Tidewater Construction Corp.

National Labor Relations Board - Board Decisions

Mar 17, 2004

341 N.L.R.B. 456 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 456
Tidewater Construction Corp. and International Un-
ion of Operating Engineers, Local No. 147 a/w
International Union of Operating Engineers,
AFL–CIO. Case 5–CA–25463
March 17, 2004
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On May 2, 2001, the National Labor Relations Board,
by a three-member panel,1 issued a decision in this pro-
ceeding, finding that the Respondent did not violate Sec-
tion 8(a)(3) and (1) of the Act by refusing to consider
hiring certain former employees as temporary replace-
ments during a lockout. 333 NLRB 1264. The Board,
therefore, dismissed the complaint in its entirety. Mem-
ber Liebman dissented.
The Union filed a petition for review with the United
States Court of Appeals for the District of Columbia Cir-
cuit. On July 9, 2002, the court vacated the Board’s de-
cision, and remanded the case to the Board for further
proceedings consistent with its opinion. International
Union of Operating Engineers v. NLRB, 294 F.3d 186.
By letter dated November 22, 2002, the Board notified
the parties that it had accepted the remand and invited the
parties to file statements of position. The Respondent,
the General Counsel, and the Union filed statements of
position.
The Board, by a three-member panel, has reconsidered
this case in light of the court’s remand and the parties’
statements of positions. For the reasons discussed below,
we have decided to reverse the Board’s original decision
and find the 8(a)(3) and (1) violation as alleged.
The relevant facts may be summarized briefly. The
Respondent is a construction industry employer whose
operating engineer employees selected the Union as their
collective-bargaining representative in an election con-
ducted by the Board in March 1994.
Collective-bargaining negotiations began immediately
after the Union was certified, but reached impasse by
October 1994, and resulted in an economic strike. The
strike lasted until December 1994 when the Union of-
fered unconditionally, on behalf of 25 named strikers, to
return to work. The Respondent declined the Union’s
offer and imposed a lockout of unit employees pending
the Union’s acceptance of the final contract offer that the
Respondent had submitted to the Union prior to the
strike.
The Respondent composed a list of individuals not to
be hired during the lockout. The list included the names

