PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 96-6776
NLRB Nos. 11-CA-14332 11-CA-14543
11-CA-14359 11-CA-14538
BE & K CONSTRUCTION COMPANY,
Petitioner-Cross-Respondent,
versus
NATIONAL LABOR RELATIONS BOARD,
Respondent-Cross-Petitioner.
Petition for Review and Cross-Application for Enforcement
of an Order of the National Labor Relations Board (Alabama Case)
(October 27, 1997)
Before BIRCH, Circuit Judge, FAY, Senior Circuit Judge, and
COHILL*, Senior District Judge.
PER CURIAM:
___________________________________________________________________
*Honorable Maurice B. Cohill, Jr., Senior U.S. District Judge for
the Western District of Pennsylvania, sitting by designation.
In this labor case, BE&K Construction Company (“BE&K”)
petitions for review and the National Labor Relations Board
(“Board) cross-petitions for enforcement of an order of the Board1,
which adopted with modification the findings, rulings, and
conclusions of the Administrative Law Judge (ALJ) that BE&K had
violated sections 8(a)(3)2 and 8(a)(1)3 of the National Labor
Relations Act (the “Act”). BE&K asks this court to vacate the
Board’s modified order, arguing that the ALJ’s and the Board’s
finding of unlawful anti-union animus is not supported by
substantial evidence and is contrary to existing Board and case
law. The Board cross-petitions for enforcement of its order. We
conclude that the section 8(a)(1) and 8(a)(3) violations found by
the ALJ and the Board are not supported by substantial evidence.
Accordingly, we deny enforcement.
I. Background
BE&K is a general contractor engaged in construction at
various sites throughout the United States, including a job site at
1
The decision and order appear at
321 N.L.R.B. 561 (1996).
2
Section 8(a)(3), 29 U.S.C. § 158(a)(3), provides that:
(a) It shall be an unfair labor practice for an employer -
. . . (3)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 . . . .
3
Section 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1), makes it
an unfair labor practice for an employer to interfere with,
restrain, or coerce employees in the exercise of their rights,
inter alia, to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection.
2
a lumber mill operated by Champion International in the town of
Canton, North Carolina. Operating under a merit shop policy, BE&K
hires both independent craft workers and union-affiliated craft
workers and is not a signatory to any collective bargaining
agreement with any labor organization. BE&K, through company
president T.C. Kennedy, has explained at some length the nature of
its merit shop policy in its “Foremen’s Informational Manual,”
describing the role and duties of the foreman at a construction
site.4
4
Because the issues in this case hinge on the language of the
manual and the natural inferences that can be drawn from it, we
quote the critical language of the manual here:
On our merit shop projects, the entire work force, from
laborer to project manager, works as a team, without third
party interference. Their loyalties are to the project and
BE&K. . . .
BE&K was founded on the idea that we will hire our employees,
promote our employees, and treat our employees on the basis of
merit and skill. Our employees need not look to some outsider
to solve our problems; rather an employee has the right to
talk to the foreman and the company about any work problem. .
. .
. . . Unions are businesses and need money to operate. Since
companies are prohibited by law from paying unions any money,
the only place they can get it is from the employees. In
order to persuade employees that they are getting something
for their money, the unions must stir up discontent and divide
the employees and management. . . .
. . . I mention the problems caused by unions to you, because
you, as the management on the project for BE&K, should be
aware of this company’s position and understand why the
company has taken the position. Also the company expects you
to implement this policy. . . .
. . . You may ask yourself what you can do. First of all, you
can sincerely implement the company’s merit shop policy and
show your own loyalty to BE&K You should constantly keep the
lines of communication with employees open and do not hesitate
to answer their questions concerning company policies and
benefits, and questions about unions.
. . . One of the problems in trying to operate a Merit Shop is
that we must always be on the lookout for unions attempting to
3
The charges in this case relate to the hiring practices of
BE&K for a major modernization project at the Champion mill in
Canton. In the fall of 1990, BE&K began hiring employees,
including electricians, pipe welders, and pipefitters, to work on
the modernization of the Champion mill. During an eight month
period, BE&K received approximately 14,000 applications for
approximately 3,500 to 4,000 openings on the Canton project. BE&K
conducted no interviews during the hiring process; all of the
hiring decisions were based solely on the written job applications
submitted to the company. Personnel Manager Brenda Criddle, who
reviewed the applications, was in charge of the hiring of hourly
employees for the Canton project.5 Pursuant to company policy,
organize a project.
. . . I do want to mention something basic about a union
campaign and what management cannot do. The National Labor
Relations Act guarantees every employee the right to belong to
a union or to refuse to belong to a union, and management is
prohibited from interfering with that right. You cannot ask
an employee if he is in a union or if he is in favor of a
union. That is his business and it is protected by law.
