Babcock and

Lechmere, the court held that the Board must take account of an

offsite employee’s trespasser status as it applied to two areas.

First, to the Board’s decision to extend nonderivative access

rights to offsite employees and, second, to its determination that

the scope of those rights be defined by the same balancing test2

used to assess the scope of onsite employee access rights. Id. at

1004-06. In so doing, the court noted that the Board’s opinion

lacked any discussion of the employer’s property rights and of the

potential implication of state trespass laws in light of the

Supreme Court’s prior decisions addressing nonemployee organizers

as trespassers. Id. at 1005 (citing Sears, Roebuck & Co. v.

Carpenters, 436 U.S. 180, 205 (1978)).

Babcock and Lechmere involved non-employee union organizers

trespassing on employer property and attempting to organize the

employer’s employees by leafleting and other means. ITT Indus.

involved offsite employees not employed at the site of the

organizing effort. Neither situation is close to the circumstances

here, where bona fide employees of an employer operating a distinct

work site on the property of another statutory employer, by

contract, are the subjects at issue. On its face, the situation

appears more closely related to that in Republic Aviation, in which

2
As expressed in Tri-County Medical Center, Inc. v. District
1199, 222 N.L.R.B. 1089, 1976 WL 7839 (1976).

17
the Court upheld employees’ rights under the Act to conduct union

solicitation and organizing activities on their own time, subject

to reasonable rules, even on the employer’s property. 324 U.S. at

804 and n.10.

The Board has, in fact, based its decisions in two prior,

somewhat similar, cases on Republic Aviation. In Southern Serv.,

Inc. v. N.L.R.B., 954 F.2d 700 (11th Cir. 1992), the Eleventh

Circuit upheld a Board determination that a contractor providing

janitorial services at a Coca-Cola manufacturer’s site enjoyed the

same organizational rights under the Act as the employer’s

employees did. In its narrow ruling, the court held that “[w]hen

the relationship situates the subcontract employee’s workplace

continuously and exclusively upon the contracting employer’s

premises, the contracting employer’s rules purporting to restrict

that subcontract employee’s right to distribute union literature

among other employees of the subcontractor must satisfy the test of

Republic Aviation.” Id. at 704. While addressing the rule of

Babcock and its progeny, and emphasizing the distinction between

trespassers and nontrespassers implied in Babcock and discussed

more fully in later cases, the Eleventh Circuit did not address the

more recent Lechmere case, decided the previous month, with its

greater emphasis on the difference in access rights between

employees and nonemployees.

In N.L.R.B. v. Gayfer’s Dep’t Store, 324 N.L.R.B. 1246 (1997),

18
the Board addressed a similar issue. Employees of an electrical

contractor engaged in remodeling efforts at a Gayfer’s store, the

contracting employer, in a shopping mall, attempted on several

occasions to hand out leaflets and conduct other organizational

activities on the store’s and mall’s premises. The did so at the

entrances to the store, outside of the mall and at an interior

entrance, aimed at customers and other employees, in violation of

Gayfer’s no-solicitation policy. The Board upheld a determination

that the contracting employer violated § 8(a)(1) with regard to the

contractor-employees. In doing so, the Board recognized that

Babcock and Lechmere drew “‘a critical distinction between employee

and nonemployee solicitation.’” 324 N.L.R.B. at 1249 (quoting

Lechmere, 502 U.S. at 509). The Board distinguished the Gayfer’s

situation, in favor of Republic Aviation. It noted that, in

Hudgens, the Supreme Court stated that “[a] wholly different

balance was struck [in Republic Aviation] when the organizational

activity was carried on by employees already rightfully on the

employer’s property, since the employer’s management interests

rather than his property interests were there involved.” 324

N.L.R.B. at 1249 (quoting 424 U.S. at 521 n.10). The Board

buttressed this by noting that the Court had also stated that “‘the

nonemployees in Babcock & Wilcox sought to trespass on the

employer’s property, whereas the employees in Republic Aviation did

not.’” Id. (quoting Eastex, Inc. v. NLRB, 437 U.S. 556, 571

19
(1978)). The Board then analogized the case before it to Southern

Serv. to determine that the contractor-employees were lawfully on

the department store’s premises, not “strangers” to it. On that

basis, the Board concluded that “their rights to engage in Section

7 activity during nonworking time in nonwork areas of the

Respondent’s premises are established by the standard of Republic

Aviation and not, as the Respondent urges, Babcock & Wilcox and

Lechmere.” Id. at 1250. The Board went on to declare Gayfer’s no-

solicitation policy invalid as overbroad because on its face, it

prohibited protected conduct during periods from the beginning to

the end of workshifts, periods that include the employees’ own

time. Id at 1250-51 (citation omitted).

