*3
JOLLY, DUHÉ,
Before
DENNIS,
and
Judges.
Circuit
JOLLY,
E. GRADY
Circuit Judge:
In this appeal we are concerned with
(“Brown
Root,
whether Brown &
Inc.
&
Root”) became liable under the National
Act,
Labor Relations
as a successor em-
ployer, to the
former
of Brown-
Eagle Contractors
(“Brown-Eagle”)
at
Ciba Specialty Chemical Corporation’s fa-
McIntosh,
cility
(“Ciba”).
Alabama
Af-
ter it bested Brown-Eagle for the con-
tract, Brown & Root met with the Brown-
Eagle employees
that,
and announced
upon application, they would be considered
for employment
applicants.
with other
As
might expect,
one
this news
well
received
the Brown-Eagle employees.
They
upset
became
and began to ask about
the future of their
Root,
union. Brown &
already
which
had some 200 employees in
operation
another
at the facility, stated in
unambiguous terms that it was non-union
and would remain non-union. When
&
completed
Brown
Root
application
and hiring process, about
per-
twenty-five
cent of the Brown-Eagle employees who
applied
had
had been hired. The National
Labor Relations Board was
favorably
impressed. The Board found that Brown
had
coerced Brown-Eagle employ-
Linzy
Howard S.
(argued), Robert Peter
ees when it
position
stated its
vis a vis the
Lombardi,
Firm,
The Kullman
New Or-
union;
discriminated
all former
leans, LA,
Root,
for Brown Inc.
Brown-Eagle employees whom it failed to
(cid:127) Aileen A.
Deputy
Armstrong,
hire;
Associate
refused to recognize
bargain
and
Counsel,
General
Cornnell,
Frederick Lee
union;
with the
unilaterally
and
set initial
Fleischer,
David A.
National Labor Rela-
and
terms
employment.
conditions of
Board,
tions.
DC,
Washington,
Rodney D. Board entered what
fairly
can be
charac-
Johnson, National
Board,
Labor Relations
terized as a sweeping order.
It ordered
Orleans, LA,
New
for N.L.R.B.
Brown & Root to: reinstate
back pay
with
CO i—I
employ-
terms of
retroactively the
restore
Brown-Eagle employees;1
48 former
some
Brown & Root
when
union with- ment
existed
bargain with
recognize
han-
retroactively
and materials
packaging
election;
adopt
assumed
out an
deny en-
thérefore
dling operations.
had been
We
conditions
terms and
terms
order.
new
of the Board’s
Brown-Eagle until
forcement
under
place
a bar-
negotiated or
and conditions
I
was reached.
impasse
gaining
awarded
& Root was
In
rec-
the entire
sum,
reviewing
after
materials
packaging and
subcontract
Board and
ord,
the decisions
had
This work
handling work
Ciba.
hold
parties,
we
ALJ,
and the briefs
Brown-Eagle.2
been done
previously
speech at issue
*4
Brown-Eagle lost its contract
time
At the
only
position
non-union
regard
its
—the
employees
Ciba,
rank and file
its 68
with
viola-
independent
finding of
for a
basis
and
by the United Food
represented
were
Brown &
of Section
tion
1657,
Union,
8(c)
Local
Commercial Workers
under Section
protected
Root—is
Union”).
Root,
(“the
&
Brown
AFL-CIO
consti-
consequently did
Act
the
and
however,
at the McIn-
new-comer
was no
of Section
speech in violation
tute coercive
construc-
facility;
performed
had
tosh
it
8(a)(1).
for Ciba
services
tion and maintenance
8(a)(1) vio-
alleged Section
this
Without
con-
plant
the
had been
continuously since
the
upon which
predicate
lation as a
200
employed
It
over
in 1953.
structed
built,
largely
finding of motive was
Board’s
represent-
been
They had never
workers.
the
support
does not
substantial evidence
by a union.
ed
findings
Board’s
the
remainder of
with
newly
contract
the
awarded
Under
violated Sections
Brown & Root
Ciba,
was scheduled
Root
therefore conclude
Act.
We
han-
and material
packaging
assume the
finding that Brown
in
the
erred
10,
On
1998.
operations on June
dling
employment
unlawfully denied
had
& Root
27,
project
&
Brown
Root’s
May 26 and
and con-
Brown-Eagle employees,
superin-
project
Bill Outlaw
manager
with
ordering reinstatement
sequently, in
shift
held three
Sloat
tendent Gordon
Brown-Eagle
former
all 48
pay for
back
employees.
Brown-Eagle
meetings with
by Brown
not hired
employees
were
who
employment
their
told them
in Outlaw
erred
that the Board
Root. It follows
&
terminated,
Brown-Eagle would be
with
Root
successor-
Brown &
had
finding that
&
with Brown
they
apply
and,
could
conse- but that
to the union
ship obligations
the atmo-
meetings,
At
of these
Root.
two
to rec-
Brown Root
ordering
&
quently,
Outlaw’s
after Bill
heated
sphere became
and to
the Union
bargain with
ognize and
by
filed
the
tions
some confusion as
been
1. There has
completed and
never
applicants at issue
&
was
employee
Brown
Root
exact number
applicants
"at least”
were
Brown-Eagle employee
clear
What is
in this case.
some
Root;
Brown-Eagle’s
employees submitted
66 of
accounts
by Brown &
unreachable
NLRB No.
applications to Brown Root.
totals.
