The National Labor Relations Board found that E & L Transport Company violated the National Labor Relations Act by threatening not to hire the union-affiliated ex-employees of a former competitor and by discriminating against those applicants by either refusing to consider or refusing to hire them for various positions. E & L challenges the Board’s order and requests that we deny enforcement; the general counsel asks us to grant enforcement. We deny enforcement in part and grant enforcement in part and remand the remainder of the case to the Board for further proceedings.
I
Petitioner E & L Transport Company is a motor carrier engaged in the interstate transportation of newly manufactured automobiles. It operates several terminals, including one in Chicago. In February 1990, E & L was awarded the contract to be the sole carrier in Chicago for the Ford Motor Company. Previously, E & L had been the secondary carrier for Ford; Nu-Car Carriers had been the primary carrier. As a result of the 1990 contract, Nu-Car phased out and eventually closed its Chicago operations, and
Local 710 of the Highway Drivers, Dock-men, Spotters, Rampmen, Meat Packing House and Allied Products Drivers and Helpers, Office Workers and Miscellaneous Employees Union (“union”) represents E & L and Nu-Car employees. Pursuant to the National Master Automobile Transport Agreement — the collective bargaining agreement between the union, E & L, and Nu-Car — when Nu-Car closed its doors E & L was obligated to offer employment to the former Nu-Car drivers. The agreement did not obligate E & L to employ the former Nu-Car garage workers or the former Nu-Car office employees.
On March 29, 1990, Eugene Wade, the union representative, and Bob Brown, the union steward at Nu-Car and soon-to-be E & L driver,
By the end of March 1990, six of the former Nu-Car office employees had submitted their resumes to E & L for consideration relative to available office positions. They included two nonunion employees, Nancy Norton, Nu-Car’s office manager, and Pat Garcia, the personal secretary to Nu-Car’s terminal manager, and four union members who were Nu-Car’s general office employees, Rebecca Pyka, Kathy Williams, Kathy Parker, and Dawn Sczeepaniak. All six ceased working for Nu-Car by March 30,1990.
In late March 1990, E & L interviewed the two nonunion Nu-Car office employees, Norton and Garcia, for the position of confidential secretary. E & L did not interview Pyka, Williams, Parker, or Sczeepaniak, all of whose resumes were on file. Both Garcia and Norton were asked during their interviews why they were not members of the union. E & L hired Norton for the job on March 31, 1990, but she was terminated on April 5, 1990, for unsatisfactory job performance. Her termination coincided with the removal of A1 Schaeffer as E & L’s terminal manager and the hiring of his replacement, Ron O’Reilly. Instead of interviewing to permanently fill the then-vacant confidential secretary position, on April 6, E & L sought a temporary replacement through Kelly Temporary Services. The temporary secretary, Judy Nilsen, was offered the job of confidential secretary on a permanent basis on April 19,1990.
In addition to requesting one temporary secretary, the April 6 order to Kelly Temporary Services also requested one temporary data-entry clerk. E & L made seven subsequent orders to Kelly Temporary Services for secretaries, data-entry clerks, and typists. Several of those orders involved replacing individuals E & L had found unsatisfactory. The total number of temporary secretaries, data entry clerks, and typists utilized by E & L at any one time ranged from two to four.
In June 1990, E & L interviewed applicants for the two check-in dispatch supervisor positions. The interviewees included Williams and Sczcepaniak, both former Nu-Car office employees and union members. Parker and Pyka applied, but E & L did not interview them. In July 1990, E & L offered the positions to Williams and Vem Joyner, who had responded to the newspaper advertisement.
