Southwest Merchandising Corporation, D/B/A Handy Andy, Inc. v. National Labor Relations Board

are policy statements and other regulations interpretation

unclear, petitioner’s where agency itself reasonable, and where

is reading of a definitive

struggles provide regulated requirements, regulatory agency’s ulti- notice”

party is not “on regulations, and interpretation of

mate may thus not EPA

may punished. be any way fi- responsible

hold GE —either proceed- enforcement nancially or in future case. charged this actions

ings the—for interpreta- that EPA’s

Although we conclude permissible, we regulations

tion review, vacate the petition for

grant liability, and remand for finding of

agency’s opin- consistent with proceedings

further

ion.

So ordered. MERCHANDISING

SOUTHWEST Handy

CORPORATION, d/b/a Petitioner,

Andy, Inc.,

v. RELATIONS

NATIONAL LABOR

BOARD, Respondent.

No. 93-1859. Appeals, Court

United States Circuit.

District of Columbia

Argued Feb. May

Decided Rehearing

Rehearing Suggestion July 1995.*

In Bane Denied * Silberman, rehearing. grant peti- Judge, tion for Circuit would SILBERMAN, WALD,

Before TATEL, Judges. Circuit filed Circuit Opinion for the Court Judge WALD. dissenting concurring part

Opinion by Judge part filed Circuit SILBERMAN. WALD, Judge. Circuit appeal for the to us on This ease returns main, poses it a relative- time. In the second Na- ly straightforward issue of whether the (“NLRB” or Relation Board’s tional Labor “Board”) Mer- that Southwest determination (“Southwest”) chandising Corporation dis- against employees certain of its criminated Inc., Handy Andy, on the basis predecessor, against in a strike participation of their Andy, supported by evi- Handy But is. we dence. We conclude that .the Board exceeded its further conclude extending remedy of rein- authority in backpay to three former strik- statement and jobs applied for with South- ers who never only Accordingly, grant partial west. of its remedial order. enforcement

