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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10768
Non-Argument Calendar
____________________
TK GLOBAL, LLC,
Petitioner-Cross Respondent,
versus
NATIONAL LABOR RELATIONS BOARD,
Respondent-Cross Petitioner,
PLUMBERS AND PIPEFITTERS LOCAL 72,
Intervenor.
____________________
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2 Opinion of the Court 23-10768
Petitions for Review of a Decision of the
National Labor Relations Board
Agency No. 10-CA-267762
____________________
Before BRANCH, BRASHER, and ABUDU, Circuit Judges.
PER CURIAM:
In this labor law case, the National Labor Relations Board
(“NLRB” or “the Board”) found that TK Global, LLC (“TK” or “the
Company”), violated several provisions of the National Labor
Relations Act (“NLRA”) by prematurely terminating a project
labor agreement (“PLA”) and then firing and refusing to hire union
workers. The core dispute is whether TK was bound by the PLA
to the terms of a collective bargaining agreement (“CBA”)
requiring participating employers to hire exclusively union
workers. An administrative law judge (“ALJ”) found that TK was
bound by the PLA, and the Board agreed. TK now petitions this
Court for review of the Board’s decision, arguing that (1) it never
expressly agreed or otherwise manifested an intent to be bound by
the CBA, and (2) its decision to step away from union workers was
neither motivated by animus nor inherently destructive of
employee rights. The Board filed a cross-application for
enforcement of its order. After review, we conclude that the
Board’s decision is supported by substantial evidence. Accordingly,
we grant the Board’s application for enforcement and we deny
T.K.’s petition for review.
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23-10768 Opinion of the Court 3
I. Background
A. Factual Background
i. The Parties and the CBA
TK is a pipefitting fabrication and installation company
owned by Tae Kyong Kim and managed by Phillip Ahn, both of
whom emigrated to the United States from South Korea. One of
Ahn’s principal duties is to translate and communicate for Kim,
who does not speak English.
The Union in this case is the United Association of
Journeymen and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, AFL-CIO. The Union
has a type of CBA with the Mechanical Contractors Association of
Georgia known as an “area agreement.” This CBA applies to all
members of the Mechanical Contractors Association and any
employers that separately enter into an agreement to be bound by
the CBA. The Union and the NLRB contend that TK entered into
such a separate agreement here.
The two key provisions of the CBA, for purposes of this case,
describe the referral and hiring process for covered employers.
The first is a non-discrimination provision: it gives the employer
“the right to determine the competency and qualifications of
employees . . . referred by the Union,” as well as “the right to hire
and discharge accordingly,” provided that “such rights shall be
exercised on a non-discriminatory basis” and “shall not be based
on, or be in any way affected by . . . union membership . . . or any
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4 Opinion of the Court 23-10768
other aspect or obligation of union membership[.]” The next is
sometimes called an “exclusivity” provision: it states that the Union
will furnish the employer with duly qualified workers in sufficient
numbers to properly do the contracted work—and, if it does not,
“the employer may secure” labor “from other sources.”
ii. The Negotiation and Signing of the PLA
TK was hired to perform pipefitting work on the
construction of a manufacturing facility in Commerce, Georgia.
In March of 2020, a Union representative approached TK,
asking if the company needed additional workers for the
construction project. TK did not initially hire any Union workers
because it already had several employees working on the project,
most of whom were Korean.
When the company later needed more workers, a Union
organizer, David Cagle, met with Ahn. Cagle told Ahn that the
company had to sign an agreement before the Union would
provide workers. 1 Cagle did not have a copy of the CBA with him,
so he described it in general terms, including the provisions
covering the referral and hiring of employees. In particular, he
explained that the company had the right to reject or terminate any
1 On this point, the ALJ credited Cagle’s testimony that he told Ahn the
company needed to sign an “agreement” over Ahn’s testimony that the
company would need to sign a “document.” Because that conclusion is not
“inherently unreasonable” or “self contradictory,” we are bound by it. NLRB
v. Allied Med. Transp., Inc., 805 F.3d 1000, 1005 (11th Cir. 2015) (quotation
omitted).
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workers referred by the Union, but that employers were asked to
first notify the Union of any issues.
The next day, Cagle e-mailed Ahn. “The subject line of the
email read ‘CBA for PLA.’” A copy of the CBA was attached to the
e-mail.