On April 27,1990, the union filed an unfair labor practices charge against E & L with the Regional Director of Region 13 of the NLRB, alleging that E & L had violated sections 8(a)(1), (3), and (5) of the National Labor Relations Act (“Act”), 29 U.S.C. §§ 158(a)(1), (3), (5), by refusing to consider the four former Nu-Car office employees for various positions because of their union membership and activities. The Regional Director issued a complaint on June 29, 1990, charging E & L with unfair labor practices in violation of §§ 158(a)(1) and (3). Specifically, the complaint alleged that (1) Schaeffer’s statement that E & L would not hire the union members constituted a threat, (2) O’Reilly’s statement that if E & L hired the union members they would be nonunion constituted a threat, (3) E & L discriminated against the four union members on the basis of their union membership or activities when it failed to consider them for the confidential secretary position, and (4) E & L discriminated against the four union members when it failed to consider them for one temporary clerical position. The Regional Director issued an amended complaint on December 7, 1990, alleging, in addition to the claims in the original complaint, that E & L discriminated against the union members when it refused to consider two and refused to hire one for one cheek-in dispatch supervisor position. On April 2, 1991, the Regional Director submitted her notice of intent to amend the amended complaint to include the allegation that E & L refused to consider the four union members for more than one temporary clerical position.
The administrative law judge held a hearing on the alleged unfair labor practices on April 8-10 and June 11-12, 1991. The ALJ issued his decision and order on December 16, 1992. He found that Schaeffer’s statement to Brown that E & L would not hire the union former office workers constituted a threat in violation of § 158(a)(1). The ALJ also found that O’Reilly’s statement to Brown that if E & L hired the former union office workers they would be nonunion was a threat in violation of § 158(a)(1). He further found that the check-in dispatch supervisor position did not qualify as a supervisory position within the meaning of 29 U.S.C. § 152(11) and that E & L had discriminated against three of the union members because of their union activities when E & L did not consider two and did not hire one for that position.
The ALJ determined that a company may not discriminate against nonemployee applicants for a confidential position on the basis of their prior union status or activities, and he found that E & L had done just that by not interviewing the four union members for the confidential secretary position.
Finally, the ALJ found that E & L had discriminated against the four union members by not considering them for the temporary clerical positions. The ALJ ordered E & L to offer positions to the three union members who were not hired and to make all four whole for any lost earnings that resulted from the discrimination. E & L filed exceptions to the ALJ’s decision and order.
A panel of the NLRB (“Board”) issued its decision and order on October 18, 1994. E & L Transport Co.,
[A]n employer would have to show more than mere membership in a union or past union activities in order to disqualify an applicant for being considered for a confidential position; rather, the employer would have to prove by objective evidence that it has reasonable grounds for believing that an applicant will be disloyal or will impair business operations.
On October 25,1994, E & L filed a petition to review and set aside the Board’s decision and order. On November 18, 1994, the general counsel, on behalf of the NLRB, filed a cross-application for enforcement. We ordered the cases consolidated.
II
E & L raises multiple challenges to the Board’s finding that it unlawfully discriminated against the union applicants. We first consider E & L’s arguments that the confidential secretary and cheek-in dispatch supervisor positions are not covered by the antidiscrimination provisions of the Act. We then consider E & L’s challenges to the discrimination finding itself, as well as E & L’s challenges to the finding that it made unlawful threatening communications. Finally, we consider E & L’s argument that the general counsel should not have been permitted to amend the amended complaint.
A
E & L argues that applicants for confidential positions with a labor nexus should be accorded none of the protections of the Act, including the protection against discrimination under § 158(a)(3). In support of that conclusion, E & L relies upon Peerless of America, Inc. v. NLRB,
The general counsel argues that this is not an appropriate case in which to consider what protections accrue to actual confidential employees. Instead of following E & L’s indirect analysis, the general counsel urges that we should directly address the protections due applicants. According to the general counsel, the Board’s decision to protect applicants and accord only a limited defense to a charge of discrimination is a rational construction of the Act because to do otherwise would deter individuals from joining unions for fear of forever limiting their employment options.
The extent to which applicants for confidential positions with a labor nexus are protected by the Act is a question of law. So too is the Board’s determination as to what qualifies as a defense against an unfair labor practice charge. In reviewing the Board’s interpretation of the Act, we are mindful of the fact that “Congress conferred the authority to develop and apply fundamental national labor policy” on the Board. Beth Israel Hosp. v. NLRB,
As an initial matter, we find that the statute is ambiguous as to whether applicants for confidential positions with a labor nexus are protected under the Act. Indeed, the Act does not even mention applicants for employment. See 29 U.S.C. § 152(3).
