                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0474n.06

                                           No. 07-2554

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                        FILED
NATIONAL LABOR RELATIONS                         )                                 May 04, 2012
BOARD,                                           )
                                                 )                           LEONARD GREEN, Clerk
             Petitioner,                         )
                                                 )        PETITION TO ENFORCE
                                                 )        ORDER OF THE NATIONAL
                  v.                             )        LABOR RELATIONS BOARD
                                                 )
BEACON ELECTRIC COMPANY,                         )
                                                 )                  OPINION
          Respondent.                            )
______________________________                   )


Before: KETHLEDGE and WHITE, Circuit Judges; POLSTER,* District Judge.

       HELENE N. WHITE, Circuit Judge. The National Labor Relations Board (“the Board”)

petitions for summary enforcement of its July 12, 2007 order finding that Beacon Electric Company

(“Beacon”) violated § 8(a)(1) and (3) of the National Labor Relations Act (“the Act”), 29 U.S.C.

§ 158(a)(1), (3), by refusing to hire or consider for hire 49 Union members, Beacon Electric Co.,

350 N.L.R.B. 238 (2007). The challenged order required Beacon to offer each applicant employment

and back pay. Beacon argues that we must deny enforcement because the alleged violations were

never established due to the Board’s failure to require that the General Counsel prove the applicants

had the subjective intent to seek employment with Beacon. This element of the Board’s case was



       *
        The Honorable Dan Aaron Polster, United States District Judge for the Northern District of
Ohio, sitting by designation.

                                                 1
recognized in Toering Electric Co., 351 N.L.R.B. 225 (2007), decided after the Board’s decision in

the instant case, and before its denial of Beacon’s motion for reconsideration. We GRANT the

General Counsel’s petition for enforcement and remand for further proceedings consistent with this

opinion.

                                  I. Facts and Procedural History

       This case involves the International Brotherhood of Electrical Workers, Local Union No.

212, AFL-CIO (“Union”) “salting”2 campaign at Beacon, an electrical contractor in southwest Ohio

with an office in Cincinnati. Between January and May 1997, Union organizers and members

attempted to apply for work at Beacon. Although Beacon hired electricians during this time period,

it did not permit any of the 49 Union applicants to apply.

       On July 18, 1997, the Union filed an unfair labor practice charge with the Board, and on

January 28, 1998, the General Counsel for the Board filed a complaint alleging that Beacon violated

§ 8(a)(1) and (3) of the Act (29 U.S.C. § 158(a)(1), (3)). Beacon denied having anti-union animus

and asserted that it hires electricians exclusively by referral, turns away anyone without a referral,

and did not permit the Union applicants to complete applications because they lacked referrals.

Beacon claims to have adopted its referral policy in 1994, but it never put this policy in writing or



       2
        “Salting a job” has been defined as “the act of a trade union in sending a union member or
members to an unorganized jobsite to obtain employment and then organize the employees.”
Tualatin Electric, Inc., 312 N.L.R.B. 129, 130 n.3 (1993). A “salting campaign” can involve both
bona fide applications and “unions submit[ting] batched applications on behalf of individuals who
were neither aware of the applications nor interested in employment opportunities with the
employer,” or individuals submitting applications in order to create a basis for unfair labor practice
charges. See Toering Electric Co., 351 N.L.R.B. 225, 225 (2007). The Board’s July 12, 2007
decision and order in this case referred to the Union members’ attempted applications to Beacon as
a “salting campaign,” 350 N.L.R.B. 238, 239 (2007), and neither party challenges this
characterization.

                                                  2
made it known to the public. The “Applications for Employment Policy” posted in Beacon’s lobby3

made no reference to the alleged referral policy. See Beacon Electric Co., 350 N.L.R.B. at 239-41.

When the Union members tried to apply at Beacon, they were directed to the posted policy and

informed that Beacon was not hiring. Nevertheless, Beacon hired electricians within days of the

Union members’ unsuccessful application attempts.4

       In addition to relying on its purported referral policy, Beacon claimed that the applicants, or

“salts,” were not sincerely interested in employment with Beacon, and thus were not entitled to the

protection of the Act.5 During the pre-trial phase of the litigation before the Administrative Law


       3
        The posted policy stated:
                               BEACON ELECTRIC COMPANY
                        APPLICATIONS FOR EMPLOYMENT POLICY
       Beacon makes every effort to select the most qualified employees for employment.
       To accomplish this, it develops a pool of applicants who are evaluated and ranked so
       that the most qualified are selected from the pool. Accordingly, Beacon accepts
       applications and resumes only at specific times of the year, whether or not it is
       currently hiring. The periods during which applications and resumes are accepted are
       determined by the President of Beacon.
       When applications are being accepted, they must be completed in person at the main
       office of the company. When the company is hiring, the applicants selected from the
       pooled applications will be interviewed and be required to pass certain skills, aptitude
       and substance abuse tests.
       4
        The Board’s decision and order provides extensive facts regarding the Union members’
attempts to apply at Beacon. Beacon Electric Co., 350 N.L.R.B. at 239-41.
       5
        Beacon relied on two cases, W.D.D.W. Commercial Systems & Investments, Inc., 21-CA-
29201, 1997 WL 33316112 (N.L.R.B. 1997), and A. Montano Electric, 21-CA-31126, 1997 WL
33316113 (N.L.R.B. 1997). In W.D.D.W., the ALJ condemned IBEW Local 441’s salting campaign
against CLP, a non-union labor supplier, and concluded that some of the union “salts” did not intend
to accept employment if offered, but rather, simply intended to force the employer to incur
substantial expenses in defending against ULP charges. Thus, the ALJ found that although the
employer’s hiring rules would otherwise constitute an unfair labor practice, a “disabling conflict”
between the salts’ interests and the employer’s excepted the salts from the definition of “employee”
under the Act. In Montano Electric, another ALJ took judicial notice of the W.D.D.W. Commercial
decision in a case involving the same union local. Subsequent to the trial in the instant case, the

                                                  3
Judge (“ALJ”), the parties sought discovery. Beacon sought all documentation showing that the

individual alleged discriminatees applied or attempted to apply for a position at Beacon; tax returns,

W-2 forms and other documentation regarding the alleged discriminatees’ employment, wages,

unemployment benefits, and workers compensation benefits, including any payments from the

Union, beginning January, 1997; and any agreements between the discriminatees and the Union with

regard to salting activities. Beacon asserted that while not conclusive, the information was relevant

to whether the discriminatees were bona fide job applicants. The ALJ allowed the discovery of

information regarding the efforts to apply at Beacon, suggested that there was probably a standard

payment to salters made by the Union, which amount could be the subject of a stipulation, and ruled

that the other information was relevant to the compliance stage of the proceedings, and would not

be useful in helping the ALJ decide the matters before him at the time.

