Kenneth Orr filed a complaint with the National Labor Relations Board (the Board) charging Glaziers Local Union 558 (the Union) with unfair labor practices in violation of § 8(b)(2) and, derivatively, § 8(b)(1)(A) of the National Labor Relations Act (the Act). The complaint alleged that the Union caused PPG Industries (PPG) to discriminate against Orr and another nonunion employee, William Gooch, Jr., by forcing PPG to fire them. Orr contended their firing was precipitated by a walkout of union members designed to bring about the termination of nonunion employees. The case was brought before an administrative law judge (ALJ) who found there was no persuasive evidence to support the allegation that the Union caused the walkout. The AU further concluded that even if the Union were responsible for the jobsite walkout, the evidence failed to establish that the actual motive of the Union was to cause PPG to discriminate against employees on the basis of nonunion status. Accordingly, he dismissed the complaint. After consideration of the ALJ’s findings, supplemented by testimony on which he did not explicitly rely, the Board reversed the dismissal of the complaint, concluding that the Union illegally caused PPG to fire Orr and Gooch. The case is before this court on the Union’s petition for review and the Board’s cross-application for enforcement of its order. Because we conclude that the Board’s decision is not supported by substantial evidence on the record as a whole, we reverse its order.
I.
PPG manufacturers, sells, and installs glass products in Kansas and Missouri, as well as in other areas of the country. Through Mo-Kan, a multiemployer bargaining association, PPG and the Union were parties to a series of labor agreements, including one in effect during the events underlying this controversy. That agreement made general references to two classes of glaziers, “journeymen” and “apprentices,” while setting forth one wage rate. Glaziers were employed by Mo-Kan employers pursuant to a formal industry apprenticeship training program, which was established by a separate agreement incorporated by reference into the Mo-Kan agreement. 1 The Mo-Kan agreement also contained a lawful union security clause requiring employees to become members of the Union after a grace period. It further included a “no-strike” clause, a commitment by the Union not to strike over disputes arising under the contract.
While the Mo-Kan agreement did not specify procedures or priorities for the hiring and referral of employees on construction jobs, the long-standing practice among Mo-Kan employers was to use the Union as the primary source for referral of glaziers. When the Union was unable to locate glaziers to satisfy employer requests, Mo-Kan employers directly hired employees to work as glaziers. According to custom on Mo-Kan jobs, direct hires were referred to the Union to obtain a “permit,” a certificate which established that the holder had been hired with the knowledge and acquiescence of the Union. The permit system was designed to prevent potential jobsite harassment by employees in other trades or from union representatives policing compliance with union security agreements. The union security clause in the Mo-Kan agreement was not customarily enforced against permit holder^, apparently due to the fact that permits were issued only for the dura *1408 tion of a job or thirty days, whichever period was shorter. Therefore, according to the traditional practice followed by the Union and Mo-Kan employers, permit men enjoyed only a temporary status and were replaced with journeymen when journeymen became available for referral by the Union. 2 Deviation from this traditional practice is at the heart of this dispute.
From approximately June 1981 through March 1982, PPG was engaged in the installation of window glass on a project known as the “North Supply job” in Gardner, Kansas. In August 1981, regular glass installation work commenced at the jobsite. To fulfill its requirements for glaziers, PPG, through construction manager William Gooch, Sr., requested referrals of journeymen glaziers from the Union. At some point in August, Jack Zander, the Union’s business representative, informed Gooch that the Union was unable to locate additional journeymen in the area. PPG then resorted to direct hiring, eventually employing seven or eight persons, including Kenneth Orr and William Gooch, Jr., construction manager Gooch’s son. 3 All of the direct hires were referred to the Union for temporary work permits, which were issued without incident.
On several occasions in October 1981, Zander or Charles Foland, assistant business representative for the Union, notified PPG through construction manager Gooch that there were journeymen available for referral to the North Supply job. The Union repeatedly requested that permit men on the job be replaced with the available journeymen. On each occasion, Gooch refused, stating that he was satisfied with the permit employees and that he was not interested in additional employees at that time. 4 Zander complained to Gooch that the company’s refusal to replace permit men with available journeymen glaziers was not “the way that this thing has been operated”; that it would “destroy the apprenticeship program”; and that it “was not fair to the apprentices and the way that the apprenticeship program has been run in the past.” Gooch remained steadfast in his refusal, and no further discussions on the subject transpired between Gooch and Union representatives until January.
