UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NATIONAL LABOR RELATIONS BOARD, 

Petitioner,

v.  No. 02-2302

FORSYTH ELECTRICAL COMPANY,

INCORPORATED,

Respondent. 

On Application for Enforcement of an Order

of the National Labor Relations Board.

(11-CA-16631, 11-CA-1685)

Argued: June 3, 2003

Decided: June 30, 2003

Before WIDENER, NIEMEYER, and LUTTIG, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion. Judge

Niemeyer wrote a dissenting opinion. 

COUNSEL

ARGUED: Melvin Hutson, MELVIN HUTSON, P.A., Greenville,

South Carolina, for Forsyth. Kira Dellinger Vol, NATIONAL

LABOR RELATIONS BOARD, Washington, D.C., for Board. ON

BRIEF: Arthur F. Rosenfeld, General Counsel, John E. Higgins, Jr.,

Deputy General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Charles

Donnelly, Supervisory Attorney, Siobhan M. Kelly, NATIONAL

LABOR RELATIONS BOARD, Washington, D.C., for Board. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

In this petition for enforcement, the National Labor Relations

Board ("NLRB") determined that Forsyth Electrical Company

("Forsyth") illegally refused to reinstate Douglas Hill, David Jones,

and John Kimball, three economic strikers, after their unconditional

offers to return to work. We conclude that the NLRB did not adequately set forth its reasoning, and therefore vacate its decision and

order and remand the matter for further proceedings. 

I.

Forsyth, a North Carolina corporation with an office located in

Winston-Salem, is an electrical contractor. In 1995, facing a shortage

of labor, with multiple jobs to complete, and with delays caused by

inclement weather, Forsyth sought to hire more electricians. At that

time, Gary Maurice, the Business Manager of Local Union 342 of the

International Brotherhood of Electrical Workers, AFL-CIO, began a

"salting"1 campaign directed at Forsyth. In early June, he encouraged

two unemployed union members, including Douglas Hill, to apply for

work at Forsyth. Forsyth hired these individuals, but, needing more

electricians, Forsyth continued to hire. In late June and early July,

Forsyth hired at least two more union workers, electricians David

Jones and John Kimball. 

Allegedly due to poor working conditions arising out of the labor

shortage, Kimball and Jones told Forsyth on July 19 that they were

going on strike, and briefly picketed their jobsite. About a week later,

1

In the words of Maurice, "salting" is the "act of going to work for

non-Union employers for the purpose of organizing," coined from "the

phrase of salting of mines where [one] puts more valuable minerals in a

mine to raise its value." J.A. at 69. 

2 NLRB v. FORSYTH ELECTRICAL COMPANY
Hill also told Forsyth that he was going on strike, although he never

picketed or engaged in any other open activity to indicate that he was

striking. 

Jones, Hill, and Kimball made unconditional offers to return to

work on August 17, August 25, and November 10, respectively. Forsyth told Jones and Hill that there was no work available for them,

and did not respond to Kimball. Forsyth, in particular, never offered

to reinstate them. 

Due to these and other incidents, the General Counsel issued a consolidated complaint against Forsyth, alleging violations of the

National Labor Relations Act, 29 U.S.C. § 151 et seq. ("NLRA").

Among the allegations were that Forsyth had unlawfully fired electrician Douglas Summers for his labor activities, that Forsyth had

unlawfully failed to consider several potential employees because of

their union affiliation, and (directly relevant to the instant case) that

Forsyth had illegally failed to reinstate Jones, Kimball, and Hill following their unconditional offers to return to work. The Administrative Law Judge ("ALJ") concluded that the union had engaged in a

"salting" campaign, including the initiation of an unprotected work

slowdown by the union workers, to try to force Forsyth to hire more

union electricians. Based on this conclusion, the ALJ rejected several

of the General Counsel’s charges of illegal activity, determining, for

instance, that Summers’ participation in the unprotected slowdown

justified his termination. The ALJ did conclude that Forsyth had violated the NLRA in several of its other actions, including in particular

its failure to reinstate the three alleged strikers. 

