Int'l Union 150 v. NLRB ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1044
INTERNATIONAL UNION OF OPERATING ENGINEERS,
LOCAL 150, AFL-CIO,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent,
and
BRANDT CONSTRUCTION COMPANY,
Intervening Respondent.
____________
Petition for Review of an Order
of the National Labor Relations Board
Nos. 33-CA-12420, 33-CA-12686 & 33-CA-12942
____________
ARGUED SEPTEMBER 27, 2002—DECIDED MARCH 28, 2003
____________
Before POSNER, RIPPLE, and MANION, Circuit Judges.
MANION, Circuit Judge. The International Union of
Operating Engineers, Local 150, AFL-CIO, filed three
unfair labor practice charges against Brandt Construction
Company, alleging that the company: (1) changed, limited,
and made more onerous its hiring practices and proce-
2 No. 02-1044
dures with the purpose of making it more difficult for ap-
plicants with pro-union sentiments to apply or obtain em-
ployment; (2) refused to hire or consider hiring individuals
with pro-union sentiments; and (3) maintained a policy of
giving preference in hiring to referral applicants over walk-
in or unknown applicants with the purpose or intended
effect of making it more difficult for applicants with pro-
union sentiments to be considered for employment. The
General Counsel of the National Labor Relations Board
issued complaints on the charges, and a consolidated
hearing was held before an administrative law judge. The
ALJ concluded that, although Brandt had engaged in
some unfair labor practices, the company had not refused
to hire or consider hiring pro-union applicants on ac-
count of their union affiliation. A three-judge panel of the
National Labor Relations Board affirmed the ALJ’s decision,
and the union filed a petition for review of the Board’s
order, which we deny.
I.
Brandt Construction Company (“Brandt”), a highway
contractor located in Milan, Illinois, is engaged in the
business of road construction; bridge building; concrete
paving; asphalt, sewer and water utility work; and dem-
1
olition work. The company conducts its business within a
2
50-mile radius of the Quad City, Illinois area, and has been
in existence for over forty years. Since at least 1994, Brandt
1
The background summary contained in this section of the
opinion is based on the findings of fact made by the ALJ,
which were affirmed by the Board in toto.
2
Brandt is an employer within the meaning of Section 2(2),
(6)-(7) of the National Labor Relations Act, 29 U.S.C. § 152(2).
No. 02-1044 3
has followed a set hiring policy. Under this policy, Brandt
gives preferential treatment to employment applications
filed by current and former employees, as well as individ-
uals referred by current supervisors or employees, over
unknown or walk-in applicants. Brandt also gives preferen-
tial treatment to applicants referred by equal employment
opportunity service providers pursuant to a conciliation
agreement that it entered into with the U.S. Department
3
of Labor on March 19, 1997 (“DOL Agreement”). The com-
pany attempts to fill any open positions with these “pre-
ferred” applicants before it will even consider an applica-
tion filed by an unknown or walk-in job applicant. Brandt
established, and has maintained, this preferential hiring
policy as a means by which to better assess the caliber
of prospective employees.
Brandt’s preferential hiring policy allows referral candi-
dates to apply with the company at any time without an
appointment, but only permits unknown or walk-in appli-
cants to submit employment applications when the com-
pany is hiring and even then only on Mondays. The com-
pany instituted the “Mondays only” rule (also in 1994) for
efficiency reasons and to dissuade individuals receiving
unemployment compensation from coming into the office
and submitting employment applications solely for the
purpose of proving that they were attempting to obtain
full-time employment, i.e., in order to receive unemploy-
ment compensation.
On January 1, 1997, Brandt placed a sign on its front of-
fice door indicating that it only accepted employment
3
This agreement required Brandt to, among other things, make
efforts to increase the percentage of women and minorities on
each job in order to comply with federal, state, and local equal
employment opportunity rules and regulations.
4 No. 02-1044
applications on Mondays, replacing a similarly worded
sign that had been used by the company since the mid-
1990’s. When Brandt posted the “Mondays only” sign it
meant that the company was currently hiring. If the com-
pany was not distributing employment applications, the
Mondays only sign would be replaced by another sign
advising: “We are not accepting applications.”
In February 1997, Brandt amended its hiring policy to
require all job applicants not hired within fourteen days
of submitting an application to reapply if they were still
interested in working for the company. Brandt instituted
the fourteen-day rule to ensure that Terry Brandt could
immediately locate the applicant laborers, who, in the
construction industry, are often needed on short notice.
In late February or early March 1997, Brandt memorial-
ized its hiring policy in writing and posted it on the com-
pany’s employee bulletin boards. The policy stressed that
the company “only accepts employment applications on
Monday,” and that applications would only be “considered
current for a period of two weeks. . . . After fourteen days
the employment application expires and any individual
interested in employment must complete a new applica-
tion, if they are being accepted. . . . We do not accept em-
ployment applications when we are not hiring.” The policy
further provided that Brandt “rigorously follow[s]” a pro-
cedure of preferring, in descending order, the follow-
ing types of job applicants: “(a) Current employees of the
company; (b) Past employees with proven safety, attendance
and work records; (c) Applicants recommended by supervi-
sors; (d) Applicants recommended by current [non-supervi-
sory] employees; and (e) unknown [e.g., walk-in] appli-
cants.” Brandt posted the policy to promote the efficiency of
its office staff, and to stay in compliance with the DOL
Agreement. As in the past, Brandt’s limitations on accepting
No. 02-1044 5
applications—i.e., on Mondays when the company is
hiring—only applied to unknown or walk-in applicants.
At all times relevant to this litigation, Brandt accepted
applications from current and former employees, indi-
viduals referred by current supervisors and employees,
4
and equal employment opportunity service providers.
The company also received applications from unknown
or walk-in applicants in 1997, but none in 1998. Upon receiv-
ing an employment application, Terry Brandt, the company
officer in charge of hiring, would place it in a file accord-
ing to the trade classification for which he would hire
that applicant—e.g., operator, laborer, truck driver or
flagger. When Mr. Brandt needed to fill a position for the
company, he would pull out the folder for that partic-
ular job classification and examine the applications then
on file. In January and February 1997, Brandt received
approximately twelve employment applications (seven
walk-ins and five referrals) but hired none of them. In
March 1997, the company received approximately twenty-
eight applications, hiring two of the twelve referred candi-
dates and none of the sixteen walk-in candidates.
On April 10, 1997 (Thursday), the International Union
of Operating Engineers, Local 150, AFL-CIO (“Local 150” or
5
“union”), at a regularly scheduled meeting, announced
4
Brandt received minority referrals from Irving Jackson of the
Springfield Urban League, who also worked with various unions,
and from Tom Cayson of the Illinois Engineer Coordinators
Committee (“IECC”). The IECC is associated with the Interna-
tional Union of Operating Engineers and is a member of each
“union local” in the State of Illinois. Brandt has hired referrals
from each of these organizations.
