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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 11, 2003 Decided March 28, 2003

No. 01-1393

CONTRACTORS’ LABOR POOL, INC.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,

AFL–CIO, LOCAL 46, ET AL.,

INTERVENORS

On Petition for Review and Cross–Application

for Enforcement of an Order of the

National Labor Relations Board

Robert W. Tollen argued the cause and filed the briefs for

petitioner.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

William M. Bernstein, Senior Attorney, National Labor

Relations Board, argued the cause for respondent. With him

on the brief were Arthur F. Rosenfeld, General Counsel, John

H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Meredith

Jason, Attorney. Deirdre C. Fitzpatrick and Julie F. Marcus, Attorneys, entered appearances.

Robert D. Kurnick argued the cause for the intervenor

unions and amicus curiae International Brotherhood of Electrical Workers, AFL–CIO in support of respondent. With

him on the brief was David Hannah.

Before: EDWARDS and ROGERS, Circuit Judges, and

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

SILBERMAN.

SILBERMAN, Senior Circuit Judge: Contractors’ Labor Pool

(CLP) challenges a Board determination that CLP’s policy of

refusing to hire applicants whose recent wages were 30%

higher or lower than its starting wages was discriminatory

within the meaning of § 8(a)(3) of the National Labor Relations Act. Also challenged is the Board’s conclusion that

CLP discriminated against several paid union organizers in

assignment because, according to petitioner, they were not its

‘‘employees’’ or, alternatively, because of a ‘‘disabling conflict,’’ they were engaged in unprotected activity. We agree

with petitioner’s first challenge but reject its second and

therefore grant the petition in part and deny it in part.

I.

CLP, a nonunion company, supplies, on a temporary basis,

several thousand construction workers a year to various

contractors in Arizona, California, Oregon, Washington, Nevada, and Colorado.1

 It operates 15 offices in those states.

1 The ALJ’s list of states, which takes account of CLP’s offices

at the time of the hearing (held on various days between September

11, 1995 and November 8, 1996), does not include Colorado. How-
3

Essentially, it employs a permanent labor pool from which

contractors draw skilled and unskilled workers as needed.

Its management believes that its success depends on its

ability to keep a large number of reliable employees. Accordingly, it has adopted various measures to improve employee

retention (and productivity) since its inception in 1987.

For instance, it sought to improve its applicant screening

process in the early 1990s by examining applicants’ driving

records and references with greater care. And beginning in

1989, an applicant was asked to specify an acceptable hourly

rate. If the figure was substantially higher than CLP was

willing to pay, that person would not be hired for it was

assumed that the employee would soon become dissatisfied

and quit. Petitioner’s CEO Thomas McCune testified that

short-term employees, moreover, were prone to substandard

work and accidents.

In 1993 the company conducted a worker retention study

that served to further refine petitioner’s hiring policy. The

available data indicated that workers who had previously

earned wages that were either 30% higher or lower than

CLP’s wages would be significantly less likely to work for the

company for 100 hours or more within a 40–day period. The

study predicted that adopting a 30% rule (precluding applicants whose prior wages deviated by 30% from CLP’s starting salary) would eliminate some eligible workers. But it

would cause CLP’s important retention rate to rise 3.5%.

Accordingly, in 1994 CLP adopted the 30% hiring standard.

In the first full year following adoption of the 30% rule the

percentage of applicants deemed ineligible for hire increased

ever the Board granted CLP’s motion to add to the record Contractors Labor Pool, Inc. (IBEW Local Union 68), 1999 WL 33453678,

(July 21, 1999), which addresses similar unfair labor practice

charges raised against the company’s Denver, Colorado operations.

In addition, the ALJ recognized that CLP has recruited new

employees from neighboring states, such as Idaho, but the record

does not indicate that it has offices there. See In re W.D.D.W.

Commercial Systems & Investments, Inc., 335 N.L.R.B. No. 25,

2001 WL 1011927, at *91 (Aug. 27, 2001).
4

from 70 to 75%, but CLP’s retention rate increased from 57.6

to 63.9%, workers compensation costs were significantly reduced, and the company’s safety record showed substantial

improvement.

