                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-11-2005

NLRB v. Smucker Co
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2406




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                                                           NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                                   No. 04-2406




                  NATIONAL LABOR RELATIONS BOARD,
                                        Petitioner

                                         v.

                             SMUCKER COMPANY,
                                           Respondent


                         On Application for Enforcement
                of an Order of the National Labor Relations Board
                                  (4-CA-28672)


                    Submitted Under Third Circuit LAR 34.1(a)
                                  May 9, 2005

              Before: SLOVITER and FISHER, Circuit Judges, and
                          POLLAK, District Judge *

                               (Filed: May 11, 2005)




                                     OPINION




*
    Hon. Louis H. Pollak, Senior Judge, United States District Court for the
    Eastern District of Pennsylvania, sitting by designation.
SLOVITER, Circuit Judge.

       The National Labor Relations Board (“Board”) petitions this court for enforcement

of its order entered January 30, 2004, reported at Smucker Co., 341 N.L.R.B. No. 10

(2004), requiring the Smucker Company (hereinafter “Smucker” or “Respondent”), inter

alia, to remit limited backpay to Fred Cosenza, Timothy Browne, and Wayne Miller, all of

whom are self-admitted union “salts.” In response to the Board’s petition, Smucker filed

a cross-petition for review and asks this court to refuse enforcement of the Board’s order.

       The Board exercised jurisdiction over this proceeding under 29 U.S.C. §§ 160(a)

and (b). The Board’s decision and order was a final order with respect to all the parties.

29 U.S.C. § 160(c). Because the alleged unfair labor practice occurred within this

Circuit, we may exercise jurisdiction pursuant to 29 U.S.C. §§ 160(e) and (f). For the

reasons explained below, we will grant the Board’s petition and order enforcement of the

January 30, 2004 order.

                                             I.

       Smucker, a Pennsylvania corporation, is a contractor that performs work such as

drywall installation, drywall finishing, and metal framing. Sometime in the spring of

1999, Smucker learned that it was the successful bidder for interior-construction work on

a building project at Villanova University in suburban Philadelphia.

       On April 19, 1999, three union organizers, Browne, Cosenza, and another, went to

Smucker’s office. Browne is an organizer with the International Brotherhood of



                                             2
Electrical Workers, Local Union 98 (“IBEW”); Cosenza is an organizer with the

Philadelphia Building Trades Council. The record reflects that the men went to

Smucker’s office with the intent to engage in “salting.” 1

       When Browne and Cosenza arrived at Smucker’s office, the receptionist provided

them with job application forms. The receptionist told the men that there was no need for

them to fill out the forms at the office; she further stated that they were free to photocopy

the forms for dispersal to their friends.

       On April 26, 1999, Browne and Cosenza returned to Smucker’s office

accompanied by Miller, an organizer with the Sprinkler Fitters Local Union 692. All

three men were wearing union shirts and insignia. The three men provided the

receptionist with their completed applications. Thereafter, Todd Montgomery, Smucker’s

Human Resources Manager, entered the reception area and asked Browne, Cosenza, and

Miller if they were willing to take a brief written test. They agreed and proceeded to

complete the four-page test. After they completed the examinations, Montgomery

returned to the reception area. What happened next is the subject of some dispute.

       At the administrative hearing, the union organizers maintained that when

Montgomery reentered the reception area, “Browne asked [Montgomery] how we did [on



   1
     “Salting” is a union organizing technique whereby a union sends one or more of its
members into a business seeking employment; once employed, the members attempt to
unionize the workplace from the inside. See generally Nat’l Labor Relations Bd. v. Town
& Country Elec., Inc., 516 U.S. 85, 96 (1995); Nat’l Labor Relations Bd. v. FES, a Div.
of Thermo Power, 301 F.3d 83, 90 n.2 (3d Cir. 2002).