5
Local 150 is a labor organization within the meaning of Sec-
tion 2(5) of the NLRA, 29 U.S.C. § 152(5), and represents heavy
(continued...)
6 No. 02-1044
that Brandt had recently been awarded a large job on
Interstate 74, and would, therefore, probably need to hire
additional workers for the project. Accordingly, Local 150
decided to send a number of its members to Brandt’s of-
fice the next day to request and submit employment
applications. Before doing so, however, the union sched-
uled an early morning meeting to instruct participating
members on how to fill out Brandt’s employment applica-
tion. The union instructed participating members to wear
union hats or other insignia to Brandt’s office, and to be
polite throughout the application process. The union
members were also instructed to indicate on their applica-
tions that Local 150 had referred them for the express
purpose of organizing the company, and to note that
they were applying for operator, laborer, truck driver, or
flagger positions with open salary requirements.
On April 11, 1997 (Friday), a total of eleven union-affili-
ated applicants, all donning union insignia, went to
Brandt’s business office seeking to fill out job applications.
The first group of five pro-union applicants arrived at
Brandt’s office at approximately 8:30 a.m. The individuals
in this group claim that they did not see any signs posted
on the front door or inside the office informing walk-in
job applicants that the company only accepted employ-
ment applications on Mondays. Once they were inside
the office, all five received, completed, and filed job ap-
plications with the company. An hour later, two more
union-affiliated applicants arrived at Brandt’s business
office. Both applicants observed the company’s “Mondays
5
(...continued)
equipment operators and other employees working in the con-
struction industry throughout Northern Illinois, Northern Indi-
ana and parts of Iowa.
No. 02-1044 7
only” sign prior to entering the office. After entering the
office, the applicants requested and received job applica-
tions. The receptionist would not, however, allow them
to submit their applications for consideration, advising
them that the company only accepted applications on
Mondays. A third group of four pro-union applicants
arrived at Brandt’s office around 11:30 a.m. They also
observed the “Mondays only” sign before entering the
office. Upon entering the reception area, the applicants
were met by a Brandt employee who told them that they
could not fill out employment applications because the
company only distributed applications on Mondays.
On April 14, 1997 (Monday), approximately fifteen union-
affiliated applicants, all sporting union insignia, went to
Brandt’s business office to fill out job applications. This
group of applicants included the union members who
had been given applications by Brandt the preceding
Friday (April 11th) but were prohibited from turning
them in, as well as the other applicants who, that same
day, were not given applications at all. Each of the individ-
uals in this group observed the “Mondays only” sign prior
to entering Brandt’s business office, and, once inside,
were permitted to obtain, fill out, and submit employ-
ment applications.
On April 21, 1997 (Monday), a group of approximately
sixteen union-affiliated applicants arrived at the Brandt’s
office wearing union insignia and seeking to fill out em-
ployment applications. Before entering the office, how-
ever, the prospective applicants saw, in addition to the
“Mondays only” sign, a sign indicating that prospective
applicants would be required to present photo identifica-
tion in order to receive job applications. Upon entering
the office, the group was told by the company’s recep-
tionist that such identification was mandatory. Four of the
8 No. 02-1044
sixteen applicants did not have photo identification, and
therefore were not given applications to fill out. One of
the applicants returned later that day with proper iden-
tification, and then received, completed, and filed an
application with the company.
All of the aforementioned union-affiliated applicants
indicated on their applications that Local 150 had referred
them specifically for the purpose of organizing the com-
pany, and several of them also listed union business
agents as personal references. After reviewing the em-
ployment history of these applicants, Terry Brandt catego-
rized most of them as prospective candidates for an
“operator” position.
In April 1997, Brandt also received, in addition to the
applications filed by the union-affiliated applicants, ap-
plications from approximately thirty-two referred appli-
cants (including five minority referrals), as well as twenty
applicants from other walk-in candidates. Of those applica-
tions, the company hired eight of the referred candidates,
including three of the five minority referrals. A ninth hire,
Angela Smith, was a pro-union applicant who listed Union
Local 309 as having referred her for employment. Unlike
other union-affiliated applicants, however, Smith attended
and completed a flagger training class held by the company
and sponsored by the Springfield Urban League.
On May 1, 1997, Brandt took down the “Mondays only”
sign and replaced it with a new sign advising prospec-
tive walk-in job applicants that: “[the company] is cur-
rently not distributing nor accepting employment applica-
No. 02-1044 9
6
tions,” which meant that the company was not currently
hiring. As previously noted, however, this limitation only
applied to walk-in or unknown applicants, not to current
employees, former employees, or applicants referred by
EEO service providers.
On May 6, 1997, the union-affiliated applicants who had
applied for employment with Brandt the preceding
month, as well as other walk-in applicants with no union
affiliation, received letters from the company thanking
them for their recent interest in employment, notifying
them that their applications would remain on file for
fourteen days, and advising them that if they wanted to be
considered for employment after that time period they
would need to file new applications.
On May 9, 1997, several of the union-affiliated appli-
cants who had previously applied with Brandt in April
returned to the company’s business office seeking to fill
out new employment applications. Prior to entering the
office, the applicants observed the sign indicating that
the company was not currently distributing or accepting
applications. Nevertheless, the applicants went inside
the office and requested new employment applications.
The company declined to provide them, referring the
applicants to the sign on the front of its office door. During
the visit to Brandt’s office, one of the union applicants
observed a Hispanic individual filling out an application.
On May 10, 1997 (Saturday), Brandt held a mandatory
meeting with its employees. At the meeting, Irwin Brown,
a labor relations consultant, spoke to the assembled em-
ployees about labor relations, the pros and cons of unions,
6
The ALJ noted that the May 1, 1997 sign “has remained con-
tinuously posted up to and including the subject hearing.”
10 No. 02-1044
and showed a fifteen-minute video about union organ-
ized employees. Sometime thereafter, Terry Brandt in-
formed the employees that the company “was no longer
handing applications out over the counter” because it
knew that Local 150 was trying to “salt” (i.e., organize) its
workforce.
During May 1997, Brandt received nine applications
from referrals, of which it hired eight. In June 1997, the
company received nine applications from referrals, hir-
ing eight of them. Finally, one referred candidate started
work in October of that year. From April 1, 1997 through
December 31, 1997, Brandt hired twenty-nine employees,
twenty-eight of whom were referrals, from a pool of sixty
7
seven referral applicants. Angela Smith, a pro-union
applicant, was the only non-referred applicant who ob-
tained employment with the company that year. Moreover,
all of the individuals hired by Brandt in 1997 were offered
employment within 14 days of the date their applications
8
were filed with the company.