       At the evidentiary hearing, the primary focus was on the referral policy. However, the ALJ

permitted some questions regarding whether the alleged discriminatees truly sought employment at

Beacon and disallowed others. After concluding the evidentiary hearing, the ALJ issued a decision

on July 14, 1998, sustaining the General Counsel’s allegations. The ALJ found that Beacon’s refusal

to hire the salts was not based on a bona fide referral system, but on anti-union animus.6 The ALJ


NLRB affirmed the finding in W.D.D.W. Commercial that the employer’s hiring practice violated
the NLRA, but rejected the ALJ’s conclusion that the paid salts were not employees under the Act,
instead holding that the employer had the burden of proving that it denied employment because of
IBEW Local 441’s practices. W.D.D.W. Commercial Sys. & Invs., Inc., 335 N.L.R.B. 260 (2001).
       6
           The ALJ found, inter alia:

       Although [Beacon] seeks to disavow its posted policy and claim that it relied on its
       undisclosed referral policy, the fact that it kept this so-called policy secret from
       potential applicants and did not even reduce its policy to writing clearly does not
       contribute to [Beacon]’s burden to persuasively show that it would have ignored or

                                                  4
further rejected Beacon’s argument, based on the Union’s tactics, that the discriminatees/salts were

not bona fide applicants for employment. The ALJ found that although it may be unwise for full-

time Union business agents to join in the application process when other bona fide applicants who

are regularly employed in the trade are also applicants, the Union agents still may be statutory

employees under the NLRA, and that the Union’s tactics were not so extreme so as to strip the Union

of its right to engage in the organizational activity. The ALJ concluded that “consistent with Board

precedent and the Supreme Court’s decision in NLRB v. Town & Country Electric, [516 U.S. 85]

(1995), all the involved applicant discriminatees are bona fide applicants.” See 350 N.L.R.B. at 254.

       Beacon filed extensive exceptions to the ALJ’s decision, including several related to the bona

fide “employee” status of the salts. On June 9, 2000, the Board remanded the case to the ALJ for

further consideration in light of the Board’s May 11, 2000 decision in FES (a Division of Thermo

Power), 331 N.L.R.B. 9 (supplemented 333 N.L.R.B. 66 (2001)), enforced 301 F.3d 83 (3d Cir.

2002), in which the Board set forth a new legal framework for analyzing allegations of refusal-to-hire

and refusal-to-consider violations involving union applicants.7 On remand, Beacon sought to reopen


       failed to allow job seekers to file applications even in the absence of their probable
       status as union affiliated electricians.
       ....
       [Beacon] used an unpublicized referral procedure that was different than the posted
       policy it pointed out to the union applicants. This procedure was exclusive in nature
       and basically insured that it would receive applications only by referrals from known
       sources that would refer only nonunion applicants.

Beacon Electric Co., 350 N.L.R.B. at 251.
       7
           The Board’s order stated:

       The Board has decided to remand this case to the judge for further consideration in
       light of FES, including but not limited to: (1) whether the General Counsel
       established that the Respondent unlawfully refused to hire the alleged discriminatees

                                                  5
the record to submit additional evidence regarding the FES elements. On December 20, 2000, the

ALJ issued a supplemental decision denying Beacon’s request to reopen the record and reaffirming

his earlier findings and conclusions. Beacon Electric Co., 350 N.L.R.B. at 253-56.

        Beacon again filed extensive exceptions to the ALJ’s decision, arguing that the ALJ erred

in refusing to reopen the record and that the General Counsel failed to establish the elements of a

prima facie case under FES, and incorporating by reference its earlier-filed exceptions regarding “the

ALJ’s finding that each alleged discriminatee . . . [w]as an actual, bona fide applicant entitled to the

protection of the Act.” On July 28, 2003, the Board remanded the case again, finding that the ALJ

erred in refusing to reopen the record to allow Beacon to present a defense that it would not have

considered or hired the Union applicants even absent discrimination. The Board explained,

although “we agree with the judge that the General Counsel met his initial burden under FES of

establishing an unlawful refusal to consider or to hire the union applicants, we find that [Beacon]

was improperly denied an opportunity to present evidence to show that it would not have considered

or hired the alleged discriminatees . . . .” The Board remanded the case “for further consideration

of whether, under FES, [Beacon] can demonstrate that it would not have considered or hired the

alleged discriminatees, even in the absence of their union activity or affiliation.” The remand

permitted “reopening the record to obtain evidence necessary to decide the case under the FES

framework.” The Chairman would have additionally permitted [Beacon] to present evidence in

support of its claim that the alleged discriminatees were not bona fide applicants for employment.




        for openings filled by other applicants, and (2) the entry of an appropriate
        recommended remedy and order. The judge may, if necessary, reopen the record to
        obtain evidence required to decide the case under the FES framework.

                                                   6
       On remand for the second time, Beacon waived its right to present additional evidence,

stating that it “reviewed the record . . . and has decided that given the broad nature of the Board’s

order with respect to the General Counsel’s prima facie case and the limited nature and scope of the

remand order, and given the significant cost and time associated with reopening the record, [it]

waives any right to hearing it may have had.” Beacon had argued in its exceptions that the Board

should reverse the ALJ’s finding that the General Counsel had established a prima facie case.

Having lost that issue on appeal, it chose to rest on the record and argue that because of its neutral

referral-hiring system, it would not have hired the applicants even in the absence of anti-union

animus.

       The presiding ALJ had retired by the time of the second remand and a different ALJ was

substituted. The new ALJ issued a second supplemental decision on May 5, 2004, concluding that

because Beacon decided not to reopen the record, it did not meet its burden of proof in the remand

proceeding before him. Beacon, 350 N.L.R.B. at 256-57. Beacon filed exceptions to the ALJ’s

supplemental decision, which incorporated its two earlier-filed exceptions, and argued that it had

established that pursuant to its neutral referral policy it would not have hired the applicants even in

the absence of their Union affiliation.

       On July 12, 2007, applying the framework set forth in FES, the Board agreed with the ALJ’s

finding that Beacon’s referral-policy defense was pretextual,8 and found that Beacon violated




       8
        The Board declined to adopt the ALJ’s finding that the referral policy itself “constitutes a
discriminatory practice inherently destructive of important employee rights.”

                                                  7
§8(a)(1) and (3) of the Act.9 It ordered Beacon to offer employment and back pay to the 49 Union

members who unsuccessfully applied in 1997.