1 Chairman Truesdale and Members Liebman and Hurtgen.
of the 25 strikers for whom the Union had made an un-
conditional offer to return to work. It was the Union’s
understanding that these 25 strikers were the only indi-
viduals being locked out. “Unbeknownst to the Union,
however,” the lockout list also included “all the employ-
ees [on the Excelsior list] who were eligible to vote in
the representation election conducted 9 months ear-
lier . . . .” 333 NLRB at 1268.2 There is no dispute that
all those on the lockout list were known by the Respon-
dent to be members of the Union.
The Respondent asserted during the unfair labor prac-
tice hearing that its lockout list contained only the names
of the 25 strikers and those on the Excelsior list. By the
end of the hearing, however, the Respondent conceded
that the lockout list contained the names of 16 additional
individuals who were neither strikers nor named on the
Excelsior list. The Respondent proffered several reasons
for the inclusion of some of these names on the lockout
list, but, ultimately, was unable to explain the inclusion
of 10 of the 16 additional names.
During the lockout, the Respondent placed classified
advertisements in local newspapers seeking applicants
for employment. The Respondent hired 40 unit replace-
ment employees, none of whom were on the lockout list
or were known by the Respondent as members of the
Union at the time they were hired. One of those hired,
however, was Terry Williams, a business representative
of the Union. Approximately 2 days after reporting to
work, Williams was recognized by one of the Respon-
dent’s job superintendents, who asked Williams whether
he was the “only one that slipped through the cracks.”3
Among those who applied for work in response to the
job advertisements were six union members whose
names were on the Excelsior list and, hence, on the lock-
out list.4 The Respondent told them there was no work
available and refused to consider them for employment.
They were not told that their inclusion on the lockout list
was the reason they were not being considered for hire.
In its original decision, the Board dismissed the com-
plaint allegation that the lockout was unlawful and that
the Respondent violated Section 8(a)(3) and (1) by refus-
ing to consider for employment the six union members
on the Excelsior and lockout lists who applied for work.
In agreement with the judge, a Board majority rejected
the argument that the lockout was unlawful insofar as it
2 An Excelsior list is a list of employees eligible to vote in a repre-
sentation election conducted by the Board. Excelsior Underwear, 156
NLRB 1236, 1239–1240 (1966).
3 Steven Corbett was the only other union member who was hired
during the lockout, but it is undisputed that the Respondent did not
become aware of his union status until after he was hired.
4 The six applicants were Clarence Ellers, DeAnn Roche, Donald
Savage, George Stapleford, Ronald Thompson, and Bruce Trauger.
341 NLRB No. 55
TIDEWATER CONSTRUCTION CORP. 457
extended beyond the 25 current employees who struck,
to encompass former employees on the Excelsior list,
including the six job applicants. The Board majority
found that, although the Respondent knew that everyone
on the Excelsior list was a union member, having hired
them from the Union’s hiring hall, the Respondent did
not lock them out for the unlawful reason that they were
union members but, rather, for the lawful reason that
they reasonably could be considered bargaining unit
members who supported the Union’s bargaining position.
Accordingly, in concluding that the six job applicants
were lawfully locked out, rather than denied considera-
tion for employment in violation of Section 8(a)(3), the
Board majority stated that it could “not join . . . dissent-
ing colleague [Member Liebman] in finding that the Re-
spondent’s lockout of those on the [Excelsior] list re-
veal[ed] a discriminatory antiunion purpose rather than a
legitimate purpose of pressuring the Union and those
who support it to accept the Respondent’s terms for a
collective-bargaining agreement.” 333 NLRB at 1265.
In dissent, Member Liebman would have found that
the Respondent’s extension of the lockout to all of its
former employees on the Excelsior list “went well be-
yond bringing legitimate economic pressure to bear in
support of its bargaining demands . . . [and, thus] failed
to establish that its conduct had a legitimate business
justification.” 333 NLRB at 1266. Because, in her view,
the evidence also demonstrated that the inclusion of the
six applicants in the lockout was motivated by antiunion
considerations, i.e., “the applicants’ membership in and
perceived support for the Union,” Member Liebman
would have found that the Respondent’s refusal to con-
sider the six applicants for employment violated Section
8(a)(3) and (1). Id. at 1267.
In vacating the Board’s decision, the D.C. Circuit
“h[e]ld that the Board failed adequately to explain why
evidence presented by the Union did not demonstrate that
[Respondent] had unlawfully refused to consider the ap-
plicants due to antiunion animus.” Operating Engineers
v. NLRB, supra, 294 F.3d at 187. The court found that,
“[i]n particular, the Board failed adequately to consider
three indications that [Respondent] was motivated by
antiunion animus.” Id. at 189. “First,” the court agreed
with the Union that the “Board unreasonably disregarded
[Respondent’s] inability to explain why 10 of the 16 in-
dividuals who were neither strikers nor on the Excelsior
list were included on the lockout list.” Noting that the
Board’s justification for refusing to infer union animus
from this failed explanation was because there was no
evidence that the 10 were union members or applied for
employment, the court stated that:
[w]hether the 10 applied for employment, however, is
irrelevant to whether their unexplained inclusion on the
list bespeaks antiunion animus. Indeed, it is also irrele-
vant whether they were actually members of the Union,
so long as [Respondent] thought they were. [Id. at
189–190.]
“Second,” the court noted that the Respondent “falsely
told each of the applicants ‘there was no work available’
rather than telling them that they were locked out, as it
now claims they were.” Id. at 190. Citing Board prece-
dent which would support an inference that the Respon-
dent’s false statements concealed an unlawful motive, the
court questioned why the Board did not find that the Re-
spondent’s “misrepresentation” constituted evidence of
union animus. Id.
Finally, the court found that the Board failed to explain
adequately why the Respondent’s lockout of everyone on
the “outdated” 10-month old Excelsior list did not also
evidence union animus. 294 F.3d at 191. In this regard,
the court pointed out that the Respondent knew that eve-
ryone on that outdated list was a union member and que-
ried why the Board did not “require the use of an updated
list” that was compiled closer in time to the lockout. Id.
DISCUSSION
This case involves a lockout in response to union ef-
forts to obtain a contract. Notwithstanding the lockout,
the Respondent hired some employees. The issue is
whether the Respondent, in refusing to consider hiring
certain job applicants, was motivated by union animus.
As the D.C. Circuit explained in another lockout case:
An employer does not violate section 8(a)(3) every
time it acts in a manner that may affect union activity.
Rather, an employer’s action violates section 8(a)(3)
only if it acts specifically with the intent or purpose of
encouraging or discouraging union membership. Thus,
“a finding of a violation under this section will nor-
mally turn on the employer’s motivation.”
International Paper Co. v. NLRB, 115 F.3d 1045, 1048
(1997), citing American Ship Bldg. v. NLRB, 380 U.S. 300,
311 (1965).
In NLRB v. Great Dane Trailers, 388 U.S. 26 (1967),
the Supreme Court articulated guidelines for assessing
employer motivation in the context of asserted 8(a)(3)
violations. Specifically, the Court explained that there
are two categories of discriminatory conduct which, de-
pending on the nature of their impact on employee rights,
require a different analysis in assessing employer moti-
vation.
First, if it can reasonably be concluded that the em-
ployer’s discriminatory conduct was “inherently de-
structive” of important employee rights, no proof of an