On October 9, 1997, Local 150 filed unfair labor charge
number 33-CA-12420 against Brandt, which, as amended,
alleged that, since April 11, 1997, the company changed,
limited, and made more onerous its hiring practices and
7
Three of the individuals hired by the company filed their ap-
plications with the company prior to Local 150’s salting cam-
paign, which actively began on April 11, 1997.
8
More specifically, between mid-April and early May (i.e., the
time period that the pro-union applications were valid under
the fourteen day rule), Brandt only hired three laborers, choos-
ing from a significant pool of referral applicants, and did not
hire any operators, the job most of the pro-union applicants
were categorized for by the company.
No. 02-1044 11
procedures with the purpose of making it more difficult
for applicants with pro-union sentiments to apply or
obtain employment, thereby violating Section 8(a)(1) of
the National Labor Relations Act (“NLRA” or “Act”), 29
U.S.C. § 158(a)(1). The charge also alleged that Brandt
violated Section 8(a)(3) of the Act, 29 U.S.C. § 158(a)(3), by
refusing to hire or consider hiring union members for
employment. On January 30, 1998, the Regional Director
issued and served a complaint and notice of hearing
against Brandt based on the allegations contained in the
charge brought by Local 150 (hereinafter “Case No. 12420”).
In late April or early May 1998, Local 150 learned that
Brandt was hiring for the construction season. On May 22,
1998, a number of active and retired business agents
of Local 150, as well as those of another local union, as-
sembled for the purpose of organizing Brandt’s labor force.
The next day, a group comprised of approximately eighteen
union members, all wearing union insignia, traveled to
Brandt’s office to obtain, complete, and submit ap-
plications for employment. Upon arriving at the front
door of Brandt’s business office, the group observed a
sign indicating that the company was not distributing or
accepting employment applications. Five members of the
group, nevertheless, entered the office, with a video camera
in tow, while the remaining members waited outside.
Once they were inside the office, the spokesman of the
group informed the receptionist that it was the union’s
understanding that Brandt was hiring and that some of
their members were interested in applying for jobs. At
this point, Terry Brandt entered the room and advised the
group to leave the premises or he would be forced to call
the police. Irwin Brown, a consultant to the company,
also appeared and informed the group that Brandt was
not hiring or giving interviews, and that if the union
members had been told otherwise they were misinformed.
12 No. 02-1044
Brown also pointed to the sign on the front door of Brandt’s
office, advising the group that the company only ac-
cepted applications on Mondays when it was hiring. All
of the pro-union applicants left the premises when it be-
came clear that they would not be given applications.
That same day, Marty Clark was permitted to file an
employment application with the company. Clark was
referred to Brandt by his stepfather, a business acquain-
tance of Terry Brandt. Terry Brandt reviewed Clark’s
application that afternoon, and, upon realizing that Clark
was not referred in accordance with the company’s hiring
policy, sent out a letter rejecting the application. Shortly
thereafter, Brandt rehired a former employee as a laborer
and hired a referred applicant as a carpenter. Both ap-
plied and started work on May 26, 1998. Two other referral
applicants began work in June, one on June 16th and the
other on June 22nd.
In June 1998, Chuck Stevens, at the behest of Local 150,
telephoned his old foreman at Brandt, Joe Copeland, to
inquire as to whether he could possibly be rehired by the
9
company. According to Stevens, Copeland stated that
“Local 150 guys have caused trouble and there is a sign
on the door that we are not taking applications,” and
“I can’t get you in the front door but probably could get
you in the back door.” Copeland then told Stevens that
he would check with Charles Brandt, the company’s
president, and get back with him shortly. Later that
month, Copeland told Stevens that he could be hired, and
Stevens reported to work shortly thereafter.
9
Stevens had worked for Brandt as a carpenter, laborer, and fin-
isher between 1991 and 1994, but was fired for dropping an
air compressor off a truck.
No. 02-1044 13
In 1998, Brandt received forty-four applications for laborer
and operator positions, hiring twenty-six individuals
from that pool of candidates—i.e., twenty laborers, two
operators, two drivers, one finisher, and one carpenter.
Ten of the twenty-six hires occurred in May and June
1998. All of the hired individuals’ applications in 1998
came from former employees, individuals referred to the
company by current supervisors or employees, or equal
opportunity employment service providers. Brandt did
not accept any applications from unknown or walk-in
applicants that year, and only hired four employees dur-
ing the fourteen day time period for which the pro-union
walk-in applicants attempted to file applications.
On June 8, 1998, Local 150 filed a second unfair labor
charge (number 33-CA-12686) against Brandt, which, as
amended, alleged that since May 22, 1998, the company
had refused to consider hiring union members. On Sep-
tember 22, 1998, the Regional Director issued a com-
plaint and notice of hearing against Brandt based on the
charge brought by Local 150 (“Case No. 12686”), and
consolidated the case with Case No. 12420.
On November 30, 1998, a hearing was held before
an administrative law judge on Case Nos. 12420 and
12686. On December 4, 1998, the hearing ended when the
ALJ approved a settlement with Brandt over the objec-
tions of both the General Counsel of the National Labor
Relations Board (“General Counsel”) and Local 150. There-
after, both the General Counsel and Local 150 filed a
special appeal, pursuant to Section 102.26 of the Rules
and Regulations of the NLRB, see 29 C.F.R. § 102.26 (pro-
vides for interlocutory appeals to the Board, which are
discretionary), challenging the settlement. On or about
February 26, 1999, the National Labor Relations Board
(“Board”) granted the special appeal, remanding the case
back to the ALJ for further consideration.
14 No. 02-1044
On March 16, 1999, Local 150 filed its third unfair labor
charge (number 33-CA-12942) against Brandt, which,
as amended, alleged that Brandt “has in effect and con-
tinues to maintain and apply a hiring practice of giving
a preference in hiring to referred applicants regardless
of their skill level over walk-in or unknown applicants”
and that “such policy is designed to discriminate, interfere
and prevent union-affiliated applicants from being consid-
ered for employment . . . and is designed to deter the ef-
fects of union organizing in violation of the Act.” On May
28, 1999, the Regional Director issued a complaint and
notice of hearing against Brandt based on this charge (“Case
No. 12942”).
On June 11, 1999, Case No. 12942 was consolidated for
hearing with Case Nos. 12420 and 12686. After a four-day
hearing, the ALJ issued his decision on January 12, 2000. In
that decision, the ALJ found that Brandt violated § 8(a)(1)
by changing and making more onerous its hiring prac-
tices and procedures with respect to union-affiliated ap-
plicants due to: (1) the differential treatment of the three
groups of pro-union applicants by Brandt on April 11, 1997;
and (2) amending its hiring policy to require applicants
to present photo identification before receiving an em-
10
ployment application. The ALJ dismissed the refusal-to-
hire and refusal-to-consider-for-hire charges, however,
concluding that although the General Counsel had met
his burden of proving that Brandt acted with anti-union
animus, under the test outlined by the Board in Wright
Line, 251 N.L.R.B. 1083, 1089 (1980), enf’d, 662 F.2d 899 (1st
10
The ALJ found that Terry Brandt’s May 10, 1997 statement
concerning the union’s salting campaign further buttressed a
finding of anti-union animus on the part of Brandt.
