*

Honorable Maurice B. Cohill, Jr., Senior U.S. District Judge for the Western District of

Pennsylvania, sitting by designation. 

 1The decision and order appear at 321 N.L.R.B. 561 (1996). 

 2

Section 8(a)(3), 29 U.S.C. § 158(a)(3), provides that:

(a) It shall be an unfair labor practice for an employer —

... (3)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.... 

 3Section 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1), makes it an unfair labor practice for an

employer to interfere with, restrain, or coerce employees in the exercise of their rights, inter alia,

to engage in concerted activities for the purpose of collective bargaining or other mutual aid or

protection. 

United States Court of Appeals,

Eleventh Circuit.

No. 96-6776.

BE & K CONSTRUCTION COMPANY, Petitioner-Cross-Respondent,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.

Oct. 27, 1997.

Petition for Review and Cross-Application for Enforcement of an Order of the National Labor

Relations Board (Alabama Case). 

Before BIRCH, Circuit Judge, FAY, Senior Circuit Judge, and COHILL*

, Senior District Judge.

PER CURIAM:

In this labor case, BE & K Construction Company ("BE & K") petitions for review and the

National Labor Relations Board ("Board") cross-petitions for enforcement of an order of the Board1,

which adopted with modification the findings, rulings, and conclusions of the Administrative Law

Judge (ALJ) that BE & K had violated sections 8(a)(3)2 and 8(a)(1)3 of the National Labor Relations
 4

Because the issues in this case hinge on the language of the manual and the natural

inferences that can be drawn from it, we quote the critical language of the manual here:

On our merit shop projects, the entire work force, from laborer to project

manager, works as a team, without third party interference. Their loyalties are to

the project and BE & K....

BE & K was founded on the idea that we will hire our employees, promote our

employees, and treat our employees on the basis of merit and skill. Our

employees need not look to some outsider to solve our problems; rather an

employee has the right to talk to the foreman and the company about any work

problem....

... Unions are businesses and need money to operate. Since companies are

prohibited by law from paying unions any money, the only place they can get it is

from the employees. In order to persuade employees that they are getting

something for their money, the unions must stir up discontent and divide the

employees and management....

Act (the "Act"). BE & K asks this court to vacate the Board's modified order, arguing that the ALJ's

and the Board's finding of unlawful anti-union animus is not supported by substantial evidence and

is contrary to existing Board and case law. The Board cross-petitions for enforcement of its order.

We conclude that the section 8(a)(1) and 8(a)(3) violations found by the ALJ and the Board are not

supported by substantial evidence. Accordingly, we deny enforcement.

I. Background

BE & K is a general contractor engaged in construction at various sites throughout the

United States, including a job site at a lumber mill operated by Champion International in the town

of Canton, North Carolina. Operating under a merit shop policy, BE & K hires both independent

craft workers and union-affiliated craft workers and is not a signatory to any collective bargaining

agreement with any labor organization. BE & K, through company president T.C. Kennedy, has

explained at some length the nature of its merit shop policy in its "Foremen's Informational Manual,"

describing the role and duties of the foreman at a construction site.4
... I mention the problems caused by unions to you, because you, as the

management on the project for BE & K, should be aware of this company's

position and understand why the company has taken the position. Also the

company expects you to implement this policy....

... You may ask yourself what you can do. First of all, you can sincerely

implement the company's merit shop policy and show your own loyalty to BE &

K You should constantly keep the lines of communication with employees open

and do not hesitate to answer their questions concerning company policies and

benefits, and questions about unions.

... One of the problems in trying to operate a Merit Shop is that we must always

be on the lookout for unions attempting to organize a project.

... I do want to mention something basic about a union campaign and what

management cannot do. The National Labor Relations Act guarantees every

employee the right to belong to a union or to refuse to belong to a union, and

management is prohibited from interfering with that right. You cannot ask an

employee if he is in a union or if he is in favor of a union. That is his business

and it is protected by law.

...

... If you ever detect any union activity on your project, I want you to call me

immediately so we can get expert help and advice at the earliest possible moment.

(emphasis in original). 

 5

BE & K had in place certain preferences Criddle followed in deciding who to hire for the

Canton project, and Criddle also drew on her own experiences to establish the preference system. 

