Progressive Electric, Inc. v. National Labor Relations Board
Opinion of the Court
Progressive Electric, Inc. (“Progressive”) petitions for review of the National Labor Relations Board (“the Board”) decision and order finding that Progressive violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (“the Act”), 29 U.S.C. § 158(a)(1), (3). The Board concluded that Progressive committed unfair labor practices by (1) threatening employees with job loss and facility closure on account of union activities and (2) failing to consider and hire a group of union members. Finding substantial evidence, we deny the petition for review and grant the Board’s cross-application for enforcement.
I
Progressive, located in Lincoln, Nebraska, is a non-union electrical contractor in the construction business. Over a decade ago, the International Brotherhood of Electrical Workers, Local 265 (“the Union”) targeted Progressive for organizational purposes. Progressive did not go quietly.
A
In February 1996, Progressive advertised in the local paper that it was “accepting applications” for “eleetrician/technician,” and directed interested parties to Progressive’s physical address. At the behest of the Union, David Cousins responded to the ad in order to organize Progressive. During the application process Cousins did not reveal his Union affilia
On March 29, pursuant to a decision by the Union’s executive board, eight union journeymen electricians (“the Union Applicants”) went as a group to Progressive’s office to apply for jobs.
When the Union Applicants entered Progressive’s office and stated their desire to apply for employment, Neeman told them:
You guys, we are not hiring. We are not taking no [sic] applications. We advertised three [or] four weeks ago. We hired a couple of people and filled the spots. So I would love to put you all on and as soon as I get an opening I will give you guys a call.
The Union Applicants provided Neeman with a letter stating they wished to be considered for employment and listing their names and contact information. As soon as the Union Applicants left, Neeman threw away the information. Neeman later admitted that he never intended to call the Union Applicants, but only made that statement to get them to leave. On April 2, Progressive posted the following notice in its window: “Applications, as well as Names are not being accepted at this time. Video Cameras and recording devices are prohibited. Sales Reps, by appointment only.”
On April 8, Don Hildreth, a Progressive foreman, told Cousins and one other employee that Neeman had called Randall the “bad apple in the barrel, and [Neeman] didn’t want any union crap around here.” Hildreth continued: “[I]f the Unions got into Progressive, ... Progressive would lose [certain] contracts, and [Progressive] would go out of business ... because [Progressive] couldn’t afford the Union wages and benefits.” On April 26, Randall walked off of a job site and announced that he was on strike because he was not being paid union wages.
On May 1, Neeman held a company meeting. Just before it began, Neeman informed Randall that when Randall had walked off the job five days earlier it was not a “strike” but instead a “voluntary quit.” Randall, now out of a job, was directed to leave. Shortly thereafter, Nee-man addressed the remaining employees, commented on Randall’s “recruiting” efforts, and stated that Randall was trying “to cost all you guys your jobs ... and
Alright ... I’ve been quiet up ’til now, which is strange for me I know and because I had to get a lot of legal advi[c]e before I could open my mouth. But now that we know what we’re talking about[,] we’re gonna talk about this dirty word ... UNION ... okay! Let’s talk about unions. Are we for it, Bill and I? NO! Are you guys for it[?] I don’t want to know.... I can’t ask ya, but I can give ya my opinion on it.
Neeman’s presentation was punctuated by pirrases such as “Mr. Asshole Union Rep.” (describing a hypothetical union member) and “bunch of dummies” (describing union members in general). At some point in the presentation Neeman wrote the word “union” on the board, drew a circle around it, and put a slash through it. Perhaps in an effort to soften the edges, Neeman also made, statements to convey ambivalence toward union activities, such as: “[Randall] didn’t lose his job, for the record, because of some organization.] ... Far as I know, half you guys are with some organization and I don’t care.”
Progressive subsequently filled a number of positions, using various means. On May 27, 1996, Steve Baumli became a Progressive employee doing ladder rack work; he had been performing work for Progressive on a temporary basis (via a temp agency) for a couple of months. No job vacancy was advertised for this position. On May 31 and June 13, Progressive placed ads indicating that positions were available for ladder rack installers. As a result of these ads, Progressive hired three ladder rack installers in the month of June. Each of the ads provided a specific mailing address (a P.O. Box) for job-seekers to submit their information and indicated applications would be accepted for a set number of days. These “blind” advertisements, unlike ones Progressive previously used, did not provide any identifying information (such as Progressive’s name, physical address, or phone number). In January and March of 1997, Progressive placed three ads for apprentice electricians each of which provided job seekers with Progressive’s physical address. As a result, Progressive hired two individuals on January 27, 1997, and one more on March 10,1997.