Ahn texted Cagle acknowledging receipt of the e-mail and
attachment. Ahn asked Cagle to confirm that, if TK decided to hire
Union workers, those workers would still need to fill out a job
application and could be terminated at-will. 2
The day after that, Cagle e-mailed Ahn a copy of a one-page
PLA. The PLA reads as follows:
Project Labor Agreement for UA Local Union 72 &
TK LLC at the SKI Battery Plant, Commerce Georgia
and TK LLC Pipe Fabrication Shop located at 274
Galilee Church Road, Jefferson, Georgia 30549
The agreement is a Collective Bargaining
Agreement/Project Labor Agreement for the above
listed jobsites/projects. The duration of this
agreement will be in effect until the end of the above
listed jobsites/projects.
2 The ALJ credited Cagle’s recollection that Ahn only ever asked about the
ability to fire workers over Ahn’s testimony that he wanted to confirm that TK
could hire whoever it wanted and terminate them for any reason. See Allied
Med. Transp., 805 F.3d at 1005.
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Ahn e-mailed Kim a copy of the CBA and the PLA and asked
him to sign the PLA and return it. Ahn informed Kim that he had
read over the “62 pages of documents as well,” referring to the
CBA, but that he did “not have the profession [sic] on this field.”
Ahn said that he believed the CBA was “what they [are] required
to give us such as [a] CC&R,” apparently referring to the
“covenants, conditions, and restrictions report” that a seller is
required to provide to a buyer in a real estate transaction. Kim later
signed and returned the PLA. Ahn and Cagle executed the PLA.
iii. TK requests worker referrals, hires and fires
workers, and pays wages and benefits
consistent with the CBA.
The day after they executed the PLA, however, Ahn
e-mailed Cagle and told him that TK no longer needed workers for
the construction project because of scheduling issues. Ahn
apologized and said he would contact Cagle if the company
planned to hire in the future. Ahn also stated that they should void
out the agreement and make a new one when the company was
ready to hire. Cagle did not respond or agree to void the contract.
A few weeks later, Ahn contacted Cagle again and asked for
five workers. There was no discussion about a new agreement.
The Union supplied the workers, and they worked for TK for about
six weeks.
During that time, TK paid the union workers wages and
fringe benefits consistent with the terms of the CBA. Indeed, when
TK’s payroll department was confused about how and where to
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make fringe benefit contributions, Ahn asked Union fund
administrators for assistance. Along the same lines, when one of
the workers had worked a Saturday but had not been paid for
overtime hours, Cagle and Ahn discussed over e-mail how
overtime and “make-up time” (a shorthand for off schedule work
done to replace hours missed because of unforeseen
circumstances) played out under the CBA. Ahn specifically quoted
the relevant provision of the CBA and explained that he wanted to
make sure he understood how to interpret this language because
he wanted to avoid further misunderstandings.
TK terminated the five workers sometime later, because,
according to Ahn, they could not communicate effectively with
Korean workers already on the job site and the supervisor was not
satisfied with their work. Ahn notified Cagle by e-mailing him that
the company had exercised its right to terminate workers at-will
and that he hoped they could work together again in the future.
The Union was unhappy with TK firing the five employees because
TK “had [non-union] people working on” projects covered by the
CBA, but the Union “let it go because of the bigger picture . . .
instead of blowing it all up[.]” In particular, Ahn and Cagle had
discussed replacing those existing employees with Union
employees over time.
Over the next few weeks, Ahn requested and hired several
more workers. TK paid wages and deducted Union dues for all of
them consistent with the CBA.
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8 Opinion of the Court 23-10768
iv. TK seeks out a subcontractor to complete the
project and terminates the PLA after the Union
insists on exclusive hiring.
Eventually, however, TK realized it might not complete the
project on schedule. Ahn reached out to the Union, asking if the
Union might be able to take over work on the project as a
subcontractor. The Union said it could not, the most it could do
was provide laborers. So TK hired a subcontractor, Genesys
Systems Integration, to provide labor and management to finish
the project.
When the Union found out that TK had hired a
subcontractor to complete the project, it went to Ahn with the
Union lawyer and explained that the CBA required TK to hire
exclusively through the Union for the project. Ahn said he had
never agreed to an exclusivity provision and TK would never have
agreed had it known that the agreement required exclusivity. Still,
TK was happy with the union workers it had at that point, and the
company arranged to hire 13 more.