The ALJ specifically determined that petitioner’s implementation of its 30% rule was not motivated by antiunion

animus; instead CLP had pursued a legitimate business

objective. The Board adopted that recommended finding.

Nevertheless, the ALJ and the Board concluded that petitioner’s 30% rule operated to exclude workers in a number of

Western labor markets who previously had worked on jobs

covered by a union collective bargaining agreement.2

 The

effect was most pronounced in Southern California; CLP’s

top hourly rate for journeymen electricians was $18.00 in that

market whereas the average union scale was $26.00. In

Seattle, on the other hand, the ALJ concluded that the

differential was less.

Petitioner contends that union rates are not 30% higher

than CLP’s in Idaho, parts of Washington state and Denver,

Colorado. It cites an ALJ determination to that effect—at

least respecting Denver—in a companion case against it, in

which the judge recommended against a finding of an

§ 8(a)(3) violation. See Contractors Labor Pool, Inc. (IBEW

Local Union 68), 1999 WL 33453678, at *11. However, it

does not appear that it produced clear evidence as to its rates

in Idaho and central and western Washington. The Board’s

brief is virtually silent on the matter and its decision, without

referring to the Denver case, only said that ‘‘it is no defense

that a few union members may have passed CLP’s 30% rule.’’

In re W.D.D.W. Commercial Sys., 2001 WL 1011927, at *5,

n.17.

The ALJ concluded, and three of the four Board members

agreed, relying upon the Supreme Court’s decision in NLRB

v. Great Dane Trailers, Inc., 388 U.S. 26 (1967), that CLP

2 The consolidated charges in this case were brought by local

unions in two of the states of operations: Orange County in

Southern California, San Mateo and Contra Costa counties in

Northern California, and the Seattle area in Washington.
5

violated § 8(a)(3) because the 30% rule excluded previously

organized workers and therefore had ‘‘inherently destructive’’

effects on employees’ § 7 rights. Chairman Hurtgen dissented from the Board’s order because, in his view, there was no

showing of discrimination or unlawful motive.

B.

The second issue in the case—the Board’s finding of petitioner’s discriminatory assignment of two union organizers—

also has its genesis in the early 1990s when Local 441 began

targeting CLP as part of the broader campaign against

nonunion employers on the West Coast. The Local employed

what is called ‘‘salts,’’ paid organizers sent to job sites ostensibly to obtain employment but with the objective of inducing

union organization. The ALJ determined that some of these

salts were instructed not only to uncover unfair labor practices but to provoke them. As one organizer put it, their

presence on a jobsite was not necessarily ‘‘to build their damn

job,’’ but if organizing tactics were unsuccessful ‘‘to bankrupt

the contractors.’’ In re W.D.D.W. Commercial Sys., 2001

WL 1011927, at *13. Local 441 issued several newsletters

boasting of successful efforts in getting some of the larger

nonunion contractors to close their businesses. CLP claims

to have learned about the full extent of Local 441’s salting

activities only at the unfair labor practice hearing in this

case.3

As part of this salting campaign Local 441 President

Vaughn Hedges applied for employment with CLP in 1992

without making the company aware of his union affiliation.

After successfully passing the screening test he was referred

to CLP customer Aztech Electric in California and reported

3 However, the ALJ found that CLP had first learned of Local

441’s salting activities somewhat earlier because of an unfair labor

practice charge against another company. In response, CLP distributed guideline literature to its employees on how to deal with

such campaigns through lawful means, recognizing Local 441 specifically as a union intent on generating unfair labor practice litigation

to hurt the company financially.
6

to its construction site in November 1992. Four days later he

was released from work at Aztech by foreman Adamik.

Aztech claimed that Hedges had completed a particular project and it wanted to give additional work to some regular

employees. After being told that he was being laid off,

Hedges started talking about the union and how it would be

best for the employees if Aztech Electric unionized. He then

signed his timecard, left the site, and went to his truck, where

he picked up some union literature and began to distribute it

to other electricians. Adamik then told Hedges to leave the

jobsite and Hedges complied.

