Be & K Construction Company, Petitioner-cross-respondent, v. National Labor Relations Board, Respondent-cross-petitioner, 133 F.3d 1372 (11th Cir. 1997)

In this labor case, BE & K Construction Company ("BE & K") petitions for review and the National Labor Relations Board ("Board") cross-petitions for enforcement of an order of the Board¹ , which adopted with modification the findings, rulings, and conclusions of the Administrative Law Judge (ALJ) that BE & K had violated sections 8(a) (3)²  and 8(a) (1)³  of the National Labor Relations Act (the "Act"). BE & K asks this court to vacate the Board's modified order, arguing that the ALJ's and the Board's finding of unlawful anti-union animus is not supported by substantial evidence and is contrary to existing Board and case law. The Board cross-petitions for enforcement of its order. We conclude that the section 8(a) (1) and 8(a) (3) violations found by the ALJ and the Board are not supported by substantial evidence. Accordingly, we deny enforcement.

BE & K is a general contractor engaged in construction at various sites throughout the United States, including a job site at a lumber mill operated by Champion International in the town of Canton, North Carolina. Operating under a merit shop policy, BE & K hires both independent craft workers and union-affiliated craft workers and is not a signatory to any collective bargaining agreement with any labor organization. BE & K, through company president T.C. Kennedy, has explained at some length the nature of its merit shop policy in its "Foremen's Informational Manual," describing the role and duties of the foreman at a construction site.⁴ 

The charges in this case relate to the hiring practices of BE & K for a major modernization project at the Champion mill in Canton. In the fall of 1990, BE & K began hiring employees, including electricians, pipe welders, and pipefitters, to work on the modernization of the Champion mill. During an eight month period, BE & K received approximately 14,000 applications for approximately 3,500 to 4,000 openings on the Canton project. BE & K conducted no interviews during the hiring process; all of the hiring decisions were based solely on the written job applications submitted to the company. Personnel Manager Brenda Criddle, who reviewed the applications, was in charge of the hiring of hourly employees for the Canton project.⁵  Pursuant to company policy, prospective employees were required to apply individually, rather than with a group, and in person. As such, BE & K rejected by letter the "batched" applications sent to the company by the local International Brotherhood of Electrical Workers ("IBEW") and the local United Association of Plumbers and Pipefitters ("Plumbers Union").⁶  Such "batched" applications consisted of a letter by the union business agent enclosing a group of applications.

The section 8(a)1 and 8(a) (3) charges at issue here stem not from the rejection by BE & K of the "batched" applications, but from the alleged discriminatory hiring practices of BE & K in failing to consider for hire ten applicants who made clear on their applications their union affiliations,⁷  and by refusing to hire three of these ten for positions for which they were qualified.⁸  The ALJ and the Board determined that section 8(a) (3) and 8(a) (1) violations did, in fact, occur, and ordered a remedy which would attempt to make the discriminatees whole. BE & K petitions this court to set aside this order and the Board cross-petitions for enforcement of this order.

BE & K petitions that this court set aside the order of the Board, arguing that the finding of discriminatory hiring practices with regard to the ten applicants is not supported by substantial evidence in this record. As such, there is no proper basis for the 8(a) (3) and 8(a) (1) violations. We agree with the petitioner.

While we must give proper deference to the orders of the Board, this court will not simply act as its enforcement arm. See Ona Corp. v. NLRB, 729 F.2d 713, 719 (1984). "It is our responsibility to examine carefully both the Board's findings and its reasoning, to assure that the Board has considered the factors which are relevant to its choice of remedy and has chosen a remedy that effectuates the purposes of the Act." Id. Given the special expertise of the Board in the field of labor relations, we will accept the Board's factual determinations and reasonable inferences derived from these factual determinations if they are supported by substantial evidence on the record considered as a whole. See Weather Tamer, Inc. v. NLRB, 676 F.2d 483, 487 (11th Cir. 1982); see also Universal Camera Corp. v. NLRB, 340 U.S. 474, 491, 71 S. Ct. 456, 466, 95 L. Ed. 456 (1951). "Substantial evidence is more than a mere scintilla. It means such evidence as a reasonable mind might accept as adequate to support a conclusion." Florida Steel Corp. v. NLRB, 587 F.2d 735, 745 (5th Cir. 1979) (citations omitted).