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 458
antiunion motivation is needed and the Board can find
an unfair labor practice even if the employer introduces
evidence that the conduct was motivated by business
considerations. Second, if the adverse effect of the dis-
criminatory conduct on employee rights is “compara-
tively slight,” an antiunion motivation must be proved
to sustain the charge if the employer has come forward
with evidence of legitimate and substantial business
justifications for the conduct.
NLRB v. Great Dane Trailers, 388 U.S. at 34 (emphasis in
original).
In her dissenting opinion in the Board’s original deci-
sion, Member Liebman analyzed the Respondent’s con-
duct under the “comparatively slight” prong of the
Court’s Great Dane analysis. For the purpose of our
analysis, we too shall treat the Respondent’s conduct as
having a comparatively slight impact on employee rights.
As the Court made clear in Great Dane, an employer
whose conduct has a comparatively slight impact on em-
ployee rights can avoid liability under Section 8(a)(3) if
it comes forward with a “legitimate and substantial busi-
ness justification []” for its actions. 388 U.S. at 34. But
even if the employer meets this threshold burden, a viola-
tion will still be found if the evidence establishes that the
employer acted with antiunion motivation. Id. As the
D.C. Circuit explained in International Paper Co. v.
NLRB, supra, 115 F.3d 1052 at fns. 5 and 6, “[i]f an em-
ployer commits a violation with comparatively slight
effects but produces evidence of a substantial and busi-
ness justification it may yet violate section 8(a)(3) if
there is ‘an affirmative showing of improper motiva-
tion.’”
As described above, the court in this case held that the
“Board failed adequately to consider three indications
that [Respondent] was motivated by antiunion animus.”
294 F.3d at 189. Accordingly, under the “comparatively
slight” Great Dane analysis, we shall assume, arguendo,
that the Respondent satisfied its business justification
defense for failing to consider the six job applicants for
employment during the lockout, and proceed directly to
the question whether an 8(a)(3) violation nonetheless
should be found based on the indicators of possible anti-
union animus cited by the court.
Having reconsidered the case in light of the court’s de-
cision, we find that the Respondent’s treatment of the six
job applicants was unlawful. In finding the violation, we
assume arguendo that the Respondent could lock out
employees on the basis of their being in the unit, and that
those employees on the Respondent’s Excelsior list fell
within that category. However, as discussed below, the
Respondent’s lockout and refusal to consider the six job
applicants for employment was on the basis of their un-
ion membership, a protected activity that is not necessar-
ily congruent with unit membership. We therefore con-
clude that the Respondent’s conduct was motivated by
animus toward union members. Chief among our rea-
sons for this conclusion is the second indicator of the
Respondent’s possible union animus discussed by the
court—the false statements made to the six when they
applied for work that they would not be hired because of
a lack of available jobs. The court questioned why,
“[f]rom this misrepresentation,” the Board declined, even
though it could have legally done so, to infer an unlawful
motive by the Respondent. We make that inference now.
The Board has long applied the maxim, first articulated
by the Ninth Circuit in Shattuck Denn Mining Corp. v.
NLRB, 362 F.2d 466 (1966), and adopted by the Board in
Wright Line, 251 NLRB 1083, 1088 fn. 12 (1980), enfd.
662 F.2d 899 (1st Cir. 1981) that:
If [a trier of fact] finds that the stated motive for a dis-
charge is false, he certainly can infer that there is an-
other motive. More than that, he can infer that the mo-
tive is one that the employer desires to conceal—an
unlawful motive—at least where . . . the surrounding
facts tend to reinforce that inference.
Shattuck Denn, 362 F.2d at 470. By definition, an em-
ployer’s proffer of a lawful, but false, reason for an alleged
act of Section 8(a)(3) discrimination constitutes evidence
that the proffered lawful reason was pretextual, i.e. it either
did not exist or was not, in fact, relied upon, thereby permit-
ting the Shattuck Denn inference that the employer was
shielding an illicit motive. Limestone Apparel Corp., 255
NLRB 722 (1981); LaGloria Oil & Gas Co., 337 NLRB
1120, 1124 (2002). Applying this principle here, we infer
from the Respondent’s pretextual claim of job unavailabil-
ity, at a time when it was considering and hiring other appli-
cants, that it was attempting to conceal that union animus—
specifically, the union membership of the six job applicants
—was its true motivation in refusing to consider them for
employment.5
The best evidence supporting this inference lies, as in
Shattuck Denn, in “surrounding facts,” particularly the
first evidentiary factor pointed out by the court as possi-
bly “bespeak[ing] antiunion animus,” i.e., the unex-
plained inclusion of 10 individuals on the Respondent’s
lockout list who were neither strikers nor on the Excel-
sior list. 294 F.3d at 189. The judge in the underlying
Board decision found that the Respondent, after “numer-