At no point from March 1996 to March 1997 was any Union Applicant contacted or offered employment, even though the Union Applicants were qualified for all seven positions described above.
B
On August 9, 1996, the Union filed an unfair labor practice charge with the Board and amended it on September 18. On September 30, the Board’s General Counsel issued a complaint alleging various violations of Sections 8(a)(1) and 8(a)(3) of the Act. The complaint was amended on May 13, 1997, and the case was tried before an administrative law judge (“ALJ”) from June 30 to July 3, 1997. On November 18, 1997, the ALJ found, in relevant part, that Progressive committed unfair labor practices by threatening employees with plant closure (on April 8,1996) and job loss (on May 1,1996) and by refusing to consider and hire the Union Applicants. On August 23, 2000, at the Board’s direction, the ALJ issued a supplemental decision in light of FES (A Division of Thermo Power) (“FES ”), 331 N.L.R.B. 9, 2000 WL 627640 (2000). Over four and a half years later, the Board largely upheld the ALJ’s decision, albeit with some modification. Progressive Elec., Inc., 344 N.L.R.B. No. 52, 2005 WL 762117 (Mar. 31, 2005). The Board, agreeing with the ALJ, found that Progressive violated Section 8(a)(1) by “threatening the loss of employment if employees engaged in union activities and by threatening to close its facility,” and violated Sections 8(a)(3) and 8(a)(1) by “refusing to consider [the Union Applicants] for employment, and by failing and refusing to hire them, because of their union affiliation.” Id. at *1.
II
Our role here is a limited one, as the Board’s factual findings are “conclusive” if “supported by substantial evidence on the record considered as a whole.” 29 U.S.C. § 160(e)-(f). In making that determination, “we ask only whether on this record it would have been possible for a reasonable jury to reach the Board’s conclusion[s], giving substantial deference to the inferences drawn by the [Board] from the facts.” Ceridian Corp. v. NLRB, 435 F.3d 352, 357 (D.C.Cir. 2006) (internal quotation marks and citation omitted); see Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 366-67, 118 S.Ct. 818, 139 L.Ed.2d 797 (1998). So long as the Board’s findings are reasonable, we will not substitute our own judgment even if we would have come to a different conclusion in the first instance. Laro Maint. Corp. v. NLRB, 56 F.3d 224, 229 (D.C.Cir. 1995).
III
We turn first to Progressive’s threats. According to Progressive, substantial evidence is lacking for the Board’s conclusion that Progressive violated Section 8(a)(1) of the Act by threatening employees with loss of employment and plant closure on account of protected activity. We take a different view.
While “an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union,” such communications must not “contain a ‘threat of reprisal or force or promise of benefit.’ ” NLRB v. Gissel Packing Co., 395 U.S. 575, 618, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969) (quoting 29 U.S.C. § 158(c)); see Federated Logistics & Operations v. NLRB, 400 F.3d 920, 924 (D.C.Cir. 2005). As relevant to the present case, Section 8(a)(1) prohibits coercive statements that threaten employees with job loss or plant closure in retaliation for protected union activities. See Tasty Baking, 254 F.3d at 124; Teamsters Local Union No. 171 v. NLRB, 863 F.2d 946, 952-53 (D.C.Cir. 1988); Tom Rice Buick, Pontiac & GMC Truck, Inc., 334 N.L.R.B. 785, 792 (2001). We “must recognize the Board’s competence in the first instance to judge the impact of utterances made in the context of the employer-employee relationship.” Gissel Packing, 395 U.S. at 620, 89 S.Ct. 1918; see Ark Las Vegas Rest. Corp. v. NLRB, 334 F.3d 99, 106 (D.C.Cir. 2003); Timsco, Inc. v. NLRB, 819 F.2d 1173,1178 (D.C.Cir. 1987) (“[T]he line between prediction and threat is a thin one, and in the field of labor relations that line is to be determined by context and the expertise of the Board.”).