Hedges did not talk to CLP about the incident until the

next day. The staff manager Margo Nezrab accused Hedges

of distributing literature on CLP’s time after he had been laid

off. Hedges admitted this was true. Nezrab then added that

CLP gets contracts from companies like Aztech precisely

because it is a nonunion employer. She made it clear that

union literature was not welcome on the job, but did suggest

that Hedges would continue to get work if available. Hedges

received his paycheck later that week. CLP never contacted

him regarding work again, and testimony revealed that a

‘‘DNU (Do Not Use) until further notice’’ was entered into

Hedges’ CLP computer file after the episode. In re

W.D.D.W. Commercial Sys., 2001 WL 1011927, at *61.

Shawn Smith was also a Local 441 member at the time

these events occurred. In September 1992, Local 441 Business Manager Doug Saunders told him to apply with CLP.

He applied and was accepted for employment. Smith was let

go from his second assignment with Aztech Electric on November 25, 1992, the day after Hedges was released, also

because his job had been completed. The ALJ noted that

Aztech foreman Adamik was aware of his union affiliation and

intent to distribute union literature. Smith, like Hedges,

received a ‘‘DNU’’ code and was not referred another job.

Based on this record, the ALJ determined that CLP’s

actions against these employees would be violative of

§ 8(a)(1) and (3) of the Act, but decided that because Local

441 paid union organizers purposed to engage in activities
7

inimical to the employers’ operations, a ‘‘disabling conflict’’

had been created. Accordingly, the salts were no longer

‘‘employees’’ within the meaning of § 2(3) of the Act. The

Board majority disagreed, holding that even if a disabling

conflict had existed between Local 441 and CLP, which would

mean their activity was ‘‘unprotected,’’ the salts nevertheless

had statutory employee status under NLRB v. Town &

Country Elec., 516 U.S. 85 (1995). The Board did not actually decide whether a disabling conflict had been created,

because CLP had argued that salts were not statutory employees. Nevertheless, the Board went on to hold that even

assuming arguendo that such a conflict existed,4

 and therefore the employees were engaged in unprotected activity,

CLP did not demonstrate that it actually relied on this

conflict in making its workplace decision; accordingly it could

not raise it as a defense. (Chairman Hurtgen dissented only

on the limited issue whether petitioner would be entitled to

toll its backpay liability if it could show that once it discovered—at the unfair labor practice hearing—that Hedges and

Smith were engaged in a disabling conflict it would not have

assigned work to them). The Board ordered CLP to immediately reinstate the employees and make them whole for any

losses suffered as a result of the discriminatory activity. And

the order precluded the ALJ from opening up the record on

the question of whether CLP could rely on the alleged

4 The Board in dicta split on whether Local 441’s behavior

constituted a disabling conflict. See, e.g., Sunland Construction

Co., 309 N.L.R.B. 1224 (1992). Members Liebman and Walsh wrote

separately to state their belief that Local 441’s objective of generating litigation costs to cause CLP economic hardship did not amount

to a disabling conflict, as long as it could not be shown that the salts

were performing their jobs incompetently or engaging in ‘‘violence,

sabotage, or disparagement of the business.’’ In re W.D.D.W.

Commercial Sys., 2001 WL 1011927, at *15. Member Truesdale

believed that if an employer can show that a union’s ‘‘overarching

objective’’ is to drive the company out of business, this goal would

be ‘‘separate from and indeed in conflict with organizational objectives,’’ and would entitle the employer to lawfully decline to hire, or

retain its salts. Id. at *24 (Member Truesdale, concurring). Chairman Hurtgen agreed with Truesdale.
8

disabling conflict to toll backpay liability or for any other

purpose.

II.

A.

Section 8(a)(3) makes it unlawful for an employee ‘‘by

discrimination in regard to hire or tenure of employment or

any term or condition of employment to encourage or discourage membership in any labor organization.’’ 29 U.S.C.A.

§ 158(a)(3) (emphasis added). Petitioner’s main challenge is

to the Board’s determination that the 30% rule is ‘‘inherently

destructive’’ of employees’ § 7 rights to engage in protected

activity, and therefore the employer’s motive—whether to

encourage or discourage membership in any labor organization—is irrelevant. (All but two employees are affected by

this determination.) In support of this challenge, petitioner

raises two arguments; its 30% rule is not inherently destructive and, in any event, the Board’s explicit finding that the

employer’s motivation, in adopting the 30% rule, was not

tainted by antiunion animus makes a § 8(a)(3) violation analytically impossible.