discrepancy in the
for the
48 is
number
at *2. The
resentation, question there is no but that tions, Brown & Root had hired 77 unit Outlaw indicated that & employees, of which 17 were former non-union and would way. remain that Brown-Eagle employees. Of unit happy neither nor supervisors hired, Brown & Root 11 were content they with what heard. formerly employed by Brown-Eagle. Nevertheless, beginning May 66 of some 68 Brown-Eagle employees applied II jobs with Brown & Root. However, consistent with its position that it was a On charges Union, filed new employer, and with obligations to Board’s General Counsel issued a com- *5 the U.S. of Office Federal Contract Com- plaint alleging Brown Root & had pliance Programs, on May 28 Brown & 8(a)(1), (5) violated (3), Sections and posted, Root an applicants ad for in a local Act; is, the Complaint alleged that newspaper. Brown & accepted Root appli- Brown & Root employees, threatened re- cations applicants, from walk-in referrals fused to employees formerly hire em- job from the service, state and from cur- ployed by Brown-Eagle, and failed rec- rent and former Brown & Root employees. ognize and bargain with the Union. The Brown & accepted Root applica- some 367 Complaint further alleged that Brown & tions, including those from former Brown- Root violated the Act by unilaterally Eagle employees. changing the terms and conditions of em- ployment. After a hearing, the
Brown Adminis- & Root’s written hiring policy (“ALJ”) trative Judge Law dismissed a system preferential established of con- allegations of the Complaint respect sideration with among applicants: first, cur- to three of alleged discriminatees. rent He & second, Brown employees, .Root further found that Brown & Root had third, former not employees, applicants re- violated by the Act establishing by ferred initial a Brown & Root employee or terms of employment. However, the supervisor, fourth, ALJ and policy others. This concluded that Brown & Root had violated guarantee was of employment and the Act by refusing to hire 48 former appear does not to have uniformly been Brown-Eagle employees, by and refusing followed. to recognize bargain and with the Union. May Between 29 and June Brown & processed the 367 applications. Ap- The Board not altogether was satisfied plicants given test written in arith- with the ALJ’s decision. Although the metic, by followed a “structured” interview adopted Board findings, ALJ’s it clari- consisting questions of answers, and and fied opinion, his explicit make the addi- finally an interview with either Outlaw or tional finding of a distinct Section Sloat. progress order to to the struc- violation for the statements made Out- interview, tured most applicants had to law at employee meeting. Further- achieve a passing more, score on the written test. the Board reversed the ALJ’s find- Cir.1993). Accordingly, 278, 282 F.2d free to set its was Brown & Root ing that substantial must determine whether employ- we conditions and initial terms supports as a whole on the record instead, finding that evidence ment; on its relying findings Brown & Root its Board’s to avoid attempted Root had 8(a)(1), (3), and refusing to violated Sections successorship obligations Root had Act. hire, that Brown it found imposed and bargain
illegally refused IV employment. and conditions own terms order, the Board was In its remedial the state The Board contends all Root to hire employee It ordered at the shy. Brown that Outlaw made ments 8(a)(1). employees It relies meeting 48 former violated Section Union, without recognize the further pay, predicate for back this on repre- election, bargaining as exclusive refusal to hire and the Act for violations of material and packaging bargain for the with the recognize and sentative refusal to adopt retroac- employees, only it direct handling and is the the sense that employ- anti-union tively alleged the terms conditions to establish evidence trans- time of the at the that existed Brown & Root violate ment motive for 8(c) & Root filed Yet, explicitly provides operations. fer Act. Section the decision speech. for review Because petition protection for Labor Relations The National in this speech order. at issue find that we of its cross-applied enforcement protected, case order. sustained. cannot be *6 8(a)(1) Section
Ill
8(c)
explicitly
Act
Section
Appeals
re
the
When
Court
right to
employer has the
that an
provides
findings, it must deter
Board’s
views the
views,
opinion”
argument, or
whole,
express “any
whether,
a
record as
on
mine
the
no
expression contains
“such
long
so
as
by substan
findings
supported
are
those
promise
or
160(e).
or force
reprisal
threat of
§
Sub
29 U.S.C.
tial evidence.
158(c).
§
Sec
Under
29 U.S.C.
benefit.”
relevant evi
is “such
stantial evidence
8(c)
communi
is free to
employer
an
accept
tion
mind would
a
dence as
reasonable
opinion
statement
cate to
Cam
a conclusion.” Universal
support
the
predict
477,
union as
NLRB,
474,
the
well
71 about
U.S.
Corp. v.
340
era
so
workplace
the
(1951).
on
of unionization
456,
Because
effect
curring).
employer’s
speech
“[A]n
free
employer is threatening
reprisals
economic
right to communicate his view to his em-
employee
supports the union. Sel
ployees
firmly
is
established
kirk,
and cannot be
An unlawful threat is established if responded Outlaw that ‘Brown & Root was the of totality the circumstances reveals an a non-union company and going employee reasonably could stay conclude the way,’ that and that ‘if the [Brown- 3. The dissent's finding that the statement of a plied jobs for after Outlaw's comments is ir- upheld be must if there is substantial is relevant incorrect because unlawful threats evidence that the specifically statements were are totality assessed under the the of circum- discourage intended to union involvement inquiry stances. The is employ- whether "an employees threaten inquiry into the em- ee reasonably —an could conclude the that em- subjective ployer's mischaracterizes, ployer threatening intent — is reprisals economic if the think, we the standard evaluating employ- employee Selkirk, supports the union.” 116 speech 8(a)(1). § er under inquiry Such an F.3d at 788. Although it is true that the seems to be in conflict the with dissent's own inquiry is not employees whether were in fact key that admonition the determination coerced, but rather whether the statements coercive, whether the statements tend be coercive, Electric, tend to be PNEU 309 F.3d objective inquiry more totalily based on the of 850,. at totality the logi- circumstances the circumstances. include, cally may objectively, consideration Furthermore, the sophistication dissent’s statement that the past experi- and union the sophistication relative Brown-Eagle particular of a type ence and audience they or whether ap- likely nevertheless response of such audience.