I. BACKGROUND 1981, Handy Andy, grocery store In chain, bankruptcy. point, At this filed Handy Andy’s department meat represented Local 171 of the United International Food and Commercial Workers 1982, Bankruptcy nulli- Court Union. Handy Andy’s bargaining collective fied 171, agreement with Local on an eco- department meat workers went Handy shortly thereafter. nomic strike Andy’s meat subse- representation in quently voted union and, November, election, a decertification unconditionally offered return the strikers Handy Andy rejected these offers work. TX, Manitzas, Antonio, ar- Frank San S. grounds positions had been that their briefs, peti- gued the cause and filed or eliminated filled. tioner. 31, 1983, January Handy Andy closed On all its em- Deputy down its stores and terminated Spielberg, Paul Asst. General J. DC, day, February Counsel, N.L.R.B., following Washington, argued ployees. The Handy Andy cause, bought respondent. him on the With Sher, managers. Acting chain and rehired most of its On Linda Associate Gen- brief were Counsel, opened its stores Armstrong, Deputy As- eral Aileen Counsel, Seid, job appli- solely purpose accepting and David At- for the sociate General positions. By February N.L.R.B., cations for service torney, Washington, DC. taking applications, day South- tained that none of these after one was granted any special completely application restaffed its stores. Its notice of the west had beyond employed process general public. that of the department now 77 of the 92 immediately sup- The record contains no direct people who had worked there evidence (“incumbent porting refuting or employees”). contention. the sale before Although former strikers seven hires, selecting new Sehroat said he submit one people, identified “the best application accepted, and none of the tions, productive people,” preferred best hired. strikers was already I those “that known and that previously employed had been by us.” Tr. February Hiring A. The Process outright, 426-27. Sehroat never said howev- evening February er, of On the Southwest preferred that he employees incumbent meeting by company held a attended Presi- contrary, over strikers. To the Sehroat Regáis, George dent Dan Personnel Director maintained that he was familiar with the Tamez, charge special- and, of the officials work of all the although former strikers departments bakery, produce, criteria, ized some of them met his he did not — managers. solely they meat —and all the individual store consider them because had not applications.1 managers instructed the store to filed open February 2 in their stores on order to department hiring contrast to the meat accept applications departments all for and to process, managers individual store were re- “accept applications day long.” all all Tran- sponsible filling grocery department (“Tr.”) script employees 423. New would be positions; they were authorized both to noti- among evening selected that from those who fy employees personally incumbent day. designing job appli- that application process and to rehire incumbents process, expected cation that its February they formally on even if did not managers from were holdovers —who apply. managers The store were allowed pre-sale company employees look for simply —would to inform to come into they prior good experiences, with whom had February job fill applica- work on 3 and out a although stoutly any preference denies Simmons, tion at that time. Bob of one employees. incumbent local While media re- managers, forty fifty store rehired of his ported Handy that the new owners of the employees, though incumbent even he ob- Andy job accepting applications, stores were applications forty tained no from ten of the they did not state when or where. Nor did February on 2. He notified the ten on the publicize Southwest make effort to evening February they of were rehired information. applications upon and told them to fill out reporting following day. to work the Sim- charge Carl Sehroat was of further mons testified that none of the four department employees. According meat department employees meat who had worked Sehroat, he was not authorized to hire Handy Andy in his store under submitted applicant applica- had not an submitted 2,2 applications February him on but that February tion on nor was he authorized to following he found he had a staff of four the any employees notify contact them of the staff, day, prior two from his store from two request deadline or them to submit other stores. did not know Simmons how tions. testified that he Sehroat received be- these had been hired. applications tween 100 and 150 for meat de- jobs partment manag- from individual store Experience B. The the Former Strikers of evening February ers on the of and that he the 77 selected incumbent Seven former strikers applications. jobs among department those He further main- for meat on seeing application 1. Sehroat did testified that he not recall 2. Simmons received one for the application of the one striker who Februaiy meat from an individ- application submitted an 2. Tr. ual who worked for a different chain. Tr. 385. Huerta, “if namely Danmon and applications, & n. 1993 WL 313 N.L.R.B. [employees],” and that this proved I needed full-time seven Six of these off and on several [occurred] “could have day with an identified they spoke on that Danmon, why, particular, he one, times.” Id. As Only Frankie supervisor.3 Huerta, Danmon and application. declined to hire submit an managed to obtain and proba- guess “I it was applications testified that Schroat were informed The other six experience I had out, bly previous that no because of the being given or longer no were provided no fur- production.” He accepted for the with the being were applications Deci- specifics or documentation. ALJ that when ther department. Four testified (Feb. 1985). sion, slip op. at 14 With they had identified requesting application, an alternatively Although respect to Danmon he testified one as former strikers. themselves that, years employment, part long over her fourteen informed as former striker was so,” year or problems run Danmon’s “lasted applicants line on,” they “off and “could out, of the run- strikers were told the other (at two, Ad- years.” three Tr. 452-53. The individually four of them before be out least (“ALJ”) rejected noon). 110, 239, 285, Judge Id.; ministrative Law 316. South- Tr. explanation of his refusal to hire any explanation for this Schroat’s provided west never pretextual.6 Danmon and Huerta as occurrence. Hir- Post-February Applications and C. II. The Boaed’s Deoision ing opinion, found that In its first attempted other former strikers Fourteen 8(a)(3) (1) §§ and Southwest violated February.4 jobs point in apply for at some to by refusing Relations Act National Labor themselves as for- They generally identified partic- hire former strikers because of their informed that there mer strikers and were against Handy Andy and ipation in a strike department openings no in the meat or backpay for each ordered and reinstatement giving any out more the store was not 24 former 296 N.L.R.B. strikers. job Only Huerta was able applications. Joe (1989). 1001, This court 1989 WL application, never heard to submit an and he opinion for further remanded the Board’s back Southwest. Merchandising clarification. See Southwest (D.C.Cir. months,5 sixty Corp. v. 943 F.2d 1354 next nineteen Over the 1991). yet particular, sought explanation were filled no for- we department vacancies (1) theory any whether the Board relied on a strikers were hired for of these mer Schroat, company special positions. According to most that a successor has obli- “[i]n cases, part- gation in promoting apprentices I and favor situations,” regard without to whether people time into full-time but strikers, “that ... strikers were not are incumbent workers or former did not mean (2) in- con- the Board had sub silentio considered.” Tr. 447. He said he whether from whom he had ferred that the incumbent sidered those strikers appears to the six who to be a miscalculation. 313 N.L.R.B. at 3. The Board states that in addition perhaps brief, spoke supervisors, two "[o]ne and In its the Board uses the correct 621. away similarly strikers were turned on former February figure stating place over in that these hires took nonsupervisory personnel.” the next nineteen months. Board Brief at 11. One of these former 313 N.L.R.B. at 621 n. 21. applied strikers testified that she "about Febru- striker, 6.Arriaga, a third submitted an Judge ary 2.” As neither the Administrative Law 1983, spoke August, to Schroat in after tion and ("ALJ”) nor the Board found that she had learning that there were meat vacan- plied we do not include her cies. Schroat told her that he would contact her among February 2. those who opening, if there was an but she was never con- hearing, tacted. Schroat testified that he At generally attempted former strikers These booth; any subsequent openings. courtesy did not have full-time at the seven established they spoke supervisor. expressly an identified with Tr. 462. Board did not find The pretextual. this was sixty employees opinion states that The months, but this were hired over the next seven 8(a)(3) special treatment denied the for- Section received of the National La (3) strikers, so, why if the Board did mer bor Act Relations makes it an unfair labor legitimate not consider whether business practice employer “by for an discrimination preference employees might for incumbent regard to hire or employment tenure of or explain disparate treatment. See id. at any term employment or condition of to en Finally, justifi- sought further 1360-61. courage discourage or membership for the extension of relief to those cation 158(a)(3). organization.” § labor 29 U.S.C. attempt strikers who did not to file former employer 8(a)(3), § An thereby violates after the 2 deadline and to until 8(a)(1), § which makes it an unfair labor all, those who never to file at practice with, restrain, “to interfere or coerce expressing our doubt about the Board’s ratio- rights guaranteed” in the exercise of in the attempts nale that such would have been Act, 158(a)(1), § 29 U.S.C. if it declines to futile. See id. at 1361-62. person hire a because of his union member (col remand, ship activity. again or See 943 On concluded F.2d cases). 8(a)(1) lecting §§ In determining that Southwest had violated an whether (3) by refusing violation, of the Act to hire the former has committed such a scope firm employs strikers stood of its Board test first articulated original Line, remedial order. 313 N.L.R.B. Wright 251 N.L.R.B. 1980 WL 622,1993 WL 513145 The Board (1980), (1st enforced, 662 F.2d 899 responded to the concerns raised our first Cir.1981), denied, cert. U.S. First, opinion clearly as follows. disa- (1982).7 S.Ct. 71 L.Ed.2d 848 Under any attempt vowed to hold Southwest to test, Wright Line the General Counsel obligations Handy Andy’s to favor former prima showing must first make a suffi facie hiring, whether former strikers support cient to an inference that the em not; obligation or its sole was not to discrim- ployee’s protected “motivating conduct was a against any applicant inate on the basis of employer’s factor” in the decision. The bur protected Labor Act conduct. Id. at 618. den then to employer shifts the to demon Second, expressly it inferred that Southwest strate that it would have taken the same hiring goals “could not have achieved its action if engaged even the had not according without the termi- protected activity. in the See 943 F.2d at special put- in nated consideration 1359; Line, Wright 251 N.L.R.B. at 1089. force, second, ting together its work and Transportation Management In NLRB v. it denied the strikers this consideration 2469, 403,103 Corp., 462 U.S. S.Ct. protected activity.” based on their Id. at (1983), Supreme Third, L.Ed.2d 667 the Court explained in upheld the Board’s allocation of the burden determining disparity whether the could be proof Wright of in the Line test. the justified by reason, legitimate a it business holding, course of so the Court stated that only would consider those reasons 7(c) § of the Administrative Act by employer. Procedure advanced the Id. at 617 n. 7. (“APA”), provides “[e]xcept Finally, which as agreed with this court statute, provided by proponent otherwise support there was not the evidence to an proof,” of a rule or order extension of the remedial order to those who has the burden of 556(d), applied § late or not at all on U.S.C. “determines the burden the concluded, forward, grounds futility. going persua of Id. at 622. It of not the burden of however, that, if not for Southwest’s discrimi- sion.” 462 U.S. at 403-04 n. S.Ct. natory designing implement- in Compensa conduct 2475 n. 7. In Workers’ Office of , —U.S. ing hiring process, Programs both the late- and non- v. tion Greenwich Collieries Thus, -, filers would have been hired. rem- 114 S.Ct. 129 L.Ed.2d 221 the (1994), edy should be interpreta- extended to them. Id. the Court overruled this Wright 7. The Board uses the Line test both mate motive would have caused the action on its cases, employer "pretext” employ- "dual motive" cases—in which the acts own—and in where the legitimate illegitimate purported legitimate with a and an motive and er's basis for action is not a purpose legiti- the is to determine whether the factor at all. 7(c) least 7(e) APA, § conceal—an unlawful motive —at holding that § the tion of case, indeed, where, surrounding does, per- as in this the the “burden determine suasion,” requires that that burden and thus to reinforce that inference. facts tend proponent of the times the remain at all with Merrill, 470; v. Id. at Barbour cf. Nevertheless, held the Court rule or order. (D.C.Cir.1995) (Under the Title an to mount the burden affirmative framework, rejection of “a factfinder’s VII opposing the party the could rest on defense order, reasons, nondiscriminatory employer’s Wright that the and concluded finding compel a while not sufficient to it does no permissible because Line test discrimination, permit to nonetheless suffices proving an impose the burden of more than (emphasis original) (citing finding.”) such a employer. “The affirmative defense —Hicks, Mary’s v. U.S. St. Honor Center Transportation Man- approach NLRB’s 2749, 125 -,-, L.Ed.2d 113 S.Ct. 7(c),” § the Court agement consistent with (1993)). concluded, first re- “because the NLRB persuade it that quire[s] employee to framework, Applying the Board con- contributed to the em- antiunion sentiment cluded that the General Counsel had made Only NLRB ployer’s then did the decision. “prima ease that Southwest had out facie" persuasion on the em- place burden of against the former strikers discriminated n — defense.” ployer as to its affirmative design implementation of its at-, at 2258.' S.Ct. U.S. (1) process by refusing provide applica- tions to five of the six former strikers who Reading Greenwich Collieries February 2 attempted apply and refus- then, Wright together, the General Line ing accept all two of from but demonstrating Counsel bears the burden of the former strikers who discriminatory employer that the acted with (2) thereafter, denying employment Although throughout the ease. motive pretextual grounds to two of the former burden Board labels General Counsel’s ” applications. strikers who did file case, establishing “prima that of facie N.L.R.B. at 620-22. fact, has, traditionally required the Gener proving al to sustain the burden of Counsel rebuttal, argued that it de- was motivated anti- employment nied to the former strikers sole- may, of union animus.8 The General Counsel ly because failed to submit an course, employer’s response own use and, February 2 tion on as those charges part of of anti- the as his evidence late, that it did not hire them because explained in union animus. As the Board poor general- had work records. More Line, any Wright legitimate absence of “[t]he ly, hiring policy to a Southwest had shifted i.e., for an the absence of a basis action” — preferring promotion. internal Southwest explanation employer— from credible the explanation lack offered no for the of success “may part proof form of the of the General get of former and failed to strikers who tried case.” Id. at 1088 n. 12. In so Counsel’s applications their in on 2. stating, pointed the Board to the Ninth Cir Mining cuit’s decision Shattuck Denn The Board concluded Southwest (9th NLRB, Company v. 362 F.2d 466 Cir. establishing a failed to meet its burden of 1966), in which court concluded that: the nondiscriminatory basis for the treatment of rejected compa- the strikers. The Board the