        Three months later, on October 11, Beacon filed a motion for reconsideration of the Board’s

decision, requesting that it reconsider its findings, reopen the record, and remand the case to the ALJ

for further proceedings consistent with the Board’s September 29, 2007 decision in Toering, 351

N.L.R.B. 225, in which the Board modified the FES framework and held that in refusal-to-hire

cases, the General Counsel must establish that the applicants had genuine interest in seeking

employment. Beacon argued that Toering “rests on a point of law that Beacon Electric has argued

throughout its case,” that the Toering case was nearly identical to the instant case, and that under

Toering, the Board’s decision in this case cannot stand. The Board denied Beacon’s motion for

rehearing,10 and filed the instant petition to enforce its order.


        9
            The Board stated:

                Believing that the Respondent needed to hire electricians in order to meet a
        contractual commitment, union organizers and members made numerous attempts
        to apply in person for employment with the Respondent between January 21 and May
        5. The Respondent was hiring during this period. In fact, the Respondent hired 71
        electricians between January 21 and August 22. Despite the respondent’s ongoing
        need for labor, however, the 49 alleged discriminatees were not allowed to apply.

                As detailed below, during the salting campaign the Respondent did not tell
        the alleged discriminatees that they could not apply because they did not have
        referrals. Instead, the Respondent deceived them by denying that it was hiring and
        deliberately sought to divert them from discovering its referral policy by leading them
        to believe that – when it started hiring – they would be permitted to apply, without
        referrals. In accordance with the posted Applications for Employment Policy.
        10
          The Board found that “the Respondent’s motion has not raised any ‘extraordinary
circumstances’ warranting reconsideration of the Board’s decision. See Section 102.48(d)(1) of the
Board’s Rules and Regulations.” The Chairman also would have denied the motion as untimely.
The Board determined that its decision in Toering did not constitute an extraordinary circumstance
under its rules, and that the case was properly decided under FES, “the then-current law.”

                                                   8
                                         II. Relevant Law

       Section 8(a)(3) of the Act, 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 NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), the Supreme Court

resolved a circuit split on whether the Board’s shifting burden of proof framework for mixed-motive

cases, as announced in Wright Line, a Division of Wright Line, Inc., 251 N.L.R.B. 1083 (1980),

enforced, 662 F.2d 899, 904 (1st Cir.1981), cert. denied, 455 U.S. 989 (1982), was proper. Id. at

397, 402-03. The Wright Line framework placed the burden of proof on the General Counsel to

show an adverse employment action based in whole or in part on anti-union animus. The Board then

permitted the employer to avoid being adjudicated a violator by showing that it would have taken

the same adverse action without regard to its anti-union animus. The Board regarded this as an

affirmative defense and placed the burden of persuasion on this issue on the employer. The Supreme

Court in Transportation Management not only rejected the argument that this framework violated

the NLRA and APA by impermissibly placing on the employer the burden of showing that it would

have taken the adverse action anyway, but also expressly found that the Board’s various

constructions of the Act and allocations of burdens were permissible constructions of the Act entitled

to deference:

               As we understand the Board’s decisions, they have consistently held that the
       unfair labor practice consists of a discharge or other adverse action that is based in
       whole or in part on anti-union animus – or as the Board now puts it, that the
       employee’s protected conduct was a substantial or motivating factor in the adverse
       action. The General Counsel has the burden of proving these elements under § 10(c).
       But the Board’s construction of the statute permits an employer to avoid being
       adjudicated a violator by showing what his actions would have been regardless of his


                                                  9
       forbidden motivation. It extends to the employer what the Board considers to be an
       affirmative defense but does not change or add to the elements of the unfair labor
       practice that the General Counsel has the burden of proving under § 10(c). We
       assume that the Board could reasonably have construed the Act in the manner
       insisted on by the Court of Appeals. [Assigning the burden of production, but not the
       burden of persuasion, to the employer.] We also assume that the Board might have
       considered a showing by the employer that the adverse action would have occurred
       in any event as not obviating a violation adjudication but as going only to the
       permissible remedy, in which event the burden of proof could surely have been put
       on the employer. The Board has instead chosen to recognize, as it insists it has done
       for many years, what it designates as an affirmative defense that the employer has the
       burden of sustaining. We are unprepared to hold that this is an impermissible
       construction of the Act. “[T]he Board’s construction here, while it may not be
       required by the Act, is at least permissible under it . . .”, and in these circumstances
       its position is entitled to deference. NLRB v. Weingarten, Inc., 420 U.S. 251, 266-
       267 [] (1975); NLRB v. Erie Resistor Corp., 373 U.S. 221, 236 [] (1963).

Transp. Mgmt., 462 U.S. at 401.

       In NLRB v. Town & Country Electric, Inc., 516 U.S. 85, 88-89 (1995), the Supreme Court

resolved another circuit split, upholding as reasonable the NLRB’s construction of “employee” to

include job applicants who are also paid union organizers. The Court rejected the argument that such

union agents are not bona fide “employee” applicants because their interests are adverse to those of

the employer. Id. at 95-96.

       In NLRB v. Fluor Daniel, Inc. (Fluor Daniel II), 161 F.3d 953, 963 (6th Cir. 1998), which

involved a salting campaign using volunteer, rather than paid, union organizers, this court relied on

Town & Country and held that the volunteer organizers were “employees” under the Act. The

employer also argued that the Boilermakers’ Union’s “Fight Back” campaign was “an abuse of

NLRB processes, using the Act as a sword when it is intended only as a shield.” Id. at 963. This

court found such an argument foreclosed by Town & Country.11


       11
            This court stated:


                                                 10
       Fluor Daniel II did, however, reject the NLRB’s practice of deferring proof of job availability

to the compliance stage of the proceeding. This court explained that compliance proceedings are

appropriate only after a violation of the Act has been established. A violation of the Act is not

established where the failure to hire is due to a lack of openings or the absence of qualified

applicants, rather than anti-union animus. The Court concluded that the General Counsel is required

to match applicants with available jobs as part of establishing that there has been a refusal-to-hire

violation of the Act.

       This court’s decision in Fluor Daniel II, together with other circuits’ decisions in similar

cases, led to the Board’s 2003 decision in FES, 331 N.L.R.B. 9. Prior to FES, the General Counsel’s

case under Transportation Management, 462 U.S. at 402-03, consisted of two elements – anti-union

animus and the occurrence of a covered action, such as a discharge or failure to hire. 161 F.3d at

966. In FES, the Board established a new framework for litigating § 8 (a)(3) cases:

               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


               Fluor Daniel’s argument that the processes of the NLRB have been coopted
       by the Boilermakers’ Union goes hand in hand with its argument that labor unions
       have somehow impermissibly altered the definition of “employee” under the Act to
       include those applicants who were truly union agents . . . . Because the only concrete
       provision of law that Fluor Daniel points to in connection with this argument (dicta
       from Sunland cannot suffice) is the definition of “employee” in the Act, and the
       Supreme Court has already rejected such an argument in Town & Country, we cannot
       accept any attempt to repackage that argument in a different form. Fluor Daniel’s
       assignment of error relating to alleged abuses of the NLRB’s processes must be
       rejected.

