concurring in part and dissenting in part.
I.
While I agree entirely with the conclusion reached in part III. of the majority opinion holding that the Board erred “in requiring the employer to renegotiate or bargain” over the employer’s decision to subcontract installation, maintenance, and repair work, as permitted by the collective bargaining agreement, I do not agree with some of my brother’s reasoning in reaching that conclusion. Specifically, I do not agree with the all-important statement in part III. of my brother’s opinion:
While parties have a continuing duty to bargain in good faith after the expiration of a collective bargaining agreement, there is no such duty at the agreement’s termination. Thus, when the collective bargaining agreements between Petitioners and the unions with 9(a) bargaining status terminated, rather than merely expired, upon their respective expiration dates, and because the agreements did not provide otherwise, Petitioners were relinquished of any contractual or statutory obligations to the unions.
(Emphasis added.)
To me, there is no meaningful distinction between the “expiration” of the collective bargaining agreement and its “termination” in the context of this case. And, while there was no duty to bargain over “Automatic”’s decision to subcontract to unionized workers the maintenance, repair, and installation work it formerly did in-house, the absence of the duty arises from the terms of the collective bargaining agreement, and not from any supposed distinction between the “expiration” of the agreement and its “termination.”
II.
More importantly, I have serious disagreement with the analysis and the conclusion reached in part IV. of the majority opinion. In that part of the opinion, the majority rejects the conclusion of the NLRB that “Automatic” is guilty of a violation of section 8(a)(3) for having committed an unfair labor practice “by discriminat[ing] in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.” 29 U.S.C. § 158(a)(3).
In that conclusion, I think my colleagues are mistaken.
While I have considerable doubt that the NLRB correctly concluded that “Respondent violated section 8(a)(3) of the Act by subcontracting the unit work and discriminatorily laying off the unit employees,” (emphasis added), I have no doubt whatever that this court has no authority to vacate that decision. It has none because our standard of review is whether there is substantial evidence in the record to support the finding that “Automatic”’s decision to subcontract its installation, maintenance, and repair work — a decision permitted by the collective bargaining agreement if not done discrimina-torily — was, in fact, “motivated by antiunion animus” with the “ultimate intent” of ridding the company of a unionized workforce.
The ALJ reached that conclusion in the course of a 41-page, single-spaced written opinion which developed, in very considerable detail, the ALJ’s basis for crediting the testimony of the union’s witnesses, and discrediting the testimony of the employer’s witnesses. And, while I have considerable doubt whether, had I been the statutorily designated fact finder, I would have made the credibility determinations the ALJ did, I have no doubt that, given his assessment of the credibility of the witnesses, there is substantial evidence justifying the conclusion that the employer’s subcontracting decision was, in fact, discriminatory, and not, as the *622ALJ put it, for the “pure as driven snow” reasons claimed by the employer.
There can be no question that “Automatic” did not commit an unfair labor practice under section 8(a)(3) simply by exercising its right guaranteed in the collective bargaining agreement to subcontract installation, repair, and maintenance work to unionized workers, and to eliminate that work in-house. Only if that action is taken with a “discriminatory intent,” and for a purpose proscribed by section 8(a)(3), would the otherwise unassailable business decision become an unfair labor practice, and that, according to the ALJ and the Board, is precisely what happened. The otherwise neutral act of subcontracting, as permitted by the collective bargaining agreement, became an unfair labor practice, because it was, according to the ALJ, a carefully orchestrated, ill-concealed, two-stage program motivated, primarily, by union animus, and designed to rid the company of the financial burden of a unionized workforce. In support of that conclusion, the ALJ found, inter alia:
[“Automatic” ’s] conduct was motivated by antiunion animus and violated Section 8(3) of the Act with respect to all of the affected employees represented by all the Charging Unions, whether represented pursuant to a See. 9(a) or 8(f) arrangement.
Additionally,
Pro-Forma III-A in its first three pages is far more revealing concerning [“Automatic” ’s] intentions....