635 fact, the statements hold that ion and we for them to work employees came Eagle] 8(a)(1). violate Section Brown did not non-union.’” be they would WL 831621 Root, No. employee that the At the outset we note 2001).4 (July *2at naive, expe- having its first was not group are its ALJ and Although the Board spoke Outlaw rience with the when a factual deference when accorded instead, them; lengthy group had credibility, of witness a resolution rests on shop a union working in with experience Co., Inc. v. Cement Blue Circle totality of the circum- In the contract. Cir.1994) (5th (citing NLRB 203, 206 F.3d assumed, objectively, be it cannot stances Motorola, Inc., F.2d v. to infer quick group that such a would not turn on Cir.1993)), does the issue here permissible state- from otherwise threats credibility find- credibility. accept We Bill Outlaw and fact. position ments of Board, find that but ings of the at Brown-Eagle employees shift addressed state- that Outlaw’s Board’s determination to, things, inform meetings among other sup- is not violated Section ments job opportunities about their them that evidence by substantial ported application process. & Root and the Brown it cannot Therefore unlawful. speech was he telling employees, whom Outlaw was stand. members, they had that knew to be union employed to be on opportunity circumstances
An examination of Outlaw, applicants. as other demon- same basis statements surrounding Outlaw’s law, respond- in labor was not trained not reason- who employees could strates from questions extemporaneously to threaten- ed & Root was conclude Brown ably about, a union members union. floor support of the for their ing reprisals atmosphere at the variety topics. at the em- responses Except for Outlaw’s the em- heated as meetings did become not con- Board does meetings, the ployee his re- dissatisfied any ployees became contains evidence that the record tend about vacation questions sponses Out- threats, or coercion intimidation any not volunteer Outlaw did insurance. represen- & Root other any law or the Union’s comments about unsolicited any reveal record tative. Nor does the ques- future; specific only responded he discriminatory action statements position, tions, & Root’s stating Brown union members or that the be taken would com- a non-union & Root was that “Brown be disfavored would way,” stay going to pany and was no there was hiring process. Because [Brown-Eagle] coercion, “if the because reprisal or threat of non- they would be for them came to work reasonably feel could not these employees made These statements re- union.” by Outlaw’s unlawfully threatened *8 8(c) plant where of the context protects marks, and because Section em- 200 non-union already employed Root expression opin- of right of free employers’ Section & Root’s to be Brown what it found of the Board decisions 4. It is from the unclear violation, ALJ noted that the the Board they determined to be ALJ what and the that Out- evidence the credited "found from Differ- statements. exact content Outlaw’s Brown-Eagle employ- to the announced while the law testimony presented, and ing was ees, questions response to their specific the General Coun- and ALJ credited union, Respon- retaining that the witnesses,. their explicit about make failed to sel's each company' 'intend- a 'non-union dent was they to have said what Outlaw precisely found ” WL way.’ Id. 2002 stay to that quotes in dif- ed meetings, using different at the at *4. clarifying 31262154 In parts decisions. of their ferent 636
ployees
only
and if there were
one bar-
lates
by
Section
telling employees it
unit,
gaining
employees
70 union
would not will remain
Galloway
non-union.
involved
change Brown & Root’s non-union status.
by
Section
a contract
Furthermore, only
doctrine of suc-
successor who
predecessor’s
informed its
cessorship applied
doctrine that Outlaw employee applicants
—a
that “his Company
unacquainted
with—would the em-
union,
union,
was not
would never be
that
ployees initially “come to work” for Brown
union,
he would not hire
and that he would
sum,
employees.
& Root as union
In
Out- do
stay
whatever he
to
could
nonunion.”
law’s
pro-
comments should be viewed as
Id. at
1996
514510.
WL
Further-
opinion,
tected statements
Outlaw’s
more, when
employees
in Galloway
preferences,
Brown & Root’s
or objectively sought applications,
employer
effec-
verifiable statements of the current state
tively informed
that
them
the company
affairs
Brown & Root—that it was
commit
intentionally
would
unfair labor
non-union—and of Brown &
wholly
Root’s
practices by refusing
any
to hire
preference
lawful intention and
that
employees. Galloway is not
this case.
employees
Ciba
Illegal
remain non-union.
The
in Galloway
statements
connotations cannot be attached to these
in response
were not
employee
ques-
absence,
lawful
here,
statements in the
tions at an unscripted meeting as here.
any independent
law,
violations of labor
Outlaw
factually
answered
and responsive-
and we believe the dissent is incorrect to
ly
spontaneous
questions by Brown-
say otherwise.