A
Progressive first challenges the Board’s finding that, at the company meeting on May 1, 1996, Neeman unlawfully coerced employees by threatening their jobs, in violation of Section 8(a)(1). As previously described, shortly after informing Randall he no longer had a job at Progressive, Neeman told the remaining employees assembled for the meeting that Randall’s actions were going to “cost all you guys your jobs ... and that’s why we have to put a stop to it.” Neeman went on to offer his thoughts about that “dirty word ... UNION,” sprinkling in various colorful epithets; his hostility was palpable throughout the meeting.
We are persuaded that there is substantial evidence for the Board to reasonably discern impermissible coercion. See, e.g., Timsco, 819 F.2d at 1178 (upholding a Board determination that an interrogation of a non-union member was coercive based on the employer’s statement that “union organizers were ‘going to screw up a lot of jobs for a lot of people’ ”); see also United Food & Commercial Workers Union Local 20L -447 F.3d 821, 825 (D.C.Cir. 2006) (“[A]n employer’s statement that union support would ‘cause trouble’ can put an employee in a ‘defensive posture’ and be unduly coercive under the right circum
B
Progressive next challenges the finding that it violated Section 8(a)(1) by virtue of Hildreth’s April 8, 1996 statements threatening facility closure. Progressive’s opening gambit — that Hildreth’s statements did not violate the Act because they were simply an opinion protected by Section 8(c), 29 U.S.C. § 158(c)
Progressive’s followup salvo — that Hildreth was not its agent — also misfires. The Board applies common law principles of agency when assigning liability under the Act. Overnite Transp. Co. v. NLRB, 140 F.3d 259, 265 (D.C.Cir. 1998). Even if the “specific acts performed” have not been “actually authorized or subsequently ratified,” 29 U.S.C. § 152(13), the employer will be bound by an individual having “apparent authority.” Overnite Transp., 140 F.3d at 265-66. As we have explained:
“Apparent authority” exists where the principal engages in conduct that “reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him.” For there to be apparent authority, however, the third party must not only believe that the individual acts on behalf of the principal but, in addition, “either the principal must intend to cause the third person to believe that the agent is authorized to act for him, or he should realize that his conduct is likely to create such belief.”
Id. at 266 (quoting Restatement (Second) of Agency § 27 & cmt. a (1992)).
The Board finds apparent authority for an individual’s actions, such as threatening retaliation for union activities, when the individual is placed “in a position where employees could reasonably believe that he
The ALJ explained that Hildreth’s statements were attributable to Progressive because
[w]hen Cousins began working for [Progressive], Randy Neeman assigned Cousins to work with Hildreth whom Randy Neeman described as “running a few jobs for him.” Randy Neeman told Cousins that if Cousins had any questions, he should ask Hildreth. Randy Neeman described Hildreth’s duties as overseeing the projects. This manifestation by [Progressive] to employees created a reasonable basis for employees to believe that Hildreth was reflecting company policy and speaking for [Progressive].
Progressive Elec., 344 N.L.R.B. No. 52, 2005 WL 762117, at *11 (citing GM Elees., 323 N.L.R.B. at 128); see also Petitioner’s Br. at 6 (acknowledging Hildreth was a “job foreman”). We have little difficulty concluding this is sufficient. Although there was some evidence to the contrary, the Board permissibly found a reasonable employee could believe from Neeman’s actions that Hildreth spoke on behalf of management on April 8,1996.
IV
Next we examine the Board’s conclusion that Progressive violated Sections 8(a)(3) and 8(a)(1) of the Act by failing to consider and hire the Union Applicants because of their union affiliation. Progressive contends this finding is not supported by substantial evidence. We disagree.