The Act is similarly ambiguous with regard to what protections accrue to actual confidential employees. A main purpose of the 1947 amendments to the Act was to exclude supervisors from the definition of “employee” under the Act, thereby excluding them from the protections of the Act. Wheeling Electric,
The conference agreement, in the definition of “supervisor,” limits such term to those individuals treated as supervisors under the Senate amendment. In the case of persons working in labor relations, personnel and employment departments, it was not thought necessary to make specific provision, as was done in the House bill, since the Board has treated, and presumably will continue to treat, such persons as outside the scope of the act. This is the prevailing Board practice with respect to such people as confidential secretaries as well, and it was not the intention of the conferees to alter this practice in any respect.
H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess. 35 (1947) (emphasis added).
Congress’ statement regarding the treatment of confidential employees is actually inconsistent. As the Supreme Court noted in Hendricks County, at the time of the 1947 amendments the Board did not exclude confidential employees from all of the protections of the Act; the Board only precluded them from entering bargaining units.
However, we do not address the protections accorded actual confidential employees because we agree with the general counsel that we should focus our attention directly on the protections accorded applicants and not reach the question indirectly through Peerless, Wheeling Electric, and Pacific American.
Pursuant to the Board’s interpretation of the Act, an employer could not refuse to hire a nonemployee applicant solely on the ground of membership in a union or past union activities; in order to defeat a charge of discrimination, the employer would “have to prove by objective evidence that it has reasonable grounds for believing that an applicant will be disloyal or will impair business operations.” (emphasis added). Oddly, the scope of that defense is significantly more limited than the defense the Board has accorded employers that discharge current confidential employees.
Under previous Board opinions, an employer is entitled to transfer or discharge a confidential employee where the employer can prove that there is “more than a conjectural possibility” that the employee “might” disclose confidential labor relations information. Raytheon Co.,
Furthermore, the Board has held that any prounion activity on behalf of a confidential employee is sufficient to justify an employer’s concern that the employee would potentially divulge confidential information and to protect the employer from liability for transferring or terminating the employee. In Raytheon Co., the Board found the fact that a confidential employee attended one union meeting was sufficient to justify her employer’s concern that she might divulge confidential information and her subsequent removal.
There is one significant limitation to this defense. An employer cannot escape liability where its action was motivated not by a genuine desire to protect its confidential information but rather by a desire to retaliate against the individual for their union activities. Lucky Stores,
The Board’s prior opinions relative to a legitimate business defense for transferring or discharging current confidential employees set forth a defense significantly broader than the defense it laid down in this case for applicants for confidential positions, under which an employer (1) cannot act based solely on the applicant’s union activities and (2) must show that the applicant will be disloyal. We see no reason for the disparity in treatment between applicants and current confidential employees. Why should an employer be able to discharge a confidential employee
The Board justified the more restrictive defense solely on the general policy ground that allowing an employer to discriminate against applicants for positions based on their prior union activity would act as a disincentive for individuals to join unions, citing Phelps Dodge. However, the Court in Phelps Dodge did not consider the implications of requiring an employer to hire union members for confidential positions — positions in which those employees’ protected rights would, at the very least, be curtailed (e.g., by being excluded from bargaining units).
In support of the mere possibility defense, the Board has recognized that an employer' has a “legitimate desire to protect the confidentiality of its labor relations matters from disclosure to others.” Joseph Schlitz,
Allowing an employer to terminate confidential employees where there is the possibility that they may divulge confidential information alleviates many of the concerns raised to justify excluding confidential employees from the protection of the Act overall. The only Supreme Court discussion of this issue is in Justice Powell’s concurring and dissenting opinion in Hendricks County:
Confidential employees might join picket lines, sign petitions advocating the cause of labor, speak out against management at employee meetings, and engage in all manner of concerted activity. Even in the midst of labor-management strife, the confidential secretaries to the top managers of the company, with daily access to the company’s bargaining positions, might convey confidential information as to these positions to the union, as well as take their place on the picket lines. The company would be unable to dismiss them or demote them, at least without the risk of an unfair labor practice charge being filed.
