Petition by National Labor Relations Board for enforcement of hiring, back pay and bargaining order. 214 N.L.R.B. 338. Granted in part, denied in part.
Kaufman, Chief Judge, Friendly and Smith, Circuit Judges. Friendly, Circuit Judge, concurring and dissenting.
On October 25, 1974, a three-member panel of the National Labor Relations Board, acting upon the recommendation of Administrative Law Judge Eugene E. Dixon, issued a cease and desist and affirmative action order against Bausch & Lomb, Inc. of Rochester, New York, 214 NLRB 338, pursuant to § 10(c) of the National Labor Relations Act, codified as 29 U.S.C. § 160(c).*fn1
The Board's order in this particular case imposes two major obligations upon Bausch & Lomb. First, Bausch & Lomb is required to bargain with the International Union of Operating Engineers, Local 71-71A, AFL-CIO, as the exclusive representative of certain Bausch & Lomb employees in Rochester, New York. Second, the order requires Bausch & Lomb to offer employment at its North Goodman Street plant in Rochester to three of the union's members who had previously worked in the North Goodman Street building before it had been purchased for Bausch & Lomb.
The Board found that Bausch & Lomb had, by its failure to hire these three union members, violated three provisions of the National Labor Relations Act: § 8(a)(3) which forbids an employer, such as Bausch & Lomb, to refuse to hire workers because of their union membership, § 8(a)(5) which forbids an employer to refuse to bargain with the union that represents his employees, and § 8(a)(1) which forbids an employer to interfere with his employees' right to unionize. 29 U.S.C. §§ 158(a) (1), (3) and (5).
The case is presently before this court on the Board's petition for enforcement under § 10(e) of the National Labor Relations Act. 29 U.S.C. § 160(e).*fn2 In opposition, Bausch & Lomb contends that there is insufficient evidence to support the finding that Bausch & Lomb committed unfair labor practices. In the alternative, Bausch & Lomb contends that, assuming such abuses did occur, the remedy provided in the Board's order is legally inappropriate.
For the reasons stated below, we find that Bausch & Lomb did violate §§ 8(a)(3) and (1) through its refusal to hire certain persons because of their union affiliation. However, we reverse the Board's determination that Bausch & Lomb violated § 8(a)(5). Accordingly, we enforce that part of the Board's order which requires Bausch & Lomb to offer employment and back pay to the three union members which Bausch & Lomb illegally refused to hire. However, we do not enforce the Board's bargaining order.
On December 17, 1973, Bausch & Lomb acquired the use of an industrial building located at 1400 North Goodman Street, Rochester, New York. This building had previously belonged to General Dynamics Corporation, a firm which used the North Goodman Street plant for the manufacture of electrical equipment designed for military aircraft. When General Dynamics discontinued its production of this equipment, it began negotiating with Bausch & Lomb for the sale of the North Goodman Street building which, to General Dynamics, had become surplus property. The building was eventually purchased by the New York State Urban Development Corporation for the use of Bausch & Lomb in its business, the manufacture and sale of ophthalmic devices.
When General Dynamics owned the North Goodman Street plant, the boiler room and heating system of the building were run by four persons who belonged to the International Union of Operating Engineers, Local 71-71A, AFL-CIO (hereinafter the Engineers Union). After Bausch & Lomb acquired the building from General Dynamics, only one of these four, Bernard Simpson, chief engineer of the boiler room, was offered employment with Bausch & Lomb. In this capacity, Simpson was to continue his supervision of the boiler and heating system at the North Goodman Street building. All four of General Dynamics' former boiler room employees (including Simpson) now work for employers other than Bausch & Lomb.
Administrative Law Judge Dixon, after a two-day hearing in Rochester on April 30 and May 1, 1974, concluded that Bausch & Lomb's failure to hire the three non-supervisory boiler room employees had violated §§ 8(a)(1), (3) and (5). The crux of Judge Dixon's decision was his finding that Bausch & Lomb refused to hire the three boiler room workers because of their union membership.
A three-member panel of the NLRB affirmed Judge Dixon's factual findings and adopted his recommendations as to the appropriate remedy, to wit, an order against Bausch & Lomb requiring it (1) to bargain with the Engineers Union and (2) to offer the three former boiler room employees an opportunity to return to the positions they had held under General Dynamics at the North Goodman Street building. In connection with this job offer, Bausch & Lomb is required to furnish back pay to the three workers not hired.
