N.L.R.B. v. Fes, a Div. Of Thermo Power

Decision Date08 August 2002
Docket NumberNo. 01-2267.,01-2267.
Citation301 F.3d 83
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. FES, (A DIVISION OF THERMO POWER), Respondent.
CourtU.S. Court of Appeals — Third Circuit

Aileen A. Armstrong, David A. Fleischer (argued), Fred L. Cornell, National Labor Relations Board, Washington, D.C., for Petitioner.

Thomas R. Davies (argued), Mark Featherman, Harmon & Davies, P.C., Lancaster, PA, for Respondent.

Dianah S. Leventhal, Francis J. Martorana (argued), O'Donoghue & O'Donoghue, Washington, D.C., for Intervenor.

BEFORE: BECKER, Chief Judge, McKEE and BARRY, Circuit Judges.

OPINION OF THE COURT

BECKER, Chief Judge.

FES, a company that manufactures industrial refrigeration equipment, has petitioned for review of an order of the National Labor Relations Board ("the Board") determining that FES violated §§ 8(a)(1) and 8(a)(3) of the National Labor Relations Act ("NLRA") by refusing to hire nine job applicants due to their union membership. The challenged order required FES to offer each applicant instatement and back pay. The Board has cross-petitioned for enforcement. FES raises a host of procedural and substantive challenges to the Board's decision. The central issues, however, are whether sufficient evidence supported: (1) the Board's finding that anti-union animus contributed to FES's decision not to hire the union applicants; and (2) its finding that FES failed to establish, as an affirmative defense, that the disparity between the union applicants' previous wages and the lower wages offered by FES would have led FES to reject the union applicants regardless of the alleged animus. We conclude that the Board's findings on these points are supported by substantial evidence on the record as a whole, and hence we will deny FES's petition for review and grant the Board's cross-petition for enforcement.

I.

FES is a division of Thermo Power Corporation and has an office and manufacturing facility in York, Pennsylvania. On February 4, 1996, FES ran an advertisement in a local newspaper seeking welders and pipe fitters. Shortly thereafter, Terry Peck, a business agent for Plumbers and Pipefitters Local Union 520, and five unemployed journeymen members of Local 520 applied in person for employment with FES as welders. They wore union hats and union jackets when they filed their employment applications, and videotaped the process.

FES again ran help-wanted ads for welders in March of 1996. After seeing these ads, Peck, along with three other union members, again applied for a job at FES. On April 1, 1996, Chip Roche, FES's Vice President, was quoted in a local newspaper as saying that FES was having trouble finding workers, especially welders, in the York area, and that as a result, FES might have to build a new plant out of state. After Peck read the news story, he telephoned Roche, and according to Peck:

[W]e spoke briefly and I tried to explain to Mr. Roche how we have a common interest being that he needs journeymen pipefitters and welders and we have that type of individual available for employment. And we spoke shortly and he said he was not interested in the union or what the union could do for him or his company.

FES did not contact any of the union applicants or offer them positions. Roche testified that he did not hire the union applicants because they would not be a "good fit" for the Company. According to Roche, to determine an applicant's fit, FES considered the completeness of the application, the applicant's skills and experience, the stability of the applicant's employment history, and the compatibility of the applicant's wage history with the wages offered by FES.

Roche explained that the reason for the wage compatibility criterion was to address the problem of employee turnover — "if you hire people ... at wages that are substantially under the wages that they made at previous jobs, [they] do not tend to stay, so it increases our risk of losing an employee after we train them." As an example, Roche cited FES's hiring of several welders who had been laid off from York International, which paid higher wages than FES. According to Roche, after FES had invested considerable time and money training these employees, FES lost them when they were recalled to their higher paying jobs with York.

Roche testified that FES did not interview or make offers to any of the union applicants because most of them had not completely filled out the applications, left gaps in their employment history or had unstable employment histories, and had been making higher wages than FES paid. In particular, the union applicants all made more than $22 per hour at their previous jobs, and FES's top wage scale for welders and pipefitters was less than $17 per hour. Roche admitted, however, that except for Peck, who had not worked as a welder since 1992, the union applicants possessed the skills and experience that FES was seeking.