If fact] trier of finds that the stated [the false, ny’s explanation poor fortune of discharge certainly the the motive for a he brevity former could be traced to the another motive. strikers can infer there is itself, that, one-day hiring process inferring can that the mo More than he infer employer designed instead that this tive is one the desires Southwest Board, course, Presumably, in the wake Collier- animus. The of decided this case of Greenwich ies, Collieries, longer appropriate to term the party it will no be neither before Greenwich mounting General burden that of Counsel's argued has that Greenwich Collieries should af- case; prima persuade his burden is to the analysis. fect our facie Board that the acted out of antiunion jobs, that no former strik- into the stores and for the hiring process to ensure pool. applicant explain why 1-day hiring it into the To calls ers even made these the conclusion, reasoned support process this composed resulted a work force entirely like this. employ- former no ees but strikers.” 313 N.L.R.B. at 622.9 First, that Southwest’s the Board noted depart- only hiring goals for the meat stated respect hiring With Southwest’s after “the best ment were to staff the stores with skeptical the Board was about “already productive people,” who were justification for its continued previously em- known and that had been failure to hire or consider strikers as new one-day, public ployed by us.” Southwest’s jobs opened up, noting that Southwest had special prior notice to hiring process, with no support not “offered [its] evidence to employees, Handy Andy’s experienced bore ‘many’ positions contention” “that of these goal no rational relation to its announced by converting part-time employ- filled good production rec- with status_ ... ees full-time Neither does past experience predeces- with the ords and positions it claim that all these were filled in Thus, deduced, company. sor manner.” 313 N.L.R.B. at 621. illicit company’s purpose real must be an one deterring applications from the former Concluding that the General “es- Counsel hiring proce- public because “the strikers: strong prima sup- tablished a facie case to stated [Southwest’s] dure is so antithetical port allegations that [Southwest] discrim- that, goals ... can conclude at least protected inated strikers their respect department, with to the meat activity” provided and that Southwest “has prevent or procedure was a sham intended to plausible no rationale for its course of ac- discourage filing tion,” the Board concluded that Southwest strikers.” 313 N.L.R.B. at 620. 8(a)(1) §§ violated N.L.R.B. Second, the Board looked to the actual one-day hiring

