The full case caption appears at the
end of this opinion. Posner, Chief Judge. The Labor Board asks us toenforce, and the employer, Starcon, asks us toset aside, the Board’s order finding that Starconviolated the National Labor Relations Act bydiscriminating against applicants for employmenton the basis of their intent to organizeStarcon’s workforce. 29 U.S.C. sec. 158(a);Starcon, Inc., 323 N.L.R.B. 977 (1997). The caseinvolves the practice called “salting,” heldprotected by the Act in NLRB v. Town & CountryElectric, Inc., 516 U.S. 85 (1995). The termrefers to union organizers’ applying for jobswith nonunion employers with the aim oforganizing the employer’s workforce. Actually theproximate aim, in this case as commonly, is toprecipitate an unfair labor practice proceedingthat will result in heavy backpay costs to theemployer and weaken his ability to fight futureorganizing efforts (since his freedom of actionwill be limited by the cease and desist orderthat the Board will enter). See Herbert R.Northrup, “‘Salting’ the Contractors’ LaborForce: Construction Unions Organizing With NLRBAssistance,” 14 J. Lab. Res. 469, 471-73 (1993);Note, “Organizing Worth Its Salt: The ProtectedStatus of Paid Union Organizers,” 108 Harv. L.Rev. 1341, 1345-46 (1995). The applicants wentout of their way to identify themselves toStarcon as “voluntary union organizers,” whichthey would hardly have done had they thought theyhad a chance to organize Starcon’s employees.Their self-identification made it much morelikely that Starcon would refuse to hire them andwould take other measures to prevent them fromorganizing its employees. A modest-sized, privately owned company, Starcondoes maintenance and repair work on midwesternpetrochemical refineries. Some of its workconsists of “turnaround” projects, in which therefinery is shut down while the repair work isdone. For obvious reasons this work is done’round the clock, with the consequence that whenStarcon has a turnaround project its labor needssoar. In 1994 it was hired to do two suchprojects, and it began advertising for workerswith the relevant experience. The boilermakers’union rounded up a number of its members to serveas voluntary union organizers, and on June 27Starcon received in the mail job applicationsfrom 80 of them. Starcon returned theapplications to the senders, stating that itdidn’t accept applications through the mail–thatany applicant would have to appear in person foran interview in Starcon’s office in Manhattan,Illinois. This was a new policy, and there wassubstantial evidence unnecessary to detail thatit was motivated by Starcon’s desire not to hireworkers who would set about to organize theworkforce and, if successful in doing so, forcethe company to bargain collectively with theunion. Some of the organizers did apply inperson, but all but two of these were turned downand those two were treated in a discriminatoryfashion after being hired. Starcon emphasizes that more than two weeksbefore the flood of applications from the unionorganizers hit, it had signed a contract with acompany called BE & K to subcontract some of theturnaround work to that company. The contract didnot, however, require Starcon to subcontract anyof the work–it just gave Starcon the option to”request from the Contractor services as deemednecessary from time to time, and the Contractorwill provide such services” according tospecified terms that included a wage far higherthan Starcon’s advertised pay for workers. Giventhe wage differential, it is no surprise thatStarcon continued trying to hire workers for theturnaround projects–provided they weren’t unionorganizers. BE & K did supply Starcon with anumber of workers for these projects, but onlyafter Starcon turned away the union organizerswho were willing to work for the lower,advertised rate of pay. Apparently Starconregarded BE & K as a backup source of laborsupply should Starcon not be able to hire all theworkers it needed. So had it not been forStarcon’s hostility to the union, it would havehired at least some of the 80 union-organizerapplicants in preference to farming out the workto BE & K at a higher cost. The big issue, made such by a decision of theSixth Circuit in a very similar case alsoinvolving mass salting by the boilermakers’union, NLRB v. Fluor Daniel, Inc., 161 F.3d 953(6th Cir. 1998), is whether the Board wasrequired to “match” the organizer applicants tothe job openings, that is, to