Hendricks County,
The Board’s pronouncement in this case that an employer is required to have objective evidence, unrelated to the applicant’s union membership or activities, that an applicant will be disloyal is problematic for two reasons. First, it rests on much less solid policy footing. The only policy basis articulated by the Board supports protection for applicants in general. However, as the Board implicitly recognized in Pacific American, the general policy of not discouraging employees from union activity by protecting applicants for employment does not justify protecting all applicants for employment.
We recognize the validity of the Board’s concern that discrimination against applicants for confidential positions might act as a disincentive against individuals joining or
[W]e have consistently construed [sec. 158(a)(3) ] to leave unscathed a wide range of employer actions taken to serve legitimate business interests in some significant fashion, even though the act committed may tend to discourage union membership. Such a construction of [sec. 158(a)(3) ] is essential if due protection is to be accorded the employer’s right to manage his enterprise.
For the foregoing reasons, we hold that the Board’s decision in the instant case requiring an employer to prove with objective evidence that the applicant will be disloyal with evidence other than the applicant’s union membership or past union activities is not a rational construction of the Act. Instead, the Board’s defense to employers who terminate confidential employees where there is more than a conjectural possibility of disclosure is also a proper defense against charges of discrimination in the hiring for confidential positions with a labor nexus.
Of course, the mere possibility defense to not hiring applicants only applies to applicants for positions that involve access to confidential labor relations material, which, by definition, includes labor nexus positions.
Petitioner invites us to review the record and make a determination that the confidential secretary position at issue did indeed have a labor nexus. We decline this invitation. The question of whether an individual position has a labor nexus is an application of law to fact left, for first impression, with the Board. If the Board finds it to be a confidential position with a labor nexus, the Board must then reach the issue of whether the employer adequately proved the mere possibility defense. As the Board opinions relative to that defense make clear, whether the defense protects an employer from liability depends upon whether the possibility of disclosure or a different, improper motive caused the employer to not interview or hire the applicants. See Lucky Stores,
E & L challenges the Board’s decision that E & L violated §§ 158(a)(1) and (3) by discriminating against three of the union members relative to the check-in dispatch supervisor position held by Vern Joyner. E & L argues that Joyner’s disciplinary authority, combined with multiple secondary indicia of supervisory status, dictate the conclusion that Joyner’s position is supervisory and therefore outside the protections of the Act. The general counsel counters that Joyner did not exercise independent judgment in disciplining employees and that E & L did not adequately prove secondary indicia of supervisory status.
The Board’s determination as to whether a particular position is supervisory within the meaning of § 152(11) is, as an application of law to fact, reviewed under the “substantial evidence” standard. NLRB v. Winnebago Television Corp.,
The definition of “supervisor” is contained in § 152(11):
The term “supervisor” means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
29 U.S.C. § 152(11). An individual need not meet all of the criteria listed in § 152(11) in order to qualify as a “supervisor.” Indeed, it is well settled that an individual who meets only one of the criteria qualifies as a “supervisor” under § 152(11). Winnebago Television,
The Board found that Joyner lacked supervisory status because the incidents where he issued “nonautomatie” reprimands were “isolated and sporadic.” Implicit in the finding that certain of Joyner’s reprimands were “nonautomatic” is that they required Joyner to use independent judgment in deciding to issue them, a fact borne out by the record.
Joyner issued various types of reprimands, most of which did not require Joyner to use his independent judgment. The automatic reprimands included those issued for driving over hours, failing to call in when empty, and failing to check serial numbers. Given a certain set of circumstances set forth in either the Department of Transportation regulations, the collective bargaining agreement, or company policy, Joyner was required to issue those reprimands. However, Joyner issued another type of reprimand that was not automatic: he issued reprimands to drivers for cargo damage caused by the drivers while they were responsible for their trucks.
Joyner testified regarding the process he follows in issuing cargo damage reprimands. The following testimony relates to one particular instance where he issued a reprimand:
Q. What is this document?
A. This document is a reprimand that I issued driver Harold Dovichi for minor cargo damage.
Q. Does your signature appear on it?
A. Yes, sir. It does.
*1270 Q. Did you issue it to the driver in question in person?