The NLRB affirmed in part and reversed in part. The NLRB

rejected, without discussion, the ALJ’s finding that there was a labor

slowdown, but agreed with the ALJ that Forsyth unlawfully refused

to reinstate the three economic strikers. The NLRB ordered that the

three strikers be reinstated to their former jobs or to substantially

equivalent jobs, and be made whole for the discrimination they suffered. 

The NLRB now petitions this court for enforcement of its order,

pursuant to Section 10(e) of the NLRA, 29 U.S.C. § 160(e). 

NLRB v. FORSYTH ELECTRICAL COMPANY 3
II.

An employee who refuses to work in protest of working conditions

is an economic striker and retains his status as an "employee" under

Section 2(3) of the NLRA. See NLRB v. Mackay Radio & Telegraph

Co., 304 U.S. 333, 345 (1938). A striking employee is entitled to reinstatement to his former job upon making an unconditional offer to

return to work. See NLRB v. Fleetwood Trailer Co., 389 U.S. 375,

378 (1967). An employer’s failure to reinstate violates Sections

8(a)(1) and 8(a)(3) of the NLRA, unless it can show that its action had

"legitimate and substantial business justifications." Id. at 379. In this

case, there is no dispute that Forsyth failed to reinstate the three workers upon their offer to return to work, and that Forsyth had not permanently replaced them. 

The NLRB must also adequately explain the basis of its decision,

and a failure to do so necessitates a vacatur of the NLRB’s decision

and order. See, e.g., International Union of Operating Engineers,

Local 147, AFL-CIO v. NLRB, 294 F.3d 186, 189, 191 (D.C. Cir.

2002); NLRB v. The Madison Courier, Inc., 472 F.2d 1307, 1323-24

(D.C. Cir. 1972). The NLRB’s order in the instant case must be

vacated and the matter remanded since the NLRB failed to adequately

explain the basis of its decision in at least three distinct ways. 

First, the NLRB inexplicably failed to address some of Forsyth’s

most critical arguments. Forsyth argued that it did not have to reinstate the three strikers since it no longer had openings for electricians.

A "bona fide absence of available work for the strikers in their prestrike or substantially equivalent positions" is a legitimate and substantial justification for failure to reinstate. See Zimmerman Plumbing

& Heating Co., 334 N.L.R.B. 586, 2001 NLRB LEXIS 498, at *11

(July 18, 2001); Randall, Burkart/Randall, 257 N.L.R.B. 1, 6-7

(1981). Not a single word can be found in the NLRB’s opinion

addressing this argument. 

Forsyth also argued that the ALJ erred by concluding that the three

employees were strikers, rather than individuals who had simply quit

and merely claimed to be on strike. Forsyth pointed to several facts

in the record supporting its argument, in addition to an apparent

inconsistency between the ALJ’s treatment of employees Ray Single4 NLRB v. FORSYTH ELECTRICAL COMPANY
ton and Hill.2

 As well, the NLRB’s opinion is silent as to this argument. 

Second, the NLRB failed to explain why it seemingly interpreted

particular evidence cited and relied upon by the ALJ very differently

at different times. The ALJ had found that Forsyth refused to consider

several union-affiliated applicants due to Forsyth’s anti-union animus.

The only proof of antiunion animus, however, was that Forsyth had

rehired Jimmy Brewer, a nonunion, but admittedly poor employee.

The ALJ also used this fact (and only this fact) to discount Forsyth’s

explanation for why it refused to reinstate the three strikers (that they

were "lazy, unproductive, and ineffective workers," J.A. 1), concluding that the Brewer rehiring "undercut[] this asserted justification."

J.A. 23. 