Fluor Daniel II, 161 F.3d at 964.

                                                 11
       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 the union activity or affiliation. If the
       respondent asserts that the applicants were not qualified for the positions it was
       filling, it is the respondent’s burden to show . . . that they did not possess the specific
       qualifications the position required or that others (who were hired) had superior
       qualifications, and that it would not have hired them for that reason even in the
       absence of their union support or activity.

FES, 331 N.L.R.B. at 12 (footnotes omitted).

       This court evaluated the FES framework in the context of Fluor Daniel II in Fluor Daniel,

Inc. v. N.L.R.B., 332 F.3d 961, 969 (6th Cir. 2003), and found the framework consistent with Fluor

Daniel II with respect to failure-to-hire violations, but inconsistent with respect to the failure-to-

consider allegations.13




       13
            This court explained:

       In Fluor Daniel II, we specifically rejected the NLRB’s position that a simple
       showing of anti-union animus and the fact that certain individuals were not hired
       were sufficient to show a violation of §§ 8(a)(1) and (3), holding instead that an
       actual “failure to hire” had to be shown. Id. at 967. We specifically held that in
       order to make out a prima facie case for a refusal-to-hire violation, the General
       Counsel must first establish the two elements articulated in Transportation
       Management. Id. After the General Counsel has proven both elements, the employer
       must present evidence that the employees in question would not have been hired,
       even if they had not been involved with a union. Id. at 966. This analysis requires
       the General Counsel to “match [ ] up applicants with available jobs for which they
       are qualified . . . .” Id. at 968. This means that employees involved in a violation of
       § 8(a)(3) must be actually qualified for the respective job positions and that the job
       positions must be actually available. Once the General Counsel makes a showing
       that the employer did not hire the qualified applicant for an available position, the
       General Counsel must also then show that the decision was motivated by anti-union
       animus. Id. at 966.

332 F.3d at 967-68.

                                                   12
        Four years later (and subsequent to the Board’s decision in this case), the Board held in

Toering, 351 N.L.R.B. at 228, that the Act only covers applicants who genuinely seek employment:

        an applicant for employment entitled to protection [under the Act] is someone
        genuinely interested in seeking to establish an employment relationship with the
        employer. Simply put, only those individuals genuinely interested in becoming
        employees can be discriminatorily denied that opportunity on the basis of their union
        affiliation or activity; one cannot be denied what one does not genuinely seek. We
        further hold that the General Counsel bears the ultimate burden of proving an
        individuals’ genuine interest in seeking to establish an employment relationship with
        the employer.

                                             III. Analysis

        On appeal, Beacon stresses it does not challenge the Board’s decision not to apply Toering

retroactively to this case. Instead, Beacon argues that the Board’s enforcement order is not

enforceable because the Act only protects “bona fide applicants,” and, notwithstanding Beacon’s

efforts to show that the Union applicants were not bona fide applicants and thus not employees under

the Act, the Board refused to require the General Counsel to establish that they were; refused to itself

address the issue; refused to let Beacon litigate the issue; and found a violation on a record that does

not contain evidence sufficient to support a finding that the alleged discriminatees had the subjective

intent to seek employment.

        Following argument, we asked the parties to address an additional question:

               Does the difference between the National Labor Relations Board’s decision
        in Toering Elec. Co., 351 N.L.R.B. No. 18 (2007), and FES, a Div. Of Thermo
        Power, 331 N.L.R.B. 9, 15 (2000), concern the National Labor Relations Act, as to
        which we must accord deference to the Board’s interpretation, or the allocation of
        burdens under the Administrative Procedure Act, as to which we do not?




                                                  13
Beacon’s supplemental brief argues that the Board’s decisions in both Toering and the instant case

involve allocation of burdens of proof under the APA, to which this court owes no deference. Upon

consideration, none of Beacon’s arguments support reversal.

                                                  A

        When viewing the facts unconstrained by the procedural backdrop, one might justifiably

perceive an injustice: Although Beacon challenged whether the applicants had a genuine interest in

employment with Beacon from the start, it has not been permitted to fully litigate that issue. One

might expect that under these circumstances the Board would have granted Beacon’s 2007 motion

to reconsider based on Toering. However, Beacon does not challenge the Board’s denial of its

motion for reconsideration, nor does it challenge the Board’s decision not to apply Toering

retroactively to its case.

        Beacon’s sole argument on appeal is that the Board is not entitled to enforcement of its order

because the General Counsel failed to prove a violation of the Act. The Board’s answer is that the

General Counsel established an unfair labor practice under the then-operative FES framework.

Although Beacon vehemently disagrees with the Board’s decision under the FES framework and its

conclusion that the General Counsel established violations under that framework, it does not argue

on appeal that the Board’s order is unenforceable for that reason. Rather, it insists that General

Counsel’s failure to establish that the salts were genuinely interested in employment with Beacon

renders the Board’s decision unenforceable. Thus, our analysis begins with the understanding that

the Board’s decision complies with FES.




                                                 14
                                                    B

          Beacon argues that a decision under the FES framework cannot be enforced under the Act

because that framework relieved the General Counsel of the obligation to establish the applicability

of the Act by showing the bona fide nature of the Union applicants’ interest in employment. Beacon

argues:

                  In other words, the law requires the General Counsel to prove that the alleged
          discriminatees were protected by the Act at the unfair labor practice stage regardless
          of when the NLRB recognized that that was the law. As with the requirement of an
          actual intent to gain employment, the Board itself has conceded that acknowledging
          the General Counsel’s burden of proof was not merely a new rule of administrative
          law, but instead was a necessary reading of the Act “to insure that only those for
          whom Congress intended statutory protection as actual or potential employees will
          receive it.”

          We first observe that notwithstanding Beacon’s protestations to the contrary, this is

essentially an argument that Toering must be applied retroactively. Until Toering, the Board did not

require the General Counsel to establish an applicant’s bona fide interest in the position applied for

as part of the General Counsel’s case. The argument that the NLRA requires what Toering requires

without regard to when Toering was decided, and therefore a violation of the NLRA was not

established, is basically an argument that because the issue in Toering was so essential to a proper

construction of the Act, Toering must be applied retroactively. However, Beacon disavows any

challenge to the Board’s decision on retroactivity and, indeed, the Board’s decision whether to apply

a new rule retroactively is entitled to judicial deference absent manifest injustice. N.L.R.B. v.