No. 02-1044 15
11
Cir. 1981), the company had not unlawfully refused to
hire or consider hiring the pro-union applicants, noting:
After careful consideration, I conclude that [Brandt] did
not refuse to hire and/or consider hiring the 1997
and 1998 applicants because of their pro-union senti-
ments. Rather, I find that [Brandt] faithfully adhered
to its longstanding hiring policy that has been in ef-
fect since at least 1994, and was posted on employee
bulletin boards prior to the submission of the pro-
union applications in April 1997.
In support of the dismissals, the ALJ also made the
following findings of fact: (1) “that the March 15 conciliation
agreement, entered into by [Brandt] and the U.S. Depart-
ment of Labor to remedy under-representation of women
and minority employees in [Brandt’s] workforce, mandated
hiring . . . individuals [referred by EEO service providers]”;
(2) the company “consider[ed] the application of pro-union
applicant Angela L. Smith and hired her as a flagger in May
1997”; (3) that “all of the positions filled [by Brandt in 1997
and 1998] were for laborer, truck driver, or flagger positions
paying between $8 and [$]10 per hour,” whereas “[t]he
majority of the pro-union applicants . . . were higher paid
skilled operators and the documents in evidence that an
abundant pool of lower paying referral applicants existed
for the laborer positions”; (4) “[i]n regard to the pro-union
11
Under the Wright Line analysis, we begin by considering
whether the General Counsel has proven that anti-union animus
was a substantial or motivating factor in the employer’s deci-
sion to make adverse employment decisions, and, if such a
showing is made, we then determine whether the employer
can avoid liability by demonstrating that, notwithstanding
any anti-union animus, it would have taken the same action
for legitimate reasons. N.L.R.B. v. Louis A. Weiss Mem. Hosp.,
172 F.3d 432, 442 (7th Cir. 1999).
16 No. 02-1044
applicants . . . who were not permitted to submit applica-
tions on May 22, 1998 . . . [Brandt] possessed an available
pool of referral applicants to fill the 26 laborer positions that
[the company] hired in 1998”; (5) “all of the pro-union
applicants [who submitted applications in 1998] were higher
paid skilled operators, and [Brandt] hired only two opera-
tors in 1998”; (6) “that unknown or walk-in candidates that
did not possess pro-union sentiments were treated simi-
larly to applicants with pro-union sentiments and did not
receive applications in May 1998 under [the company’s]
nondiscriminatory hiring policy”; and (7) “that the individ-
uals with pro-union sentiments attempted to file . . . applica-
tions on May 22, 1998, a day that the union observed
a sign on the door that [Brandt] was not currently distrib-
uting or accepting applications or hiring employees.”
Finally, the ALJ dismissed the allegation that since
September 16, 1998, Brandt had in effect and maintained
policies that gave preference in hiring to referral applicants
with the purpose or intended effect of making it more
difficult for applicants with pro-union sentiments to be
considered for employment. Both Local 150 and Brandt
filed exceptions to the ALJ’s decision, and the General
Counsel filed none.
On October 1, 2001, the Board affirmed the ALJ’s “conclu-
sion that [Brandt] did not unlawfully refuse to hire or re-
fuse to consider for hire certain union affiliated appli-
cants.” In doing so, the Board noted that the ALJ issued
his opinion before the Board published its decision in FES
(A Division of Thermo Power) and Plumbers and Pipefitters
Local 520 of the United Association, 331 N.L.R.B. No. 20,
2000 WL 627640 *6 (May 11, 2000), review denied and peti-
tion enforced by, N.L.R.B. v. FES (A Division of Thermo Power),
301 F.3d 83 (3d Cir. 2002), a case that clarified the frame-
work for analyzing refusal-to-hire and refusal-to-consider-
for-hire allegations (see discussion infra). Nevertheless, the
No. 02-1044 17
Board found that “the judge’s analysis in this pre-FES case
is consistent with the . . . framework [outlined in FES].”
The Board agreed with the ALJ that the General Counsel
had met its initial burden under the FES test, explaining
“[i]n regard to anti-union animus, the judge found that
[Brandt] violated Section 8(a)(1) of the Act by changing its
hiring practices to restrict the receipt of employment
applications from pro-union applicants . . . . This unfair
labor practice finding demonstrates [the company’s] anti-
union animus.” The Board also agreed, however, with the
ALJ’s conclusion that Brandt had met its burden of demon-
strating that it would not have hired the pro-union appli-
cants even in the absence of their union activity or affilia-
tion, noting “the record shows that [Brandt’s] established
hiring policy was to give hiring preference to applicants
who were current employees . . . presumably on layoff or
some other form of absence from their employment . . . [;]
past employees with proven safety, attendance, and work
records; and applicants recommended by current supervi-
sors and employees,” and that “[t]here is no contention
that any of the pro-union applicants in question were in
any of the identified applicant-priority categories.” In reach-
ing this conclusion, the Board noted that: (1) Brandt “hired
55 employees during the relevant time period . . . [and
that] [o]f those, 54 were referred for employment by incum-
bent supervisors or employees, or by Equal Employment
Opportunity service providers pursuant to a conciliation
agreement entered into between [Brandt] and the U.S.
Department of Labor in March 1997”; and (2) “the other
applicant hired during this time period was pro-union
12
employee Angela Smith . . . .”
12
One Board member filed an opinion, concurring in part
and dissenting in part, agreeing with the majority’s dismissal of
(continued...)
18 No. 02-1044
For these reasons, the Board affirmed the ALJ’s dis-
missal of the refusal-to-hire and refusal-to-consider-for-hire
charges, as well as the dismissal of the allegation that Brandt
maintained its preferential hiring policy with the purpose
or intended effect of making it more difficult for union-
affiliated applicants to be considered for employment.
The Board’s order, with which Brandt has complied,
directed the company to cease and desist from the unfair
labor practices found; from interfering with, restraining,
or coercing employees in the exercise of their rights pro-
tected by Section 7 of the NLRA, 29 U.S.C. § 157; and
required the company to post an appropriate remedial
notice. Local 150 filed a petition to review the Board’s
decision.
II.