A. Yes, sir. I did.
Q. What preceded the issuance of this reprimand, to the best of your knowledge?
A. Upon reviewing Mr. Dovichi’s bills of lading, I noticed that one of the units had sustained some damage. I asked Mr. Dovichi to come around and explain to me, to help me understand the circumstances involved in this damage, and he did.
Q. As a result of that interview and your review of the documents, did you make a judgement?
A. Yes, sir. I sure did.
Q. And what was your judgement?
A. My judgement was that this damage was a result of Mr. Dovichi’s carelessness and negligence.
Thus, as the Board seemed to recognize, Joyner was required to utilize his independent judgment in determining whether the driver was or was not at fault for the relevant damage. Based upon that determination, Joyner would either issue or not issue a reprimand. Joyner testified that he issued six cargo damage reprimands between April 30 and June 1,1991.
Even though Joyner exercised independent judgment in issuing cargo damage reprimands, the Board declined to find him a statutory supervisor because it found that he only exercised his disciplinary authority in “isolated and sporadic” incidents. The Board applied the wrong test to the case at hand. It is well settled that if an individual is shown to exercise supervisory authority, the frequency with which he exercises that authority does not impact the necessary conclusion that he is a statutory supervisor. American Diversified Foods, Inc. v. NLRB,
In support of Joyner’s status as a statutory supervisor, E & L argues that the record also reflects several “secondary indicia” of his supervisory status. The general counsel correctly points out that E & L faded to offer sufficient proof of some of the posed indicia. However, E & L did provide sufficient proof regarding other indicia: Joyner uses the title of supervisor; he is salaried; he identifies with management and attends management meetings; and he is one of two first-line supervisors who oversee a work force of sixty-nine drivers. Although not determinative on their own, where one of the enumerated indicia in § 152(11) is present, secondary indicia support a finding of statutory supervisor. Hardin, 2 The Developing Labor Law at 1611-12. Because the record shows that Joyner exercised the authority to discipline fellow employees and maintained multiple secondary indicia of supervisory status, the Board erred in holding that he was not a statutory supervisor.
E & L argues that if we find Joyner to be á statutory supervisor, then E & L cannot be found liable for allegedly discriminating against the three union members because they were not employed by E & L at the time they applied for the position. In support of its argument, E & L points to Pacific American, where the Board held that nonemployee applicants for a supervisory position are not protected by the Act. 98
The validity of the union’s interpretation is doubtful given subsequent Board decisions interpreting Pacific American as only providing the Act’s protections to applicants for a supervisory position who are currently employees of the employer with whom they are applying. See, e.g., James F. Stanford, Inc.,
Thus, the traditional interpretation of Pacific American remains, and we apply it to the case at hand, denying enforcement to the charge that E & L discriminated against the three union members relative to the check-in dispatch supervisor position.
C
The Board found that E & L violated §§ 158(a)(1) and (3) by refusing to consider the four union members for the temporary clerical positions filled by Kelly Temporary Services employees. E & L challenges this finding on two grounds. First, E & L maintains that the Board lacked substantial evidence of antiunion animus. Second, E & L claims that it had a legitimate business reason for not considering the four union employees for the temporary clerical positions. The general counsel responds by arguing that the Board’s decision on both points is more than adequately supported. We will uphold the Board s findings if supported by “substantial evidence.” §§ 160(e), (f).
The Board bears the burden of proving by a preponderance of the evidence that (1) the employer knew that the diseriminatees were members of the union, (2) the employer took an employment action adverse to the discriminatees, and (3) the discriminatees’ union membership or activities were a motivating factor in the employer’s decision. Wright-Line, Inc.,
There is substantial evidence in the record to support the Board’s determination that E & L knew the four office employees were members of the union and that E & L failed to consider their applications in filling the temporary positions. E & L argues that there was not substantial evidence to support the finding that antiunion animus was a motivating factor in its decision.