Eagle employees. Further, Brown & Root
The record contains no
any
evidence of
never made
assertions
Brown-Ea-
other comments or
by
actions
Outlaw or
gle employees
reasonably
that
could be
any other Brown &
employee
Root
that
interpreted to imply that it would commit
would lead
an unfair
practice
labor
potential
to avoid a
reasonably to feel coerced in the exercise
bargaining
fact,
obligation. In
Outlaw told
of their Section 7 rights
the' Board
—and
workers,
union,
whom he knew to be
does not
contrary.5
contend to the
Final-
they had an opportunity to be hired. The
ly, the fact
of 68 employees persist-
facts Galloway
inapposite
it
make
to the
applying
ed in
to Brown &
despite
case presently
us.
before
these allegedly threatening statements
supports a reasonable inference that no
Furthermore, each of the cases cited by
conveyed
threat was
ALJ,
Materials,
Inc.,
Custom
Pacific
they
and that
were not unlawfully intimi-
327 NLRB
(1998),
637 an response in statement was Elliott’s of Materials, a violation Board found the accompa- was 8(a)(1) employee question and statements explicit in Section threats, interrogations, or oth- prospective any management nied successor’s the Further, light “a num- in of hiring be would unlawful coercion. that er employees per- only a certain a operation as thing” Respondent’s pre-existing bers employees statement, would predecessor Elliott’s centage company, of nonunion corporation parent objec- the hired because of a truthful statement constituted the union back they would vote afraid 257497. was at 1990 WL fact.” Id. tive Kessel, *1. In at in. Id. 1998 WL were more Although Outlaw’s comments testimony presented General Counsel the (largely Elliott than those in P.S. extensive supervisors instructed management were in re- because Outlaw’s statement [predeces- the percent of stay under 50 “to questions), the union members’ sponse em- prospective and that workforce” sor’s] a closer statements bear facts and the “quota” a informed of ployees cases than the to P.S. Elliott resemblance Kessel, NLRB at employees. union here, the-Board; in P.S. upon by relied Ryder in Finally, 90101. 1987 WL Elliott, are state- at issue the statements Truck, evi- ample additional there was objective fact. For position ments of employer ad- the where of coercion dence above, of the vari- none the reasons stated that, potential testimony had mitted by the ALJ and ous statements credited union, they the resigned transferees by Outlaw con- having been said Board as to a new transferred not have been would coercion, instead were but unlawful stitute Truck, 318 Ryder facility. non-union objec- or opinion of statements permissible The 547774. WL NLRB tive statements fact. clearly were cases found these violations sum, that Outlaw’s state- In we conclude evidence of supported by substantial they con- because were not coercive ments employees explicitly informed threats threat, implied, of express or no tained unfair to commit employer intended the Moreover, futility. Outlaw’s or reprisal obli- bargaining its practices avoid labor employees to the union statement do not by Outlaw statements gation. The speech free protected as Brown-Eagle was threat, explicit, and implied contain 8(c) Act and conse- under Section statements other is no evidence of there of Section not a violation quently would affect & Root that by. Brown made 8(a)(1). statements; thus of its lawful meaning inapposite. are cases Section view, case are facts of this In our of ille the Board’s Once P.S.Elliott, like more rejected, is statements gality of Outlaw’s (1990), which the 1990 WL Root violated finding that Brown Elliot, distinguish. P.S. attempted to for to hire 48 by refusing Section held a on a contract bidder successful seriously mer employer’s displaced meeting with simply because undermined; say this we asked workforce, at which the violation is finding of compa- jobs would be union. new Board built upon which predicate are a non- replied, “we ny representative Root’s to taint Brown illegal motive Board wrote company.” The begin our for hire. We choices applicant byAct ... did not violate “Respondent the ab case—in analysis of the Board’s ... em- to the former statement Elliott’s independent company.’ sence that it was ‘non-union ployees *10 premise nate, that successor finding derived from the that Out- —with any employers obligation 8(a)(1), are not under to law’s comments violated Section predecessors’ employees; hire at the same supported by further certain inferences it time, however, evidence, an who declines drew from statistical and individ- simply employees they comparisons, to hire because are ual the Board found that § a union commits a members of Brown & unlawfully Root had discrimi- v. violation. See NLRB Burns Int’l Sec. nated en against mass the 48 former Serv., 272, Inc., 280, 406 U.S. 92 S.Ct. employees who were not (1972). proper L.Ed.2d hired. applied to be in refusal to test hire cases is say We cannot is supported whether there is substantial evidence that by substantial evidence. As we have indi- employment an adverse decision was moti cated, it is crucial to the Board’s vated unlawful animus toward un findings that Outlaw’s remarks to the ion, employer’s not whether an failure to Brown-Eagle employees violated Section employees “solely” hire was because of 8(a)(1). response From Outlaw’s to em- employees’ affiliation with union. ployee questions, gener- the Board drew a Services, NLRB v. Houston Distribution al illegal inference of union animus and a Inc., (5th Cir.1978). 573 F.2d 263-64 presumption that because Brown & Root Although this Court’s review is “more than stated that it intended to remain non-un- Asarco, stamp,” mere rubber Inc. v. ion, it had a illegally motive to discrimi- NLRB, (5th 1401, 1406 Cir.1996), 86 F.3d Although nate. the record contains no reviewing uphold court will the Board’s evidence that Brown & Root would not decision if it is reasonable and supported give union members fair consideration for by substantial evidence on the record tak employment and no evidence that it con- Indus., en as a whole. Valmont Inc. v. any applicant’s sidered union affiliation in Cir.2001). 244 F.3d decisions, hiring the 77 the ALJ only We can reverse if we find that the reasoned that “the evidence did show that Board’s decision supported by is not sub Respondent was motivated to insure that a stantial evidence. majority of its unit did not again
We once review the relevant facts come from the unionized Brown-Eagle relating to hiring. Brown-Eagle Root, had 68 work force.” Brown & 334 NLRB rank-and-file facility the Ciba No. 2001 WL 831621 at *13 n. 21. at the time it lost the contract to Brown & Although the statements of Outlaw indis- Root. Of jobs the 66 who applied for putably allow an inference Brown & Root, 17, Brown & or slightly more than Root had a strong preference to remain twenty-five percent, non-union, were hired. Out of a preference was It lawful. pool applicants, Root, of 367 Brown & conclude, seems too much of a stretch to applying its field hiring policy,6 does, hired a the dissent that the may draw total of 77 non-supervisory employees. inference, based on Brown & Root’s presumed Based on a motive to discrimi- preference, lawful that it would violate the 6. The Board challenge does not that Brown & question decisions. But not whether Root hiring policy had an established that set applied hiring policy uni- preferences out applied to be in the context of formly, applied but whether it it non-uniform- job does, qualifications. other The Board ly discriminatory in a manner Brown- however, rely heavily for its case on the fact Eagle employees because of their union affili- applied that it non-uniformly and seems ation. not to hiring have influenced several of the
639
Brown-Eagle em-
ten former
that
these
preference,
a
it had
simply because
law
hiring pref-
a
entitled to
ployees who were
strong preference.7
a
even
when Brown &
not been hired
erence had
course,
finding of
Section
Of
non-Brown-Eagle appli-
hired 18
Root had
through
supported
may be
violation
depar-
preference. This
cants
had no
who
evidence,
circumstantial, rather than direct
policy was inter-
from its established
ture
Inc.,
Elevators,
F.2d
736
Esco
v.