The charges in this case relate to the hiring practices of BE & K for a major modernization

project at the Champion mill in Canton. In the fall of 1990, BE & K began hiring employees,

including electricians, pipe welders, and pipefitters, to work on the modernization of the Champion

mill. During an eight month period, BE & K received approximately 14,000 applications for

approximately 3,500 to 4,000 openings on the Canton project. BE & K conducted no interviews

during the hiring process; all of the hiring decisions were based solely on the written job

applications submitted to the company. Personnel Manager Brenda Criddle, who reviewed the

applications, was in charge of the hiring of hourly employees for the Canton project.5

 Pursuant to
First, BE & K had a policy of giving preferential hiring to persons who had worked for BE & K

in the past. Second, Criddle targeted applicants with experience in the particular mill or plant

where the employee would be working. A preference was also given by Criddle for applicants

who had worked for certain contractors who were held in high regard in the construction

industry. As a personal choice, Criddle preferred to hire persons recently discharged from the

military or with prior military experience. Finally, for the Canton project, Ms. Criddle sought to

hire applicants from North Carolina, South Carolina, and Tennessee, because Champion

requested that BE & K attempt to hire applicants from the area. 

 6The letters to the two unions used much the same language and articulated much the same

sentiments as the passages quoted in footnote 4 of this opinion from the "Foreman's

Informational Manual". In addition to informing the unions of the merit shop status of the

company, the letters informed the unions that such mass applications were contrary to BE & K

policy and would not be accepted. 

 7

Each of the ten applicants made clear his union affiliation by either mentioning union

membership, listing a union as a past employer, identifying a union business agent as a

reference, or listing "union organizer" as a special skill. 

 8

The ten applicants at issue applied for three open spots, with nine of the applicants applying

for two electrician positions, and with one applicant (James Loudermilk) for one pipe fitter

position. 

company policy, prospective employees were required to apply individually, rather than with a

group, and in person. As such, BE & K rejected by letter the "batched" applications sent to the

company by the local International Brotherhood of Electrical Workers ("IBEW") and the local

United Association of Plumbers and Pipefitters ("Plumbers Union").6

 Such "batched" applications

consisted of a letter by the union business agent enclosing a group of applications.

The section 8(a)1 and 8(a)(3) charges at issue here stem not from the rejection by BE & K

of the "batched" applications, but from the alleged discriminatory hiring practices of BE & K in

failing to consider for hire ten applicants who made clear on their applications their union

affiliations,7

 and by refusing to hire three of these ten for positions for which they were qualified.8

The ALJ and the Board determined that section 8(a)(3) and 8(a)(1) violations did, in fact, occur, and

ordered a remedy which would attempt to make the discriminatees whole. BE & K petitions this

court to set aside this order and the Board cross-petitions for enforcement of this order.
II. Discussion

 BE & K petitions that this court set aside the order of the Board, arguing that the finding of

discriminatory hiring practices with regard to the ten applicants is not supported by substantial

evidence in this record. As such, there is no proper basis for the 8(a)(3) and 8(a)(1) violations. We

agree with the petitioner.

 While we must give proper deference to the orders of the Board, this court will not simply

act as its enforcement arm. See Ona Corp. v. NLRB, 729 F.2d 713, 719 (1984). "It is our

responsibility to examine carefully both the Board's findings and its reasoning, to assure that the

Board has considered the factors which are relevant to its choice of remedy and has chosen a remedy

that effectuates the purposes of the Act." Id. Given the special expertise of the Board in the field of

labor relations, we will accept the Board's factual determinations and reasonable inferences derived

from these factual determinations if they are supported by substantial evidence on the record

considered as a whole. See Weather Tamer, Inc. v. NLRB, 676 F.2d 483, 487 (11th Cir.1982); see

also Universal Camera Corp. v. NLRB, 340 U.S. 474, 491, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951).

"Substantial evidence is more than a mere scintilla. It means such evidence as a reasonable mind

might accept as adequate to support a conclusion." Florida Steel Corp. v. NLRB, 587 F.2d 735, 745

(5th Cir.1979) (citations omitted).

 After careful review of the record, and after close analysis of the order of the Board and the

opinion of the ALJ, we find the record devoid of substantial evidence which might support the

8(a)(1) and 8(a)(3) charges lodged against BE & K. The record makes abundantly clear that the

primary, and perhaps sole, evidence of anti-union animus on the part of BE & K was inferred by the

Board from the lawful and protected expressions of BE & K in its foreman's manual and in its letters
 9

We find significant that the hiring here occurred on such a large scale. In processing 14,000

applications for between 3,500 and 4,000 positions, BE & K turned away approximately 75% of

all applicants including applicants with union backgrounds and applicants with no union

affiliations. Further, the finding of anti-union animus by the Board and ALJ is undercut by the

ALJ's determination that, in fact, individuals with union affiliations were hired and that there was

no direct evidence BE & K "actively screened out or would otherwise refuse those with union

credentials." 321 N.L.R.B. 561 (1996). 