The contention that the 30% rule is not inherently destructive is not completely fleshed out.

Petitioner points to Chairman Hurtgen’s dissent which

argued:

[T]here is no showing of discrimination and thus the

Great Dane analysis TTT does not even apply. Respondent did not discriminate along section 7 lines.

Rather, Respondent CLP drew a line between highwage earners and low-wage earners. A high-wage

earner with a non-union background (e.g., based on

skill and experience) was not eligible for hire. A

non-high-wage earner with a union background was

eligible for hire. Thus there was no discrimination

prohibited by the Act.

In re W.D.D.W. Commercial Sys., 2001 WL 1011927, at *28

(Chairman Hurtgen, dissenting). We take the Chairman to
9

mean that the 30% rule, by itself, is not evidence of discrimination. If evidence had been presented that petitioner had

adopted the rule for the very purpose of excluding applicants

who had recently been covered by union contracts that would

be a different matter, even if the operation of the rule

excluded nonunion applicants as well. See, e.g., Birch Run

Welding & Fabricating, Inc. v. NLRB, 761 F.2d 1175, 1180

(6th Cir. 1985) (ordering general layoffs to discourage or

retaliate against union activity is unlawful discrimination,

even though some employees opposed to the union were laidoff as well). Moreover, it would seem to us that, at least

theoretically, even a facially nondiscriminatory rule could be

shown to invariably discriminate against union adherents and

therefore might be termed ‘‘inherently destructive.’’ Be that

as it may, the Chairman’s dissent does not squarely respond

to the majority’s contention that petitioner’s rule is inherently destructive.

Petitioner emphasizes, however, that its company-wide 30%

rule does not adversely impact applicants recently covered by

union contracts in all of its labor markets. In other words, as

we would re-characterize petitioner’s argument, an employer’s practice can hardly be described as inherently destructive of § 7 rights if its very destructiveness depends on

independent variables—in this case actual evidence of the

differential between petitioner’s starting wages and the union

wages in any particular locality. In the line of Supreme

Court cases that have endorsed Board findings that particular

practices are inherently destructive, and therefore § 8(a)(3)

violations are made out without further evidence of an employer’s antiunion animus, those practices can be regarded as

having an inevitable negative impact on union adherents—

without regard to any other facts. See, e.g., NLRB v. Great

Dane Trailers, Inc., 388 U.S. 26 (1967) (employer’s refusal to

pay vacation benefits accrued under terminated collective

bargaining agreement to strikers while giving such payments

to nonstrikers and replacements); Metropolitan Edison Co.

v. NLRB, 460 U.S. 693 (1983) (employer disciplined union

officials more severely than other employees for participation

in a work stoppage).

Still, given the record confusion as to the actual situation in

petitioner’s various labor markets as well as the imprecise
10

nature of both petitioner’s and the Board’s arguments on this

issue, we think it preferable not to decide whether petitioner’s

practice could be described as inherently destructive and

instead to pass on to petitioner’s main point: that once the

Board found explicitly that it had acted without an antiunion

animus it was not possible for the Board to rely on the

inherently destructive rationale.

The keystone of the Board’s decision is its reliance on a

discrete quotation from Great Dane:

First, if it can reasonably be concluded that the

employer’s discriminatory conduct was ‘inherently

destructive’ of important employee rights no proof of

an antiunion motivation is needed and the Board

can find an unfair labor practice even if the employer introduces evidence that conduct was motivated

by business considerations.

Great Dane Trailers, 388 U.S. at 34 (emphasis added).

Drawing on this language the Board concluded it was free to

hold that petitioner violated § 8(a)(3) even if it also found that

petitioner’s motive was blameless. The Board analogized its

new legal rationale to ‘‘the disparate impact theory long

applied in cases prosecuted under Title VII of the Civil

Rights Act of 1964.’’ In re Commercial Sys., 2001 WL

1011927, at *5. Petitioner argues, and we agree, that the

Board over reads the quotation from Great Dane, particularly

in light of Supreme Court cases upon which Great Dane

relied as well as cases that followed Great Dane and interpreted it.