Jackson Hosp. Corp., 557 F.3d 301, 310 (6th Cir. 2009) (noting that “appellate review is confined

to determining whether, after the Board has decided to apply a new standard retroactively or not, that

decision would work a manifest injustice on the parties”); Adair Standish Corp. v. N.L.R.B., 912



                                                   15
F.2d 854, 866 (6th Cir. 1990) (noting that “[u]nless manifest injustice can be shown, the Board’s

judgments on retroactivity should be upheld”).

       Beacon also argues that the General Counsel did not carry his burden of proof on the

threshold issue whether the alleged discriminatees had the subjective intent to seek employment by

introducing evidence pertaining to some of the alleged discriminatees, and that Beacon should have

been permitted to both cross-examine the General Counsel’s witnesses and also introduce evidence

of its own in rebuttal, by compelling the testimony of each alleged discriminatee. Beacon also

asserts that there was insufficient evidence to support a finding that the alleged discriminatees had

the subjective intent to seek employment.

1. Beacon was permitted to litigate whether the discriminatees were bona fide applicants
covered by the Act within the existing framework, which allowed Beacon adequate
opportunity to litigate the issue.

       Despite Beacon’s characterization of the record, this is not a case where the General Counsel

failed to present any evidence that the applicants genuinely sought employment and were therefore

covered under the Act, or where the employer was entirely foreclosed from exploring the issue.

Notwithstanding the ALJ’s discovery ruling, witnesses called by the General Counsel were examined

and cross-examined regarding their availability for, and interest in, employment with Beacon.

Matthew Kolbinsky, the Union organizer, was cross-examined regarding his intent to work for

Beacon if hired, his employment history since becoming an organizer, including his being hired by

another non-union employer and working only one day, his activities with respect to the salting

campaign at Beacon, the Union’s practice of paying subsidies to members working at non-union

shops as part of organizing efforts, and his conduct at Beacon, including in recording the application

attempts. Kenneth Mueller, another organizer, was similarly questioned and gave testimony


                                                 16
concerning his desire to work, his previous efforts to apply at Beacon, and his own and others’

behavior during the application attempts.

       The General Counsel called three other applicants who had held Union positions at some

point, Steve Jaeger, Wayne Whalen, and Walter Zimmer. They were similarly examined and cross-

examined. On cross-examination, Zimmer testified that when he first attempted to apply at Beacon

on Februray 21, he had been unemployed since the preceding July. When Beacon’s counsel asked

what other types of things he had been doing to attempt to find a job, the General Counsel objected,

and the following exchange ensued:

       [COUNSEL FOR BEACON]: Your Honor, I believe it goes to whether or not he’s
       a bona fide applicant. Whether he was making efforts at other employers or simply
       Beacon Electric during the time frame.

       [THE GENERAL COUNSEL]: If I may speak to that, Your Honor. Whether – the
       question whether or not he’s a bona fide applicant at Beacon Electric, has no bearing
       on whether he attempted to make application at other employers.

       [COUNSEL FOR BEACON]: Your Honor, if we might just limit it to the time
       frame between February and May. I mean, I don’t think that’s too far out of bounds.

       [ALJ]: I think it would apply only to the back pay portion of the proceeding and to
       whether he was trying to mitigate after he first applied by seeking other employment.
       So, I’ll sustain the objection.

The ALJ allowed Beacon a continuing objection to not being able to ask the question of further

witnesses.

       The General Counsel called four other alleged discriminatees who did not hold Union

positions. These rank-and-file witnesses were also examined and cross-examined regarding their

employment status when attempting to apply at Beacon, their motivation, the circumstances of their

going to Beacon and their activities there.



                                                17
       After the General Counsel rested, Beacon recalled two Beacon employees. At the end of the

day, after Beacon’s counsel suggested that the hearing be adjourned early that day, which was a

Friday, and resume Tuesday morning, the ALJ inquired whether Beacon would complete its proofs

on Tuesday. Beacon’s counsel responded:

       Your Honor, at this point, we’ve discussed it and I guess we’re really not in a
       position to give you an accurate figure of how many people we’re going to call. I
       guess we really need to actually do a little more research and look into the issue.

       I think our position, as . . . General Counsel has alleged in the Complaint, that there
       were fifty people that we’re [sic] discriminated against. We’re concerned whether
       or not we will be waiving any of our client’s rights or defenses if we don’t attempt
       to question each and every Union applicant. We would like to avoid that and if it’s
       not going to relinquish any rights of our client we would anticipate getting done in
       short order. If that ’s not --

       [ALJ]: Well, I would be amenable to say letting you get into some detail if I
       considered it relevant with one witness so that I would take as a representative so that
       you could apply any argument to the others and would not be considered as having
       waived any argument by --
       ....
       [BEACON’S COUNSEL]: Would that be one from each group, Your Honor, or --

       [ALJ]: Well, it depends on the categories. There could be separate categories but
       again, I would be concerned that – about getting into matters that I consider more
       relevant to the compliance stage rather than this stage of the proceedings.

       [BEACON’s COUNSEL]: Okay.

       [ALJ]: I would tend to limit any evidence that I thought should relate to the later stage.

When the hearing reconvened the following Tuesday, Beacon recalled a Beacon employee and then

called three rank-and-file applicants as part of its case. Beacon first called Paul Elbisser, Sr., and

was permitted to inquire into his employment status at the time he attempted to apply at Beacon in

February 1997, and when and where he last worked before attempting to apply at Beacon. When the

ALJ sustained the General Counsel’s objection to the question why Elbisser left his last place of


                                                 18
employment, Archibold Electric, in November or December of 1996, Beacon’s counsel stated for

the record:

       I’ve got a series of questions that I have prepared, that I wanted to ask Mr. Elbisser.
       And I know there has been some question whether or not certain questions are more
       proper for the back-pay proceedings, as being evidence of mitigation as opposed to
       evidence that we believe would go to an applicant’s bonified [sic] applicant status.
       And that’s what we’re trying to do with – with many of these questions.

              And I don’t want to waste the Court’s time. And I want to try to expedite
       matters here. So I am going to go ahead and ask these series of questions. And I
       assume General Counsel is going to object to a number of those questions.

               And I guess what I’m – I just wanted to let you know beforehand, that we’re
       trying to get an idea of the parameter of questions that we’re going to be allowed to
       ask each rank-in-file [sic] member, and then based on that I think we’re going to
       make a decision as to the number of witnesses that . . . we want to call subsequent to
       questioning Mr. Elbisser.