The NLRB overturned the ALJ’s findings as to the refusal-toconsider claims, concluding:

[W]e are unwilling to draw an inference of antiunion animus

based solely on [Forsyth’s] decision to rehire Jimmy

Brewer. We note that [Forsyth] offered an explanation for

its willingness to give Brewer a second chance. Thus, [Forsyth] offered unrebutted testimony that Brewer did a good

job when he first worked for [Forsyth], before he started

drinking. Brewer was rehired only after he assured [Forsyth]

that he had straightened out. No evidence was offered to

rebut this explanation. 

J.A. 1. Yet, in affirming the ALJ’s conclusion that Forsyth unlawfully

failed to reinstate the three strikers, the NLRB stated:

The judge found, and we agree, that [Forsyth] unlawfully

refused to grant preferential reinstatement rights to eco2The ALJ had concluded that Singleton did no more than go "to work

for another company and called it a strike," J.A. 22, but did not so conclude for Hill, despite the fact that the only apparent difference between

the two was that Hill allegedly went on strike five days after Jones and

Kimball picketed their jobsite, while Singleton allegedly went on strike

about a week before Jones and Kimball picketed. 

NLRB v. FORSYTH ELECTRICAL COMPANY 5
nomic strikers David Jones, John Kimball, and Douglas Hill

upon their unconditional offers to return to work. The judge

rejected [Forsyth’s] argument that it was justified in denying

reinstatement because these employees were lazy, unproductive, and ineffective workers. We agree with the judge.

Id. Hence, by rejecting the ALJ’s interpretation of the Brewer rehiring

in one instance, but accepting it in another, the NLRB’s reasoning —

at least without explanation, of which none was provided — appears

self-contradictory. Thus, the NLRB failed in this regard as well to

adequately explain its decision. 

Third, the NLRB also rejected certain findings of the ALJ with

similarly inadequate explanation. The ALJ found that the "union business manager orchestrated the activities of these employees including

the speed at which they worked to create a crescendo of pressure on

[Forsyth] with the crescendo reaching its peak from July 14 to 24,

1995. During this 10 day period Kimball, Jones, and Hill announced

they were going ‘on strike,’ and ceased work. In each case, the individual discussed it with Maurice first." J.A. 13. The ALJ also found

that "the Union’s strategy included creating the need for [Forsyth] to

hire more workers, a need it might then satisfy by referring its members once Benson decided to do as he was told and call Maurice. The

Union would create this demand by having the employees it had

already ‘salted’ into [Forsyth] work slowly and unproductively." Id.

The ALJ based these findings on a careful consideration of the record,

and presented compelling arguments for them. Notwithstanding this,

the NLRB rejected these findings, stating, without explanation, only

that it "did not find sufficient record evidence to support a finding that

there was a generalized work slowdown," J.A. 2, and that Forsyth

"ha[d] not shown that Jones, Kimball, and Hill participated" in any

slowdown. Id. 

There is nothing improper about the NLRB rejecting findings made

and conclusions drawn by the ALJ. See Standard Dry Wall Products,

Inc., 91 N.L.R.B. 544, 545 (1950) ("Accordingly, in all cases which

come before us for decision we base our findings as to the facts upon

a de novo review of the entire record, and do not deem ourselves

bound by the Trial Examiner’s findings."). But, in the instant case, the

ALJ made an extensive review of the record, and justified its conclu6 NLRB v. FORSYTH ELECTRICAL COMPANY
sions and findings with a thorough analysis. If these conclusions and

findings are to be rejected, there must be a thorough explanation for

so doing. The Board may not, as it did, rely upon mere conclusory

assertions that the ALJ’s findings were without adequate support. 

CONCLUSION

For the reasons stated, the NLRB’s decision and order is vacated

and the case is remanded for further proceedings not inconsistent with

this opinion. 

VACATED AND REMANDED

NIEMEYER, Circuit Judge, dissenting: 

Under the more careful review that we give to the Board’s findings

when they amount to a rejection of the ALJ’s findings of fact, I conclude that the Board’s findings in this case are not supported by substantial evidence, and therefore I would deny enforcement.

NLRB v. FORSYTH ELECTRICAL COMPANY 7