After careful review of the record, and after close analysis of the order of the Board and the opinion of the ALJ, we find the record devoid of substantial evidence which might support the 8(a) (1) and 8(a) (3) charges lodged against BE & K. The record makes abundantly clear that the primary, and perhaps sole, evidence of anti-union animus on the part of BE & K was inferred by the Board from the lawful and protected expressions of BE & K in its foreman's manual and in its letters rejecting the "batched" application submitted by the IBEW and the Plumbers' Union.⁹ 

The Board, in agreement with the ALJ, found that BE & K violated sections 8(a) (3) and 8(a) (1) of the Act by refusing to consider for hire ten qualified job applicants who made their union affiliations clear on their job applications, and by refusing to hire three of those individuals. In order for the Board to establish a prima facie case for discriminatory refusal to hire, the Board must prove that a substantial or motivating factor in the company's rejection of the applicant was the applicant's union affiliation. See Wright Line, a Div. of Wright Line, Inc., 251 N.L.R.B. 1083 (1980), enfd., 662 F.2d 899 (1st Cir. 1981), and approved by the Supreme Court in NLRB v. Transp. Management Corp., 462 U.S. 393, 103 S. Ct. 2469, 76 L. Ed. 2d 667 (1983). In doing so, the Board must establish that the employer harbored animus toward the applicant because of his or her union affiliation. See Purolator Armored, Inc. v. NLRB, 764 F.2d 1423, 1429 (11th Cir. 1985). We find that in the proceedings before the ALJ and before the Board, the NLRB failed to establish a prima facie case of discriminatory refusal to hire, where the evidence relied on by the NLRB to prove the crucial element of animus consisted of nothing more than the lawful, noncoercive statements by BE & K of BE & K's merit shop policy.¹⁰ 

When BE & K communicated its opinion regarding the advantages of its merit shop status, and when BE & K spoke of its desire to keep unions from successfully organizing its construction projects, it was exercising its rights of employer expression, guaranteed by section 8(c) of the National Labor Relations Act and by the First Amendment to the Constitution. Section 8(c) unequivocally provides:

The expressing of any views, arguments, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.

29 U.S.C. § 158(c) (emphasis added). The Supreme Court, in NLRB v. Gissel Packing Co., 395 U.S. 575, 617, 89 S. Ct. 1918, 1941, 23 L. Ed. 2d 547 (1969), stated that section 8(c) "merely implements the First Amendment." See Florida Steel, 587 F.2d at 752. The dissemination by BE & K of its foreman's manual to its foremen and the distribution of the letters to the IBEW and the Plumbers' Union were expressions by BE & K of its views and opinions regarding the virtues of its merit shop policy and of BE & K's desire to strictly adhere to that policy. Neither the manual nor the letters were coercive; neither contained threats of reprisal or force or promises of benefit. This statute, section 8(c), clearly states that such language by the employer "shall not constitute or be evidence of an unfair labor practice." In inferring anti-union animus from the lawful communications by BE & K of its merit shop policy, the Board violated the express and mandatory provisions of the National Labor Relations Act. See Florida Steel, 587 F.2d at 752.

We do not doubt that BE & K desires to keep its workplace union-free. This is the very essence of its merit shop policy. But we will not allow the Board to punish an employer simply because that employer is anti-union. "It is fundamental that the Board has no authority to punish a company because it is against a union. Any company has a perfect right to be opposed to a union, and such opposition is not an unfair labor practice." Florida Steel, 587 F.2d at 753. "A finding of unlawful motivation cannot be based solely on the anti-union stance of an employer...." Weather Tamer, 676 F.2d at 492. Given that there is no evidence of antiunion animus in the record other than BE & K's lawful expressions of its anti-union stance, we hold that no substantial evidence exists to support the Board's finding that BE & K participated in discriminatory hiring practices in violation of Sections 8(a) (3) and 8(a) (1) of the Act. Accordingly, the remedy proposed by the Board which relates to such a finding will not be enforced.

ENFORCEMENT DENIED.