The ALJ did not make a specific finding that antiunion animus motivated E & L’s decision to not consider the union employees for the temporary positions. Instead, the ALJ found that E & L acted pursuant to a general plan to keep all of its office staff nonunion. The ALJ primarily relied upon three factors in making that finding: (1) the statements alleged to be threats made by Schaeffer and O’Reilly, (2) E & L’s secretive means of soliciting resumes of the nonunion
Substantial evidence supports the ALJ’s finding that E & L possessed antiunion animus. Indeed, Schaeffer’s statement that E & L would not hire the union applicants constitutes direct evidence of E & L’s general intent to discriminate against the former union members. True, “animus alone does not establish motivation,” Master Housekeepers, Inc.,
E & L’s conduct is such that the ALJ was justified in finding that E & L’s antiunion animus motivated it to not consider the union applicants for the temporary positions. See Ultrasystems W. Constr., Inc. v. NLRB,
We next consider whether E & L carried its burden of proving a legitimate business reason for using Kelly Temporary Services employees and for not considering the former Nu-Car clericals for the temporary positions. E & L argues that it turned to Kelly Temporary Services to fill its temporary clerical needs for three reasons. First, it was easier to hire temporaries through an agency than to independently initiate the hiring process. Second, it was easier to terminate a temporary service employee when the work dried up than an independent temporary. Third, it was less expensive to hire temporary employees through an agency than it would have been to hire them independently. The ALJ rejected these reasons as unpersuasive and found that E & L had failed to prove that hiring temporary employees through Kelly Temporary Services was cheaper or otherwise better than hiring the union applicants.
The general counsel persuasively argues that E & L failed to carry its burden of proving that it would have hired the Kelly Temporary Services temporaries instead of the former Nu-Car employees as temporaries regardless of its antiunion animus. The general counsel correctly points out that although given the opportunity to do so, E & L failed to show that hiring Kelly Temporary Services employees would have been cheaper than hiring the Nu-Car employees as temporaries. O’Reilly testified that the Kelly employees were cheaper but could not testify as to what E & L paid Kelly for those employees. The company “needed to assemble more than bare assertions or even plausible reasoning; it had to furnish proof.” Property Resources Corp. v. NLRB,
We are not saying that an employer cannot justify with legitimate business reasons a decision to turn to a temporary service for temporary help over qualified union applicants for those temporary positions. E & L simply faded to sufficiently support its claim that going through Kelly Temporary Services was better than hiring or at least interviewing the former union employees. Consequently, substantial evidence supports the Board’s finding that E & L violated §§ 158(a)(1) and (3) by failing to consider the applicants for the temporary positions.
D
The Board summarily affirmed the ALJ’s finding that E & L issued a threat in violation of § 158(a)(1) by virtue of Schaeffer’s statement that E & L “will not hire the Union office people” and O’Reilly’s two statements that “if the clericals were hired they would be nonunion.”
An employer violates § 158(a)(1) where it makes statements that reasonably tend to coerce employees in the exercise of their protected rights, regardless of whether the statements do, in fact, coerce. NLRB v. Shelby Memorial Hosp. Ass’n.,
We need only look to E & L’s second argument, that because there was no evidence that the statements were disseminated to the former union office employees there is no basis for finding the statements reasonably coercive, to decide this issue. Section 158(a)(1) makes it an unfair labor practice “to interfere with, restrain, or coerce employees” in the exercise of their section 7 rights. In determining whether a statement is coercive, we look to the employee who heard the statement. That includes the persons to whom the statement was addressed, see N.L.R.B. v. Sherwood Trucking Co.,
In this case, the general counsel did not show, and the ALJ did not find, that the former office workers actually heard the statements made by Schaeffer or O’Reilly. The ALJ found that the two statements made by O’Reilly and the one made by Schaeffer violated § 158(a)(1) because they were made to union steward Brown, who is also an E & L employee. That would have been sufficient if the statements could reasonably have tended to coerce Brown,, but they could not. First, the statements would only reasonably tend to coerce someone interested in working as an E & L clerical, and Brown was an E & L driver. Second, at the time the statements were made, Brown, who had been a union driver with Nu-Car, had recently been hired by E & L along with a large number of other union Nu-Car drivers. E & L’s drivers were also union. Brown could not reasonably have believed, by virtue of the implication that E & L would discriminate against the former union clerical applicants, that E & L would discriminate against him as a driver because he and many of his former union coworkers had recently been hired.