                                              3
the tests]. . . . The answer was, ‘you’se did real good, everything looks good.’” App. at

75. Browne further inquired “how long the applications were good for”; to which

Montgomery responded, “‘[t]hey’re good forever.’” App. at 75. Finally, Browne asked

Montgomery if Smucker was then hiring; Montgomery replied that the company was not

hiring at that time, but expected to do so soon and that Browne, Cosenza, and Miller

“would be hearing from him.” App. at 75. According to the union organizers, after

having this exchange with Montgomery, they left Smucker’s office.

       Montgomery, in contrast, denied that either Browne, Cosenza, or Miller had asked

him how long the applications remained current; he denied having volunteered such

information.2 He testified that after returning to the reception area he told the men that

they “had done pretty well” on the examinations and that Smucker’s work outlook was

“okay.” App. at 263. Montgomery stated that Browne then raised the subject of the

Villanova job. He testified, “Browne . . . said to me that [Smucker is] working for

Shoemaker down there [at Villanova] and we don’t want to do that.” App. at 263.3


   2
      In the administrative proceedings, Smucker maintained that it had a policy whereby
it only considered an application “active” for the thirty days following its submission and
that, after this thirty-day period, an applicant would need to submit a new application in
order to be considered for employment. App. at 4. The Administrative Law Judge,
however, ultimately found that Smucker only adopted this thirty-day expiration policy
after Browne, Cosenza, and Miller’s visit; indeed, he found that Smucker’s adoption and
posting of the thirty-day policy “was a direct and immediate reaction caused by the . . .
applications by the union representatives . . . to prevent them from being hired.” App. at
6.
   3
     The Shoemaker Company is a general contracting firm which, according to Miller,
had “gone bad on” the unions. App. at 236. Apparently, Shoemaker was the general

                                              4
Montgomery testified that this comment confused him, but he told Browne, Cosenza, and

Miller that “we’re not currently hiring. . . . [But] [i]f we need you we will give you a

call.” App. at 263. Montgomery testified: “Browne [then] came over and he put his arm

around me and he said ‘you’re wrestling with the union now’ and I said ‘what’s that

supposed to mean[?]’” App. at 263. Browne responded, “‘you’re a smart guy you figure

it out,’” and then left the office with his comrades. App. at 264. Thereafter, Smucker

neither hired Browne, Cosenza, or Miller nor considered them for employment. Smucker

did, however, contact and hire other workers in June and July 1999.

       On October 15, 1999, the IBEW filed an unfair labor charge with the Board. As a

result, on December 21, 1999, the Board’s General Counsel issued a complaint alleging

that Smucker had unlawfully refused to hire or consider hiring Browne, Cosenza, and

Miller because of their union affiliation and had thereby violated sections 8(a)(3) and (1)

of the National Labor Relations Act (“Act”). Starting on November 15, 2000, an

Administrative Law Judge (“ALJ”) sitting in Philadelphia presided over a two-day

hearing on this complaint.

       The ALJ ultimately issued a recommended decision finding Smucker liable but

also finding that the union organizers had cheated on the examination administered by

Montgomery on April 26, 1999.4 As remedy, the ALJ recommended that backpay be


contractor on the Villanova job.
   4
    The ALJ stated that it was “clear that at least Browne and Miller not only helped one
another [on the examination] but also may have written the same pages for the other. The

                                             5
awarded, but opined that due to the cheating, Browne, Cosenza, and Miller’s backpay

calculation should not extend past November 16, 2000 – the date that Montgomery

testified about the tests and Smucker “discover[ed]” that the discriminatees had cheated.

App. at 7. The ALJ further recommended against instatement for Browne, Cosenza, and

Miller, finding that “their flagrant conduct [in cheating on the examination] demonstrates

that they are unfit to be Respondent’s employees.” App. at 7.

       In a Decision and Order entered on January 30, 2004, the Board adopted the ALJ’s

recommended decision in all pertinent respects. On May 17, 2004, the Board petitioned

this court for enforcement. In response, Smucker filed a cross-petition for review asking

this court to refuse enforcement of the Board’s order.

                                            II.