Section 8(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 . . . ." 29 U.S.C. § 158(a)(3). It is well established that an employer violates § 8(a)(3) when he refuses to hire an individual because of that individual's union affiliation. See, e.g., NLRB v. New England Tank Industries, Inc., 302 F.2d 273, 275 (1st Cir. 1962); NLRB v. Foodway of El Paso, 496 F.2d 117 (5th Cir. 1974). However, the mere failure to hire a union member does not, by itself, violate § 8(a)(3). Crotona Service Corp., 200 NLRB 738 (1972). The requirements of § 8(a)(3) are transgressed only when the employer who refuses to hire is motivated by an anti-union animus. Anti-union intent on the part of the employer is a necessary element of a § 8(a)(3) violation. If the failure to hire a union member results from legitimate business considerations or is otherwise free of anti-union animus, there is no § 8(a)(3) violation. NLRB v. George J. Roberts & Sons, Inc., 451 F.2d 941 (2d Cir. 1971) at 947.
Thus, Bausch & Lomb's liability under § 8(a)(3) depends, ultimately, on the factual question of the motivation behind Bausch & Lomb's refusal to hire the three non-supervisory boiler room workers, who had run the North Goodman Street heating system for General Dynamics. The Board found, as a matter of fact, that Bausch & Lomb's failure to hire was motivated by opposition to the union to which the three workers belonged. Bausch & Lomb maintains here, as it did in the administrative proceedings below, that its failure to hire was motivated by legitimate business considerations - not anti-union animus - and that, accordingly, no § 8(a)(3) violation occurred.
The finding by Judge Dixon and the NLRB that Bausch & Lomb acted with illegal anti-union motivation rested on four basic facts. First was a statement allegedly made by Ellis Faro, Bausch & Lomb's director of employment and compensation, to boiler room supervisor Simpson to the effect that Simpson's three co-workers at the North Goodman Street boiler room would not be hired because of their union affiliation. This statement, testified to by Simpson, served to establish an explicit anti-union motivation behind the actions of the Bausch & Lomb management.
Second was the fact that the three unionized employees who were not hired had extensive experience and expertise with the North Goodman Street boiler system. The fact that the workers were competent, qualified and experienced and that Bausch & Lomb chose to let them go anyway created an inference of ulterior motive, i.e., anti-union animus, on the part of management.
Third was Bausch & Lomb's decision to hire a temporary consultant to train its new employees in the operation and maintenance of the North Goodman Street boiler. Since the consultant was hired to train the new boiler room employees, it is logical to infer that Bausch & Lomb deliberately hired or transferred unqualified individuals who needed on-the-job education while it simultaneously refused to hire the three union members who already knew how to run the boiler as a result of their earlier experience under General Dynamics. Bausch & Lomb's decision to utilize inexperienced people in need of training rather than continue the employment of the veteran workers reinforced the inference of ulterior motive, i.e., an intent to keep the Engineers Union out of North Goodman Street.
Finally, the Judge and the NLRB based their finding of anti-union animus upon the fact that Bausch & Lomb failed to give alternative employment to the boiler room employees even though such employment had been promised and even though Bausch & Lomb was hiring other people "off the street" for these alternative positions. The refusal to hire the ex-boilermen in any capacity (Bausch & Lomb's promises notwithstanding) was taken to indicate a firm determination to keep these three unionists out of any employment with Bausch & Lomb.
Bausch & Lomb argues here, as it did below, that this evidence is insufficient to prove the anti-union animus required for a § 8(a)(3) violation. Bausch & Lomb points to Faro's denial of the anti-union comment attributed to him, and to a company policy of internal promotion which dictated that the non-supervisory boilermen be replaced with persons already in the employ of Bausch & Lomb. In addition, Bausch & Lomb maintains that it was the three unionists (rather than the company) who failed to follow through on the alternate Bausch & Lomb job offer.
It is not our task to assess the facts of this case de novo. Rather, we are required to determine if the factual findings of the Judge and Board are "supported by substantial evidence on the record considered as a whole." 29 U.S.C. § 160(e). We conclude that sufficient evidence does ...