Between the end of October and early January, dissatisfaction with PPG’s refusal to replace the permit men increased among union glaziers on the North Supply job. While visiting the jobsite on an unrelated matter, Zander spoke with James Davis, a journeyman member of the Union, who stated that he and other workers “didn’t want to put up with it and they were going to walk off.” Zander testified that he advised Davis that a walkout would be in violation of the contract and that “it just couldn’t happen.” Employee concern over the situation was raised during at least two union meetings between October and January. On each occasion, Zander informed *1409 members that the Union had done all it could to accomplish the replacement of the permit men with journeymen. He informed the members that they would have to quit their jobs and seek employment elsewhere if they were dissatisfied with working conditions at the jobsite. Zander reiterated that the Union could not instigate a walkout or strike. 5 In response to specific questions from members, Zander stated that union bylaws provided for fines against members who continued to work alongside permit men. However, he also maintained that neither he nor any union officer would prefer charges for that reason, but other members could not be prevented from filing charges. Zander also stressed that he would personally prefer charges against any member who attempted to instigate a walkout.
On December 31, 1981, assistant business representative Foland contacted Gooch to inform him of the availability of qualified journeymen as a result of a strike at Atlas Glass in Kansas City. Once again, Gooch responded that he was not interested in additional employees. Several days thereafter, a union job steward, Paul Serna, approached Ernie Kraner, PPG’s North Supply project manager, to express his dissatisfaction with the fact that journeymen glaziers were out of work while permit men remained on the job. A similar conversation was repeated a few days later.
The dispute came to a head on January 7, 1982. At that time, the crew at the North Supply job had been reduced through layoffs leaving a group of journeymen, a group formally involved in the apprenticeship program, a group of “waiting” apprentices, and Orr and Gooch, Jr. In at least one conversation with Kraner during the day, Serna stated his intention to “finish out the day” and “quit” and requested that his final paycheck be mailed to him. Serna indicated that other men on the job would not be content to work “under those conditions” with permit men while journeymen were without work. Later in the day, two apprentices left the North Supply job without explanation. That evening, Jack Griffin, the general foreman, notified Kraner of his intention to take “a day of vacation” the next day. Arthur Jackson, the working foreman, stated that he would quit or be sick if the situation with the permit men was not straightened out. At the beginning of the workday the following morning, only three employees, Orr, Gooch, Jr., and a waiting apprentice reported for work. By 9 a.m., the waiting apprentice had disappeared from the work site.
On January 8, 1982, after discussing the situation at the North Supply job, Kraner and Gooch decided to discharge Gooch, Jr., and Orr and to attempt to recall the other employees, concluding that was the only way PPG could complete the job. Kraner then telephoned foremen Griffin and Jackson and asked them to return to work. Kraner also requested that Griffin and Jackson attempt to persuade other workers to return to work on the North Supply job. Gooch telephoned Zander to inquire about ways to get glaziers back on the job. Zander replied that most of the former North Supply job employees had found work on other jobs but that Gooch was “free to call” them if he wished. Apparently, Zander’s only active role in the recall was to inform members who called that “things were being straightened out” and to instruct them to await a call from Griffin or the company before returning to work.
During the following week, glaziers gradually trickled back to the North Supply job. The record does not indicate that any of the journeymen the Union previously sought to *1410 put on the job were hired to replace Gooch, Jr., or Orr. The dispute apparently ended with the discharge of the two permit men.
After reviewing the harmonious testimony of witnesses and weighing the credibility of those witnesses, the AU found that the Board’s General Counsel had not adequately demonstrated that the Union caused the firing of Orr and Gooch, Jr., by bringing about a strike or other impermissible concerted activity. The AU first concluded there was insufficient evidence to establish that the employees who left the North Supply job engaged in a “strike,” noting that a strike contemplates continuation of an employment relationship, while at least some of the employees intended to completely sever their employment ties with PPG. Even if the employees’ actions could be deemed a strike, the AU found that the Union had not caused the strike. He determined that any references on the part of union officials to quitting the North Supply job because of dissatisfaction or to the possibility of fines for working alongside permit men were merely explanations of the members’ rights and liabilities. Despite the General Counsel’s urging to the contrary, the AU found no duty on the part of the Union to reprimand its members for leaving the job or to take affirmative action to replace those employees with journeymen until requested to do so by PPG. In finding no causation, the AU emphasized the continued opposition of the Union’s business representative, Zander, to a walkout or a strike. While recognizing the possibility that any formal union opposition to a strike or other connected activity might be accompanied by a figurative “wink,” the AU found no clear evidence that the Union covertly evaded responsibility for concerted activity that it was actually encouraging.