       This court reviews the Board’s findings of fact under a deferential standard and

thus “accept[s] the Board’s factual determinations and reasonable inferences derived

[therefrom] . . . if they are supported by substantial evidence.” Citizens Publ’g & Printing

Co. v. Nat’l Labor Relations Bd., 263 F.3d 224, 232 (3d Cir. 2001) (internal citation and

quotations omitted); see also 29 U.S.C. § 160(e) (“The findings of the Board with respect

to questions of fact if supported by substantial evidence on the record considered as a

whole shall be conclusive.”). The United States Supreme Court has explained that a

finding of fact is supported by substantial evidence on the record as a whole if “it would


answers [to several questions], even the blanks, are the same. The bad spelling is
identical.” App. at 4.

                                             6
have been possible for a reasonable jury to reach the Board’s conclusion.” Allentown

Mack Sales & Serv., Inc. v. Nat’l Labor Relations Bd., 522 U.S. 359, 366-67 (1998).

Thus, we have been directed that we should not disturb the Board’s factual findings or

otherwise “displace the Board’s choice between two fairly conflicting views” merely

because we would have made a contrary determination “had the matter been before [us]

de novo.” Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474, 488

(1951).

       Further, although this court’s review over the Board’s legal analysis is plenary,

“[b]ecause of the Board’s ‘special competence’ in the field of labor relations, its

interpretation of the Act is accorded substantial deference.” Pattern Makers’ League of

N. Am. v. Nat’l Labor Relations Bd., 473 U.S. 95, 100 (1985). Thus, this court must

uphold the Board’s interpretations of the Act if they are reasonable. Ford Motor Co. v.

Nat’l Labor Relations Bd., 441 U.S. 488, 497 (1979). In accordance with this deference,

“[w]e will not disturb a backpay order unless it can be shown that the order is a patent

attempt to achieve ends other than those which can be fairly said to effectuate the policies

of the Act.” Atl. Limo., Inc. v. Nat’l Labor Relations Bd., 243 F.3d 711, 718 (3d Cir.

2001) (internal citations and quotation omitted).

       Under the Act, it is unlawful for an employer to refuse to hire or consider for hire a

job applicant because of such applicant’s union activity, sympathy, or affiliation. Nat’l

Labor Relations Bd. v. Alan Motor Lines, Inc., 937 F.2d 887, 890-91 (3d Cir. 1991). To



                                             7
establish a discriminatory refusal-to-hire case, the General Counsel must show:

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

FES, a Div. of Thermo Power, 331 N.L.R.B. 9, 12 (2000) (internal footnotes omitted),

enforced, 301 F.3d 83 (3d Cir. 2002). As recounted above, the Board found that the

General Counsel had carried its burden under FES, a Div. of Thermo Power and that

Smucker had not shown that it would have refused to hire Browne, Cosenza, and Miller

even in the absence of their union affiliations. Due, however, to the fact that it found that

Browne, Cosenza, and Miller had all cheated on their applications, the Board limited the

award of backpay.

       Smucker raises three principal arguments in support of its position that this court

should reject the Board’s decision and decline enforcement of the resulting order. See Br.

of Resp’t at 16. First, Smucker argues that Browne, Cosenza, and Miller were not bona

fide applicants for employment and thus should not be afforded any protection under the

Act. Second, Smucker maintains that the Board erroneously interpreted its hiring needs

during the relevant period and therefore erred in adopting the ALJ’s finding that it

unlawfully refused to hire or consider hiring Browne, Cosenza, and Miller. Third and

                                              8
finally, Smucker argues that, even if this court declines to disturb the Board’s finding of

liability, the fact that Browne, Cosenza, and Miller cheated during the application process

and further lied during the administrative hearing should disqualify them from receiving

even the truncated damages award ordered by the Board. We will address these

contentions seriatim.

                                            III.

       It is Smucker’s position that Browne, Cosenza, and Miller were not bona fide

applicants but rather applied for the jobs as part of a “campaign of harassment directed at

Smucker” and to lay the groundwork for the filing of unfair labor-practice charges. Br. of

Resp’t at 17. As a result, Smucker contends that Browne, Cosenza, and Miller are not

entitled to the Act’s protection.