We have jurisdiction to review applications for enforce-
ment and petitions for review of Board decisions pursu-
ant to Sections 10(e) and (f) of the National Labor Rela-
tions Act (“NLRA” or “Act”), 29 U.S.C. §§ 160(e) and (f). In
conducting our review, we are required to determine
whether “the Board’s decision is supported by substantial
evidence and whether its legal conclusions have a reason-
able basis in law.” L.S.F. Transp., Inc. v. N.L.R.B., 282 F.3d
972, 980 (7th Cir. 2002). Substantial evidence in this con-
text means “ ‘more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’ ” Roadmaster Corp. v.
12
(...continued)
the refusal-to-hire charge, but noting that she would have
found a refusal-to-consider-for-hire violation under § 8(a)(3)
of the NLRA.
No. 02-1044 19
N.L.R.B., 874 F.2d 448, 452 (7th Cir. 1989) (citation omitted).
This standard applies to the Board’s application of the
facts to the law, N.L.R.B. v. Winnebago Television Corp., 75
F.3d 1208, 1212 (7th Cir. 1996), and “[w]e apply a similarly
deferential standard in determining whether the Board’s
legal conclusions have a reasonable basis in law.” Dunbar
Armored, Inc. v. N.L.R.B., 186 F.3d 844, 847 (7th Cir. 1999).
Moreover, “we defer particularly to the Board’s findings
regarding credibility, which cannot be disturbed absent
extraordinary circumstances.” L.S.F. Transp., 282 F.3d at
980. Thus, while our review of the Board’s decision is
meaningful, it is decidedly deferential: “ ‘The Board’s
reasonable inferences may not be displaced on review even
though [we] might justifiably have reached a different
conclusion . . . .’ ” Dunbar Armored, 186 F.3d at 846 (citation
omitted). This deferential standard of review is appropri-
ate “in light of Congress’ intent to confer upon the Board
broad authority to develop and oversee national labor
policy.” L.S.F. Transp., 282 F.3d at 980. Against this back-
drop, we consider Local 150’s petition for review.
A. The refusal-to-hire charge.
Local 150’s first argument on appeal is that the Board
erred in concluding that Brandt did not refuse to hire pro-
union applicants. An employer violates §§ 8(a)(1) and (3)
of the NLRA, 29 U.S.C. §§ 158(a)(1) and (3), if it refuses
to hire an individual because of his union sentiments,
membership, or activities. Bloedorn v. Francisco Foods, Inc.,
13
276 F.3d 270, 288 (7th Cir. 2001). Accordingly, an em-
13
Section 8(a) of the NLRA provides that “[i]t shall be an
unfair labor practice for an employer—(1) to interfere with,
(continued...)
20 No. 02-1044
ployer violates the Act if it refuses to hire applicants be-
14
cause they are union salts. Hartman Bros. Heating & Air
Conditioning, Inc. v. N.L.R.B., 280 F.3d 1110, 1111 (7th Cir.
2002).
To establish a discriminatory refusal-to-hire violation,
the General Counsel must prove, by a preponderance of
the evidence, that: (1) the employer was hiring, or had
concrete plans to hire, at the time of the alleged unlawful
conduct; (2) that the job applicants had experience or
training relevant to the announced or generally known
requirements of the positions for hire, or, in the alterna-
tive, that the employer has not adhered uniformly to such
requirements, or that the requirements were themselves
pretextual or were applied as a pretext for discrimina-
tion; and (3) anti-union animus contributed to the decision
not to hire the applicants. FES (A Division of Thermo Pow-
er) and Plumbers and Pipefitters Local 520 of the United Associa-
tion, 331 N.L.R.B. No. 20, 2000 WL 627640 *6 (May 11, 2000),
review denied and petition enforced by, N.L.R.B. v. FES (A
15
Division of Thermo Power), 301 F.3d 83 (3d Cir. 2002); see
13
(...continued)
restrain, or coerce employees in the exercise of the rights guar-
anteed in [29 U.S.C. § 157]; . . . or (3) by discrimination in re-
gard 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).
14
“Salting” is “the practice whereby a union inserts its organ-
izers into some employer’s workforce in the hope that they will
be able to organize it.” Hartman Bros., 280 F.3d at 1111.
15
The Board’s decision in FES clarified the General Counsel’s
burden under the Wright Line test in the hiring context, noting
“[w]e realize . . . that there has been some confusion over the
(continued...)
No. 02-1044 21
also Vulcan Basement Waterproofing of Ill., Inc. v. N.L.R.B., 219
F.3d 677, 684 (7th Cir. 2000) (holding that in order “ [t]o
prove a violation [of Section 8(a)(1) or (3)], the NLRB’s
General Counsel must ‘prove that antiunion animus was
a substantial or motivating factor in the employer’s deci-
sion to make adverse employment decisions’ ”) (citation
omitted). Once this is established, the employer can avoid
liability by demonstrating “that it would not have hired
the applicants even in the absence of their union activity
or affiliation.” FES, 2000 WL 627640, at *6; see also Vulcan,
219 F.3d at 684 (holding that if the General Counsel
proves anti-union animus by a preponderance of the evi-
dence, “the employer can then avoid a finding of an unfair
labor practice if it can show that it would have taken the
action regardless of the employee’s union activities”). If
the employer makes this showing, the Board will not find
a violation of the Act. FES, 2000 WL 627640, at *6; see
also Van Vlerah Mech., Inc. v. N.L.R.B., 130 F.3d 1258, 1263
(7th Cir. 1997)
In this case, the Board agreed with the ALJ that al-
though the General Counsel had proven that Brandt dis-
played anti-union animus by making it more difficult
for pro-union applicants to submit employment applica-
tions with the company, Brandt demonstrated that, not-
withstanding this animus, it would not have hired the
applicants under its nondiscriminatory, preferential hiring
policy. Specifically, the Board found that all but one of
15
(...continued)
requirement that the General Counsel make an initial showing
that applicants have experience or training relevant to the
announced or generally known requirements of the positions
for hire . . . . We, therefore, clarify that the General Counsel
must make this initial showing.” FES, 2000 WL 627640, at *6.
22 No. 02-1044
Brandt’s hires in 1997 and 1998 were referred applicants,
with the one exception being pro-union applicant Angela
Smith, and that the company did not hire any unknown
or walk-in applicants during that time period, the man-
ner by which all of the pro-union applicants had sought
employment. Local 150 does not dispute either of these
facts, but maintains that the Board, nevertheless, erred in
concluding that Brandt met its burden of showing that it
would not have hired the pro-union applicants even in
the absence of their union activity or affiliation because:
(1) the hiring policy maintained by Brandt is inherently
discriminatory, destructive of the union-affiliated appli-
16
cants’ Section 7 rights; (2) Brandt did not rely on its
preferential hiring policy as a defense at the ALJ hearing;
and (3) Brandt applied its hiring policy in a discriminatory
manner.