In Great Dane an employer refused to pay strikers vacation benefits accrued under an expired collective bargaining

agreement yet at the same time paying equivalent benefits to

non-strikers. The Court of Appeals had refused to enforce

the Board’s order because of a lack of explicit evidence of the

employers’ antiunion motivation. The Supreme Court acknowledged that although the employer’s practice was clearly

discriminatory (on its face) and that it was obviously ‘‘capable

of discouraging membership in a labor organization’’ the

statute usually requires more—specific evidence of an antiunion purpose. NLRB v. Great Dane Trailers, 388 U.S. at
11

32. Reviewing its past cases, however, it pointed out that

some conduct carries with it ‘‘unavoidable consequences which

the employer not only foresaw but which he must have

intended and thus bears its own indices of intent.’’ Id. at 33

(quoting NLRB v. Erie Resistor Corp., 373 U.S. 221, 231

(1963)).

That articulation makes clear that certain employer practices permit the Board to draw what is often referred to as a

‘‘secondary inference,’’ see, e.g., NLRB v. Universal Camera

Corp., 190 F.2d 429, 432 (2d Cir. 1951) (Frank, J. concurring),

of a discriminatory motive without any other evidence. To be

sure, the quote upon which the Board relies, if read alone,

could support the notion that, given certain conduct, an

employer’s motive is not relevant (although even the quote

does not suggest that an explicit finding of a benign motive

would be of no significance). However, the wording upon

which the Board relies is in the paragraph immediately

following the Court’s discussion of its prior cases and its

quote from Erie Resistor. Moreover, it is preceded by the

sentence (which the Board does not quote): ‘‘[f]rom this

review of our recent decisions, several principles of controlling importance here can be distilled.’’ Great Dane Trailers,

388 U.S. at 34. It seems rather plain to us, therefore, that

the Court did not mean to deviate from its past line of cases;

when it said, ‘‘no proof of an antiunion motivation is needed.’’

Id. It obviously meant no further proof of antiunion motivation, because if the employer’s conduct was inherently destructive of union rights the Board could legitimately draw

the inference that the employer had the proscribed motivation. If there were any doubt as to the Court’s meaning in

Great Dane—which we do not harbor—some years later in

Metropolitan Edison, the Court described Great Dane as

holding that ‘‘[s]ome conduct is so inherently destructive of

employee interests that it carries with it a strong inference of

impermissible motive.’’ Metropolitan Edison, 460 U.S. at

701 (emphasis added).5

5 Of course, in most instances finding an employer’s discriminatory intent against union workers in regard to hire or tenure of
12

The intervenors, but not the Board’s decision, rely heavily

on another rather old Supreme Court case, Republic Aviation

Corp. v. NLRB, 324 U.S. 793 (1945), to support the argument

that a § 8(a)(3) violation can be made out without regard to

an employer’s motivation. There an employer enforced an

overly broad no solicitation rule, (on nonworking time), which

the Board held violated § 8(a)(1) because it interfered with

union organizing attempts and therefore the employees’ § 7

rights. Although the Court recognized that the employer’s

adoption and enforcement of the rule was not motivated by

antiunion animus nor did it discriminate against union solicitation, it nevertheless affirmed the Board’s holding that discharging employees who violated the rule was in turn a

violation of § 8(a)(3). Subsequently, in Radio Officers Union

v. NLRB, 347 U.S. 17 (1954), the Court ‘‘explained’’ its prior

holding as follows: ‘‘Since the rules were no defense and the

employers intended to discriminate solely on the ground of

such protected activity, it did not matter that they did not

intend to discourage membership since such was a foreseeable result.’’ Id. at 46. The difficulty with that description is

that the union solicitation was treated as protected activity as

a matter of law; there was no showing that the employer’s

policy, which applied to all kinds of solicitation, was directed

at union organization. To say then, that the employer ‘‘intended to discriminate solely on the grounds of TTT protective

activity’’ is somewhat of a bootstrap analysis. Id.