At some point after this meeting, Ahn spoke with Tim
Fackler, the Sales Manager of the subcontractor, Genesys Systems
Integration. Fackler advised Ahn to withdraw from or terminate
the agreement, and he helped Ahn draft a letter to that end. The
letter stated that TK did not believe that the agreement was
“representative of [the parties’] collaborative discussions prior to
issuing or execution of the agreement,” and therefore “request[ed]
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immediate withdraw[al] and termination without penalty of any
and all obligations contained” in the PLA and CBA.
v. TK terminates the agreement and separates
from union employees because it no longer had
a contract with the union.
After that, Ahn and Kim arranged to meet with the Union
workers still on site. They told the foreman that they had to
discharge him and his crew because they no longer had any
agreement with the Union. TK also declined to hire any of the 13
Union members that it had solicited at the last meeting with the
Union.
B. Procedural Background
After an investigation, the General Counsel of the NLRB
charged TK with violating the NLRA by terminating the
agreement, and refusing to hire union workers. See 29 U.S.C. §
158(a)(1), (3), (5). 3 The ALJ found for the NLRB, as follows.
3 Sections 8(a)(1), (3), and (5) fully provide as follows:
(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 ex-
ercise of the rights guaranteed in section 157 of this title;
...
(3) by discrimination in regard to hire or tenure of employ-
ment or any term or condition of employment to
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encourage or discourage membership in any labor organi-
zation: Provided, That nothing in this subchapter, or in
any other statute of the United States, shall preclude an
employer from making an agreement with a labor organi-
zation (not established, maintained, or assisted by any ac-
tion defined in this subsection as an unfair labor practice)
to require as a condition of employment membership
therein on or after the thirtieth day following the begin-
ning of such employment or the effective date of such
agreement, whichever is the later, (i) if such labor organi-
zation is the representative of the employees as provided
in section 159(a) of this title, in the appropriate collective-
bargaining unit covered by such agreement when made,
and (ii) unless following an election held as provided in sec-
tion 159(e) of this title within one year preceding the effec-
tive date of such agreement, the Board shall have certified
that at least a majority of the employees eligible to vote in
such election have voted to rescind the authority of such
labor organization to make such an agreement: Provided
further, That no employer shall justify any discrimination
against an employee for nonmembership in a labor organ-
ization (A) if he has reasonable grounds for believing that
such membership was not available to the employee on
the same terms and conditions generally applicable to
other members, or (B) if he has reasonable grounds for be-
lieving that membership was denied or terminated for rea-
sons other than the failure of the employee to tender the
periodic dues and the initiation fees uniformly required as
a condition of acquiring or retaining membership;
...
(5) to refuse to bargain collectively with the representatives
of his employees, subject to the provisions of section 159(a)
of this title.
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First, the ALJ concluded that TK violated Sections 8(a)(5)
and 8(a)(1) of the NLRA when it withdrew from the PLA. To
begin, the ALJ found that TK’s “execution of the PLA bound it to
the CBA” because the PLA’s reference to “‘a Collective Bargaining
Agreement/Project Labor Agreement’” was sufficient to show that
the CBA and PLA were “a single, combined agreement objectively
reflect[ing] the parties’ intent to incorporate the CBA into the
PLA.” “This conclusion [was] further bolstered,” the ALJ said, “by
the circumstances surrounding the parties’ execution of the PLA.”
But even if signing the PLA did not expressly bind TK to the
CBA, the ALJ concluded that TK was also bound to the CBA by
conduct. The ALJ found that, from the time that the parties
executed the PLA to TK’s announcement that it was withdrawing
from the agreement, TK hired all its employees for the
construction project through the Union’s referral service; paid
wages and fringe benefits in accordance with the CBA; made
benefit fund contribution payments deducted and remitted Union
dues; referenced the CBA in an overtime dispute; and asked Cagle
for clarification as to the correct interpretation of the language in
the CBA.
Second, the ALJ concluded that firing and refusing to hire
Union employees after terminating the agreement violated §
8(a)(5) and (a)(1) of the NLRA because TK “failed to honor the non-
29 U.S.C. § 158(a)(1), (3), (5).
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12 Opinion of the Court 23-10768
discrimination provision” of the CBA “without bargaining with the
Union[.]”