5 We note that by citing Property Resources Corp., 863 F.2d 964,
967 (D.C. Cir. 1988), the D.C. Circuit in this case specifically endorsed
the principle of Shattuck Denn. See 294 F.3d at 190. See also South-
west Merchandising Corp. v. NLRB, 53 F.3d 1334 (D.C. Cir. 1995),
approving application of Shattuck Denn in cases, as here, alleging a
refusal-to-consider violation.

TIDEWATER CONSTRUCTION CORP. 459
ous shifts in position,” never provided a “credible” rea-
son for the inclusion of the 10 in the lockout list and
stated that he “might on that basis be inclined to find a
violation.” 333 NLRB at 1269–1270. He declined to do
so, however, because “there was no proof that the 10
were all Union members [or] . . . applied for employ-
ment.” Id. at 1270.
We agree with the court, however, that what really
“counts” is not whether the 10 applied for work or were
“actually members of the Union” but, rather, whether the
Respondent “thought they were.” 294 F.3d at 190. That
would bespeak union membership as the factor motivat-
ing the Respondent’s inclusion of the 10 on the lockout
list, and support the inference that the same union animus
motivated the Respondent’s refusal to consider the 6 un-
ion applicants for employment. As noted by the court,
the Respondent “certainly seem[ed] to [have] . . . thought
the 10 individuals were members of the Union,” as indi-
cated by documentary records that it maintained which
identified all of them as “Operating Engineers Local
147—LOCKED OUT EMPLOYEE.” Id. Accordingly,
as suggested by the court, we find that the Respondent’s
placement of the 10 names on its not-to-be-hired lockout
list was motivated by its belief that they were all union
members and that this evidence of union animus sustains
the finding of unlawful motivation with respect to the
Respondent’s refusal to consider the 6 applicants for em-
ployment.6
Although not discussed by the court, we think addi-
tional evidence of the Respondent’s unlawful motive lies
in the Respondent’s comments to Terry Williams during
the lockout. As discussed above, Terry Williams was a
union member and a business representative hired during
the lockout. Within days of reporting to work, the Re-
spondent’s craft superintendent recognized Williams and
asked whether there were other union operators working
for the Respondent, or whether he was the only one who
had “slipped through the cracks.”
We find that this remark made to Williams further
demonstrates the Respondent’s unlawful motive during
the lockout of avoiding consideration for employment of
anyone who was a member of the Union. Although this
objective failed with respect to Williams, the remark
made to him by the Respondent’s superintendent about
“slipping through the cracks” clearly revealed the exis-
tence of a nonunion hiring policy maintained by the Re-
spondent during the lockout, and that Williams’ hire was
simply a mistake.