Admittedly, the holding in Republic Aviation and the rather unsatisfactory explanation of that case in Radio Officers

does not seem consistent with the Erie Resister, Great Dane,

Metropolitan line of cases. We think Republic Aviation

should be regarded as something of an anomaly. It stands

for the limited proposition that if an employer adopts an

illegal rule (a violation of § 8(a)(1) as a matter of law) and

then fires an employee for transgressing the rule, it automatiemployment will demonstrate intent to encourage or discourage

union membership. The facts in Great Dane, paying accrued

benefits to nonunion employees while extinguishing the same benefits for union employees, are a prime example. See Great Dane

Trailers, 388 U.S. at 32.
13

cally violates § 8(a)(3) even though it adopted the rule for

wholly benign reasons. See Republic Aviation, 324 U.S. at

805.

In sum, the Supreme Court’s long-standing interpretation

of § 8(a)(3) is plainly at odds with the Board’s reasoning in

this case. Indispensable to a determination of a violation of

§ 8(a)(3)—at least outside the Republican Aviation exception—is a finding that an employer acted out of an anti- (or

pro-union) motivation. Whatever legitimate inference that

might be drawn from petitioner’s adoption of the 30% rule the

Board certainly cannot conclude explicitly that petitioner’s

motivation is benign and then hold that its practice independently violates § 8(a)(3).

It also follows that the Board may not draw support for its

decision from the disparate impact line of cases under Title

VII. For one thing, the statutory language is different.

Title VII is broader than § 8(a)(3), for it is unlawful for an

employer

(1) to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any

individual with respect to his compensation, terms,

conditions, or privileges of employment, because of

such individual’s race, color, religion, sex, or national

origin; or

(2) to limit, segregate, or classify his employees in

any way which would deprive or tend to deprive any

individual of employment opportunities or otherwise

adversely affect his status as an employee, because

of such individual’s race, color, religion, sex, or national origin.

42 U.S.C.A. § 2000e–2(a) (emphasis added). Second, as we

have noted, the Court has never imported that concept into

its cases interpreting § 8(a)(3). Indeed, the Court has been

reluctant to extend the disparate impact theory to other laws

prohibiting discrimination even where the statutory language

bears greater resemblance. See, e.g., Hazen Paper Company

v. Biggins, 507 U.S. 604, 610 (1993) (‘‘Disparate treatment,
14

thus defined, captures the essence of what Congress sought

to prohibit in the Age Discrimination in Employment Act’’);

Alexander v. Sonderval, 532 U.S. 275, 280–81 (2001) (‘‘It is

similarly beyond dispute TTT that § 601 prohibits only intentional discrimination TTT [although] regulations promulgated

under § 602 of Title VI may validly proscribe activities that

have a disparate impact on racial groups); Washington v.

Davis, 426 U.S. 220, 247–48 (1976) (‘‘We are not disposed to

adopt this more rigorous standard [disparate impact] for the

purposes of applying the Fifth and Fourteenth Amendments’’).

III.

There remains the question whether the Board’s finding

that petitioner discriminated against Hedges and Smith is

vulnerable. That finding led to a Board determination that

petitioner violated § 8(a)(3) quite independently of its 30%

rule. Petitioner’s main argument, that these two ‘‘salts,’’ and

other paid organizers, as a matter of law were not petitioner’s

employees under the NLRA, but were rather employees of

the union, is foreclosed essentially by the Supreme Court’s

opinion in Town & Country Electric, Inc., 516 U.S. 85, 98

(1995), holding that paid union organizers are nevertheless

employees under the Act. The Court explicitly contemplated

that such organizers would engage in activities that might

‘‘hurt the company through unlawful acts,’’ but it found that

they were no less employees than ‘‘unpaid zealots’’ or ‘‘dissatisfied workers’’ engaged in such behavior. Id. at 96–97. See

also Tualatin Elec. v. NLRB, 253 F.3d 714, 717 (D.C. Cir.

2001) (upholding NLRB order awarding backpay to union

salts unlawfully fired by a nonunion contractor because of

organizing activity).