Here, the Board relies on Gayfer’s and Southern Serv. to

determine that Pneu-Elect employees Zylks and Aycock “worked

exclusively for Pneu-Elect at the Nan Ya site and had full employee

rights.” See 332 N.L.R.B. No. 60, 2000 WL 1517680, at *17. We

defer to the Board’s reasonable interpretation of the Act.

Lechmere, 502 U.S. at 536. “When it is unclear under established

law whether a category of workers enjoys free-standing,

nonderivative access rights, then a court is obliged to defer to

reasonable judgments of the Board in its resolution of cases that

have not as yet been resolved by the Supreme Court.” ITT Indus.,

251 F.3d at 1003 (emphasis in original). We agree with the D.C.

circuit and are concerned that the Board’s determination that

20
Republic Aviation controls the contractor-employee situation before

us has not provided a sufficiently reasoned analysis in light of

Lechmere regarding why the Pneu-Elect employees should also be

considered employees as to Nan Ya for the purposes of the Act. The

Board did not address the issue at all in Southern Serv. and did

not provide a detailed analysis in Gayfer’s to “establish[] the

locus of [] accommodation,” Lechmere, 502 U.S. at 538, due to a

contractor-invitee by a contracting employer. In the Board’s Order

before us, there is no further analysis. This is a category of

workers not previously addressed in Supreme Court precedent.

Republic Aviation may well be the correct standard to employ as

against the contracting employer, considering that a statutory

employer may violate § 8(a)(1) with respect to employees other than

his own. Hudgens, 424 U.S. at 510 n.3.

Regardless, the Board must first determine, considering

Lechmere, explicitly whether the term “employee” encompasses this

relationship between an employer and a contractor-invitee for the

purposes of the Act. That will establish the appropriate locus of

accommodation.

Once accomplished, the Board should also determine, in view of

the Supreme Court cases addressing trespassory conduct in relation

to organizational activities, whether the Pneu-Elect employees in

this case were trespassing on Nan Ya’s property when organizing.

Undoubtedly, Louisiana law must be considered as well as the

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validity of the restrictions put in place by Nan Ya’s no-

solicitation rule.

In the event that the Board determines that the Pneu-Elect

employees are nonemployees with regard to Nan Ya and are therefore

subject to the Babcock/Lechmere access analysis, it must also

consider whether one of the exceptions to Babcock applies. That

is, “[t]o gain access, the union has the burden of showing that no

other reasonable means of communicating its organizational message

to the employees exists or that the employer’s access rules

discriminate against union solicitation.” Lechmere, 502 U.S. at

535 (quoting Sears, Roebuck & Co., 436 U.S. at). The former, the

inaccessibility exception, places a heavy burden on the union to

show, as “the Babcock accommodation principle has rarely been in

favor of trespassory organizational activity.” Id. The latter,

the discrimination exception, applies “if the employer’s notice or

order [against nonemployee distribution of union literature] does

not discriminate against the union by allowing other distribution.”

Babcock, 351 U.S. at 112. The Board has already found that the Nan

Ya no-solicitation policy was invalid for being discriminatorily

applied. If reaching this level of analysis, the Board will have

to determine whether the discriminatory policy satisfies the second

Babcox exception.

For these reasons, we vacate that portion of the Board’s Order

relating to Nan Ya’s liability under § 8(a)(1) for coercive anti-

22
union acts and statements toward the Pneu-Elect employees and

remand for further determination.

We have no difficulty, on the other hand, determining that the

employee-organizers were employees of Pneu-Elect under the Act.

The Board’s finding that Pneu-Elect violated § 8(a)(1) by coercive

treatment of employees is supported by substantial evidence, and we

affirm it.