The ALJ’s finding that Houseman and Busehman heard Schaeffer’s statement to the effect that E & L would be a nonunion office is alone insufficient to support his finding of a § 158(a)(1) violation. First, although the ALJ found that similar comments made by O’Reilly constituted threats, he did not find that these two statements of Schaeffer constituted threats. Instead, the ALJ only found that Schaeffer’s statement to Brown that E & L would not hire the union employees was a threat. Second, although the ALJ found Houseman and Busehman to be clerical employees rather than supervisors, the Board specifically declined to adopt that finding, thereby leaving open the question of whether Houseman and Busehman were supervisors. Consequently, the only employee or applicant to hear the “threats” was Brown, who, as explained above, could not have been reasonably coerced.
Because neither the ALJ nor the Board found that anyone who could have been coerced by these statements actually heard them, the ALJ’s conclusion that the statements constituted threats under § 158(a)(1) is unsupported by the evidence and, therefore, cannot stand.
E
E & L sets forth two arguments for why the general counsel’s amendment to the complaint changing the number of allegedly available temporary positions from one position to multiple positions was improper. First, E & L argues that the general counsel’s delay in filing the amendment made the amendment untimely. Second, E & L argues that the delay violated its right to due process because, as a result of the delay, E & L was denied a full and fair hearing on the amended charge.
We first note that E & L does not have a valid argument that the amendment was untimely. As we held in NLRB v. Complas Indus., Inc., “[a] complaint or an amended complaint, although filed and served after six months, may allege violations not alleged in the charge if they did not occur more than six months prior to the filing and service of the charge, and they are closely related to the violations which are contained in the charge.”
III
For the foregoing reasons, we Deny enforcement in part, Grant enforcement in part, and Remand this matter to the Board for further proceedings consistent with this opinion.
Notes
. Brow'll began working for E & L on April 2, 1990.
. From April 7 to April 19, Kelly provided E & L with one secretary and one data-entry clerk. From April 19 to April 20, Kelly provided E & L with two data-entry clerks. From April 20 to June 1, Kelly provided E & L with two data-entry clerks and one typist. From June 1 until August 31, Kelly provided E & L with two data-entry clerks and two typists.
. The "labor nexus" test denotes those employees who, as a result of their close association with management, have traditionally been afforded limited protections under the Act. The NLRB's definition, approved by the Supreme Court in NLRB v. Hendricks County Rural Elec. Membership Corp., provides that employees with a labor nexus include only "those employees who assist and act in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor relations.”
. We note that the Supreme Court in Hendricks County left open the question to what extent confidential employees are protected by the Act.
. This case does not present the question of whether only confidential positions with a labor nexus are subject to the mere possibility defense. Indeed, the Board has signaled its intent to apply the defense to a broader class of employees.
The right to take action against an employee in order to protect the confidentiality of labor relations material applies not just to "confidential" employees but to all employees. Confidential employees are not the only employees who may have access to confidential labor relations material. Other employees may have legitimate access to such information and any employee may improperly seek to obtain it.
Lucky Stores,
. The general counsel also seeks to support the Board's decision by pointing to the ALJ’s finding that the disciplinary authority exercised by Joyner was only an attempt to bolster his supervisory status and not a genuine exercise of disciplinary authority. We do not address the merits of this argument because the Board declined to adopt it in its opinion.
Of course, the Board may summarily affirm the decision of an ALJ. United Food & Commercial Wkrs. v. NLRB,
. The AU actually found that O'Reilly's statements constituted "a threat to deny employees their rights under Section 4 of the Act.” Section 4 of the Act relates to administrative matters concerning members and employees of the National Labor Relations Board. 29 U.S.C. § 154. We infer that the ALJ simply made a typographical error and that the ALJ actually intended to say that the statements constituted threats because they denied employees their rights under section 7 of the Act. 29 U.S.C. § 157.