prove that theyreally were the people whom Starcon would havehired for the jobs for which it had openings hadthese applicants not been connected with a union.The Board takes the position that if, as it wasentitled to find here on the basis of theevidence presented to it, the employer refusesfor an improper motive even to consider hiring anapplicant, the violation of the Act is completeat that point. KRI Constructors, Inc., 290N.L.R.B. 802 (1988); cf. E & L Transport Co. v.NLRB, 85 F.3d 1258, 1271 (7th Cir. 1996). It isunclear whether, as the Fourth Circuit deemsessential to the validity of “refusal toconsider” liability, Ultrasystems WesternConstructors, Inc. v. NLRB, 18 F.3d 251, 255-56(4th Cir. 1994), the Board must also find thatthere was an actual vacancy for which theemployer refused to consider the applicant. At argument the Board’s lawyer disclaimed anysuggestion that the “refusal to consider” theoryentitles all the applicants whom the employerrefuses to consider to reinstatement and backpay.For suppose, even if there were a vacancy, thatthese applicants were unqualified to fill it andso would never have been hired even if they wore”Right to Work” buttons rather than “VUO”buttons. Then they would not have been harmed bythe company’s bad motive and so could not get anykind of remedy. The Sixth Circuit has now heldthat the issue of injury to the individualapplicants cannot thus be postponed to theremedial stage; there is no violation without aninjury. “It cannot be an unfair labor practicemerely for an employer to harbor animus againstunion members applying for jobs that do not existor have already been filled, or for which theyare not qualified.” 161 F.3d at 967. In soholding, the Sixth Circuit went into conflictwith the D.C. Circuit, which has upheld theBoard’s approach. Great Lakes Chemical Corp. v.NLRB, 967 F.2d 624, 628-30 (D.C. Cir. 1992). Ourcourt has not yet taken sides. The Sixth Circuit did not take issue with theBoard’s rule, upheld in NLRB v. TransportationManagement Corp., 462 U.S. 393 (1983), that in amixed-motive case the employer has the burden ofproving that the applicant whom it turned down onthe basis of his union affiliation would not havebeen hired in any event because he wasunqualified. But the court pointed out, first andcorrectly, that the employer’s defense in such acase is a defense to liability and not just aconsideration going to the scope of the remedy ina case in which liability has been established.161 F.3d at 968. Second, and as it seems to usdubiously, the court reasoned that if “there wereno jobs available for which [the employee] wasqualified,” this motive for turning him down”completely predominates over the first” motive,that is, hostility to the union. Id. We are waryof a jurisprudence of adjectives. We cannot seewhat difference it makes whether an employee justis not qualified for a job, or is in a differentjob classification altogether. Suppose that oneof the union organizers applying for a job as awelder on one of Starcon’s turnaround projectswas in fact a penguin wearing a VUO button. IfStarcon turned down the penguin’s application,and there was proof that Starcon would never hireanyone wearing a VUO button, this would be aclassic mixed-motive case, and it would thereforebe open to Starcon to prove that, in any event,it would never hire a penguin, because penguinscan’t weld. But the burden of proving this wouldbe on Starcon. We don’t see why the Board wouldhave the burden of proving (if it could) thatStarcon would hire nonunion penguins. But the Sixth Circuit’s first point seems to ussolid; the defense in a mixed-motive case is adefense to liability, so the Board can’t shove itoff to the compliance stage of the proceeding.Concretely, the Board cannot enter a cease anddesist order or direct other nonmonetary reliefagainst an employer who can prove that even if hehad been free from any hostility to the union hewould not have hired the particular union memberswho applied. The Board must show that at leastone such applicant would have been hired.Ultrasystems Western Constructors, Inc. v. NLRB,supra, 18 F.3d at 256-57. It does not have toshow which one, unless and until it seeks aremedy on behalf of that particular worker. Theworker is not the plaintiff; the Board is; and itis entitled to order nonmonetary relief uponproof of a violation, which requires only thatone worker have been discriminated against on thebasis of his