Under Section 8(a)(3), it is “an unfair labor practice for an employer ... by discrimination in regard to hire or tenure of employment ... to encourage or discourage membership in any labor organization.” 29 U.S.C. § 158(a)(3). An employer violates this provision, and in turn Section 8(a)(1), by refusing to consider or hire job applicants on account of their union affiliation. Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 185-87, 61 S.Ct. 845, 85 L.Ed. 1271 (1941); Sw. Merck Corp. v. NLRB, 943 F.2d 1354, 1359 (D.C.CÜ-. 1991); FES, 331 N.L.R.B. at 12, enforced, 301 F.3d 83 (3d Cir. 2002). This protection extends even to applicants that are union “salts,” or union members sent in “ostensibly to obtain employment but with the objective of inducing union organization.” Contractors’ Labor Pool, 323 F.3d at 1055, 1060; see NLRB v. Town & Country Elec., Inc., 516 U.S. 85, 87, 116 S.Ct. 450, 133 L.Ed.2d 371 (1995); Casino Ready Mix, Inc. v. NLRB, 321 F.3d 1190, 1197 (D.C.Cir. 2003). We are, however, mindful that Congress “did not intend to make unlawful all acts that might have the
To establish violations of Section 8(a)(3) in an antiunion animus case such as this, the General Counsel, per the Board’s two-step Wright Line framework, has the initial burden to show that the “protected activity was a motivating factor in the adverse employment decision.” Int’l Union of Operating Eng’rs, Local b70 v. NLRB, 350 F.3d 105, 110 (D.C.Cir. 2003) (internal quotation marks and citation omitted); see Wright Line, 251 N.L.R.B. 1083, 1980 WL 12312 (1980), enforced, 662 F.2d 899 (1st Cir. 1981). More specifically, under the Board’s test for refusal-to-hire violations, the General Counsel must establish:
(1) that the [employer] 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.
FES, 331 N.L.R.B. at 12 (refining the Wright Line framework) (footnotes omitted). Similarly, under the Board’s test for refusal-to-consider violations, the General Counsel must show “(1) that the [employer] excluded applicants from a hiring process; and (2) that antiunion animus contributed to the decision not to consider the applicants for employment.” Id. at 15;
A
Progressive first argues that substantial evidence is lacking to support the General Counsel’s case because the Union Applicants were not applying during a time when Progressive was hiring. Although the ALJ found no evidence that Progressive was hiring on March 29, 1996, Progressive’s argument misses the import of the Board’s decision. By virtue of Nee-man’s deliberate misrepresentation and the events of the following year, the Board found an “overall scheme” of refusing to consider and hire the Union Applicants. Progressive Elec., 344 N.L.R.B. No. 52, 2005 WL 762117, at *1 n. 3. Given that several suitable positions opened up and were filled over that period, there were
The Board’s finding is reasonable. On March 29, 1996, after Neeman accepted a sheet containing the Union Applicants’ information, he lied to them, assuring them he would call them “as soon as [there is] an opening” when in fact he had no such intention. In the ALJ’s words, this falsehood had the “effect of luring the applicants into complacency.” Progressive Elec., 344 N.L.R.B. No. 52, 2005 WL 762117, at *14; cf. Commercial Erectors, Inc., 342 N.L.R.B. No. 94, 2004 WL 1967543, at *7 (Aug. 31, 2004) (explaining that applicants “reasonably would have [been] dissuaded ... from coming to the site frequently” where employer assured them he would call them after calling others on employer’s “master list”). The Board also pointed to various events over the course of the subsequent year, including the appearance of the notice in the window; the multiple Union letters, which Progressive received via fax but refused via certified mail; the decision to use blind advertisements; and the failure to hire the Union Applicants to any of the seven suitable positions that became available. While we doubt any of these actions — ■ including the initial misrepresentation— would be independently sufficient, the Board reasonably found they were collectively “part and parcel of [Progressive’s] overall scheme to refuse to consider and hire” the Union Applicants. Progressive Elec., 344 N.L.R.B. No. 52, 2005 WL 762117, at *1 n. 3.
Progressive’s proffer of a 45-day application period is also unavailing, regardless of whether it normally employed such a retention policy. Having deliberately sought to divert the Union Applicants from its normal hiring process, Progressive cannot now take refuge therein. Nothing in Neeman’s statements on March 29, 1996, would have alerted the Union Applicants of an expiration date or of the need to take further action. See Fluor Daniel, 332 F.3d at 970 (noting that the Board found the employer “failed to advise the discriminatees that the period for which their application would be valid had changed” and that the “applications themselves lacked such notification”); Commercial Erectors, 342 N.L.R.B. No. 94, 2004 WL 1967543, at *6 (finding that employer, having promised to call when something opened up, failed to tell applicants they needed to take further affirmative steps to comply with employer’s gate hiring policy). Nor did Progressive respond to the various follow-up letters that expressed the Union Applicants’ continuing interest in employment and asked that Neeman inform them if any further efforts were needed for them to be considered. It was not until April 4, 1997, that Progressive came clean and informed the Union Applicants they actually were not being — and had never been- — considered.