To be sure, as we have recently noted in Casino Ready

Mix, Inc. v. NLRB, No. 01–1471, (D.C. Cir. Mar. 14, 2003),

the Board recognizes that employed union organizers might

engage in conduct that raises a disabling conflict with their

employer and is therefore unprotected. Whether the conduct
15

at issue in this case was unprotected, as we have noted,

caused a sharp division amongst the Board members. But it

is unnecessary for us to resolve the issue because we think

the Board reasonably determined (all four members apparently agreed) that an employer who wishes to assert that its

otherwise discriminatory conduct is justified by the employee’s unprotected activity must show that the employee’s unprotected conduct caused the employer’s action. The Board

likened a disabling conflict defense to a Wright Line defense

whereby an employer must demonstrate initially in a mixed

motive case, that it relied at least in part on considerations

unrelated to protected activity in imposing discipline on an

employee. See Wright Line, a Div. of Wright Line Inc., 251

N.L.R.B. 1083, enf’d 662 F.2d 899 (1st Cir. 1981), cert. denied

455 U.S. 989 (1982). Since petitioner never asserted that it

was aware of Hedges’ and Smith’s ‘‘salt’’ status (or any

allegedly disabling conflicts) at the time it engaged in discriminatory conduct this defense was unavailable.

During the unfair labor practice hearing, however, petitioner, as we have noted, did hear testimony which showed that

Hedges and Smith were salts—although we are not told how

they interacted with other salts or what was their actual

conduct. From that testimony, alone, petitioner alternatively

argues that its backpay liability should be tolled from the

time it discovered Hedges and Smith were salts. This is an

untenable proposition. An employee does not lose his protected status merely because he is a salt. Rather, he may

lose it if he engages in unprotected activity that emanates

from disabling conflicts arising in connection with salting.

See Casino Ready Mix, No. 01–1471, slip op. at 12. Maybe

this is what petitioner meant to say in arguing that backpay

should be tolled. We will assume as much in addressing this

claim.

In support of this argument, petitioner relies on Chairman

Hurtgen’s dissent that argued petitioner should be at least

entitled to litigate that issue in a subsequent backpay pro-
16

ceeding—a position that the majority rejected. Whatever the

merits of the Chairman’s position,6

 we may not consider it—

let alone the broader argument petitioner makes—because we

are without jurisdiction to consider the issue. As the intervenors point out, this tolling question was not raised to the

Board and ‘‘[n]o objection that has not been urged before the

Board TTT shall be considered by the court, unless the failure

or neglect to urge such objection shall be excused because of

extraordinary circumstances.’’ 29 U.S.C.A. § 160(e).

Petitioner contends that Chairman Hurtgen satisfied this

requirement by raising the backpay tolling issue in his dissent. The company relies on § 10(e)’s passive voice as an

indication that Congress did not require that the parties

themselves actually raise the issue before the Board, as long

as the members themselves engage in its discussion. CLP,

however, offers no support for its view and probably for good

reason—there is not any. The company had full opportunity

to present the argument regarding backpay tolling in a

motion for reconsideration, and the mere inconvenience of

severing the issues or delaying a petition for review does not

constitute an extraordinary circumstance. See Woelke &

Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665–66 (1982)

(holding that an employer cannot challenge the Board’s sua

sponte conclusion that its conduct did not violate § 8(b)(4)(A)

because a motion of rehearing or reconsideration could have

been filed); see also Alwin Mfg. Co., Inc. v. NLRB, 192 F.3d

133, 143 (D.C. Cir. 1999).

6 We do not believe the majority adequately responded to

Chairman Hurtgen’s dissent on the tolling issue. The three members argued that CLP already had the opportunity to prove that it

relied on a disabling conflict in defending against the unfair labor

practice charges in this proceeding, and precluded CLP a second

opportunity to do so on remand or in subsequent compliance

proceedings. See In re W.D.D.W. Commercial Sys., 2001 WL

1011927, at *9, n.29. The difficulty with that response is it confuses

the petitioner’s failure to demonstrate that it had initially relied on

the alleged disabling conflict with the entirely separate tolling

question.
17

* * * *

For the foregoing reasons, the petition for review is partially granted and partially denied, and the Board’s crossapplication for enforcement of its order is partially granted.

So ordered.