In particular, FES advertised that its "ideal candidate will be certified to build Pressure Vessels per ASME Section VIII and/or have experience building Carbon Steel Piping Systems per ANSI B31.5." Peck testified that the union applicants possessed the skills and experience that FES sought, and Roche confirmed that the non-union welders who were hired were less skilled than the union applicants. Roche admitted that some of the (non-union) applicants who were hired also had gaps in their employment histories and blanks in their application forms. Roche related that the wage compatibility criterion had been used to disqualify non-union applicants, but could not provide specific examples and did not know if FES would have the records to provide such examples.

The union filed an unfair labor practice charge, and the Administrative Law Judge (ALJ), after holding a trial, found that FES had refused to consider the union applicants on the basis of their union affiliation in violation of §§ 8(a)(1) and 8(a)(3) of the NLRA. See FES, 331 N.L.R.B. 9, 34 (2000) [hereinafter FES I]. Noting that the record was insufficient to determine whether FES would have actually hired any of the applicants had it considered them on a nondiscriminatory basis, id. at 34 n. 8, the ALJ stated that if at the compliance stage of the proceeding it was shown that FES would have hired any of the nine union applicants in the absence of its discriminatory refusal to consider those applicants would be entitled to back pay and instatement in positions substantially equivalent to those for which they would have been hired initially. Id. at 34.

On appeal, the Board affirmed the ALJ's finding that FES had unlawfully refused to consider the union applicants on the basis of their union membership. See FES I at 17. The Board held, however, that the ALJ had improperly decided to wait until the compliance stage to determine whether each of the nine union applicants would have actually been hired absent anti-union animus. Id. The Board therefore remanded the case to the ALJ.

On remand, the ALJ found that the nine union applicants would have been hired but for anti-union animus, and ordered back pay and instatement for each applicant. A three-member panel of the Board, in a brief opinion, adopted the ALJ's order. See FES, 333 N.L.R.B. No. 8, 2000-01 NLRB Dec. (CCH) ¶ 15, 682 (Jan. 19, 2001) [hereinafter FES II]. The Board petitioned for enforcement of its order, and FES cross-petitioned for review. We have jurisdiction pursuant to § 10(e) of the NLRA, 29 U.S.C. § 160(e).

II.

Section 8(a)(3) of the NLRA, 29 U.S.C. § 158(a)(3), makes it an unfair labor practice for an employer "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization." In FES I, the Board articulated the following framework for determining whether an employer has violated § 8(a)(3) by refusing to hire a job applicant on the basis of the applicant's union affiliation:

To establish a discriminatory refusal to hire, the General Counsel must ... first show the following at the hearing on the merits: (1) that the respondent was hiring, or had concrete plans to hire, at the time of the alleged unlawful conduct; (2) that the applicants had experience or training relevant to the announced or generally known requirements of the positions for hire, or in the alternative, that the employer has not adhered uniformly to such requirements, or that the requirements were themselves pretextual or were applied as a pretext for discrimination; and (3) that antiunion animus contributed to the decision not to hire the applicants. Once this is established, the burden will shift to the respondent to show that it would not have hired the applicants even in the absence of their union activity or affiliation.

FES I at 12 (footnotes omitted). FES argues that, under this standard, there was insufficient evidence to support the Board's finding that FES unlawfully refused to hire the nine applicants on the basis of their union affiliation.

We review the Board's findings of fact under a deferential standard. "The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive." NLRA § 10(e), 29 U.S.C. § 160(e). A finding of fact is supported by substantial evidence on the record as a whole if "it would have been possible for a reasonable jury to reach the Board's conclusion." Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 366-67, 118 S.Ct. 818, 139 L.Ed.2d 797 (1998).

A.

FES argues that the Board's finding that anti-union animus contributed to FES's decision not to hire the union applicants is unsupported by substantial evidence on the record. The ALJ, whose findings the Board adopted, relied on both direct and indirect evidence that anti-union animus contributed to the decision not to hire the applicants.

The indirect evidence...

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