B. Violation of § 8(a)(3) and (1) by discharging Zylks and Aycock

for their union activities.

In addition to alleging a § 8(a)(1) violation for improperly

discharging Zylks and Aycock, the Board asserts a violation of §

8(a)(3) against both Pneu-Elect and Nan Ya. That section

establishes an employer’s unfair labor practice “by discrimination

in regard to hire or tenure of employment or any term or condition

of employment to encourage or discourage membership in any labor

organization . . . .” See 29 U.S.C. § 158(a)(3). Section 8(a)(3)

therefore prohibits such discrimination based on union-related

activity. “Thus, ‘it is elementary that an employer violates

section 8(a)(3) and (1) of the Act by discharging employees because

of their union activity.’” See Poly-America, Inc. v. NLRB, 260 F.3d

465, 488 (5th Cir. 2001)(quoting NLRB v. Adco Elec., 6 F.3d 1110,

1116 (5th Cir. 1993), in turn citing NLRB v. Transportation Mgmt.

Corp., 462 U.S. 393, 397-98 (1983)). The Board bears the burden of

proving through direct or circumstantial evidence that anti-union

23
animus was a “motivating factor” in the decision to discharge the

employee, and the evidence must support a reasonable inference of

causal connection between the employer’s anti-union motivation and

the employee’s discharge. If the Board meets this burden, it

establishes a prima facie case of discriminatory discharge, and the

employer must present evidence showing that the employee would have

been discharged even absent the protected activity. Poly-America,

260 F.3d at 488-89 (citations omitted).

The record reflects that Zylks and Aycock were targeted as

“union guys” from the moment they were hired, and particularly

after they announced their union affiliation and intent to

organize. In addition to the public comments reflecting hostility

toward the union affiliation, two Pneu-Elect foremen discussed

“getting rid of” non-union workers specifically to camouflage

terminating Zylks and Aycock. Field Manager Zeringue continually

alluded to work being available, but stated that the first to be

laid off would be “those union guys.” Zeringue also met with Nan

Ya Safety Manager Bergeron about the presence of Zylks and Aycock,

and later arranged for Bergeron to meet with them after they tried

to register a complaint about safety conditions on the job site.

Bergeron, acting for Nan Ya, told Zylks and Aycock that there

would be no union organizing or solicitation on the Nan Ya job site

whatsoever. When they replied that they were entitled to do so,

Bergeron ordered them off of the property and told them that they

24
were fired. Zylks and Aycock challenged the issue with Zeringue,

who refused to override Bergeron’s order and accused them of

interrupting others’ work. CEO Colomb later acceded to Nan Ya’s

blanket no-solicitation policy, though a proper restriction during

actual working hours might have been enforceable. Anti-union

animus motivating the discharge is a reasonable inference

supporting the Board’s prima facie case of discriminatory

discharge.

Pneu-Elect and Nan Ya argue that Zylks and Aycock were fired

for soliciting -- or not working -- during working hours and for

being disruptive in the process. Pneu-Elect did not have a

formally published “no solicitation” rule, whether focused at only

during working hours or at any time on the work premises.

Nonetheless, Pneu-Elect contends that such a policy was in effect

and the Board found that such a policy was in effect.

Nan Ya did have a posted “no solicitation” rule and claims

that Zylks and Aycock violated it when soliciting for the Union,

conducting labor organizing activities, and being disruptive during

working hours.

Certainly, an employer has the right to restrict organizing

activities, or other types of solicitation, on the employer’s

property to those times not involving working hours. Valmont

Indus., 244 F.3d at 469. That is not what Nan Ya required, and

Pneu-Elect acceded to, here. Nan Ya’s posted regulation prohibited

25
any solicitation at all. From the content of Bergeron’s orders,

and the comments of various Pneu-Elect supervisors, the prohibition

was aimed against union organizing. Neither Nan Ya nor Pneu-Elect

have provided any evidence that the no-solicitation rule was

enforced in any other context. Such discriminatory application

violates § 8(a)(1) of the Act. NLRB v. Trailways, Inc., 729 F.2d

1013, 1021 (5th Cir. 1984). Zylks’s and Aycock’s discharge, on the

basis of the discriminatory application, was predicated on and

motivated by the employers’ anti-union animus and is a violation of

§ 8(a)(3). There is substantial evidence in the record to support

the Board’s findings in this regard, and we therefore affirm them.