. . .
. . . If you ever detect any union activity on your project,
I want you to call me immediately so we can get expert help
and advice at the earliest possible moment. (emphasis in
original).
5
BE&K had in place certain preferences Criddle followed in
deciding who to hire for the Canton project, and Criddle also drew
on her own experiences to establish the preference system. First,
BE&K had a policy of giving preferential hiring to persons who had
worked for BE&K in the past. Second, Criddle targeted applicants
with experience in the particular mill or plant where the employee
would be working. A preference was also given by Criddle for
applicants who had worked for certain contractors who were held in
high regard in the construction industry. As a personal choice,
Criddle preferred to hire persons recently discharged from the
military or with prior military experience. Finally, for the
Canton project, Ms. Criddle sought to hire applicants from North
Carolina, South Carolina, and Tennessee, because Champion requested
4
prospective employees were required to apply individually, rather
than with a group, and in person. As such, BE&K rejected by letter
the “batched” applications sent to the company by the local
International Brotherhood of Electrical Workers (“IBEW”) and the
local United Association of Plumbers and Pipefitters (“Plumbers
Union”).6 Such “batched” applications consisted of a letter by the
union business agent enclosing a group of applications.
The section 8(a)1 and 8(a)(3) charges at issue here stem not
from the rejection by BE&K of the “batched” applications, but from
the alleged discriminatory hiring practices of BE&K in failing to
consider for hire ten applicants who made clear on their
applications their union affiliations,7 and by refusing to hire
8
three of these ten for positions for which they were qualified.
The ALJ and the Board determined that section 8(a)(3) and 8(a)(1)
violations did, in fact, occur, and ordered a remedy which would
attempt to make the discriminatees whole. BE&K petitions this
that BE&K attempt to hire applicants from the area.
6
The letters to the two unions used much the same language and
articulated much the same sentiments as the passages quoted in
footnote 4 of this opinion from the “Foreman’s Informational
Manual”. In addition to informing the unions of the merit shop
status of the company, the letters informed the unions that such
mass applications were contrary to BE&K policy and would not be
accepted.
7
Each of the ten applicants made clear his union affiliation
by either mentioning union membership, listing a union as a past
employer, identifying a union business agent as a reference, or
listing “union organizer” as a special skill.
8
The ten applicants at issue applied for three open spots,
with nine of the applicants applying for two electrician positions,
and with one applicant (James Loudermilk) for one pipe fitter
position.
5
court to set aside this order and the Board cross-petitions for
enforcement of this order.
II. Discussion
BE&K petitions that this court set aside the order of the
Board, arguing that the finding of discriminatory hiring practices
with regard to the ten applicants is not supported by substantial
evidence in this record. As such, there is no proper basis for the
8(a)(3) and 8(a)(1) violations. We agree with the petitioner.
While we must give proper deference to the orders of the
Board, this court will not simply act as its enforcement arm. See
Ona Corp. v. NLRB,
729 F.2d 713, 719 (1984). “It is our
responsibility to examine carefully both the Board’s findings and
its reasoning, to assure that the Board has considered the factors
which are relevant to its choice of remedy and has chosen a remedy
that effectuates the purposes of the Act.”
Id. Given the special
expertise of the Board in the field of labor relations, we will
accept the Board’s factual determinations and reasonable inferences
derived from these factual determinations if they are supported by
substantial evidence on the record considered as a whole. See
Weather Tamer, Inc. v. NLRB,
676 F.2d 483, 487 (11th Cir. 1982);
see also Universal Camera Corp. v. NLRB,
340 U.S. 474, 491 (1951).
“Substantial evidence is more than a mere scintilla. It means such
evidence as a reasonable mind might accept as adequate to support
a conclusion.” Florida Steel Corp. v. NLRB,
587 F.2d 735, 745 (5th
Cir. 1979)(citations omitted).