6 Chairman Battista does not agree that this evidence shows that the
Respondent believed that the 10 employees were union members.
Rather, it simply shows that the Respondent believed that they were
locked out.
In sum, for the reasons discussed above, we find, con-
trary to the Board’s original decision, that the Respon-
dent was motivated by union animus in declining to con-
sider the six union applicants for employment during the
lockout.7 We conclude, therefore, that the Respondent
violated Section 8(a)(3) and (1) and we shall remedy the
violation as set forth below.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we will order it to cease and
desist and take certain affirmative action necessary to
effectuate the policies of the Act.
The Respondent shall be ordered to consider discrimi-
natees Clarence Ellers, DeAnn Roche, Donald Savage,
George Stapleford, Ronald Thompson, and Bruce Trau-
ger for future employment in positions for which they
applied or substantially equivalent positions, in accord
with nondiscriminatory criteria, and notify them and the
Union and the Regional Director for Region 5 of such
future job openings. If it is shown at a compliance stage
of this proceeding that, but for the failure to consider
them, they would have been selected for any other open-
ings, the Respondent shall be ordered to hire them for
any such positions and make them whole, for any loss of
earnings and benefits that they may have suffered due to
the unlawful actions taken against them, in accordance
with F.W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in accordance with New Horizons
for the Retarded, 283 NLRB 1173 (1987). Finally, we
shall order the Respondent to remove from its files any
reference to its refusal to consider for employment the
discriminatees.
ORDER
The National Labor Relations Board orders that the
Respondent, Tidewater Construction Corporation, Vir-
ginia Beach, Virginia, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to consider applicants for em-
ployment because they are, or because they are believed
to be, members of the International Union of Operating
Engineers, Local No. 147.
(b) In any like or related manner interfering with, re-
straining, or coercing applicants for employment in the
exercise of the rights guaranteed them by Section 7 of the
Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 460
(a) Consider discriminatees Clarence Ellers, DeAnn
Roche, Donald Savage, George Stapleford, Ronald
Thompson, and Bruce Trauger for future employment in
positions for which they applied, in accord with nondis-
criminatory criteria, and notify the discriminatees and the
Union and the Regional Director for Region 5 of such
openings in positions for which the discriminatees ap-
plied, or substantially equivalent positions, in the manner
set forth in the Remedy section of this Decision and Or-
der.
(b) Make whole Clarence Ellers, DeAnn Roche, Don-
ald Savage, George Stapleford, Ronald Thompson, and
Bruce Trauger for any loss of earnings and other benefits
suffered because of the discriminatory refusal to consider
them for employment in the manner set forth in the Rem-
edy section of this Decision and Order.
(c) Within 14 days from the date of this Order, notify
Clarence Ellers, DeAnn Roche, Donald Savage, George
Stapleford, Ronald Thompson, and Bruce Trauger in
writing that any future job application will be considered
in a nondiscriminatory way.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful refusal to
consider, and within 3 days thereafter notify Clarence
Ellers, DeAnn Roche, Donald Savage, George Staple-
ford, Ronald Thompson, and Bruce Trauger in writing
that this has been done and that the refusals to consider
will not be used against them in any way.
(e) Preserve and, within 14 days of a request, or such
additional times as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its Virginia Beach, Virginia jobsites and other jobsites
within the jurisdiction of the Union the attached notice
marked “Appendix.”8 Copies of the notice, on forms
provided by the Regional Director for Region 5, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees and applicants are
customarily posted. Reasonable steps shall be taken by

8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that during the pendency of these proceedings, the Re-
spondent has gone out of business, or closed a facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since December 16, 1994.
(g) Within 21 days after service by Region 5, file with
the Regional Director a sworn certification of a responsi-
ble official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your benefit
and protection
Choose not to engage in any of these protected ac-
tivities.

WE WILL NOT fail and refuse to consider applicants for
employment because they are, or because we believe
them to be, members of a union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
their Section 7 rights protected by the Act.
WE WILL consider discriminatees Clarence Ellers,
DeAnn Roche, Donald Savage, George Stapleford,
Ronald Thompson, and Bruce Trauger for future job
openings in accord with nondiscriminatory criteria, and
notify them, the International Union of Operating Engi-
neers, Local 147, and the Regional Director for Region 5
of future openings in positions for which the discrimina-
tees applied or substantially equivalent positions.
WE WILL make whole, with interest, Clarence Ellers,
DeAnn Roche, Donald Savage, George Stapleford,
Ronald Thompson, and Bruce Trauger for any losses
they may have suffered by reason of our discriminatory
refusal to consider them for employment.
WE WILL, within 14 days of the Board’s Order, notify
Clarence Ellers, DeAnn Roche, Donald Savage, George

TIDEWATER CONSTRUCTION CORP. 461
Stapleford, Ronald Thompson, and Bruce Trauger in
writing that any future job application will be considered
in a nondiscriminatory way.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful refusal to consider for employment the above named
individuals and, within 3 days thereafter, notify them in
writing that this has been done and that the refusal to
consider them for employment will not be used against
them in any way.
TIDEWATER CONSTRUCTION CORPORATION