We begin with Local 150’s argument that Brandt’s pre-
ferential hiring policy is inherently “discriminatory and
destructive” of the union-affiliated applicants’ Section 7
rights under the NLRA. According to the union, the Board
should not have permitted Brandt to use its hiring policy
as a Wright Line defense because “policies which effec-
tively eliminate[ ] an entire class of applicants from con-
16
29 U.S.C. § 157 provides that “[e]mployees shall have the
right to self-organization, to form, join, or assist labor organ-
izations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid
or protection, and shall also have the right to refrain from any
or all of such activities except to the extent that such right
may be affected by an agreement requiring membership in
a labor organization as a condition of employment as author-
ized in section 158(a)(3) of this title.”
No. 02-1044 23
sideration have been found to be discriminatory and
destructive of employee rights,” and because Brandt’s
preferential hiring policy has no “legitimate business pur-
pose.”
The ALJ dismissed the allegation that Brandt’s preferential
hiring policy was a mere pretense for making it more
difficult for pro-union applicants to be considered for
employment or to discourage membership in labor organi-
zations, concluding that the policy of giving preferential
treatment to referred applicants over walk-in or unknown
applicants was not “inherently discriminatory.” The Board
affirmed the dismissal of this allegation (an allegation
separate and apart from the refusal-to-hire charge), but
in doing so questioned the ALJ’s use of the phrase “inher-
ently discriminatory,” noting “there is no contention by
the General Counsel that [Brandt’s] hiring policy was
inherently destructive of Sec. 7 rights.”
The General Counsel, of course, has the discretion to
decide whether or not to issue a complaint. N.L.R.B. v.
United Food & Commercial Workers Union, Local 23, 484 U.S.
112, 124-25 (1987), and therefore possesses the lesser
included authority to exercise exclusive control over the
issues contained in any complaint that he issues. See § 3(d)
of the NLRA, 29 U.S.C. § 153(d) (noting that the General
Counsel “shall have final authority, on behalf of the Board,
in respect of the investigation of charges and issuance
of complaints . . . and in respect of the prosecution of such
complaints before the Board . . . .”); Williams v. N.L.R.B., 105
F.3d 787, 790-91 n.3 (2d Cir. 1996). Moreover, the Gen-
eral Counsel’s decision not to issue a complaint, or to
include a particular issue in a complaint, is final and
unreviewable, United Food & Commercial Workers Union,
484 U.S. at 126. We, therefore, agree with the Board that
the question of whether Brandt’s hiring policy is inher-
24 No. 02-1044
ently discriminatory or destructive is not an issue in this
17
case.
This brings us to Local 150’s second argument: that
none of Brandt’s witnesses testified before the ALJ that
the pro-union applicants were rejected as a result of the
company’s faithful adherence to its preferential hiring
policy. In a nutshell, the union contends that only reasons
offered by Terry Brandt during the ALJ hearing for the
company’s refusal to hire the pro-union applicants
were that: (1) there were no positions available at the
time they applied; and (2) their applications expired after
fourteen days. This argument, however, is based on a
selective reading of Mr. Brandt’s testimony before the ALJ.
At the ALJ hearing, Mr. Brandt provided extensive
testimony that the company favored referred candidates
17
Even if the issue were before us, it is highly unlikely that
the union’s argument would carry the day. See Zurn/N.E.P.C.O.,
329 NLRB No. 52 (1999), 1999 WL 33429961, 1 (September 30,
1999) (holding that employer who followed hiring policy that
gave preference to current and former employees, as well as
referrals by the employer’s management, did not discriminate
on the basis of union activities because “the policy does not on
its face preclude or limit the possibilities for consideration of
applicants with union preferences or backgrounds”); Custom
Topsoil, Inc., 328 NLRB 446, 447 (1999) (holding that employer
did not discriminate on the basis of union activities when it
differentiated between “stranger” applicants and “familiar” ap-
plicants, but did not differentiate between union and nonunion
applicants). See also N.L.R.B. v. Louis A. Weiss Mem. Hosp., 172 F.3d
432, 446 (7th Cir. 1999) (holding that an employer not motivated
by anti-union animus may freely exercise its business judg-
ment in hiring decisions, and that the Board should not substi-
tute its judgment for that of the employer); Atlas Metal Parts Co.
v. N.L.R.B., 660 F.2d 304, 310 (7th Cir. 1981) (same).
No. 02-1044 25
and limited walk-in applicants, and that employment
applications filed with the company would only be
eligible for consideration for a period of fourteen days.
Moreover, when Mr. Brandt testified that “no positions
were available” for pro-union applicants, he did not as-
sert, as Local 150 suggests, that no hiring took place dur-
ing the time period in question. On the contrary, Mr.
Brandt’s testimony merely reflects that no positions were
available for any walk-in applicants because the company
was able to meet its hiring needs from a considerable
pool of referred candidates. Indeed, in earlier testimony,
Mr. Brandt readily acknowledged that the company con-
ducted limited hiring during the 14-day periods that the
1997 pro-union applications were valid. He further ex-
plained that any hiring taking place at that time was for
low-paid laborers and not operators, the position for which
he categorized most, if not all, of the pro-union applicants.
Furthermore, as noted supra, all of the company’s hires
during that time period were referred candidates. Accord-
ingly, Mr. Brandt’s testimony does not undermine the
Board’s conclusion that Brandt declined to hire pro-union
applicants pursuant to its long standing, nondiscriminatory,
preferential hiring policy.
Local 150’s final argument is that Brandt applied its hir-
ing policy in a discriminatory manner, and, therefore,
the company may not use that policy as the basis of its
defense to the refusal-to-hire charge. To put it more pre-
cisely, the union contends that because Brandt applied
one aspect of its hiring policy in a discriminatory manner
(i.e., the procedures governing the receipt and distribu-
tion of employment applications), we should presume
that the company applied the remainder of its policy in
a discriminatory manner. We disagree. Such a presump-
tion would conflate the two steps of the Wright Line test,
as clarified in FES, rendering the second step—i.e., wheth-
26 No. 02-1044
er the employer would have taken the same action even
in the absence of union activity or affiliation—superfluous.
The first step of Wright Line, as noted supra, requires the
General Counsel to produce enough evidence to create
an inference that the employer’s decision not to hire pro-
union applicants was motivated by anti-union animus.
Jet Star, Inc. v. N.L.R.B., 209 F.3d 671, 675-76 (7th Cir.
2000). Here, the Board found that the General Counsel met
this initial burden by producing evidence that Brandt
changed its hiring practices to restrict the receipt of em-
ployment applications from pro-union applicants. At this
point, Brandt, in order to avoid a finding of liability, was
required to show that the pro-union applicants would
not have been hired even if the company had not at-
tempted to restrict or hinder the ability of those appli-
cants to obtain and submit employment applications to
the company. Jet Star, 209 F.3d at 675 (holding that in
evaluating the employer’s Wright Line burden “we . . . look
to whether the employer was able to rebut [the General
Counsel’s] evidence or to show that the job action would
have been taken even in the absence of the employee’s
protected activities”). The Board concluded that Brandt
made this showing because the evidence demonstrated
that the company applied its preferential hiring policy in
a nondiscriminatory manner, and that the pro-union
applications, submitted by union members as walk-in
applicants, would have been rejected under this longstand-
ing policy notwithstanding any anti-union animus.