Contrary to Progressive’s suggestion, the Board nowhere indicates that employers must favor union applicants. See Phelps Dodge, 313 U.S. at 186, 61 S.Ct. 845. We readily acknowledge that the Board is not authorized to function as a “ubiquitous ‘personnel manager,’ ” and, indeed, “[i]t is well recognized that an em
B
Whether there is sufficient evidence to conclude Progressive was motivated by antiunion animus is a closer question. “Motive is a question of fact, and the [Board] may rely on both direct and circumstantial evidence to establish an employer’s motive, considering such factors as the employer’s knowledge of the employee’s union activities, the employer’s hostility toward the union, and the timing of the employer’s action.” Power, Inc. v. NLRB, 40 F.3d 409, 418 (D.C.Cir. 1994). “[0]ur review of the Board’s motive determinations, including inferences of improper motive drawn from the evidence, is especially deferential.” Cadbury Beverages, Inc. v. NLRB, 160 F.3d 24, 31 (D.C.Cir. 1998); see Citizens Inv. Servs. Corp. v. NLRB, 430 F.3d 1195, 1198 (D.C.Cir. 2005); Vincent Indus. Plastics, Inc. v. NLRB, 209 F.3d 727, 734 (D.C.Cir. 2000).
There are, of course, limits to our deference. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Epilepsy Found, of Ne. Oh., 268 F.3d at 1103. For example, in TIC, we held that a “showing of animus requires greater proof than a single comment by a supervisor to the effect that the company preferred to hire non-union personnel” and that “[t]he mere fact that the [employer] knew the applications were from Union applicants does not show animus.” 126 F.3d at 338; see also Detroit Newspaper Agency, 435 F.3d at 310; BE & K Constr. Co. v. NLRB, 133 F.3d 1372, 1376 (11th Cir. 1997) (“[W]e will not allow the Board to punish an employer simply because that employer is anti-union.”). We also noted that a prohibited motive will not be inferred “where job applicants fail to follow regularly applied, facially neutral application procedures.” TIC, 126 F.3d at 338.
C
Finally, Progressive argues that, even if the General Counsel’s initial showing was sufficient, Progressive met its burden to demonstrate it would not have considered or hired the Union Applicants even in the absence of their union affiliation. Progressive advances three defenses: (1) the Union Applicants were overqualified;
As the Board correctly observes, the first two arguments rest on the “unremarkable proposition that an employer can apply neutral criteria and hiring procedures to job applicants without regard to union affiliation.” Respondent’s Br. at 42; see, e.g., Dalton Roofing Serv., 344 N.L.R.B. No. 108, 2005 WL 1492881, at *4 (employer can use wage history as neutral factor in determining whether applicants are overqualified); Bay Control Sens., 315 N.L.R.B. at 30 (employer had policy of rejecting overqualified applicants); Wire-ways, Inc., 309 N.L.R.B. 245, 245-53, 1992 WL 301639 (1992) (employer gave preference to applicants whose desired wages were comparable to its budgeted wages); Willmar Elec. Sen. Inc., 303 N.L.R.B. 245, 246 n. 2, 1991 WL 135226 (1991) (“An employer may ... lawfully refuse to hire a statutorily protected employee applicant ... on the basis of a nondiscriminatory policy against hiring any individual who ... applies while working for another employer .... ”), enforced, 968 F.2d 1327 (D.C.Cir. 1992). We reject Progressive’s first defense, as Progressive makes no effort to show it actually had a policy of rejecting overqualified applicants. In any case, the ALJ discredited Neeman’s testimony that Progressive had such a policy and we are offered no basis for upsetting that determination. Cf. TIC, 126 F.3d at 334 (“Where a company has consistently followed neutral guidelines, and does so in the case in question, it has met its burden of showing it would have refused to consider applications that deviated from the normal procedure.”). And contrary to Pro-' gressive’s suggestion, there is no indication the Union Applicants were unwilling to accept positions beneath their skill level, having expressed a general interest in being “considered for employment.” Progressive’s second defense — that it has a policy of not hiring competitors’ employees — is not properly before us, having not
Progressive’s third defense — that the Union Applicants “who came to [Progressive] armed with a video camera were not involved in an activity that was protected by the Act because they were not truly seeking employment,” Petitioner’s Br. at 21 — also falls short.