Beacon’s counsel resumed questioning and was permitted to inquire whether Elbisser was actively

seeking a job in February 1997, and elicited testimony that Elbisser went to Las Vegas three times

looking for work and was planning to leave for Las Vegas when Archibold Electric called him back

to work in the beginning of March. Beacon’s counsel was not permitted to inquire whether Elbisser

attempted to apply at any other companies during February of 1997, the ALJ concluding that the

question went to mitigation of damages rather than his status as a bona fide applicant. Nor were

questions regarding unemployment compensation and workers compensation permitted. However,

Beacon was permitted to ask whether Elbisser was on the hiring hall list during the relevant time

period, whether he ever worked for a non-union contractor while he was a member of the Union,

and whether there were any rules or regulations regarding working for a non-union contractor.




                                                 19
Beacon was also permitted to inquire how Elbisser came to apply to Beacon,14 and to which other


       14
         Beacon cites as an example of the ALJ’s limiting its ability to adduce evidence that
applicants were not truly interested in employment with Beacon, the colloquy below, but Beacon’s
brief quotes only a portion of the colloquy – the italicized portion:

       Q. Can you tell me, sir, what prompted you to seek employment at Beacon Electric?

       A. I was at a union meeting and they stated that they were gonna go out and apply
       for work at Beacon Electric. And I don’t know if I signed anything or what, but – uh,
       I took and – uh, I don’t know how it is I got to the hall to go out.

       Q. Were any other contractors mention or was it strictly Beeacon?

       A. Uh - - we also went to Garfield Electric.
       ....
       Q. Do you remember who was – who in the Union then was advocating going out,
       running the meeting or saying that we’re intending on getting some people and going
       out to Beacon Electric to apply?

       A. Yes, Matt was.

       Q. Matt Kolbinsky?

       A. Yes.

       Q. Would you have gone out and applied at beacon Electric, had it not been for the meeting?

       [GENERAL COUNSEL]: Objection, Your Honor, speculative.

       [BEACON’S COUNSEL]: Your Honor, I think he’s testifying as to his intention.
       And I –I think this witness is qualified to – to tell us whether or not he would have
       taken any given action.

       [ALJ]: Would you have know about any prospect for employment at Beacon Electric,
       other than through the infirmation that you got during the meeting?

       A. I guess really not.

       [BEACON’S COUNSEL]: Okay. Now, I’m sorry, Your Honor, did you sustain the
       General Cousel’s objection on the question of whether or not he would go – would
       have gone out to Beacon without that knowledge or without encouragement by the
       Union?

                                                20
non-union employers he applied.

       Beacon asked similar questions of the other two rank-and-file witnesses, presenting testimony

regarding whether they were truly seeking employment, whether they had worked at non-union shops

and when, how they came to apply at Beacon, how they got there and who they went with, and the

details of their experiences and behavior when attempting to apply at Beacon.

       After hearing the testimony of the three applicant witnesses called by Beacon, and before

adjourning the hearing for the day, the ALJ inquired of the attorneys regarding their remaining

witnesses. Counsel for Beacon stated that he had five more rank-and-file witnesses to call. The

following morning, however, counsel for Beacon recalled Mueller and a Beacon employee, and then

stated that he had no more witnesses.

       Thus, although the ALJ did not permit Beacon to explore the issue to the extent Beacon

desired, Beacon was most certainly permitted to question both Union-organizers and rank-and-file

members regarding the sincerity of their purported interests in securing employment with Beacon,

whether they were actually unemployed at the time they applied, whether the Union representatives

actually worked on jobs, as opposed to Union activities, whether the applicants had worked for non-

union employers before, and to a limited extent, what else they did to obtain employment. We reject

Beacon’s implied argument that had it been permitted to further litigate the issue, it would have




       [ALJ]: Well I substituted my question.

       [BEACON’S COUNSEL]: Okay. Well I’ll go ahead and get mine ack on the record and --

       [ALJ]: I’ll sustain the objection.


                                                21
established that the alleged discriminatees were not bona fide applicants because they did not

sincerely seek employment with Beacon.

       Beacon was also permitted to present evidence regarding the applicants’ motivations,

behavior and tactics when seeking to apply, thus challenging whether they were bona fide applicants,

and defending on the basis that it would not have hired the salts because of their behavior and

insincerity. Further, the record does not support that Beacon was limited in the number of applicant

witnesses it was allowed to call. Rather, it appears that Beacon made its own decision not to call

additional applicants.

       In addition, under the framework then in place, Beacon could have presented additional

evidence that it would not have hired the salts in any event because of their behavior and their

perceived lack of genuine interest in employment with Beacon. This was a permissible affirmative

defense under the FES framework. We recognize that there is a distinction between the need to

establish that the salts were genuinely interested in employment with Beacon on the one hand in

order to prove a prima facie case, and the opportunity to present an affirmative defense once the salts

have been shown to be genuinely seeking employment. However, in the instant case, the General

Counsel established that the applicants were genuinely interested to the ALJ’s satisfaction.

2. The ALJ made findings regarding whether the discriminatees were bona fide applicants,
and those finding are adequately supported by the record.

       The ALJ’s first decision was issued before FES, but after Flour Daniel II. The ALJ found

that the General Counsel had met his initial burden of proof, acknowledged both of Beacon’s

defenses – a non-discriminatory referral policy and no bona fide applicants – and found both




                                                  22
unsupported by the record. The ALJ addressed Beacon’s challenge to the applicants’ true

motivations:

               Here, [Beacon] attempts to refute the Gerneral Counsel’s showing by
       asserting the legitimacy of its hiring practices and by making a collateral attack on
       the Union’s organizational practices. Applications by full time regular Union
       Business Agents or organizers (not primarily employed in the trade), even if currently
       qualified in the trade may be legally justified, but appears to be counter productive
       in a practical sense, where other bona fide applicants who are actually, usually, and
       regularly employed in the trade are shown to have experienced possible
       discrimination and the pursuit of charges on behalf of regular union staff personnel
       merely acts as a distraction from an evaluation of any direct and (more relevant)
       evidence of discrimination. Otherwise, however, the Board’s decisions in Sunland
       Construction Co, 309 NLRB 545 (1992) and Ultrasystems Western Constructors,
       have found unequivocally that paid union organizers are statutory employees entitled
       to the protection of the Act, and the fact that their employment period might be of
       limited duration does not act to invalidate that status.

               The law also does not require that job applicants must be unobtrusive in
       respect to their union affiliation in order to be considered to be bona fide applicants
       and the possibility that more subtle tactics might be more effective with any
       particular company does not make discrimination in the application process any less
       unlawful or any less deserving of a remedy and it does not offer an employer an
       excuse for engaging in discriminatory practices.