NLRB
& Root
as evidence that Brown
preted
Cir.1984).
evidence,
(5th
That
howev
295
applicants because of
failed
hire these
substantial,
speculative,
not
er, must be
turn,
this, in
activity, and
their union
upon infer
inferences
from
nor derived
massive
support
finding
of
evidence
(em
at 1032
F.2d
Mini-Togs, 980
ences.
48. The
against all
Board
discrimination
added).
Board,
aon
relying
The
phasis
that “18 of the non
specifically noted
evidence, conclud
variety of circumstantial
hired
applicants who were
Brown-Eagle
hired 17
& Root
although Brown
that
ed
handling
packaging and material
had no
&
employees, Brown
Brown-Eagle
former
any
and were not entitled
experience
remaining
for
48
to hire
refused
&
writ-
Root’s]
under
preference
[Brown
of
employees because
mer
contrast,
By
ten Brown-
hiring policy.
ten
We will review
sympathies.
union
their
hired]
were not
Eagle applicants [who
to determine
evidence
this circumstantial
applicable experience but
only had
supported
is
the Board’s
whether
policy.”
under that
preference
entitled to
evidence.
by substantial
83,
Root,
2001
334
No.
NLRB
(A)
at *3.
831621
WL
illegal
of
drawing
In
its conclusion
dis-
sin-
Board’s decision
respect the
In this
ten from these
against
crimination
48 to demonstrate
gled out ten
of discrimi-
using it as evidence
facts and
all of
against
Brown-Ea-
discrimination
48,
stopped
Board
nation
all
It found evidence
employees.
gle’s former
analysis of Brown
thorough
fact
short of
in the
of
support a violation
decisions,
supra 2001 WL
Transportation,
Overnite
non-coercive
recent Board
7. Under
Chairman,
*10,
(Hurtgen,
n. 5
8(c)
1006052 at
may
as
be
protected
used
statements
Appeals
dissenting).
of
have
Some Courts
practice
limited
in
of an unfair labor
evidence
Locks,
Security
e.g.,
Inc.
agreed. See Medeco
Care
See Sunrise Health
circumstances.
Cir.1998)
733,
(4th
NLRB,
744
142 F.3d
v.
111,
WL 888293
Corp., 334 NLRB No.
employer state
protected
(rejecting use of
Jr.,
Hancock,
2, 2001);
(Aug.
W.
*2
John
at
support
of
animus
as evidence
union
ments
Inc.,
2002 WL
337 NLRB No.
Act);
Constr. Co. v.
K
of
BE &
1, 2002)
Transporta
(citing
(Aug.
Overnite
8n.
1375-76
Cir.
133 F.3d
tion,
WL 1006052
335 NLRB No.
1997).
Inc.,
Foods,
*4,
n. 15
and Affiliated
(1999)).
admissibility
issue,
of
we find the view
respect to this
With
currently
speech
protected
minority
is
contested
to be more
of the Board
such
Hancock,
A
the NLRB.
this case.
lawful
particularly
members of
persuasive,
willingness to over
does not
position
noted members'
of a lawful
Board
statement
language
willing
light
in the
of
one is
precedent
itself
inference
turn
allow
any
illegal
8(c),
through
expressing
position
means.
"the
Section
enforce
views,
reject
reliance on Out-
opinion,
Accordingly,
...
we
argument,
shall
or
illegal
labor
of an unfair
statements
evidence
or be evidence
law’s
constitute
otherwise, any successor
no
expression
To hold
contains
animus.
...
such
practice
position would
promise
bene
in Brown Root’s
reprisal
or
force
threat
freely stating
virtually
prohibited from
the admis
feel that
Certain members
fit.”.
though
posi-
employees, even
directly
position to
contra
protected speech
of such
sion
8(c).
protected by
8(c).