In raising the Union Applicants’ bona fides as a defense, Progressive marshals only an ALJ opinion that has been specifically disavowed in relevant part by the Board. See W.D.D.W. Commercial Sys. & Invs., Inc., 335 N.L.R.B. 260, 263-65, 2001 WL 1011927 (2001), enforced in relevant part sub nom. Contractors’ Labor Pool, 323 F.3d at 1060-61; accord A. Montano Elec., 335 N.L.R.B. 612, 614 & nn. 9-10, 2001 WL 1022056 (2001). Equally curious is Progressive’s passing citation to a Sixth Circuit opinion that was superseded by a subsequent opinion. See NLRB v. Fluor Daniel, Inc., 102 F.3d 818, 832 (6th Cir. 1996), superseded by 161 F.3d 953 (6th Cir. 1998). We are underwhelmed.
Although Progressive might find it unpalatable that applicants furthering their own agenda without regard for Progressive’s well-being stand on equal footing with job seekers who are just seeking jobs, the Board does not perceive anything problematic per se with a salting effort that involves a group of union members (often called “batch applicants”) arriving en masse with a video camera and pursuing employment. See, e.g., Heiliger Elec. Corp., 325 N.L.R.B. 966, 967, 1998 WL 352372 (1998) (“Such group activity normally enjoys the full protection of the Act.”); Braun Elec. Co., 324 N.L.R.B. 1, 3, 1997 WL 416472 (1997) (“[Vjisiting the [employer’s] office to present employment applications, videotaping the employment application encounter, and filing an unfair labor practice charge ... constitutes protected activity”).
It is true the Board has recognized that, under certain circumstances, an employer
The Board has also previously found that where “the overall environment created by the applicants” in attempting to gain employment was “sufficiently intimidating and disrespectful,” an employer is “privilege[d] ... to not hire” them. Heiliger Elec. Corp., 325 N.L.R.B. at 966 n. 3. In Heiliger Electric, for example, the Board determined that an employer was justified in refusing to hire applicants who refused to leave when asked, refused to stop videotaping when asked, and videotaped personal and private papers on the employer’s desk. Id. at 968, 1998 WL 352372. In the present case, the Board reasonably declined to find any such disruption. See Commercial Erectors, Inc., 342 N.L.R.B. No. 94, 2004 WL 1967543, at *7 & n. 9 (finding applicants “at no time engaged in disruptive, intimidating, or disrespectful behavior,” and distinguishing Heiliger Electric). Indeed, at no point did Nee-man ask the Union Applicants to leave or to stop recording.
In short, Progressive offers us insufficient reason to disturb the Board’s findings as to the refusal-to-hire and refusal-to-consider violations.
V
For the foregoing reasons, we deny Progressive’s petition for review and grant the Board’s cross-application for enforcement.
So ordered.
. The Union Applicants were seven members of the Union and one member of an affiliated union.
. On April 28, 1996, Progressive placed a blind ad for an HVAC/Energy management system installer, a position requiring higher qualifications than any of the Union Applicants possessed. Jeriy Hiestand filled that position on May 17, 1996.
. The Board, however, rejected the ALJ's decision insofar as it found several additional unfair labor practices.
. There is no suggestion that Randall's termination was itself a violation of the Act.
. This provision, which “merely implements the First Amendment,” Gissel Packing, 395 U.S. at 617, 89 S.Ct. 1918, states that “[t]he expressing of any views, argument, 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 ... if such expression contains no threat of reprisal or force or promise of benefit." 29 U.S.C. § 158(c).
. The Board has not asserted that Hildreth is a statutory supervisor under 29 U.S.C. § 152(11).