       As an initial matter, we note that the Supreme Court has specifically held that

individuals on a union’s payroll who are sent by the union to unionize an employer are

entitled to protection under the Act. Nat’l Labor Relations Bd. v. Town & Country Elec.,

Inc., 516 U.S. 85 (1995). Thus, although in applying for the job, Browne, Cosenza, and

Miller were working as salts with the “ulterior motive of trying to organize [Smucker]

from the inside,” App. at 6, such a fact, in-and-of-itself, is of no moment.

       Furthermore, the Board affirmed the ALJ’s factual finding that Browne, Cosenza,

and Miller “‘truly wanted to work for the Respondent. . . .’” App. at 1 (quoting decision

of ALJ). This factual finding is supported by substantial evidence on the record as a



                                              9
whole. Allentown Mack Sales & Serv., Inc., 522 U.S. at 366-67; Citizens Publ’g &

Printing Co., 263 F.3d at 232. Therefore, we decline to disturb the Board’s conclusion

that Browne, Cosenza, and Miller were bona fide applicants entitled to protection under

the Act.

       Next, Smucker argues that the Board’s finding of unlawful discrimination was

grounded in unwarranted speculation regarding the company’s hiring needs and protocol.

See generally FES, a Div. of Thermo Power, 331 N.L.R.B. at 12 (holding that, in refusal-

to-hire cases, General Counsel must show, inter alia, “that the respondent was hiring, or

had concrete plans to hire . . . at the time of the alleged unlawful conduct”). Smucker

argues that the relevant time frame for the “alleged unlawful conduct,” id., is the thirty-

day period after Browne, Cosenza, and Miller submitted their applications, i.e., April 26

to May 26, 1999. Although the record is clear that Smucker hired several workers in June

and July 1999, it is undisputed that Smucker did not hire anyone in May 1999.

Referencing this hiring chronology and pointing to its supposed thirty-day application

rule, see supra, note 2, Smucker maintains that it did not have “concrete plans to hire”

during the pendency of Browne, Cosenza, or Miller’s applications and that, by the time it

did conduct its hiring, the applications were stale. App. at 5.

       The ALJ, however, found that Smucker did not adopt the thirty-day policy until

after Browne, Cosenza, and Miller visited its office on April 26, 1999. Indeed, the ALJ

found that Smucker adopted and posted the thirty-day rule as “a direct and immediate



                                             10
reaction” to the union organizers’ visit and to “prevent them from being hired.” App. at

6. He further found that Smucker’s failure to hire anyone during the month of May was

in all likelihood a “ruse” intended to avoid hiring the union members. App. at 5.

       The Board, in adopting these findings, rejected Smucker’s argument that its

purported thirty-day application rule rendered the application of Browne, Cosenza, and

Miller stale, as well as Smucker’s attendant contention that the relevant time frame for

consideration should be limited to April 26 through May 26, 1999. In adopting the ALJ’s

findings, the Board concluded that Smucker’s hiring decisions in June and July of 1999

were in fact relevant. Considering the record as a whole, the Board’s conclusion is

supported by substantial evidence. Allentown Mack Sales & Serv., 522 U.S. at 366-67.

We thus decline to disturb the Board’s finding that Smucker had concrete plans to hire at

the time of the alleged unlawful conduct.5

       Finally, Smucker argues that, even if this court chooses not to disturb the Board’s

substantive findings, it should nonetheless decline to enforce the Board’s ordered remedy.

The Board’s usual remedy for a refusal-to-hire violation under the Act is instatement and

full backpay. See FES, a Div. of Thermo Power, 331 N.L.R.B. at 17. Nonetheless, if an

employer shows that the discriminatee engaged in misconduct for which the employer

   5
     The Respondent also contends that neither Browne, Cosenza, nor Miller were
qualified for the sought-after positions and that the General Counsel failed to show that
an antiunion animus animated its refusal to hire or consider hiring Browne, Cosenza, and
Miller. The Board, of course, found to the contrary; and, after considering the record
evidence as a whole, we conclude that the Board’s conclusions are supported by
substantial evidence.