This change will provide us [ (“Automatic”) ] the following benefits:
Gain control of labor costs on pro-jeets[;]
Minimizes the risk potential for labor cost overruns on contracts[;]
Not signatory to any union contract, its pay demands and its work rules[;]
Eliminate labor negotiations^]
Eliminate costs associated with union grievances[;]
Further,
Pro Forma III-A clearly demonstrates [“Automatic”’s] dislike of the restrictions imposed on it by union representation of its employees, and its desire to be a union-free employer. [“Automatic”] had contemplated the possibility of going nonunion for some time prior to its adoption of the “Neutral” plan, and after some misgivings, took the plunge____ [“Automatic”] went to considerable pains to mislead the unions into believing that it was merely extending its subcontracting.
Also,
[“Automatic” ’s president] advised the local unions representing [“Automatic”] sprink-lerfitters of [the company’s] withdrawal from NFSA, and sent the following message to [the company’s] district managers:
I need each of you to contact the Business Agent in your area and ask to sit down with them to discuss this change____
Here is why we withdrew:
Union Relationship — This will force us to work directly with the local unions for the benefit of both. We are not planning to be a non-union contractor. ...
And,
[“Automatic” ’s] concealment commenced with its notice to NFSA that it intended to bargain individually with the Unions, continued with its reassurances to Simpson that there would be contractual relationships ... in the future[.] ... That announcement itself was designed to mislead the Unions. It invited bargaining on [the company’s] decision to no longer employ the Locals’ members, but the record clearly shows [the company] had no intention of bargaining on its decision.
And,
[“Automatic” ’s] primary concern was to increase its share of the fire protection market by being free from the unions’ collective-bargaining agreements’ restrictions on subcontracting which forbade [the company] to subcontract to nonunion firms, and, being thus freed, [the company] would penetrate the market share held by nonunion firms because it could then sub*623contract to the lowest bidder, union or nonunion.
Finally,
Respondent’s conduct in terminating its union member employees, severing its relationships with the contracting unions, turning toward nonunion subcontracting, and concealing its ultimate plan from the Unions violated Section 8(a)(3) and (1) of the Act.
My brother’s opinion does not take issue with these findings by the ALJ and their adoption by the Board. Nor does it assert that the Board erred in performing the burden-shifting analysis required in so-called “dual-motive” eases such as this. Uforma/Shelby Business Forms, Inc. v. NLRB, 111 F.3d 1284, 1291 (6th Cir.1997).
With regard to the required burden-shifting and “dual-motive” eases, the ALJ wrote:
Furthermore, General Counsel has shown that the desire to rid itself of the Local Unions, thereby discouraging union activity, was at the very least one of the motivating factors in [“Automatic” ’s] decision to become a general contractor and subcontract all its sprinkler installation work. [“Automatic”] therefore is obliged to show by a preponderance of the evidence it would have done so in the absence of union representation of its employees. Wright Line, 251 NLRB 1083 (1980); NLRB v. Transportation Management Corp., 462 U.S. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983). Respondent has not carried this burden.
(Emphasis added.) The ALJ expressly considered and rejected the proffered legitimate business reasons for “Automatic” ’s decision. Nevertheless, my brother writes, “[“Automatic”’s] actions were justified under the subcontracting provisions of the parties’ collective bargaining agreement. Therefore, the Board’s determination that Petitioners unlawfully discriminated against the unions by subcontracting in accordance with the terms of the collective bargaining agreement is legally erroneous.” But that observation begs the question, which is, whether “Automatic” ’s actions were, indeed, taken “under the subcontracting provisions of the parties’ collective bargaining agreement” or were taken for the forbidden discriminatory reason of anti-union animus aimed at simply ridding the employer of the financial burdens of a portion of its unionized workforce. The Board, in adopting the extensive analysis, findings, and conclusions of the ALJ, as well as the credibility determinations by the ALJ, found that the subcontracting decision was not taken “under the subcontracting provisions of the parties’ collective bargaining agreement,” but, given “Automatic”’s motive, was made in violation of section 8(a)(3).
III.
For these reasons, I respectfully dissent from part IV. of my colleague’s opinion and concur in the conclusion reached in part III.