The Board cannot, as Local 150 suggests, infer that
Brandt’s decision not to hire pro-union applicants was
fueled by anti-union animus in the absence of evidence
calling into question the truthfulness of the nondiscrim-
inatory reason proffered by the company. That is because
the General Counsel bears the ultimate burden of persua-
No. 02-1044 27
sion under the Wright Line test, i.e., establishing a causal
link between the anti-union animus and the adverse ac-
tion taken by the employer. Wright Line, 662 F.2d at 906-
07; FiveCAP, Inc. v. N.L.R.B., 294 F.3d 768, 781 (6th Cir.
2002). The ultimate inquiry under the Wright Line/FES
analysis is not whether the employer ever exhibited anti-
union animus, but whether the employer would have
refused to hire the pro-union applicants even in the ab-
sence of their union activity or affiliation. FES, 2000 WL
627640, at *6; see also Vulcan Basement, 219 F.3d at 684. And
although a finding of anti-union animus in one regard
may make it more difficult for an employer to meet its
burden of proving that its true reason for not hiring pro-
union applicants was nondiscriminatory, this is ulti-
mately a credibility determination to be made by the ALJ
in the first instance and by the Board thereafter; a deter-
mination we are required to afford great deference. L.S.F.
Transp., 282 F.3d at 980.
Therefore, in order to prevail on its petition, Local 150
must point to evidence that significantly undermines
the Board’s finding that, notwithstanding any anti-union
sentiments, Brandt would have rejected the pro-union
applications under its nondiscriminatory, preferential hir-
18
ing policy. Id. (holding that “we defer particularly to the
18
In this respect, it is irrelevant whether Brandt, as Local 150
alleges, discriminated against pro-union applicants by: (1) al-
lowing Marty Clark to submit an employment application
with the company on the same day that it refused to allow pro-
union individuals to do so; and (2) being inconsistent in
the application of its 14-day rule. Neither allegation bears
on the question of whether Brandt applied its preferential
hiring policy in a discriminatory manner. Furthermore, even
were we to assume that these allegations were relevant to the
(continued...)
28 No. 02-1044
Board’s findings regarding credibility, which cannot be
disturbed absent extraordinary circumstances,” and will
“refuse to interfere with the Board’s choice between two
permissible views of the evidence, even though we may
have decided the matter differently had the case been be-
fore us de novo”). The union attempts to make such a
showing on appeal, and we shall therefore now turn to
its arguments in this regard.
We begin by addressing Local 150’s assertion that Terry
Brandt’s comment to employees that the company was
no longer accepting applications over the counter (be-
cause of the union’s salting campaign) sent “the clear
message to the employees that they should not refer union-
affiliated applicants but rather only nonunion appli-
cants.” Assuming this is a permissible inference to draw
from Mr. Brandt’s statement, the inference is of no use to
the 1997 pro-union applicants who, by the time this state-
ment was made (May 10, 1997), had already filed applica-
tions (April 1997) and attempted to obtain new applica-
18
(...continued)
question before us, neither is supported by the evidentiary
record. Instead, the record shows that although Clark was
allowed to file an application on the same day that the pro-
union applicants were turned away, Terry Brandt sent Clark a
rejection letter that day after examining the application and
noticing that Clark had not been referred in accordance with
the company’s hiring policy. Thus, Brandt’s handling of Clark’s
application actually demonstrates that the company followed,
rather than deviated from, its hiring policy. There is also noth-
ing in the record to support the union’s assertion that Brandt
hired anyone fourteen days after the filing of an employment
application. At best, the record shows that some of the individ-
uals Brandt hired started work two weeks after filing their
employment applications with the company.
No. 02-1044 29
tions (May 9, 1997) as walk-in applicants. Terry Brandt’s
statement, therefore, can hardly be said to have reduced
the 1997 applicants’ chances of being referred by the com-
pany’s supervisors or employees, when none of them ever
made an attempt to obtain such referrals.
As for the 1998 union-affiliated applicants, there is
also nothing in the record suggesting that any of these
applicants ever attempted to obtain referrals from a Brandt
supervisor or employee, or through one of the equal
employment opportunity service providers used by the
company. Instead, the record shows that all of these ap-
plicants attempted to obtain employment applications
from Brandt as walk-ins on May 22, 1998. In the absence
of any effort on the part of these applicants to obtain
referrals, we will not speculate as to whether the referral
option was foreclosed to them because of a statement
made by Terry Brandt over a year before they sought
employment with the company.
Local 150’s next argument is that Brandt deviated from
its hiring policy by preferring applicants referred by equal
employment opportunity service providers over unknown
or walk-in applicants. The crux of the union’s contention
is that Brandt’s written hiring policy does not specifically
list referrals from equal employment opportunity service
providers as a preferred category, and, therefore, the com-
pany failed to adhere faithfully to its preferential hiring
policy when it gave applicants referred by EEO service
providers priority over unknown or walk-in applicants.
In making this argument, however, the union does not
point to any evidence that Brandt’s “deviation” from its
preferential hiring policy—i.e., giving priority to minority
referrals—was fueled by anti-union animus. Instead, the
union once again suggests that we should infer that the
company’s decision to give preferential treatment (here,
30 No. 02-1044
to minority referrals) was motivated by anti-union animus
even in the absence of corroborating evidence. Without
such evidence, this is something we are rarely, if ever,
inclined to do. See Vulcan Basement, 219 F.3d at 685-87;
Starcom, Inc. v. N.L.R.B., 176 F.3d 948, 951-52 (7th Cir. 1999);
Louis A. Weiss Mem. Hosp., 172 F.3d at 443-48.
And here, there is nothing in the record even remotely
suggesting that Brandt’s decision to give minority refer-
rals preferential treatment was motivated, in any respect,
by anti-union animus. Indeed, the record shows that the
company gave preferential treatment to applicants re-
ferred by EEO service providers pursuant to a conciliation
agreement that the company entered into with the U.S.
Department of Labor on March 15, 1997. Under this agree-
ment, Brandt agreed to increase the number of women
and minorities on each job in order to be in compliance
with certain equal employment opportunity guidelines.