                                             11
would have disqualified any applicant, the usual remedy is not warranted. See Marshall

Durbin Poultry Co., 310 N.L.R.B. 68, 69-70 (1993); John Cuneo, Inc., 298 N.L.R.B. 856,

857 n.7 (1990). Rather, “if an employer satisfies its burden of establishing that the

discriminatee engaged in unprotected conduct for which the employer would have

discharged any employee, [ ]instatement is not ordered and backpay is terminated on the

date that the employer first acquired knowledge of the misconduct.” Marshall Durbin

Poultry Co., 310 N.L.R.B. at 70.

       The Board accepted the ALJ’s finding that Browne, Cosenza, and Miller cheated

on the hiring examination.6 The Board further agreed with the ALJ’s conclusion that such

cheating would have provided Smucker with lawful grounds for refusing to hire Browne,

Cosenza, and Miller. Thus, following the precedent of Marshall Durbin Poultry Co. and

John Cuneo, Inc., the Board concluded that Browne, Cosenza, and Miller should not be

awarded instatement; it further found that they were not entitled to any backpay beyond

November 16, 2000 – the day of the administrative hearing at which the testimony

regarding the tests was presented.

       Smucker, however, pointing to the discriminatees’ deceitful and apparently



   6
      During their respective testimony at the administrative hearing, Browne, Cosenza,
and Miller all denied that there was any cheating on the examination. Considering that
the Board found to the contrary, it also implicitly found that all three discriminatees lied
under oath. Furthermore, the finding of the ALJ was explicit: “It may be that Cosenza
did less cheating than the others, but [Smucker’s] reception area was a small room in
which Cosenza could easily see and hear what was going on; and he, as well as the others,
lied at the [hearing] when answering that they did not cheat.” App. at 7.

                                            12
perjurious conduct, argues that Browne, Cosenza, and Miller should not even receive the

limited backpay award ordered by the Board. This court, however, must uphold the

Board’s interpretation of the Act if the interpretation is reasonable, see Ford Motor Co.,

441 U.S. at 497, and thus will not disturb a backpay order unless it is “shown that the

order is a patent attempt to achieve ends other than those which can be fairly said to

effectuate the policies of the Act.” Atl. Limo., Inc., 243 F.3d at 718. Here, the Board, in

conformance with its prior decisions interpreting the Act, refused instatement and

awarded backpay but limited the backpay award to the period beginning on the date of

Smucker’s unlawful conduct and ending on the date that the cheating was discovered.

This determination is reasonable, consonant with the policies undergirding the Act, and

we see no reason to disturb it. Compare with ABF Freight Sys., Inc. v. Nat’l Labor

Relations Bd., 510 U.S. 317, 325 (1994) (“Notwithstanding our concern about the

seriousness of Manso’s ill-advised decision to repeat under oath his false excuse for

tardiness, we cannot say that the Board’s remedial order in this case was an abuse of its

broad discretion or that it was obligated to adopt a rigid rule that would foreclose relief in

all comparable cases.”).7

   7
      This court, of course, does not condone cheating. Moreover, nothing in this opinion
should be perceived as either approving of or turning a blind eye to perjury. Suffice it to
say that the Board, in its measured interpretation of the Act, determined that such
malfeasance did not warrant a wholesale denial of relief; this court, upon application of
its deferential standard of review, finds the Board’s interpretation not incommensurate
with the policies expressed in the Act. The discriminatees’ conduct, however, may well
implicate other statutory provisions. See, e.g., 18 U.S.C. §§ 1001, 1621; 18 Pa. Cons.
Stat. § 4902. The Board may reasonably be of the view that this is a matter best left to

                                             13
                                             IV.

       As we have suggested throughout, the decisionmaker in cases such as this is the

Board. Were we deciding this matter de novo, our findings and conclusions may well

have been different than those it made. But we are not the decisionmaker, and we cannot

say that its decision, when deferred to in light of its responsibility and experience, fails

the substantial evidence inquiry that we are obliged to make.

       For the reasons set forth above, we will grant the Board’s petition for enforcement.




the executive branch in the first instance. See ABF Freight Sys., 510 U.S. at 325; cf. id.
at 326-31 (Scalia, J., concurring).