implementation of the not, fact, operate it did concluded III. Disoussion

neutrally vis-a-vis strikers and nonstrikers. hindered some former strikers A. Review Standard of entering applicant pool by denying Moreover, decision, applications. reviewing Board in- the Board’s them secretly uphold ferred that alerted incum- we must of the Board’s factual timely applications. findings supported by that are bent to file substantial evidence, 160(f), § and “[w]e The Board based this inference on the unex- see U.S.C. plained yet overwhelming to inferences rate of incumbent owe deference Inter timely who submitted drawn from these facts.” See Caterair tions, in contrast to the scarce numbers of national v. F.3d — denied, -, (D.C.Cir.), 115 among applicants. former strikers the The cert. U.S. (1994); disparity Avecor Board surmised from this that “the S.Ct. 130 L.Ed.2d (D.C.Cir. application procedure weighted ... to- Inc. v. 931 F.2d was denied, 1991), employees in predecessor’s ward the some cert. 502 U.S. S.Ct. Further, particular, “in- 116 L.Ed.2d 812 the manner.” determinations, credibility adopted of as fer[red] that some former the ALJ’s Board, binding “patently predecessor’s by the are unless were called Caterair, by in agents of and told about the without basis the record.” [Southwest] 1-day urged application procedure, to come F.3d at 1120. “agents testimony Schroat's and Tamez's that no notice [Southwest]”