Because the complaint tied allegations of a § 8(b)(2) violation to a claim that the Union sought the termination of Orr and Gooch, Jr., due to their nonunion status, the AU examined the evidence pertaining to the Union’s motivation. He found the testimony of Zander, Foland, and Gooch, Sr., supported the inference that the Union sought to protect the reputation of an established apprenticeship program, which he characterized as a long-standing, traditional practice guaranteeing qualified glaziers for work on employers’ projects and establishing employment priorities which ensured for the Union a fair distribution of work opportunities among qualified job-seekers.
6
Furthermore, if the Union’s actual objection to retention of the permit men was their nonunion status, the AU reasoned that the Union could have corrected the problem through enforcement of the valid union security clause in the contract. After determining that the Supreme Court in
Local 357, International Brotherhood of Teamsters v. N.L.R.B.,
After a review of the record, the Board, contrary to the AU’s findings, determined there was ample evidence that the Union caused or attempted to cause PPG to terminate Orr and Gooch, Jr. As support for its conclusion, the Board emphasized the repeated requests by union agents Zander and Foland to replace permit employees with available journeymen. It interpreted Zander’s advice to union members that they would have to quit if dissatisfied with conditions at the North Supply job and his *1411 reference to the possibility of the imposition of fines on members for working alongside permit men as threats which encouraged members to quit the North Supply job. The Board further concluded that the Union’s conduct following the walkout from the North Supply job demonstrated that the Union “ratified” the employees’ actions, specifically noting that the Union made no effort to fill the vacated positions with available journeymen.
Once it determined that causation was established, the Board applied a presumption that a union acts illegally anytime it prevents an employee from being hiréd or causes an employee to be discharged to reach its ultimate conclusion that the Union violated § 8(b)(2). According to prior cases decided by the Board, 7 a union may rebut this presumption by providing “evidence of a compelling and overriding character” establishing that its conduct “was referable to other considerations, lawful in themselves, and wholly unrelated to the exercise of protected employee rights or other matters with which the Act is concerned.” While the Board did not specifically dispute the AU’s finding that the Union’s actions were motivated by its desire to protect the traditional apprenticeship system, it determined that the motivation was insufficient justification to overcome the presumption of illegality. The Board ordered the Union to cease and desist from violations of § 8(b)(2) and (1)(A) of the Act and to compensate Orr and Gooch, Jr., for any loss of earnings or benefits suffered as a result of the discrimination against them. The Union was further required to contact PPG in writing requesting reinstatement of Orr and Gooch, Jr.
In this appeal, the Union contends the Board erred as a matter of law in finding that the Union violated § 8(b)(2) because the Union’s intent to unlawfully discriminate against nonmembers, an element of a § 8(b)(2) violation, had not been established. It argues that the presumption imposed by the Board disregards the controlling principle, announced in Teamsters, that it is the true purpose or motive for hiring or firing an employee which determines a § 8(b)(2) violation. In addition, the Union contends the operation of the presumption in connection with the requirement that rebuttal be accomplished by presentation of evidence of a compelling and overriding character that it was lawfully motivated places an impermissible burden on the Union. Even if the presumption were valid, the Union asserts that its application was unwarranted in this case because the Board erred in concluding that the Union caused PPG to terminate Orr and Gooch, Jr.
II.
A reviewing court may reverse a decision of the Board “when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board’s view.”
Universal Camera Corp. v. N.L.R.B.,
In the context of these constraints and guidelines, we turn to a consideration of the Board’s decision in this case. The Union appears to challenge both the validity of the presumption of illegality adopted by the Board and its application to the facts of this case.
8
The Board argues that the presumption is “a reasonable application of the Supreme Court’s decisions in
Radio Officers’ Union v. N.L.R.B.,
III.
We recognize the Board’s authority to apply general presumptions as a part of its responsibility to formulate rules to fill the interstices of the broad statutory provisions of the Act.
Beth Israel Hospital v.
*1413
N.L.R.B.,
We begin by noting although
Radio Officers’
approved a finding of a § 8(a)(3) violation without proof of specific intent to encourage or discourage union membership by discrimination, it also emphasized that the employer’s “real motive” or “true purpose” is controlling of the determination of a § 8 violation.
Radio Officers’,
While the real motive or true purpose underlying challenged conduct is controlling, we recognize that proof of specific intent to encourage or discourage union membership by discrimination is not always necessary to sustain a violation of § 8 of the Act.