And third, the ALJ concluded that firing and refusing to hire
those same Union employees after terminating the agreement
violated § 8(a)(5) and (a)(3) because it was “inherently destructive
of important employee rights” and “strong evidence of [anti-]union
animus.” (quotation omitted).
The NLRB (through a delegated panel) summarily affirmed
by adopting the ALJ’s order. 4 TK filed a petition for judicial review
in this Court, and the NLRB cross-petitioned for enforcement of its
order. The Union intervened and filed a brief supporting the
NLRB.
II. Standard of Review
We review the Board’s legal conclusions de novo and its
findings of fact for substantial evidence. Mercedes-Benz U.S. Int’l,
Inc. v. Int’l Union, UAW, 838 F.3d 1128, 1134 (11th Cir. 2016). “We
will enforce an order of the Board if its factual findings are
supported by substantial evidence on the record considered as a
whole.” Allied Med. Transp., 805 F.3d at 1005 (quotation omitted).
Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Northport Health Servs. v. NLRB, 961 F.2d 1547, 1550
(11th Cir. 1992) (quoting Universal Camera Corp. v. NLRB, 340 U.S.
4 The panel amended the remedial order and corrected certain omissions in
that section; those changes are not at issue here.
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474, 477 (1951)). We are bound by an ALJ’s credibility
determinations unless “they are inherently unreasonable, self-
contradictory, or based on an inadequate reason.” Allied Med.
Transp., 805 F.3d at 1005 (quotation omitted); see also NLRB v.
Dynatron/Bondo Corp., 176 F.3d 1310, 1313 (11th Cir. 1999) (the
Board’s findings of fact are “conclusive ‘if supported by substantial
evidence on the record considered as a whole.’” (quoting 29 U.S.C.
§ 160(e), (f))).
III. Discussion
TK argues that the Board erred in finding it violated the
NLRA by withdrawing from the PLA and firing or refusing to hire
union workers after doing so and that the Board’s findings are not
supported by substantial evidence. For the reasons discussed
below, we conclude that substantial evidence supports the Board’s
findings.
A. Substantial evidence supports the finding that TK
violated the NLRA by prematurely terminating the
PLA.
TK first argues that the Board erroneously found violations
of § 8(a)(5) and (a)(1) because there is not substantial evidence to
show that it agreed to be bound by the PLA or the CBA.
Section 8(a)(5) declares that “[i]t shall be an unfair labor
practice for an employer . . . to refuse to bargain collectively with
the representatives of his employees[.]” 29 U.S.C. § 158(a)(5); see
NLRB v. Katz, 369 U.S. 736, 743 (1962) (elaborating on the duty to
bargain collectively). An employer violates the obligation to
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14 Opinion of the Court 23-10768
collectively bargain with his employees’ representative if he
“terminate[s]” the CBA without observing the statutory process
(TK does not argue that it observed the statutory process). 29
U.S.C. § 158(d). The NLRB argues, and TK does not dispute, that
if a violation of Section 8(a)(5) is established, there is also a
“derivative” violation of Section 8(a)(1)—which prohibits
“interfer[ing] with, restrain[ing], or coerc[ing] employees in the
exercise” of rights under the Act. 29 U.S.C. § 158(a)(1).
TK is not a member of the Mechanical Contractors
Association with whom the Union signed the CBA, so whether it
is bound by the terms of the CBA depends on whether it entered
into (what is known as) a “me too” agreement. See Bd. of Trs., Sheet
Metal Workers’ Nat’l Pension Fund v. Four-C-Aire, Inc., 929 F.3d 135,
142 n.4 (4th Cir. 2019).
[A] “me-too agreement” . . . is a contract where an
employer agrees to be bound by the terms of a CBA
negotiated by a multiemployer association and [a] lo-
cal union. Such agreements permit employers to ben-
efit from the terms of an association’s CBA without
having to participate in the collective bargaining pro-
cess.
Id. (internal citation omitted)). In evaluating whether TK entered
into such an agreement, we are “guided by the general common
law of contracts.” E. Air Lines, Inc. v. Air Line Pilots Ass’n, 861 F.2d
1546, 1550 (11th Cir. 1988). A binding labor agreement, like any
contract, typically involves an offer, acceptance, and consideration,
but “all that is required to find the existence of a [CBA] is conduct
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23-10768 Opinion of the Court 15
by the parties manifesting an intent to be bound.” United
Paperworkers Int’l Union v. Int’l Paper Co., 920 F.2d 852, 855, 855–59
(11th Cir. 1991).