9. The Board found that of did, one-day given to incumbents. The ALJ how- notified incumbent of the hir- the ever, ing process "second-guess "untruthful” in the conclude that Schroat was but declined to See, Decision, e.g., slip op. judge by finding ALJ that either Schroat or Tamez other matters. fact, (“I alleged do not credit Schroat’s basis was untruthful.” 313 N.L.R.B. at 622. Huerta.”). denying employment to Danmon the ALJ neither credited nor discredited fact, is, entirely regard consistent in that to the Board on Remand B. Issues the Wright Line framework: once with its case, court opinion in this this first In our to makes a ease General Counsel sufficient (1) it was explain whether Board to asked the of antiunion discrimina- support an inference employer holding as successor Southwest tion, the burden of dem- the bears re- obligation beyond that of any hiring onstrating it would have taken the same against appli- fraining discrimination from employees’ protected regardless of the action membership of their union the basis cants on case, activity—in that it would de- this have (2) it had inferred that activity, whether or the former strikers without clined hire incumbent secretly favored had participation in the regard to strike. their (3) so, why it not if had employees, Thus, within its discre- the Board acted well explanations for such a legitimate considered considering by only explana- alternative tion at 1360-61. The F.2d preference. by employer. actually advanced the tions of these concerns has addressed each Board decision on remand. its remand, respect to the causes of With First, regard to the theoretical under- with then, by satisfied the Board’s re- we are decision, initial it pinning the Board’s of sponse on first and third. the that, finding actual peared us instead ordering rein- discrimination antiunion C. Evidence Substantial might the ground, Board on that statement Remaining for an assess is the need opinion “upon an unarticu- its “rest[ed]” have there is substantial evidence ment whether spe- has a assumption that successor lated support Board’s inference South the employees of its obligation to favor the cial gave special consideration to incumbent west treat them all the predecessor, or at least to by anti- it was motivated because remand, way.” F.2d at 1360. On same vehemently dis union animus. Southwest acting that it was not the made clear Board putes Upon review inference. obligation of a heightened of a the basis record, however, we conclude that employ- new owner toward finding passes muster. to the General “look[ed] ees. Rather it [Southwest’s] Counsel' to demonstrate Board inferred that both the The by any strikers was motivated failure to 'hire hiring implementation of the design and the discriminatory intent.” 313 N.L.R.B. at 618. process discrimination. were motivated in this explicit its reliance The Board made Thus, it to have concluded that the appears inquiry: Wright case on the classic Line objec one-day process with the was devised hire former failed to whether Southwest entering preventing strikers fi*om tive of in an participation of their strikers because applicant pool. persuaded are not there We Handy Andy. strike economic enough evidence the record for Second, expressly inferred that Board to the inference that the con make weighted application pro- objective one-day hiring system scious employees. toward incumbent Whether cess prevent former strikers en was to inference, supports evidence this was, fact, tering pool. There applicant length at more below. discuss testimony purpose no direct one-day hiring process. Schroat Sim Third, response court’s con mons, supervisors, two of the Board had failed “to consider cern that plan did not themselves formulate the but explanations for the Em alternative obvious it, merely certainly informed of did did,” ployer’s as and whom speak purpose. said con to its Simmons he 1361, familiarity with at such as Southwest’s opportunity to process the to be “an incumbents, sidered explained it that nonproductive employees.” Tr. get rid of only “those and arguments consider would Tamez, 392. who was one officials justifications actually before placed business 7, designing process, for did not [Southwest],” responsible n. by us N.L.R.B. accept testify why period the time for familiarity” justification as to and “incumbent short; he ing applications was so nor among position was was not these. The Board’s truth, obtaining jobs February to. In was never strikers in asked Southwest on 2 and one-day pressed explain genesis to practice Southwest’s admitted notifying it process grocery and we think a stretch on this employees in they advance that to an illicit motive as the record infer animat- applications should day provides submit that ing purpose process. of that adequate an basis for the Board’s inference department employees that meat received inference, The Board’s second that special similar consideration. process, designed, for whatever reasons did despite operate neutrally, justified The Board was also in concluding protestation contrary, to the fares better. “special that this consideration” reflected an “weighted process The Board found the was antiunion animus. In the face of ALJ-credit- [current] toward testimony ed that five former strikers were in some manner.” 313 N.L.R.B. at 622. In- applications February by refused on super- deed, opinion, in our first we clued that “[t]he visors, Southwest has declined to offer might Board have inferred from evidence of explanation for this odd circumstance. It personal grocery employ- notification some resolutely by prior stands its assertion that ees, large and from the number of meat policy accept its applications was to hired, department incumbents some anyone during day, that fateful and that no department meat must incumbents also have department positions were filled until been called.” 943 F.2d at 1360. This time evening. challenge Its to the ALJ’s settled round, explic- the Board made that inference finding of fact these former strikers it, supported by and we believe it is substan- sought applications on the second of Febru- tial evidence the record as a whole. At ary convincing.10 is not seventy-seven least incumbent Similarly, advancing rather than a nondis- pass were able to the hurdles of the fact, criminatory reason for the as found process, only twenty- whereas seven of the Board, application process that the four former strikers found out about it in weighted employees, toward incumbent apply February time to on and one of simply Southwest has stood fast its denial them was allowed to submit her any preference. prior opinion As our application. grocery department hiring, not- ed, furthermore, employer might legitimate an well have Southwest officials acknowl- edged they directly preferring business reasons for notified and elicited incumbent applications tilting application process from incumbent Final- workers. ly, Thus, department none of employees.11 Simmons’s meat in- toward those had South- applications acknowledged cumbents submitted at their own west took action to store, likely place the most for them to insure that incumbent meat em- instructions, pear special suggesting ployees one-day absent application knew about the they may process preferred employees have been notified to submit because it overwhelming experience working together elsewhere. The recent “had success the incumbents contrast to the at the same stores” and were “familiar” to (in hopelessly self-contradictory.”) 10. Each of the five strikers testified that he incredible or sought omitted), on 1983. Before the punctuation ternal citation and denied, cert. again appeal, AU and 490 U.S. 109 S.Ct. testimony to discredit the of several of the strik L.Ed.2d 628 by arguing ers that the actual status of the store descrip 2 was different from their out, regard, points In this as the dissent (For example, tion. while several of for these “obligation Southwest had no to seek out the “open mer strikers stated that the store was employment,” Op. Diss. at strikers they applied, argued business" when asserting we do not be understand open only accept applications, the stores were obligation. an such Rather,' See 313 N.L.R.B. not, business”.) technically, eveiy and case, “for decision, we as read the the Board's dispute the ALJ resolved the in favor of the position duty had a not that Southwest striker, defer to that resolution as conclu notify jobs the strikers of otherwise seek sive. See Teamsters Local Union No. 171 v. —or duty deny (D.C.Cir.1988) them out—but that it had a not to reasons, discriminatory (“Board-approved credibility strikers notice for determinations of upheld deny an AU are entitled to be unless it did are so them in this case. 1344 one-day implemented the 943 F.2d at it that Southwest supervisors,