 10The Board, in its Order, also refers to past labor violations of BE & K to infer anti-union

animus. We find that such an inference is unwarranted. The most recent misconduct relied upon

by the Board occurred more than twelve years ago and occurred at a different site and involved

different decision makers. Given that there is no evidence linking such past transgressions to

any present anti-union animus of BE & K, we find the past transgressions too remote in time to

be relevant to this dispute. See Bill Fox Chevrolet, Inc., 270 N.L.R.B. 568, (1984)(finding that

recent past misconduct may be relevant to an employer's anti-union animus). 

rejecting the "batched" application submitted by the IBEW and the Plumbers' Union.9

 The Board, in agreement with the ALJ, found that BE & K violated sections 8(a)(3) and

8(a)(1) of the Act by refusing to consider for hire ten qualified job applicants who made their union

affiliations clear on their job applications, and by refusing to hire three of those individuals. In order

for the Board to establish a prima facie case for discriminatory refusal to hire, the Board must prove

that a substantial or motivating factor in the company's rejection of the applicant was the applicant's

union affiliation. See Wright Line, a Div. of Wright Line, Inc., 251 N.L.R.B. 1083 (1980), enfd., 662

F.2d 899 (1st Cir.1981), and approved by the Supreme Court in NLRB v. Transp. Management

Corp., 462 U.S. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983). In doing so, the Board must establish

that the employer harbored animus toward the applicant because of his or her union affiliation. See

Purolator Armored, Inc. v. NLRB, 764 F.2d 1423, 1429 (11th Cir.1985). We find that in the

proceedings before the ALJ and before the Board, the NLRB failed to establish a prima facie case

of discriminatory refusal to hire, where the evidence relied on by the NLRB to prove the crucial

element of animus consisted of nothing more than the lawful, noncoercive statements by BE & K

of BE & K's merit shop policy.10
 When BE & K communicated its opinion regarding the advantages of its merit shop status,

and when BE & K spoke of its desire to keep unions from successfully organizing its construction

projects, it was exercising its rights of employer expression, guaranteed by section 8(c) of the

National Labor Relations Act and by the First Amendment to the Constitution. Section 8(c)

unequivocally provides:

The expressing of any views, arguments, or opinion, or the dissemination thereof, whether

in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair

labor practice under any of the provisions of this subchapter, if such expression contains no

threat of reprisal or force or promise of benefit.

29 U.S.C. § 158(c)(emphasis added). The Supreme Court, in NLRB v. Gissel Packing Co., 395 U.S.

575, 617, 89 S.Ct. 1918, 1941, 23 L.Ed.2d 547 (1969), stated that section 8(c) "merely implements

the First Amendment." See Florida Steel, 587 F.2d at 752. The dissemination by BE & K of its

foreman's manual to its foremen and the distribution of the letters to the IBEW and the Plumbers'

Union were expressions by BE & K of its views and opinions regarding the virtues of its merit shop

policy and of BE & K's desire to strictly adhere to that policy. Neither the manual nor the letters

were coercive; neither contained threats of reprisal or force or promises of benefit. This statute,

section 8(c), clearly states that such language by the employer "shall not constitute or be evidence

of an unfair labor practice." In inferring anti-union animus from the lawful communications by BE

& K of its merit shop policy, the Board violated the express and mandatory provisions of the

National Labor Relations Act. See Florida Steel, 587 F.2d at 752.

 We do not doubt that BE & K desires to keep its workplace union-free. This is the very

essence of its merit shop policy. But we will not allow the Board to punish an employer simply

because that employer is anti-union. "It is fundamental that the Board has no authority to punish

a company because it is against a union. Any company has a perfect right to be opposed to a union,

and such opposition is not an unfair labor practice." Florida Steel, 587 F.2d at 753. "A finding of
unlawful motivation cannot be based solely on the anti-union stance of an employer...." Weather

Tamer, 676 F.2d at 492. Given that there is no evidence of antiunion animus in the record other than

BE & K's lawful expressions of its anti-union stance, we hold that no substantial evidence exists to

support the Board's finding that BE & K participated in discriminatory hiring practices in violation

of Sections 8(a)(3) and 8(a)(1) of the Act. Accordingly, the remedy proposed by the Board which

relates to such a finding will not be enforced.

ENFORCEMENT DENIED.