union sympathies or affiliation. Theworker might have gotten a higher-paying job andthus have no interest in being reinstated andhave suffered no loss from the discrimination.There would be no basis for orderingreinstatement and backpay in such a case but theBoard would still be entitled to enter a ceaseand desist order to provide some assuranceagainst a repetition of the violation. See 29U.S.C. sec. 160(c); Communications Workers ofAmerica v. NLRB, 784 F.2d 847, 852-53 (7th Cir.1986); Taracorp Industries, 273 N.L.R.B. 221(1984). The record is reasonably clear that someat least of the 80 union organizers who appliedfor jobs with Starcon were qualified for theturnaround jobs being advertised, and given thatStarcon clearly needed additional workers andcould have gotten them more cheaply by hiringapplicants than by subcontracting the work, weconclude that there is substantial evidence of aviolation, and so the entry of a cease and desistorder was proper. But that is not all there is to the order. Itdoes not merely direct Starcon to cease anddesist from discriminating against union membersand supporters; it orders Starcon to offer jobsto all 80 union-organizer applicants, as well asto make them whole by giving them backpay tocompensate them for any loss of wages that theymay have sustained as a result of being turneddown. The evidence does not show that Starconwould have offered all 80 applicants jobs. On thecontrary, since Starcon did not hire, eitherthrough BE & K or otherwise, 80 additionalworkers to work on the turnaround projects, it iscertain that it would not have given jobs to all80 applicants even if it hadn’t known they wereconnected to a union. The order indisputably isoverbroad. If the Board wants to order relief toparticular “salters,” it has, at a minimum, todetermine how many of them Starcon would havehired had it not been actuated by hostility tounionization. Suppose the number is 10. If itwere feasible to determine which 10, then thoseare the ones who would be ordered reinstated(actually, “instated,” since none had been hired)with backpay. If this were infeasible, Starconcould be ordered to offer reinstatement to thefirst 10 applicants who were qualified. The Board may intend to cut down the order inthe compliance proceedings that are the normalsequel to such orders. But that would be aconfusion of scope with compliance. The scope ofthe order must be determined before the order isentered, not afterwards. Ultrasystems WesternConstructors, Inc. v. NLRB, supra, 18 F.3d at258-59. The Board is asking us not merely touphold its order but also to enforce it, that is,to issue an injunction that will enableviolations of the order to be punished ascontempts of court. Sure-Tan, Inc v. NLRB, 467U.S. 883, 894 n. 13 (1994); NLRB v. Howard Immel,Inc., 102 F.3d 948, 952 (7th Cir. 1996); NLRB v.P*I*E Nationwide, Inc., 894 F.2d 887, 893 (7thCir. 1990); Mitchellace, Inc. v. NLRB, 90 F.3d1150, 1159 (6th Cir. 1996). We can hardly do thiswhen the order is as tentative, and its practicalscope and operation as indefinite, as the orderis here. See J.I. Case Co. v. NLRB, 321 U.S. 332,341 (1944); Blankenship & Associates, Inc. v.NLRB, 54 F.3d 447, 449 (7th Cir. 1995); NLRB v.Brooke Industries Inc., 867 F.2d 434, 435 (7thCir. 1989) (chambers opinion); cf. PMC, Inc. v.Sherwin-Williams Co., 151 F.3d 610, 619 (7th Cir.1998). Although Starcon has not objected to thescope of the order as such, the objection justindicated is implicit in its urging us to followthe Sixth Circuit’s Fluor Daniel decision–whichwe are happy to do, but only in part. The ceaseand desist part of the Board’s order is valid,the rest not, and therefore the order is enforcedin part and denied enforcement in part, and thecase is returned to the Board for the entry of anew order that will be consistent with theprinciples laid down in this opinion.
Starcon, Inc.,Petitioner, Cross-Respondent, v. National Labor Relations Board, Respondent, Cross-Petitioner, and International Brotherhood of Boilermakers,Iron Ship Builders, Blacksmith, Forgersand Helpers, AFL-CIO, Intervening Respondent, Cross-Petitioner. Nos. 97-2709 and 97-3020 United States Court of Appeals for the Seventh Circuit Petition for Review of an Order by the National Labor Relations Board andCross-Application for Enforcement of the Order. No. 13-CA-32719. Argued March 31, 1999–Decided May 4, 1999 Before Posner, Chief Judge, and Flaum and Manion,Circuit Judges.