Section
See
tion
of Section
plain language
venes the
policy.
of its
An evalua-
application
failing
Root’s
to hire all Brown-Eagle employee-
*12
tion of
as a whole
the record
seems
applicants,
placed
empha-
Board
some
hiring
demonstrate that Brown & Root’s
sis on what it considered Brown & Root’s
policy
applied unevenly against
was not
departure from its stated intention to “re-
Brown-Eagle applicants. Out of a
of
total
many
tain as
Brown-Eagle employees as
applicants,
possessed
at least one
Root,
possible.” No.
preferences.
of the three
Of the 20 83,
(B) the time it proposal made its As further circumstantial Brown-Eagle’s employees evidence that represent- Brown & Root violated Furthermore, Section ed the union. Brown tests, applicants 8. Of the 223 prefer- who had no while it refused to hire four former policy, ences under the Brown-Eagle appli- Brown-Eagle employees that had failed the cants fared better than their non-Brown-Ea- same tests. The ALJ relied on this as circum- gle counterparts; Brown-Eagle applicants stantial evidence of an unlawful refusal to preference without a were hired at a rate of impermissible hire all 48. Other than the 15%, roughly non-Brown-Eagle while employ- inference of anti-union animus from Outlaw’s preference ees without a were hired at a rate statements, general pre- counsel has not of 10%. sented evidence that Brown & Root actu- ally particular discriminated 9. The same can be said for the AU’s reliance employees, remaining Brown-Eagle or the on the fact that Brown & Root hired two employees, because of their union activities. inexperienced applicants who had not worked Brown-Eagle battery and failed its illegal evidence of it un- substantial simply stated that proposal Root’s discrimination.10 large hiring “a the benefits derstood “significant number” or a portion” V indicates The record Brown-Eagle staff. than hired more 25% sum, & Root
that Brown the record taken as a whole hourly employees who does not demonstrate substantial evidence finding of support the Board’s blanket may qualify may or which applied, *13 against the 48 former discrimination more than it does seem large portion;” “a employees who were not Brown-Eagle “insignificant and not an portion” “a small it Accordingly, hired & Root. Brown employee pool. number” that Brown & Root never incurred follows commitments; no statements made Root’s obligation bargain to with the union11 general the intention they did declare deny enforcement of the Board’s and we continuity operations would be there entirety. in its order trained em- the value of recognized and it par- Petition for relief GRANTED. goal. It is achieving ployees & Brown ticularly difficult to see how DE- Cross-petition for enforcement to hire commitment Root’s NIED. any anti- demonstrates to be union
known
DENNIS,
Judge, dissenting:
Circuit
animus,
apparently
and
union
the
so;
only sug-
the Board
does not contend
majori-
respectfully
I
dissent from the
attitude hard-
that Brown & Root’s
gests
pe-
ty’s
granting
decision
Brown & Root’s
illegal anti-union animus
into an
ened
denying the NLRB’s
tition for relief and
a result of the
as
against
must
cross-petition for enforcement. We
from
as we can tell
May meetings. As far
“sup-
decision if it is
enforce an NLRB
record,
on
a contention is based
such
on the rec-
ported by substantial evidence
relied
Thus the statements
considered as a whole.” 29 U.S.C.
speculation.
ord
160(e). Therefore, if
rele-
§
there is “such
support
not add
to a
upon by the Board do
through
bargaining obligations
theory
successorship
and
accepts the NLRB's
10. The dissent
estab
interprets
proposals’
statements to
all Brown-Ea-
massive discrimination
mostly
8(a)(3),
&
intention "to hire
§
lish Brown Root’s
gle employees in
Brown-Eagle applicants.”
(Emphasis add
Galloway
proposition for the
dissent cites
ed.)
support
the NLRB’s
We do not find
8(a)(3)
find
violation is sufficient to
"a section
nof
theory,
dissent’s characterizatio
or the
employed
have
the new
‘would
intentions,
record.
&
in the
Brown
Root’s
predecessor employees
number of
a sufficient
or state
did Brown & Root evince
Nowhere
employer had it acted law-
be a successor
”
"mostly” Brown-Eagle
an intention to hire
Galloway,
fully.’