The only dispute in this appeal is whether the parties
reached a “meeting of the minds” on binding one another to the
terms of the CBA. NLRB v. Downs-Clark, Inc., 479 F.2d 546, 548 (5th
Cir. 1973). 5 This question deals not with the parties’ subjective
intentions—but rather their intent as objectively manifested in
what they said and did. See New Process Steel, L.P. v. NLRB, 564 F.3d
840, 851 (7th Cir. 2009) (agreeing with the board that “in federal
labor law, as in common law, an agreement is judged by conduct
evidencing an agreement rather than a party’s subjective belief”),
reversed and remanded on other grounds, 560 U.S. 674 (2010). TK
contends that the PLA furnishes no rights or obligations on its own
terms, and that it does not otherwise incorporate the CBA by
reference.
Reviewing the record, we conclude that there is substantial
evidence for the ALJ’s conclusion that, by executing the PLA, the
parties intended to enter into a labor agreement under the terms of
the CBA. The ALJ found the following facts—none of which TK
disputes—demonstrated that TK intended to be bound to the
terms of the CBA. Ahn sought Cagle’s help on hiring qualified
5 See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc)
(adopting as binding precedent all decisions of the former Fifth Circuit
“handed down . . . prior to the close of business” on September 30, 1981).
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16 Opinion of the Court 23-10768
employees. Cagle told Ahn that the Union could only supply
employees if TK signed an agreement with the Union. Cagle then
explained the general terms of the CBA to Ahn, and, when he sent
the CBA to Ahn, the subject line of the e-mail forwarding the CBA
to Ahn read “CBA for PLA” (emphasis added). Ahn proceeded to
read the CBA, which (by its terms) applies to all employers
executing a document agreeing to be bound. Ahn later forwarded
both the CBA and the PLA to Kim for his signature. After
executing the PLA, Ahn’s e-mail to Cagle suggested that the parties
“void[ ] out the contract.” Notably, Cagle did not agree to void out
the PLA, and the parties never replaced it with a new agreement
before the Union started referring workers, despite Cagle telling
Ahn there had to be a signed agreement before the Union would
refer workers. When union workers came onboard, TK paid wages
and fringe benefits, and deducted union dues, in accordance with
the CBA, even quoting the CBA in an e-mail seeking clarification
on wage questions. We agree with the ALJ that these facts
demonstrate, by substantial evidence, that TK intended to enter a
contract with the Union in accordance with the terms of the CBA.
See E. Air Lines, Inc., 861 F.2d at1550 (“[T]he fact that Eastern
currently claims wide areas of difference in the interpretation of [ ]
important terms is not, of itself, sufficient to support a finding of
no contract” because “the outward indicia of agreement point
indisputably to a contractual arrangement.”).
TK argues that the facts show that it “never intended to
enter into any agreement of any kind containing an exclusive hiring
. . . requirement[.]” Instead, TK says, the evidence shows that it
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expressed a desire for “complete control over employees.” TK
argues that even if Cagle misunderstood its intentions, and thought
that TK Ahn merely wanted to be able to terminate employees at
will, “[t]hese inconsistent understandings . . . show that the parties
. . . never reached a meeting of the minds[,]” “especially in light of
the obvious and undeniable language-comprehension obstacles[.]”
TK’s view of the evidence is plausible—but it is not the only way
to view the evidence, and the Board’s view is adequately
supported. See Int’l Brotherhood of Boilermakers v. NLRB, 127 F.3d
1300, 1306 (11th Cir. 1997) (“If the Board has made a plausible
inference from the evidence, we may not overturn its findings,
even if we would have made contrary findings upon a de novo
review of the evidence.”).
TK makes a few other arguments in response, but they all
fail. TK insists, for example, that “Kim is the only TK person
authorized to bind TK to a contract, and [ ] Kim did not see the
CBA before he signed the one-page [PLA].” But there is credible
evidence to the contrary. The CBA was attached to Ahn’s e-mail
soliciting Kim’s signature on the PLA, and it was Kim’s practice to
rely on Ahn’s translations to conduct business. So it does not
necessarily follow that Kim never gave the requisite assent to the
terms of the CBA. The ALJ's conclusion that Kim effectively
assented is reasonable. See id. (explaining that we may not overturn
a reasonable inference from the facts).