Radio Officers’,
However, where intent is to be inferred from conduct, it may be difficult to identify a true motive due to the presentation of a possible complex of motives. In such cases, the Court has divided an employer’s conduct into two categories:
Some conduct is so “ ‘inherently destructive of employee interests’ ” that it carries with it a strong inference of impermissible motive. See id., [Great Dane, 388 U.S.] at 33,87 S.Ct., at 1797 (quoting NLRB v. Brown, supra,380 U.S., at 287 ,85 S.Ct., at 986 ). In such a situation, even if an employer comes forward with a nondiscriminatory explanation for its actions, the Board “may nevertheless draw an inference of improper motive from the conduct itself *1414 and exercise its duty to strike the proper balance between the asserted business justifications and the invasion of employee rights in light of the Act and its policy.”388 U.S., at 33-34 ,87 S.Ct., at 1797 . On the other hand, if the adverse effect on employee rights is “ ‘comparatively slight,’ an antiunion motivation must be proved to sustain the charge if the employer has come forward with evidence of legitimate and substantial business justifications for the conduct.” Id., at 34,87 S.Ct., at 1798 (emphasis in original).
Metropolitan Edison,
Without expressly stating its intention to do so, the Board apparently relegated the Union’s conduct in this case to the former category, conduct which “carries a strong inference of impermissible motive.” This. conclusion flows from the fact that the Board cut off its inquiry into the Union’s motivation by summarily rejecting the Union’s assertion that it acted out of a desire to protect the apprenticeship program when it requested the replacement of permit employees, even though there was no direct proof that the Union sought to illegally encourage membership or to promote its standing among employees in violation of the Act. After reviewing the record, we conclude that the Board’s application of the presumption in this manner lacks rationality and is not supported by substantial evidence.
It was the undisputed, long-standing practice among Mo-Kan employers to seek referrals of journeymen from the Union to fill their needs for experienced glaziers. According to the traditional operation of the referral system, permit men were considered temporary employees subject to replacement by journeymen when they became available. The temporary nature of the tenure of permit holders was evidenced by the fact that the permits were issued for a limited period of time, the shorter of the duration of the job or thirty days. There was no indication anywhere in the record of any expectation on the part of permit workers, members of the Union, or other employees that permit men enjoyed anything other than a temporary status. Under the facts presented in the record, union efforts to replace permit men could not have so dramatically demonstrated its power over employees and their livelihood that the effect was to encourage union membership among employees witnessing the exercise of power.
See International Union of Operating Engineers, Local 18 (Ohio Contractors),
IV.
Even if the facts presented a situation of union conduct “inherently destructive of employee rights,” we conclude that the balance struck by the Board in rejecting the Union’s asserted justification for its actions is not consistent with the policies served by the Act as required by
Great Dane
and
Metropolitan Edison.
While considerable deference is due the Board’s expertise in weighing employee interests against legitimate business justifications, the balance
*1415
struck between competing interests is not immune from judicial review and reversal.
N.L.R.B. v. Brown,
The Board’s determination that there was “no evidence of an objective basis supporting the decisions to refer or displace particular employees” does not save the balance it struck in rejecting the Union’s asserted justification. In the first place, its conclusion is not supported by substantial evidence. The existence of the referral practice, upon which PPG relied for many years to obtain glaziers, was undisputed. The operation of the referral system, which included the replacement of permit men with journeymen, was the basis of the Union’s requests that PPG replace Orr and Gooch, Jr., with available journeymen. Secondly, there is no indication in the record that such practices, even though they are not contractually prescribed, are per se illegal or illegitimate. The validity or legality of the referral system was not challenged by the General Counsel. Thus there is no legal objection to the Union’s assertion of the practice as the basis for its efforts to replace Orr and Gooch, Jr.
V.
The fact that the referral system was not contractually prescribed does not compel the conclusion that the Union’s assertion of its desire to preserve the system constitutes insufficient justification to overcome the presumption. The AU found it insignificant that the industry practice of permitting journeymen to bump permit men was not contractually sanctioned. The Board’s rejection of the Union’s justification did not turn on the absence of contractual authority for the referral system. Board decisions addressing a union’s rebuttal burden have not specifically mandated that a union’s justification for seeking the hiring or firing of an employee be based on practices spelled out in its contract with the employer.
When the presumption of illegal action was first announced and applied by the Board in
Local 1102, United Brotherhood of Carpenters and Joiners (Planet Corp.),
VI.