(quoting
& Root official at Ciba and made final the hiring decisions when & Root took Brown 8(a)(1) I. Section Violation packaging handling over the and material 8(a)(1) up- The section violation must be (3) department; meeting at a to- discuss if, considering totality held the of the cir- takeover, responded the Outlaw ques- to cumstances, there is evidence substantial tions about the future of the current union showing that Outlaw made statements by stating that “Brown & Root was a non- specifically impede intended to or dis- company union going stay and was to courage union involvement and threatened way” “if [Brown-Eagle] and that the em- reprisals employees if supported the ployees to they came work for them would Metalbestos, union. Selkirk N.A. v. (4) non-union”; meeting, be after the 782, Cir.1997); 116 F.3d 788 attempted Union to deliver demands for In Whirlpool Corp., re No. NLRB recognition signed and membership cards 2002). (July 2002 WL 1805433at *9 Outlaw, (5) them; to accept who refused to This includes statements Brown & Root hired 78% Brown- it bargain- that would be futile to select a (6) Eagle supervisors applied; al- ing agent. In Whirlpool Corp., re though the Brown-Eagle supervisors were NLRB No. WL 1805433 at *9. general application pro- hired before the key determination is whether began, cess Brown & Root failed to solicit coercive, statements tend be not wheth- regarding their advice the Brown-Eagle (7) employees er in fact applicants; have been hiring policy the field Electric, Inc., preferences coerced. NLRB v. granted applicants PNEU who (5th Cir.2002). 309 F.3d were former Brown & Root There- fore, sophistication referred current the relative Brown & Root em- ployees, Brown-Eagle Brown-Eagle employees they but not to former or whether employees who had packag- applied positions worked still after Outlaw’s ing handling department; and material comments is irrelevant. shop employees. all non-union supported by substan- is
This violation reasonably could also be person was a His comments Outlaw evidence. tial representative By stating that and an official as a threat. authority construed non-union, made the final stay He also & Root. Brown & Root intended to which, any, Brown-Eagle if im- reasonably decisions could be understood to he at a hired. He stated be applicants would necessary that it do ply would what address the Brown- designed to meeting Therefore, the record stay non-union. the tran- questions about Eagle employees’ finding that Outlaw supports the Board’s Root was a non-union that “Brown & sition & Root implied made an threat that Brown way” stay going company Brown-Eagle employees not hire would [Brown-Eagle] “if and that hiring employees would result these non- they them would be to work for came department. Accord- unionization of the by a responses Obviously, the union.” statements were ingly, because Outlaw’s official at an position in Outlaw’s person 8(c), protected by section the section questions such meeting designed to answer should upheld. be could, seriously there- taken would also fore, coercive. It is be considered II. Section Violation specifical- that these statements clear I enforce the section would also discourage union involve- ly intended violation, To violation. establish through on followed ment because Outlaw must find that anti-union animus only about 25% promises, and hired *15 employer an to make an adverse motivated There- Brown-Eagle applicants. employment decision. See 29 U.S.C. that fore, could have found the NLRB 158(a)(3); v. Houston NLRB Distrib. section statements violated Outlaw’s Cir.1978). (5th Servs., 573 F.2d 263-64 8(a)(1) would because these statements analysis of burden-shifting Under the employee that it would to tend coerce Line, required Wright the NLRB is first belong to a union at futile to in an motivating that a factor to show Root. anti-un employment decision was adverse re- NLRB not Additionally, the Indus., Inc. v. animus. See Valmont ion were that quired to find statements 464-65 Cir. 244 F.3d 8(c). An by employer’s protected section 2001). does, shifts to If it then the burden 8(c) by protected section statement will be prove by preponderance true of if his comments are statements have taken that it would of the evidence not constitute a threat objective fact or do of its anti-union regardless action the same 158(c); § In re P.S. 29 U.S.C. reprisal-. stance. See id. Serv., 1161, 1990 WL 300 NLRB Elliott Here, evidence there is substantial (1990). here, But state- Outlaw’s was a moti- that anti-union animus show objec- ments were not true statements decision in Brown & Root’s vating factor correctly Although fact. he did state tive Brown-Eagle majority of the not to hire a com- a non-union that Brown & Root was addition, has Brown & Root applicants. through & Root could not pany, Brown hired the it would have proven not that guarantee packaging that the lawful means Brown-Eagle applicants same number department would handling material to avoid trying if not it had been even it over. Nor non-union when took become material han- unionizing packaging truthfully maintain could Brown & Therefore, the section department. dling successorship would the doctrine of upheld. should be a non- require efforts to prevent explains, majority Brown-Eagle applicants under to hire more than As the events, actually it Brown & Root did. NLRB’s version of mostly Brown-Eagle appli- planned to hire Second, between the time Brown & Root continuity to ensure when it cants order hiring pro- made these statements and the But, department. as the took over the began, Brown-Eagle applicants cess found, reasonably when it realized abundantly it they made clear that would Brown-Eagle applicants these on remaining insist unionized. At unionized, remaining adamant about it de- Outlaw, meeting they asked numer- union cided avoid concerns caused questions Shortly ous about unionization. successorship doctrine and hired thereafter, the Union delivered letters only minimal Brown-Eagle amount of headquarters both Brown & Root and Out- applicants. Because the NLRB could rea- demanding recognized. law to be Even sonably determine that Brown & Root’s department Brown Root knew that the not to Brown-Eagle appli- decision hire meetings, was unionized before the it did cants was motivated its desire to re- necessarily know the extent of the non-union, main Brown & Root’s violation Brown-Eagle employees’ fervor for re- supported by of section substan- Therefore, maining employees. tial evidence. supports evidence NLRB’s hiring poli- Brown & Root re-evaluated its majority does not contend that this cies and hiring majority decided avoid incapable version of supporting events is applicants after a section violation. Instead it con- events occurred. cludes that the NLRB’s account was not Third, it although did hire some Brown- supported by substantial evidence and thus Eagle applicants, there is substantial evi- speculation. disagree. was mere I There showing dence hiring Brown Root’s support every is substantial evidence process as a whole was based more on Therefore, aspect theory. of the NLRB’s remaining hiring non-union then on I proved believe the NLRB that a