               A job seeker’s participation in group attempts to file applications and the fact
       that a union may have supplemental objectives in supporting its members in their
       attempts to obtain employment does not act to preclude their viability as legitimate
       job applicants. Here, the majority of the alleged discriminatees were unemployed
       and were seriously interested in engaging in employment that might have the
       advantage of keeping them at a particular jobsite for a lengthy period and they were
       experienced electricians and presumptively qualified for positions that the
       Respondent would need to fill to meet its manpower requirements.
       ....
               The fact that the tactics used by the Union may be unwise or unsuccessful
       does not make a Respondent’s conduct any less discriminatory. The propriety of an
       employer’s conduct in a failure to hire proceeding turns on the nature of the act, not
       on the motive or intent of the job applicant, unless special circumstances, not shown
       here, exist.
       ....
               Although [Beacon] objects on brief to the video taping and related union
       conduct, there is no showing that [Beacon’s] supervisors or receptionists were


                                                 23
       threatened or intimidated and there was no request made for the Union to stop and
       compare the extreme factual circumstances in Heiliger Electric Corp., 325 NLRB
       966 (1998). Under these circumstances, I find that consistent with the Supreme
       Court’s decision in NLRB v Town & Country Electric, 516 U.S. 85 (1995), all the
       involved applicant discriminatees are bona fide applicants. [Emphasis added.]

       Beacon argues that the record does not contain evidence sufficient to support the ALJ’s

finding that the alleged discriminatees had the subjective intent to seek employment. We disagree.

The record supports that the witnesses were unemployed and actively seeking employment when

they applied. That they would have been paid subsidies by the Union and would have sought to

organize the workforce does not negate that they would have worked for Beacon if hired. In

distinguishing the instant case from Heilinger Electric, the ALJ demonstrated his awareness that

there can be situations where the applicants’ actions and behavior during their attempts to apply

“discredit[] the stated intentions by the applicants that they were there seeking work” or are

“sufficiently intimidating and disrespectful to privilege a decision by Respondent to not hire” them.

In short, the proceedings, record and decisions of the ALJ and Board are such that Beacon had an

adequate opportunity to argue and prove that the salts were not bona fide applicants for employment,

the ALJ actually considered the issue and found based on the evidence that the salts were

unemployed and in fact sought employment with Beacon, the evidence was adequate to support this

affirmative finding, and the Board’s decision that the record supports a violation of the Act is legally

and factually sound.

                                                   C

       The Board’s decision whether Toering should be applied retroactively is entitled to deference

and is not challenged by Beacon. Even so, the Board’s decision in this case is not undermined by




                                                  24
Toering because the ALJ actually found that the discriminatees were bona fide applicants and the

record supported the finding.

        This court reviews the Board’s interpretation of the Act to determine whether it “is based on

a permissible construction of the statute.” N.L.R.B. v. Webcor Packaging, Inc., 118 F.3d 1115, 1119

(6th Cir. 1997). However, no judicial deference is accorded to an agency’s allocation of burdens of

persuasion governed by the Administrative Procedure Act (APA). Fluor Daniel II, 161 F.3d at 967-

68 n.16. Section 7(c) of the APA deals with allocating burdens of proof in an agency action, and

states, “[e]xcept as otherwise provided by statute, the proponent of a rule or order has the burden of

proof.” 5 U.S.C. § 556(d). In Fluor Daniel II, this court noted that “[t]he Supreme Court

has . . . held that no judicial deference is to be accorded to an agency’s allocation of burdens of

persuasion that are governed by the APA.” 161 F.3d at 967 n.16.

        At argument, we invited counsel to address the question whether the difference between the

Board’s decisions in FES and Toering concerns application of the NLRA, as to which we must

accord Chevron deference, or allocation of burdens under the APA, as to which we do not. Beacon’s

brief in response to the panel’s question argues that the difference concerns only the APA because

Toering placed the burden of establishing the NLRA’s applicability on the General Counsel.

        Thus, Beacon seeks to avoid the deference we would ordinarily accord the decisions of the

Board under Chevron by arguing that the issue is not one of substantive law, but rather of the proper

allocation of the burden of persuasion under the APA. To be sure, this is a distinction recognized

by the Supreme Court, see, e.g., Metropolitan Stevedore Co. v. Rambo, 521 U.S. 121, 137 n.9

(1997), and by this court in Fluor Daniel II, 161 F.3d at 967 n.16, but we are not persuaded that the

distinction is relevant here.


                                                 25
       The Board’s treatment of salting cases has evolved over time in response to changes in the

methods and tactics employed in salting campaigns and the objectives of the unions. Although the

General Counsel has always had the burden of proof on whether there has been an unlawful refusal

to hire an “employee” covered by the Act, the elements of such a violation and the framework for

establishing or refuting it are within the purview of the NLRB. The Board has expertise in

determining, at any given point in the evolution of Labor-Management relations, based on experience

in the field, which aspects or elements of an unfair labor practice can be assumed to be present

without proof to the contrary, and which should be established as part of the General Counsel’s case.

       It was the Board that first decided that union-employed salts are employees covered by the

Act. The Supreme Court deferred to that decision as a reasonable construction of the Act. Town &

Country, 516 U.S. 85. At the time, experience with salting campaigns was such that salts generally

sought to work at a non-union employer to organize the work force. The fact that the salts had dual

objectives did not render them something other than bona fide applicants for employment. Salting

campaigns have changed since Town & Country was decided. Where before the common objective

was to infiltrate the labor force, many current salting campaigns are aimed at involving employers

in costly litigation. The changing reality caused the Board to reconsider its approach in Toering.

Toering addressed both the definition of an employee under the Act and the framework for

establishing a violation of the Act, including the burden of proof regarding employee status:

       The Board’s experience in deciding hiring discrimination cases confirms that the
       protections afforded statutory employees must be limited to job applicants who are
       genuinely interested in seeking to establish an employment relationship with the
       employer. . . the absence of any limitation on the scope of protection for job
       applicants creates the real and unacceptable possibility of abuse of the Board’s
       processes in efforts to accomplish goals fundamentally inconsistent with the policies
       and purposes of the Act.


                                                 26
Under the current approach to hiring-discrimination allegations, the Board employs
an implicit – and effectively conclusive – presumption that any individual who
actually applies for a job is entitled to protection as a Section 2(3) employee. As a
consequence, applicants have been accorded statutory employee status and have been
alleged as 8(a)(3) discriminatees even when they have engaged in conduct clearly
intended to provoke a decision not to hire them, or have engaged in antagonistic
behavior toward the employer that is wholly at odds with an intent to be hired . . . .