Because we conclude that the Board’s application of the presumption of illegality to the facts of this case, specifically that the Union’s conduct was inherently destructive of employee rights, is not supported by substantial evidence on the record, we do not reach the question whether the Union caused an illegal walkout from the North Supply job. Even assuming that the General Counsel established causation and that the illegality of the Union’s actions was properly presumed by the Board, we conclude that the Union met its burden in rebutting the presumption. Accordingly, we deny enforcement of the. Board’s order.
Notes
. The terms of the agreement covering the apprenticeship training program were not included in the record in this case, though the existence of an established formal program was undisputed.
. The record in this case fails to reveal precisely how an employee becomes qualified as a journeyman. From the usage of the term "journeyman" by witnesses and attorneys during the hearing, the ALJ concluded that journeyman implies the "possession of substantial qualifying experience” and the "satisfaction of a rather specific set of criteria which distinguish apprentices from journeymen and which results in some sort of formal certification of journeyman status.” The ALJ found that journeymen were generally more qualified than permit men; in fact, several permit holders at the jobsite involved in this controversy were awaiting entry into the formal apprenticeship program to eventually be certified as journeymen, an opportunity available to permit holders on a limited basis.
. According to information available in the record, neither Orr nor Gooch was an experienced glazier. Orr previously worked for PPG in an unspecified capacity and was employed as a sign hanger by another company when he accepted work on the North Supply job. Gooch, Jr., was employed by another firm in an unrelated construction trade at the time PPG offered him employment.
. In response to Union requests that the permit men be replaced with available journeymen, Gooch stated that he could not legally bump the permit employees to give jobs to other people. The ALJ, noting that Gooch failed to explain the basis for this assertion, found that Gooch’s concern that the proffered journeymen were striking auto glass workers who might not remain on the North Supply job after the strike ended was a more important consideration in Gooch’s decision than concern over potential illegalities.
. Union officials apparently believed that a walkout over the replacement of permit men would violate the no-strike clause in the Mo-Kan agreement. The AU was unable to conclude that a strike would have been contractually unprivileged. The no-strike clause in the Mo-Kan agreement prohibited stoppages of work as a result of “any controversy or dispute as to the meaning, or application of the provisions of the agreement.” Because the contract was silent on the subject of hiring priorities as between journeymen and permit men, the AU noted, without deciding, the no-strike clause might have been inapplicable to a dispute over those priorities.
. In this context the AU pointed out that the traditional practice, while not contractually sanctioned, was not challenged by the General Counsel on the basis that it was per se invalid. The AU regarded this as "an apparent concession that such general practices do not, per se, violate the Act.” The AU further noted that the Board also appears to have implicitly assumed that there was nothing unlawful, per se, about construction industry practices which give qualified individuals the right to displace ("bump”) less qualified employees hired when the Union was unable to refer qualified help.
. The presumption, which the Board characterizes in its brief as "longstanding,” appeared in
Local 1102, United Brotherhood of Carpenters and Joiners, (Planet Corporation),
. The Board contends this court is without jurisdiction to consider the Union’s challenge to the validity and application of the presumption because the Union failed to raise its objections before the Board. The Board’s argument is clearly specious. The operation of the presumption did not become an issue until the Board relied on it in determining that the Union violated the Act. Contrary to the Board’s representations, the AU did not specifically find that the presumption was properly applicable to this case. After finding that the Union did not cause Orr's and Gooch, Jr.’s termination and that it was motivated to seek their replacement by a desire to preserve the operation of the traditional referral system, the AU noted that the General Counsel failed to establish that nonmember-ship in the Union was a factor in the discharge of the permit men. Rather than dismiss the complaint on this basis, the AU bolstered his finding of no violation by determining that the Union successfully rebutted any inference of illegality. After harmonizing Board precedent with relevant Supreme Court cases, the AU concluded that the Union rebuts any presumption of a § 8(b)(2) violation when it is "shown to have acted in good faith to further hiring and referral practices which are of general benefit to its constituency as a whole and which only incidentally work to the employment disadvantage of particular individuals.” The AU then found that the referral system relied on by the Union had not been challenged as invalid and that there was no showing of an actual intent to discriminate against nonmembers or other indication of bad faith on the part of the Union. The Union had no reason to object to this rather collateral reference to the presumption. Therefore, we conclude the matter is properly before this court.
. At this juncture, we note that most of the applicable case law derives from alleged employee violations of § 8(a)(3) of the Act. However, the enunciated principles are equally applicable to determinations of § 8(b)(2) viola-lions. Indeed, by the terms of § 8(b)(2), the discrimination which the Union seeks must be violative of § 8(a)(3).
N.L.R.B. v. Local 294, International Brotherhood of Teamsters,