TK next points to Ahn’s statement, after the subcontractor
issue arose, that TK would never agree to an exclusive hiring
arrangement. This statement might show that Ahn and Kim
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18 Opinion of the Court 23-10768
fundamentally did not understand the contract—but it is not the
only conclusion one could draw from the evidence. The evidence
overall is equally consistent with the conclusion (discussed above)
that TK’s conduct surrounding the execution of the PLA signaled
an intent to be bound to the CBA. See id. (we may not overturn a
reasonable inference from the facts).
Finally, TK points to “the important language-
comprehension and cultural differences” between the parties. But
once again, the evidence does not demand the conclusion that Ahn
and Kim did not understand the nature and relationship of the
documents here. See id. (we may not overturn a reasonable
inference from the facts).
Thus, because the ALJ’s findings of fact are “supported by
substantial evidence,” they are “conclusive,” and we agree that TK
agreed to be bound to the terms of the CBA. Dynatron, 176 F.3d
at 1313.
B. Substantial evidence supports the finding that TK
violated the NLRA by firing and failing to hire union
workers after purporting to withdraw from the PLA.
TK also challenges the Board’s finding that it violated
§ 8(a)(3) by firing and refusing to hire union workers, because of
their membership, after purporting to withdraw from the PLA. 6
6 The ALJ also found that this conduct violated § 8(a)(1) and (a)(5). TK chal-
lenges those findings, as well, but it focuses on the § 8(a)(3) violation, and ar-
gues that it did not violate § 8(a)(1) or (a)(5) for the same reasons that it con-
tends it did not violate § 8(a)(3). Because TK makes just the one argument,
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Section 8(a)(3) of the NLRA provides that “[i]t shall be an
unfair labor practice for an employer . . . 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[.]” 29 U.S.C. § 158(a)(3). A violation of
§ 8(a)(3)’s nondiscrimination rule can be shown in two ways. First,
an employer violates § 8(a)(3) if activity protected by the Act was a
motivating factor in the discharge. See NLRB v. Transp. Mgmt.
Corp., 462 U.S. 393, 401 (1983). Second, even if no unlawful motive
is shown, an employer can violate § 8(a)(3) if the employer’s action
is “inherently destructive” of employee rights. NLRB v. Great Dane
Trailers, Inc., 388 U.S. 26, 33–34 (1967).
“Some conduct . . . is so inherently destructive of employee
interests that it may be deemed proscribed without need for proof
of an underlying improver motive.” Great Dane Trailers, 388 U.S.
at 33 (quotation omitted). “If the conduct in question falls within
this inherently destructive category, the employer has the burden
of explaining away, justifying or characterizing his actions as
something different . . . if he fails, an unfair labor charge is made
out.” Id. (quotation omitted). Conduct that “discriminates solely
on the basis of union status” is inherently destructive. Metro.
Edison, 460 U.S. at 702.
and we conclude that substantial evidence supports the ALJ’s decision, we
need not decide whether TK is right to treat the § 8(a)(1) and (a)(5) violations
as derivative.
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20 Opinion of the Court 23-10768
The ALJ concluded that firing and refusing to hire Union
employees after terminating the PLA was “inherently destructive
of important employee rights” and “strong evidence of [anti-]union
animus” because, “[u]nder the circumstances, these adverse
actions . . . were a direct result of [TK’s] premature
termination/repudiation of the parties’ agreement[.]” (quotation
omitted). “Furthermore, [TK] . . . failed to present a legitimate and
substantial business justification for taking these actions and failed
to prove that it would have taken the same actions in the absence
of the Union threatening to enforce the exclusivity provision.”
TK offers reasons why firing and refusing to hire the Union
workers was not “inherently destructive” of employee rights, but,
as TK agrees in its reply brief, they all depend on the assertion that
TK was not bound to the CBA. And as we have already discussed,
substantial evidence supports the conclusion that it was bound to
the terms of the CBA.
Thus, because TK has not challenged the substantial
evidence found by the ALJ on inherent destructiveness related to
the binding PLA, there is no need to go further.
IV. Conclusion
In sum, we conclude that substantial evidence supports the
NLRB’s findings that TK violated the NLRA. We therefore deny
the petition for review and grant the Board’s cross-petition to
enforce its order.
Petition DENIED and cross-petition for enforcement
GRANTED.