Nan Ya further contends that it cannot be held responsible

under § 8(a)(3) because Pneu-Elect was merely under a short-term

contract and was the sole employer of the discharged employees.

Nan Ya need not be the direct employer, however. “An employer

violates [§§ 8(a)(3) and (1)] when it directs, instructs, or orders

another employer with whom it has business dealings to discharge,

layoff, transfer, or otherwise affects the working conditions of

the latter’s employees because of the union activities of said

employees.” See Dews Const. Corp., 231 NLRB 182, 183 n.4

(1977)(citing cases), enforced, 578 F.2d 1374 (3rd Cir. 1978);

Int’l Shipping Ass’n., Inc., 297 NLRB 1059 (1990)(citing cases).

In this case, the record as a whole provides substantial evidence

to support the Board’s conclusion that Nan Ya’s Safety Officer,

26
Bergeron, ordered Zylks and Aycock off of the Nan Ya premises and

told them that they were fired. Further, that Bergeron repeated

the same to Pneu-Elect Field Manager Zeringue and effectively

forced Pneu-Elect CEO Colomb to refuse to let Zylks and Aycock

return to work unless they refrained from organizing.

C. Violation of § 8(a)(3) and (1) by discriminatorily refusing to

consider known union supporters.

This issue applies only to Pneu-Elect’s apparent refusal to

consider three IBEW members’ applications for employment.

The NLRB argues that its decision in FES (a Division of Thermo

Power) and Plumbers and Pipefitters Local 520 of the United Assoc.,

331 N.L.R.B. No. 20, 2000 WL 627640 (May 11, 2000) should provide

the appropriate analysis in this refusal-to-consider situation.

That is, to establish a discriminatory refusal to consider, the

Board’s General Counsel bears the burden of showing (1) that the

respondent excluded applicants from a hiring process; and (2) that

anti-union animus contributed to the decision not to consider the

applicants for employment. Once established, the burden shifts to

the employer to show that it would not have considered the

applicants even in the absence of their union activity or

affiliation. If the employer fails to meet its burden, a violation

of § 8(a)(3) is established. FES, 331 N.L.R.B. No. 20, 2000 WL

627640, at *10; Int’l Union of Operating Engineers, Local 147, AFL-

CIO, v. NLRB, No. 01-1301, 2002 WL 1461724, at *3-4 (D.C. Cir. July

27
9, 2002). This approach, however, obviates an examination of

whether the excluded applicants are qualified for the applied-to

position, or even if any position exists at all to be filled. The

Board asserts that, regardless of qualifications or available

openings, a blanket refusal to consider union-related applicants

excludes them from the hiring process completely and that such a

discriminatory refusal is a deterrent to employees’ engaging in the

right of self-organization. On that basis, the Board contends that

Pneu-Elect’s demonstrated anti-union animus and its alleged blanket

refusal to consider any union-related applicants for hire, without

more, constitutes a violation of § 8(a)(3).

We think that the approach taken by the Sixth Circuit in NLRB

v. Fluor Daniel, Inc., 161 F.3d 953 (6th Cir. 1998), may provide a

better basis for analyzing a refusal-to-consider charge. Under

Fluor Daniel, there are two elements to a § 8(a)(3) violation: (1)

anti-union animus and (2) the occurrence of a covered action such

as a particular failure to hire. See Fluor Daniel, 161 F.3d at 966

(citing NLRB v. Transportation Mgmt. Corp., 462 U.S. 393, 395

(1983)). After the Board’s General Counsel has proven each

element, the employer must present evidence that the employees in

question would not have been hired, even if they had not been

involved with a union. 161 F.3d at 966. There can be no violation

if there was no refusal to hire or if there were no positions

available of the type applied for. Id. at 966-67. Therefore, in

28
reviewing a § 8(a)(3) claim under a Fluor Daniel-type analysis, we

would have to determine that not only did anti-union animus exist,

and that a failure to hire circumstance occurred, but also that the

employees involved were actually qualified for the respective job

positions and that there were job positions actually available.