motivat- *16 possible applicants. best Brown & Root ing factor behind hiring Brown Root’s & only hired Brown-Eagle 25% the em- decisions was anti-union animus. ployees, supervisors, but hired 78% of its First, expressly Brown & Root stated who have no effect on the successorship planned provide that it continuity of doctrine. Then it chose not to ask these by “using service large portion a of the supervisors qualifications about the existing Handling Material work force” Brown-Eagle employees, though they even and “to significant hire a number of the provided would have knowledge valuable existing work force to assure a smooth employees’ about these abilities.1 Brown changeover.” argues Brown that & proceeded Root then to hire a number only it this meant intended to hire a about non-Brown-Eagle applicants without a quarter Brown-Eagle applicants. preference policy under the field hiring But the NLRB could still have concluded rejecting Brown-Eagle while a number figure that this 25% “large” was not or preference. had a who addi- “significant,” tion, and that its own state- no applicant was asked about originally job ments Brown & Root specific job perfor- intended skills or recent doubly significant 1. given prefer- This choice was because applicants would have those a supervisors those could have recommended hiring policy. ence under the Brown-Eagle applicants, some of the which applicants vastly more Brown-Eagle interview. the structured during manee evidence, experienced counterparts. than then their it was more on this Based the NLRB to conclude for reasonable Initially, & Root Brown had admired concerned about & Root was more Brown It im- experience. acknowledged this successorship than doctrine of avoiding the Brown-Eagle employees’ portance of the applicants. hiring the best experience it that it when stated wanted significant appli- If still doubt about there were hire a number motivations, by Out- continuity it is alleviated it Root’s cants to ensure and when did Brown-Eagle em- require pass at the test law’s statements them to the written clearly meeting. These statements ployee moving on to the structured inter- before concerned provided & Root was adequate show But it never an view. the de- future union status of explanation why experience about the was sud- motiva- explains primary partment denly Brown-Eagle irrelevant after the during Root’s actions employees displayed pro-union tion behind Brown & sentiments avoid unionization. hiring process why rejected many experi- it so of these —to Therefore, adequately has Brown-Eagle employees ap- the NLRB enced who animus a moti- that anti-union proven plied positions. Because Brown decision explanation, factor the NLRB’s vating provide behind Root failed to such Brown-Eagle appli- required most of the find that not to hire the NLRB was cants. Brown & Root would have made the same ani- hiring decisions absent its anti-union case, made its the bur- After the NLRB Consequently, mus. the section vi- prove Root to shifted to Brown & den upheld. should olation hiring made the same deci- it would have no anti-union animus. even it had sions III. Violation Section As noted It has not done so here. had a Finally, it because Brown & Root & Root claims majority, Brown duty bargain with the Union as a suc applicants pref- Brown-Eagle hired with employer, it violated section hiring policy at a some- cessor erence under the bargain with the Union. non-Brown-Eagle by refusing to higher rate than what successorship, It also the doctrine preference. with a Under applicants takes over a unionized applicants a new who hired without bargain similarly obligation unit has an higher at a rate than preference employer is fact non-Brown-Eagle Al- union if: that new applicants. situated *17 (2) the true, employer of the old do not take successor though these statistics majority employed of its into account the fact that Dyeing & by predecessor. Fall River sig- hired at a its applicants should have been 27, 41, Finishing Corp. v. 482 U.S. nificantly higher rate because of their ex- (1987). 2225, above, 96 L.Ed.2d preferences 107 S.Ct. As noted perience. a succes employer fact previous experi- on given were not based Whether work, in nature and is primarily “is factual type but were sor ence with totality of the circum upon the being on a former Brown & based instead based 43, 2225. It Id. at 107 S.Ct. being by referred a cur- stances.” employee company has on “the new employee. Thus the focuses whether rent Brown & Root predeces assets of its appli- acquired substantial comparing that result from numbers continued, interruption or without does not sor preferences cants with or without that, whole, change, predecessor’s busi- substantial into account as a take 8(a)(5). Therefore, keeping in mind whether operations,” ness ed section the NLRB justified requiring have been retained “those who was Brown & Root to job previous understandably bargaining agree- will view their situa- abide agreement Id. A ment until a essentially tions as unaltered.” new new with the Un- negotiated. ion can employer will be considered successor Id.
employer predecessor of its there is IV. Conclusion continuity” “substantial between the two Id. operations. sum, we must to the defer NLRB as employer long findings supported by & Root is a successor as its are sub- First, Brown-Eagle. findings Brown & Root did stantial evidence. Because its are case, operation, taking supported deny not start a new instead so in this I would Brown-Eagle’s petition over contract to run the Brown & Root’s and enforce the already-existing packaging and material NLRB order.
handling department for the same custom- result,
er, employees’ posi- Ciba. As a essentially
tions were unaltered because
they performed the same work under the
same conditions for almost all of the same Therefore,
supervisors. there was sub- continuity
stantial between the Brown & Brown-Eagle operations. Root and Sec- 3750 ORANGE LIMITED PLACE ond, discriminatory hiring prac- but for its PARTNERSHIP, Beachwood d/b/a tices, as found on NLRB based Holiday Inn; Snavely Development evidence, Brown-Eagle appli- substantial Co., Inc., Snavely Management a/k/a majority cants would have constituted a Services; Snavely Services, Hotel the Brown & Root workforce in this de- LLC, Petitioners/Cross-Respondents, partment, which would have satisfied the v. prong successorship second doc- NATIONAL LABOR RELATIONS trine. BOARD, Respondent/Cross- it cannot Because benefit from its un- Petitioner. practices, uphold lawful we must 01-2385, Nos. NLRB’s that Brown & Root 01-2734. employer duty successor and had a to bar- Appeals, United States Court of gain Galloway, with the Union. In re Sixth Circuit. WL (holding that a section violation is Argued: May 2003. sufficient employer to find that the new Decided and Filed: June 2003. employed “would have sufficient number predecessor employees abe successor lawfully”). had it acted In addi- *18 tion, acts, discriminatory because right
Brown & Root also lost the to set the
initial terms and bargain- conditions before
ing with the Union. Id. at 1996 WL Accordingly, by
514510. refusing to bar-
gain Union, with the Brown & Root violat-