current discriminatory ways dissipating process in a manner and with gone have a toward would discriminatory by supported antiunion animus as the motive evi- inference of February happened enough un- for what dence substantial to sustain the motivation found, however, practice finding. As the Board fair labor anything like that: acknowledged never it argued had has never Remedy [Southwest] IV. prede- preference those at work on the On limitless occasions we have reit day; only that its criteria last cessor’s large measure of deference we erated previous employment prede- with the were remedy. “In owe to the Board’s selection of cessor, possessed, striker a credential each fashioning pro under the broad its remedies record, many of good a credential and a (29 10(c) § of the Act vision of U.S.C. possessed. the strikers 160(e)), § Board draws a fund of (emphasis original). N.L.R.B. at 619 own, knowledge expertise all its and its and past experi- avowed criteria of Southwest’s remedy given choice of must therefore be was, by good ence and a record Southwest’s special respect by reviewing NLRB courts.” admission, by at least some of the own met Co., Packing v. 395 U.S. 612 n. Gissel suggests no basis for distin- strikers and n. 89 S.Ct. L.Ed.2d employees and guishing between incumbent Caterair, 1120; (1969); 22 F.3d at see also then, Southwest, gave the former strikers. Avecor, Nevertheless, 931 F.2d at 928. “a nondiscrim- opportunity Board no to consider remedy proposed be tailored to the [must] weighting inatory for the reasons practice unfair labor it is intended to re plication More- process toward incumbents. dress,” Sure-Tan, Inc. v. 467 U.S. over, steadfast denial 883, 900, 104 2803,2813, S.Ct. 81 L.Ed.2d 732 advantages to the in- gave notice or other (1984), designed and must be to “restor[e] gives rise to an inference cumbents quo the economic status that would have Southwest has less than candid about been company’s wrongful [ac obtained but for the candor, process. its This lack tion],” Co., Mfg. NLRB v. J.H. Rutter-Rex turn, credibility to the contributes 258, 263, 417, 420, 396 U.S. S.Ct. Board’s inference of illicit antiunion motive. L.Ed.2d 405 discriminatory The Board’s inference of opinion, grant In its first gains support from the find

intent additional ed relief to all the former strikers —the time ing that refused to hire the two late, ly, grounds and non-filers alike —on the pre- applications for strikers who did submit that it would have been futile for the late- vague textual reasons. From Schroat’s non-filing attempt strikers to to make (1) shifting testimony whether the for about timely applications, system since the eligible post- for the mer strikers were even begin prior panel tainted to with. (2) so, vacancies, why they if opinion, questioned this rationale because selected, reasonably could weren’t the Board had found neither that Southwest explanations company’s infer that the action taken which would lead the pretextual illicit and shielded an motive. Cf. applying former strikers to believe that Allen, Inc., Ethan EEOC v. futile, would be nor that the strikers (2d Cir.1994) (under Age Discrimination in believed it to be futile. Act, Employment jury pretext can infer employer provides thus discrimination where remand, the Board its futili- On abandoned shifting explanations for and inconsistent its rationale, “while, ty agreeing that an ob- as action). jective matter, it would have been futile for sum, although apply, nothing we find the Board’s infer- there is little or designed one-day ence that Southwest to demonstrate that was the reason that application process disqualify in order to for- these former strikers did not or did not unsupported mer 2.” at 622. strikers from consideration do so on 313 N.L.R.B. evidence, original scope It maintained the we find inference nevertheless conclude that the late-filers —all of whom It does not elaborate order and relief. of its theory remedy, but sim- in the same month of any new for this that, respect timely to those who February ap “with have submitted ply “note[s]” —would February 2 ... [Southwest] ... after plications given if notice. Whether employees after is, course, hired 60 have hired another would been 2,” and, respect to those who February “with question, but itself has acknowl applied, ... the Union has made never “good edged prospects” there were for all strikers ... request for reinstatement strikers, and, among the once the General hired some [Southwest] persuaded the Board that Counsel has South departments application.” without other animus, by antiunion it is west was motivated at 622. N.L.R.B. Southwest that bears the burden of establish ing that would not have hired the former speculated possi- opinion first we In our strikers even absent this animus. this grounds for the Board’s ex- alternative ble has, date, regard, we note that Southwest backpay its reinstatement and tension of employability contested the of the two might Board remedy to the late-filers: applica former strikers who filed “implicitly upon [the late-filers’] have relied tions, and Huerta. cases similar Danmon pro- regarding application lack of notice the Board reinstatement for which orders them, granting relief to but we cedure” employees, explained a whole it has class specifically not noted that the Board had also policy employer that its is to allow the “the explanation and had not “ex- advanced this opportunity particular ... to show that em necessary finding— factual pressly made the ployees during are unsuitable rehire” prevented each that concealment is what compliance proceeding, and trust that the striker, attempt to other than those who did 2, policy this here. timely Board will follow Great February making from apply on NLRB, time, Corp. Lakes v. 967 F.2d This Chemical application.” 943 F.2d at 1362. 624, (D.C.Cir.1992); see also theory United although the Board is terse on the Union, Int’l underlying remedy,12 finding Food & Commercial Workers its NLRB, discriminatory prevent- conduct Local 152 v. 768 F.2d Southwest’s (D.C.Cir.1985) submitting timely ap- (remedy late-filers from of reinstatement ed the decision. In that allow the em plications implicit prior is its work force “would still decision, explicitly proceed infers that the ployer compliance in the course of discriminatorily ings any legitimate strikers were denied defenses in former to assert granted cases”); to the incumbent em- special Packing notice House and In individual preferential Serv., and that notice to ployees, dus. Inc. v. why (8th Cir.1978) (an 1- employees “explain[s]