This approach seems the more equitable balance between the

interests of individual applicants and those of the employer, who

otherwise might be exposed to liability even if it legitimately had

no job openings available at all.

In this situation, analysis under either of the tests supports

the Board’s finding of discriminatory refusal to hire. If we were

to find that applicants Kendrick Russell, Donald Longupee, and

Roland Goetzman were unqualified for the positions applied for, or

that Pneu-Elect had no job openings available at the time, we would

have to decide whether to ultimately employ the FES test propounded

by the Board or the Fluor Daniel test established by the Sixth

Circuit. Because we find that the applicants were qualified and

that Pneu-Elect did have jobs available at the time of application,

we need not determine with finality which test to follow.

As recently as June 21, 1996, Pneu-Elect CEO Colomb attempted

to return Zylks and Aycock to work as electricians, with the caveat

that they stop organizing during working hours. That indicates

that there were electrician positions available with Pneu-Elect at

the Nan Ya work site and that at least the two positions vacated

29
when Zylks and Aycock were open. On June 24, electrician Russell

Anderson inquired about electrician positions with Pneu-Elect and

was told by Field Manager Zeringue that the company had jobs

available and needed people, at least through the end of the week.

The following day, Russell, Longupee, and Goetzman presented

themselves at the job site, identified themselves as IBEW

organizers, wore Union buttons, and asked to apply for electrician

jobs with Pneu-Elect. They represented themselves as electricians

on the Union’s out-of-work list, which Pneu-Elect has not

challenged. Field Manager Zeringue told them that he was cutting

back that day. CEO Colomb then told the three aspiring applicants

that Pneu-Elect was laying off employees and that there were no

positions available, despite Zeringue’s representation to Anderson

the day before. Colomb also told the three that there were no

application forms available at the job site for them to fill out,

requiring them to go instead to the company’s office in Lafayette.

Colomb later told Zeringue and Foreman Miller that they should tell

the union-related applicants the same thing. Regardless, that same

day, Anderson, with no apparent union affiliation, presented

himself at the work site and was given a job application.

Whether following FES or Fluor Daniel, the Board’s findings

are supported by substantial evidence. There were jobs available

the day before Russell, Longupee, and Goetzman presented themselves

for applications, and with strong likelihood that same day, based

30
on the company accepting Anderson’s application for consideration.

Pneu-Elect has not challenged their qualifications for the work at

Nan Ya. Under the totality of the circumstances, there was

certainly an anti-union animus present within Pneu-Elect and, given

the commentary by Colomb and Zeringue, this animus contributed to

the company’s decision not to consider the three union-affiliated

applicants. Consideration for their employment was refused with

their refused attempt to apply, though an applicant without

apparent union affiliation was later considered. On this basis, we

affirm the findings of the Board that Pneu-Elect’s discriminatory

refusal to consider the three violated §§ 8(a)(3) and (1).

The record also shows, however, that Pneu-Elect did not hire

any applicants for the Nan Ya job site after Russell, Longupee, and

Goetzman attempted to apply and were refused. The only hires made

by Pneu-Elect were for other jobs in other locales; Russell did in

fact apply for a position at any of the sites via Pneu-Elect’s

office in Lafayette and the company accepted his application.

Russell was not hired for any of the other sites because, according

to Colomb, his application reflected a lack of any recent or

significant experience. Because there were no subsequent hires for

the Nan Ya work site, we decline to enforce the Board’s order as it

pertains to requiring a hearing in the compliance stage regarding

whether Russell, Longuee, and Goetzman might have been hired at the

Nan Ya work site but for the discriminatory refusal to consider

them. It is difficult to see how they would be eligible to be

31
“made whole” for any losses that could not have been incurred to

begin with.

IV. CONCLUSION.

For the reasons stated herein, we VACATE that portion of the

Board’s Order regarding Nan Ya’s § 8(a)(1) liability for coercive

anti-union acts regarding Pneu-Elect’s employees and REMAND for

further determination. The Board’s petition for enforcement of its

order is otherwise GRANTED, except insofar as it directed hearings

in the compliance stage regarding losses by Russell, Longupee, and

Goetzman when no electricians were hired by Pneu-Elect for the Nan

Ya site after June 25, 1996.

32