. The Third Circuit, in upholding the Board's FES decision, found it unnecessary to reach the employer's argument that "the Board’s refusal to consider doctrine ... is an impermissible interpretation of § 8(a)(3) of the Act.” FES, 301 F.3d at 96 n. 7. But cf. Fluor Daniel, Inc. v. NLRB, 332 F.3d 961, 975 (6th Cir. 2003) ("[T]he standard set forth in FES for ‘refusal-to-consider’ claims, as applied in this case by the [Board] ..., is in conflict with our caselaw."). In the present case, Progressive has not challenged the Board's interpretation of the Act, see Petitioner's Br. at 23 (quoting Board’s refusal-to-consider test), focusing instead on whether there is substantial evidence to uphold the Board’s factual findings.
. While the passage of time might at some point make it unreasonable for the Board to discern an "overall scheme” from a series of attenuated events, the Board reasonably took a different view in this case given the totality of the circumstances.
. Compare Commercial Erectors, 342 N.L.R.B. No. 94, 2004 WL 1967543, at *6-7 (finding violation based on actions of job supervisor where he "was in complete charge of hiring"), with Brown & Root Indus. Servs., 337 N.L.R.B. 619, 619, 2002 WL 1267991 (2002) (finding no improper motivation where there was no "nexus" between the employer's hiring decision and the statements of a "supervisory foreman" who "had no role in processing” the applications in question).
. See Int'l Union of Operating Eng’rs, Local 147, 294 F.3d at 190 (where employer "falsely told each of the applicants ‘there was no work available' rather than telling them they were locked out,” Board could infer from this "misrepresentation” that employer had "unlawful motive”); Commercial Erectors, 342 N.L.R.B. No. 94, 2004 WL 1967543, at *5 (basing animus on, inter alia, employer's “promise[ ] to call [job seekers] ... as soon as he had opening” but where he "never had any intention of hiring them”); cf. Sw. Merch., 943 F.2d at 1362. To be sure, while the Board might well have seen Neeman's actions on March 29 as little more than an innocuous attempt to rid the office of unwanted guests, the Board reasonably thought otherwise.
. See Power, 40 F.3d at 418.
. See Power, 40 F.3d at 418 ("[T]he Board was entitled to rely on [a company official's] anti-union statements as evidence of anti-union motivation, even though [his] statements, made in private conversations to [the office manager], were not themselves unlawful.”); John W. Hancock, Jr., Inc., 337 N.L.R.B. 1223, 1224 n. 8 (2002) ("Under extant Board law ... noncoercive statements may, in limited circumstances, be used as evidence of an unfair labor practice.”), enforced, 73 Fed. Appx. 617 (4th Cir. 2003) (unpublished); Tualatin Elec., Inc., 319 N.L.R.B. 1237, 1239, 1241 (1995) (owner evinced "deep hostility” toward union, calling it "organized crime”); see also United Food & Commercial Workers, 447 F.3d at 825 (holding that stating "I'm just tired of this Union shit and I'm ready to get my company back where it belongfs]” two days before firing a union election observer "exhibits powerful antiunion animus”). But see Brown & Root, Inc. v. NLRB, 333 F.3d 628, 639 n. 7 (5th Cir. 2003) ("A lawful statement of a lawful position does not in itself allow inference that one is willing to enforce that position through illegal means.”).
. See Commercial Erectors, 342 N.L.R.B. No. 94, 2004 WL 1967543, at *5.
. Progressive does not argue in its petition that the Union Applicants were under qualified for any of the positions — except for the HVAC position, which the Board acknowledged would not have been suitable for any of them. Progressive Elec., 344 N.L.R.B. No. 52, 2005 WL 762117, at* In. 2.
. Insofar as Progressive also raises this issue to argue that it was not improperly motivated in declining to hire and consider the Union Applicants, and that they are not even "employees” within the meaning of the Act in the first place, it is equally unavailing.
. In Heiliger Elec, and Braun Elec., the Board did not find the videotaping itself to be a protected activity. Heiliger Elec., 325 N.L.R.B. at 966 n. 3; Braun Elec., 324 N.L.R.B. at 3 n. 4.
Reference
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- PROGRESSIVE ELECTRIC, INC. v. NATIONAL LABOR RELATIONS BOARD, International Brotherhood of Electrical Workers Local 265, Intervenor
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