Moreover, Brandt’s decision to give preferential treat-
ment to applicants referred from EEO service providers
is entirely consistent with the company’s longstanding
policy of hiring individuals referred from sources that
it deems trustworthy over unknown or walk-in appli-
cants; a policy formulated long before Local 150’s salting
19
campaigns. An employer who follows established hiring
19
Local 150 contends that substantial evidence does not sup-
port the Board’s characterization of Brandt’s preferential hiring
policy as “long standing” or “established.” We disagree. The
Board agreed with the ALJ that “Terry Brandt credibly testified
that . . . the portion of the hiring policy regarding referral of
applicants . . . has been rigorously followed since at least 1994,”
and that the company “faithfully adhered to its long stand-
ing policy that has been in effect since at least 1994, and was
(continued...)
No. 02-1044 31
practices can rebut the General Counsel’s showing of anti-
union motivation if the hiring practices in question
do not preclude the consideration of union applicants.
Zurn/N.E.P.C.O., 329 NLRB No. 52 (1999), 1999 WL
33429961, 1 (September 30, 1999) (holding that employer
who followed hiring policy that gave preference to cur-
rent and former employees, as well as referrals by em-
ployer’s management, did not discriminate on the basis
of union activities because “the policy does not on its
face preclude or limit the possibilities for consideration
of applicants with union preferences or backgrounds”);
Custom Topsoil, Inc., 328 NLRB 446, 447 (1999) (holding
that employer did not discriminate on the basis of union
activities when it differentiated between “stranger” appli-
cants and “familiar” applicants, but did not differentiate
20
between union and non-union applicants).
In this case, Brandt’s preferential hiring policy did not
prevent the pro-union applicants from being considered
for employment with the company. What doomed their
applications was the decision to apply as walk-ins, an
19
(...continued)
posted on the employee bulletin boards prior to the submis-
sion of the pro-union applications in April 1997.” Having re-
viewed the record, we believe that substantial evidence sup-
ports the Board’s findings in this regard.
20
Cf. N.L.R.B. v. Newtown Corp., 705 F.2d 873, 874 (6th Cir.
1983) (holding that if an employer has an established policy of
granting regular, periodic wage increases, “to honor that policy
by granting the raise is not an unfair labor practice”); N.L.R.B.
v. Rich’s of Plymouth, Inc., 578 F.2d 880, 886-87 (1st Cir. 1978)
(holding that employer did not violate NLRA by following
established policy of refusing to rehire union employees who
quit).
32 No. 02-1044
applicant pool of last resort for the company. Thus, while
Brandt may have technically deviated from its written hir-
ing policy, there is no evidence that the company’s deci-
sion to do so was in any way fueled by anti-union animus.
As previously noted, there is substantial evidence of the
exact opposite: that Brandt faithfully adhered to its estab-
lished hiring policy of favoring referred candidates
over unknown or walk-in applicants, regardless of union
affiliation.
Local 150 also maintains that Brandt deviated from its
hiring policy when it failed to give preference to pro-
union applicants Roger Hoffman, Ron Miller, Don Peden,
and Jack Schadt, all of whom submitted applications in
April 1997 and apparently once worked for the company.
The record shows, however, that Terry Brandt had no
knowledge that any of these individuals had previously
worked for the company at the time their applications
were under consideration. In fact, not one of these ap-
plicants listed their prior employment with Brandt on
their applications, or, for that matter, informed the com-
pany of this information through any other means. In
the absence of any evidence that Brandt was actually
aware of the applicants’ prior employment history, we
fail to see how the union can claim that they were en-
titled to preferential treatment under the company’s hir-
ing policy. Finally, it is also worth noting that all four
applicants were experienced operators, a position that the
company had no openings for during the fourteen day
period their applications were on file.
Finally, Local 150 argues that Brandt applied its hiring
policy in a discriminatory manner when it failed to give
the 1998 pro-union applicants preferential treatment. The
union claims that these applicants informed Brandt, at
the time they attempted to file applications, that they
No. 02-1044 33
were referred by company employees, and therefore, en-
titled to preferential treatment under the company’s hiring
policy. A cursory review of the record, however, demon-
strates that these applicants merely told a Brandt consult-
ant, Irwin Brown, that it was their understanding that com-
pany employees could make referrals. Local 150, therefore,
has no basis for asserting that the 1998 union-affiliated
applicants were entitled to preferential treatment under the
company’s hiring policy.
In sum, given Brandt’s non-discriminatory preference
for referred candidates, its receipt of a sufficient number
of referred candidates to fulfill its hiring needs, its decision
to hire pro-union applicant Angela Smith, and that the
company did not hire any walk-in applicants, regardless
of union affiliation, we conclude that substantial evidence
supports the Board’s dismissal of the refusal-to-hire charge
against Brandt.
B. The refusal-to-consider-for-hire charge.
Local 150 also contends that the Board erred when it
concluded that Brandt did not violate § 8(a)(1) and (3) of
the NLRA by refusing to consider hiring the union-affil-
iated applicants. To establish a refusal-to-consider-for-hire
violation, the record must show: “(1) that the respondent
excluded applicants from a hiring process; and (2) that
anti-union animus contributed to the decision not to con-
sider the applicants for employment.” FES, 2000 WL 627640,
at *10. As in a refusal-to-hire case, the burden then shifts
to the employer to demonstrate that it would not have
considered the applicant even in the absence of union
affiliation. Id. If the employer meets this burden, the Board
will not find a violation. Id.34 No. 02-1044
Local 150 contends that Brandt unlawfully refused to
consider hiring pro-union applicants because it “manipu-
lated, changed, and altered its hiring practices to make
it more difficult for union applicants to apply for posi-
tions of employment . . . .” As we have already noted, it
is undisputed that Brandt displayed anti-union animus
toward the pro-union applicants by making it more diffi-
cult for them to obtain and file applications with the
company. The ultimate question, however, is whether,
notwithstanding this anti-union animus, the pro-union
applicants would have been considered for employment
with the company. Id. The Board concluded that Brandt
did not unlawfully refuse to consider hiring the pro-union
applicants because even if the company had not made
it more difficult for them to apply (e.g., by requiring
photographic identification), they would not have re-
ceived any consideration under the company’s preferential
hiring policy as walk-in applicants, noting “the walk-ins
never made it ‘to any other cut . . . . They got deleted im-
mediately.’ ”(quoting Terry Brandt’s testimony before the
ALJ). The pro-union applicants were given the same
minimal consideration as all other walk-in or unknown
applicants, and there is no evidence that the union-affiliated
applicants attempted to obtain, or were precluded from
obtaining, a referral from one of the company’s supervi-
sors or employees or from one of the EEO service providers
used by the company to meet its labor needs.
Because substantial evidence supports the Board’s
conclusion that it was the union-affiliated applicants
status as walk-in/unknown applicants, rather than their
union activities, that caused them not to be considered
for employment, we find no basis for disturbing the Board’s
dismissal of the refusal-to-consider-hiring charge against
Brandt.
No. 02-1044 35
III.
For the reasons outlined in this opinion, the union’s
petition for review is DENIED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-28-03