incumbent “have n. 12 must day hiring process resulted in a work force recognized de opportunity an to assert all entirely predecessor’s for- composed compliance hearings”). Ac fenses related to no strikers.” mer but cordingly, we conclude that at this basis for the N.L.R.B. 622. Given remedy granting the its discretion in within discrimination, finding we can backpay to the late- of reinstatement and remedy “tailored to the think of no more timely appli filers as well as those who made practice it is intended to re- unfair labor cations. Sure-Tan, dress,” 467 U.S. at 104 S.Ct. however, conclude, there We remedy than that assumes that the remedy three to the no basis to extend given comparable former strikers had been applica who never submitted Acting on former strikers advance notice to the incumbents. they never filed reasonably tions at all.13 Since assumption, the Board could February hiring process Although "note[s]" that Southwest Board sixty employees hiring practice this ob- hired after thereafter. from its appear servation does not to be the basis for turn, We, rely are hesitant to remedial order. opinion three as identifies these 13. The Board’s posi- heavily filled too on the fact that Southwest Wendel, Walker, Roger Arria- Shirley and Alice because the Board’s infer- tions after fact, found ga. at 622. In the ALJ 313 N.L.R.B. largely derive ences of discrimination tions, learning Handy Andy’s upon of V. Conclusion even sale, no in record from there is basis finding The Board’s that dis- they to that would have filed which conclude against criminated former strikers on the they oppor- applications if had learned of the protected activity supported basis of their tunity February Though February on 2. deny substantial evidence. We South- already passed by the time deadline had petition except modify- west’s for review for sale, they likely of the fact did learned this ing apply the remedial order so as not to to late, not deter other strikers who filed extent, appli- non-filers. To that the Board’s already that the Board has concluded “there granted part cation for enforcement is nothing ... is little or to demonstrate that part. denied in apply” these former strikers did not because ordered. So they believed it would be futile.

N.L.R.B. at 622. SILBERMAN, Judge, concurring Circuit part dissenting part:

Instead, suggested that the Un- Stretching very to its limits that deference requests that all ion’s the former strikers be inferences, we owe the Board’s factual I November, 1992, reinstated —made in agree majority with the that the Board’s June, 1993—established Southwest’s finding concerning the six strikers who management knew these former strikers jobs plied February supportable. for on 2 is jobs,14 that, wanted and concluded absent I agree finding also the Board’s discrimination, sought Southwest would have one-day-only hiring technique Southwest’s strikers, gro- out these former as it did the “designed” to circumvent cery any incumbents. Without evidence supported by from strikers is not the record that Southwest hired meat evidence, general since the counsel failed department employees who had not submit- put any testimony point. directed to this however, applications, agree ted cannot general Nor did the counsel sustain his bur- with the Board “but for [Southwest’s] showing applied den of that the strikers who discriminatory plan, it would have hired subsequently during the month of they apply.” strikers even if did not against respect were ever discriminated with Thus, N.L.R.B. at 622. we conclude that applications, to their since no evidence was remedy extension of the to the three non- produced to show that there were vacancies authority filers exceeds the Board’s to “re- outside hires at the time those quo the economic stor[e] status that would majority tions were received. The does not company’s wrong- have obtained but for the opinion contrary rest its on a determination. Rutter-Rex, ful [action].” atU.S. majority The would instead affirm the S.Ct. at 420. finding of discrimination toas end, In the we enforce the Board’s order (but post-February applicants 2 striker granting backpay reinstatement and to the applied) theory as to those who never on the twenty-one attempted former strikers who legitimately inferred that jobs point February— at some Southwest had notified incumbent subject opportunity compli- to Southwest’s at about the notify date but did not so any legitimate ance to assert defenses to discriminatory the strikers —for reasons. hiring particular individuals than Dan- other According majority, to the if the strikers who deny mon and Huerta —but we enforcement eventually applied had known about the one- respect of the order with to the three day hiring period, they former would have applications. strikers who never rejected submitted and would have been Cabrera, Arriaga, request that it was Alice not Alice who the Union’s for reinstatement Decision, apply. slip op. never ALJ knowledge establish that Southwest had 5-6, interest, former strikers' not to establish le- gal duty part of Southwest. The Board has disavowed reliance on a suc- case, cessorship theory points in this and thus expertise, information known with or without based its The Board the others. as had among way being shared of this kind has a (quoted factual determination on its decision organization in an even hiring process was majority) that the by the (it management called wishes of is often employ- predecessor’s “weighted toward the scuttlebutt). ease, and the the ALJ “infer[ence] and its in some manner” ees testimony specifically credited the Board former some managers stated that by agents called department were preferential incum given had not notice to 1-day told about the Respondent and the hand, good a bent workers.* On the other into the urged to come application procedure, community who persons number of the jobs.” Maj. Op. at stores and employees including a were not incumbent added) (quoting 313 (emphasis — 1340-41 significant proportion of the strikers —man 622). N.L.R.B. aged gain information about Southwest’s however, Board, rely the did not The short, hiring plan. In that it came to be its discrimination majority’s logic to extend to most incumbents and others the known appli- 2 striker finding post-February to the community begin tak that Southwest would cants. It said that simply is not ing applications on department Respondent hired 60 meat the management that ever evidence Southwest’s February 2. No striker employees after anyone. deliberately notified respect to those hired. With Furthermore, pre- even if Southwest had had applied, note that the Union never we ferred incumbents to all nonineumbents for all request for reinstatement made a otherwise, through notification or that would strikers, Respondent knew thus the against not be evidence of discrimination for it. they all wanted to work that event, In that the qua strikers strikers. addition, Respondent’s policy was to the precisely as would have been treated strikers Finally, employees. experienced hire Only if the all other nonincumbents. were Respondent hired some em- that the note proposition a that it has Board had asserted departments without ployees in other owed a expressly disavowed—that Southwest However, it to extend plication. failed duty beyond the re- special to the strikers privilege to strikers. that in the same quirement that it treat them added). (emphasis at 622 313 N.L.R.B. nonstriker nonincum- manner as it treated words, essentially sticking Board is other the theory be a discrimination bents —could notwithstanding re- theory, our earlier to its company’s specifically failure based mand, obligation to the had an hiring. February 2 notify strikers of the the employment. The seek out the strikers position is difficulty with the Board’s The to do so as regards failure Board a never made out general counsel the Only of discrimination. the crucial evidence discrim that Southwest had prima case facie knowing would Southwest’s for this reason appli against post-February the inated willing to work matter. strikers were that the general ani Evidence of a antiunion cants. endorsing majority rightfully eschews The adequate to certainly by itself not mus is “reinterprets” the notion but instead any particular against discrimination show finding opinion to have made NLRB, Power, 40 F.3d Inc. v. employee. to no- discriminatorily declined company (D.C.Cir.1994); Synergy Gas 417-18 one-day hiring tify strikers as to the (D.C.Cir.1994) Corp. v. opportunity. Manage Transportation (citing NLRB v. 393, 395, 103 Corp., S.Ct. ment 462 U.S. that incumbent I it is a fair inference think (1983)). The burden 76 L.Ed.2d information than did superior nev- nonincumbents, defense therefore present an affirmative but as is well any all 1-day hiring process and we ployees before the *The Board stated: by finding second-guess judge will not testimony pertinent is that that the We find was untruthful. either Schroat or Tamez Respondent’s witnesses did not themselves or N.L.R.B. at 622. contact department em- of meat know of contact Compare Maj. Op. suspect er This is a difficult shifted Southwest. case—I because Board, drawing upon expertise, is murkiness of the at 1343-44. The record employer deliberately rather certain that this impreciseness which marks both and the something did to exclude strikers from new simply in this case reflect a Board decisions employment opportunities. I am no majority analyzes proof. failure of The unsympathetic means to the Board’s convic- finding question whether the Board’s of dis- I, too, strongly suspect tion. that Southwest against post-February crimination somehow did that which Board believes. applicants supportable as if it striker simply But there is not substantial evidence issue, to the Board’s remedial subordinate it, prove and neither the Board’s fixed finding of discrimination the Febru- determination, remand, notwithstanding our Maj. ary applicants. Op. at 1345. But See majority’s imaginative reading nor the approach simply work. The will gap. Board’s decision will fill the obliged Board is to find that Southwest dis- post-February appli- criminated applicants.

cants as well as the subsequent finding

And we must test just as we did for- evidence Power, Inc., Compare

mer. 40 F.3d at 417-

20; Gas, Synergy 19 F.3d at 651-53.

Case Details

Case Name: Southwest Merchandising Corporation, D/B/A Handy Andy, Inc. v. National Labor Relations Board

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jul 26, 1995

Citation: 53 F.3d 1334

Docket Number: 93-1859

Court Abbreviation: D.C. Cir.