After careful review of the record, and after close analysis
6
of the order of the Board and the opinion of the ALJ, we find the
record devoid of substantial evidence which might support the
8(a)(1) and 8(a)(3) charges lodged against BE&K. The record makes
abundantly clear that the primary, and perhaps sole, evidence of
anti-union animus on the part of BE&K was inferred by the Board
from the lawful and protected expressions of BE&K in its foreman’s
manual and in its letters rejecting the “batched” application
submitted by the IBEW and the Plumbers’ Union.9
The Board, in agreement with the ALJ, found that BE&K violated
sections 8(a)(3) and 8(a)(1) of the Act by refusing to consider for
hire ten qualified job applicants who made their union affiliations
clear on their job applications, and by refusing to hire three of
those individuals. In order for the Board to establish a prima
facie case for discriminatory refusal to hire, the Board must prove
that a substantial or motivating factor in the company’s rejection
of the applicant was the applicant’s union affiliation. See Wright
Line, a Div. of Wright Line, Inc.,
251 N.L.R.B. 1083 (1980), enfd.,
662 F.2d 89 (1st Cir. 1981), and approved by the Supreme Court in
NLRB v. Transp. Management Corp.,
462 U.S. 393 (1983). In doing
so, the Board must establish that the employer harbored animus
9
We find significant that the hiring here occurred on such a
large scale. In processing 14,000 applications for between 3,500
and 4,000 positions, BE&K turned away approximately 75% of all
applicants including applicants with union backgrounds and
applicants with no union affiliations. Further, the finding of
anti-union animus by the Board and ALJ is undercut by the ALJ’s
determination that, in fact, individuals with union affiliations
were hired and that there was no direct evidence BE&K “actively
screened out or would otherwise refuse those with union
credentials.”
321 N.L.R.B. 561 (1996).
7
toward the applicant because of his or her union affiliation. See
Purolator Armored, Inc. v. NLRB,
764 F.2d 1423, 1429 (11th Cir.
1985). We find that in the proceedings before the ALJ and before
the Board, the NLRB failed to establish a prima facie case of
discriminatory refusal to hire, where the evidence relied on by the
NLRB to prove the crucial element of animus consisted of nothing
more than the lawful, noncoercive statements by BE&K of BE&K’s
merit shop policy.10
When BE&K communicated its opinion regarding the advantages of
its merit shop status, and when BE&K spoke of its desire to keep
unions from successfully organizing its construction projects, it
was exercising its rights of employer expression, guaranteed by
section 8(c) of the National Labor Relations Act and by the First
Amendment to the Constitution. Section 8(c) unequivocally provides:
The expressing of any views, arguments, or opinion, or the
dissemination thereof, whether in written, printed, graphic,
or visual form, shall not constitute or be evidence of an
unfair labor practice under any of the provisions of this
subchapter, if such expression contains no threat of reprisal
or force or promise of benefit.
10
The Board, in its Order, also refers to past labor violations
of BE&K to infer anti-union animus. We find that such an inference
is unwarranted. The most recent misconduct relied upon by the
Board occurred more than twelve years ago and occurred at a
different site and involved different decision makers. Given that
there is no evidence linking such past transgressions to any
present anti-union animus of BE&K, we find the past transgressions
too remote in time to be relevant to this dispute. See Bill Fox
Chevrolet, Inc.,
270 N.L.R.B. 568 (1984)(finding that recent past
misconduct may be relevant to an employer’s anti-union animus).
8
29 U.S.C. § 158(c)(emphasis added). The Supreme Court, in NLRB v.
Gissel Packing Co.,
395 U.S. 575, 617 (1969), stated that section
8(c) “merely implements the First Amendment.” See Florida
Steel,
587 F.2d at 752. The dissemination by BE&K of its foreman’s manual
to its foremen and the distribution of the letters to the IBEW and
the Plumbers’ Union were expressions by BE&K of its views and
opinions regarding the virtues of its merit shop policy and of
BE&K’s desire to strictly adhere to that policy. Neither the
manual nor the letters were coercive; neither contained threats of
reprisal or force or promises of benefit. This statute, section
8(c), clearly states that such language by the employer “shall not
constitute or be evidence of an unfair labor practice.” In
inferring anti-union animus from the lawful communications by BE&K
of its merit shop policy, the Board violated the express and
mandatory provisions of the National Labor Relations Act. See
Florida
Steel, 587 F.2d at 752.
We do not doubt that BE&K desires to keep its workplace union-
free. This is the very essence of its merit shop policy. But we
will not allow the Board to punish an employer simply because that
employer is anti-union. “It is fundamental that the Board has no
authority to punish a company because it is against a union. Any
company has a perfect right to be opposed to a union, and such
opposition is not an unfair labor practice.” Florida
Steel, 587
F.2d at 753. “A finding of unlawful motivation cannot be based
solely on the anti-union stance of an employer . . . .” Weather
Tamer, 676 F.2d at 492. Given that there is no evidence of anti-
9
union animus in the record other than BE&K’s lawful expressions of
its anti-union stance, we hold that no substantial evidence exists
to support the Board’s finding that BE&K participated in
discriminatory hiring practices in violation of Sections 8(a)(3)
and 8(a)(1) of the Act. Accordingly, the remedy proposed by the
Board which relates to such a finding will not be enforced.
ENFORCEMENT DENIED.
10