[] In some cases, there is reason to doubt that the submission of batched applications
by a third-party union representative was authorized by the putative individual
applicants. Even if authorized, there is reason to doubt that the applicants had any
real interest in going to work for a nonunion employer. On the contrary, consistent
with the International Union’s policy directive in this case, those applications may
be submitted for the sole purpose of creating “a prima facie case of statistical
discrimination” upon which to base unfair labor practice claims . . . .
....
As mentioned, current Board law permits these cases to be litigated as potential
unfair labor practices because statutory employee status is conclusively presumed
from the mere submission of an application. In practice, this means that the issue of
an applicant's genuine interest in employment can generally be raised only as an
affirmative motivational defense by an employer claiming to have denied the
applicant a job, or job consideration, because it knew or had a good-faith reason to
believe that the applicant had no real interest in working for it. Consequently, the
General Counsel generally will not present evidence at the hearing of the applicant's
genuine job interest . . . .

We recognize that union salting campaigns may involve activity protected by Section
7 of the Act. Although some salts, paid or unpaid, may genuinely desire to work for
a nonunion employer and to proselytize co-workers on behalf of a union, other salts
clearly have no such interest . . . .
....
[] Clearly, employers are not to be immunized from lawful economic pressure
resulting from labor disputes. However, there is a meaningful distinction between
direct economic warfare between parties to labor disputes and the subversion of the
Board’s processes by one party for the objective of inflicting economic injury on the
other. The Board does not serve its intended statutory role as neutral arbiter of
disputes if it must litigate hiring discrimination charges filed on behalf of
disingenuous applicants who intend no service and loyalty to a common enterprise
with a targeted employer.

We seek to discourage cases where unfair labor practice allegations of hiring
discrimination are filed for this objective. We therefore believe that a change in law
is warranted so as to better insure against it. We find that this result is better


                                         27
achieved by shifting the focus with respect to an applicant's genuine job interest from
the employer’s proof of a motivational defense to the General Counsel's proof that
an applicant is entitled to the protected status of a statutory employee. Thus, we will
abandon the implicit presumption that anyone who applies for a job is protected as
a Section 2(3) employee. As more fully discussed below, we will impose on the
General Counsel the burden of proving the applicant’s genuine job interest.
....
[] We now hold, for all of the reasons stated above, that the General Counsel’s
burden of proof in all hiring discrimination cases includes the burden to prove that
the alleged discriminatee was an applicant entitled to protection as a Section 2(3)
employee, i.e., an applicant genuinely interested in seeking to establish an
employment relationship with the employer.

This requirement embraces two components: (1) there was an application for
employment, and (2) the application reflected a genuine interest in becoming
employed by the employer . . . .

As to the second component (genuine interest in becoming employed), the employer
must put at issue the genuineness of the applicant’s interest through evidence that
creates a reasonable question as to the applicant’s actual interest in going to work for
the employer. In other words, while we will no longer conclusively presume that an
applicant is entitled to protection as a statutory employee, neither will we presume,
in the absence of contrary evidence, that an application for employment is anything
other than what it purports to be. Consequently, once the General Counsel has shown
that the alleged discriminatee applied for employment, the employer may contest the
genuineness of the application through evidence including, but not limited to the
following: evidence that the individual refused similar employment with the
respondent employer in the recent past; incorporated belligerent or offensive
comments on his or her application; engaged in disruptive, insulting, or antagonistic
behavior during the application process; or engaged in other conduct inconsistent
with a genuine interest in employment . . . . Assuming the employer puts forward
such evidence, the General Counsel, to satisfy the genuine applicant element of a
prima facie case of hiring discrimination, must then rebut that evidence and prove by
a preponderance of the evidence that the individual in question was genuinely
interested in seeking to establish an employment relationship with the employer.
Thus, the ultimate burden of proof as to the Section 2(3) status of the alleged
discriminatee-applicant rests with the General Counsel.

[] Thus, if at a hearing on the merits, the employer puts forward evidence reasonably
calling into question the applicant’s genuine interest in employment, the General
Counsel must prove the applicant’s genuine interest by a preponderance of the
evidence in order to prove that the applicant is an employee within the meaning of
Section 2(3). An employer’s motivation for making an alleged discriminatory hiring


                                          28
       decision does not become relevant until the General Counsel satisfies his burden of
       proof on the applicant’s statutory employee status.

Toering, 351 N.L.R.B. at 229-234.

       We quote Toering at such great length to make clear that it represents the Board’s judgment,

based on its experience, that “[t]he Congressional goal of industrial peace through the ‘friendly

adjustment of industrial disputes’ is not furthered by extending the Act’s protections against hiring

discrimination to [disingenuous] applicants.” Toering, 351 N.L.R.B. at 231. In furtherance of that

judgment the Board “abandon[ed] the implicit presumption that anyone who applies for a job is

protected as a Section 2(3) employee . . . [and] impose[d] on the General counsel the burden of

proving the applicant’s genuine job interest.” Id.

       In Transportation Management, the Supreme Court made clear that the deference due the

Board in its interpretation of the Act extended to its decision to employ the burden-shifting

framework set forth in Wright Line, notwithstanding that that framework treated the employer’s dual

motivation as an affirmative defense to be proven by the employer. 462 U.S. at 399-400. The

Supreme Court reaffirmed that determination in Dir., Office of Workers’ Comp. Programs v.

Greenwich Collieries, 512 U.S. 267, 278 (1994):

       And although we reject Transportation Management’s reading of § 7(c),[15] the
       holding in that case remains intact. The NLRB’s approach in Transportation
       Management is consistent with § 7(c) because the NLRB first required the employee
       to persuade it that antiunion sentiment contributed to the employer’s decision. Only
       then did the NLRB place the burden of persuasion on the employer as to its
       affirmative defense.



       15
         In Transportation Management, the Court held that the phrase “burden of proof” in § 7(c)
of the APA refers to the burden of production, not persuasion. 462 U.S. at 402-03. The Court
retreated from that position in Greenwich Collieries and held that the term refers to the burden of
persuasion, not production. 512 U.S. at 277-78.

                                                 29
       Thus, we reject the argument that this court is obliged to review this case under the Toering

framework because the Board was without statutory authority to follow the FES framework under

the APA. The FES framework was as much within the Board’s authority as the Wright Line and

Toering frameworks.

       We further observe what should be evident from our perhaps over-inclusive account of the

proceedings below. Notwithstanding that Toering had not yet been decided, the genuine interest of

the applicants was not presumed, but was litigated, and was found as fact based on the record. The

General Counsel was required to show a violation of the Act and did so.

       We GRANT the General Counsel’s petition for enforcement. We remand for further

proceedings consistent with this opinion.




                                                30
