No. 94-947-1 In the Supreme Court of the United States OCTOBER TERM, 1994 NATIONAL LABOR RELATIONS BOARD, PETITIONER V. TOWN & COUNTRY ELECTRIC, INC., AND AMERISTAFF PERSONNEL CONTRACTORS, LTD. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD FREDERICK L. FEINSTEIN General Counsel LINDA SHER Acting Associate General Counsel NORTON J. COME Deputy Associate General Counsel PETER WINKLER JOHN EMAD ARBAB Attorneys National Labor Relations Board Washington, D.C. 20570 DREW S. DAYS, III Solicitor General LAWRENCE G. WALLACE Deputy Solicitor General PAUL A. ENGELMAYER Assistant to the Solicitor General Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the National Labor Relations Board rea- sonably determined that a person applying for or holding a job with an employer that he intends to organize, and who will be compensated by a union for his organizational activity, is an "employee" within the meaning of Section 2(3) of the National Labor Relations Act (29 U.S.C. 152(3)) and therefore pro- tected against discrimination on account of his union activity and affiliation. (I) ---------------------------------------- Page Break ---------------------------------------- II PARTIES TO THE PROCEEDINGS In addition to the parties listed in the caption, the following was a party to the proceedings in the court below : International Brotherhood of Electrical Workers, Local 292. ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinions below . . . . 1 Jurisdiction . . . . 1 Statutory provision involved . . . . 2 Statement . . . . 2 Reasons for granting the petition . . . . 11 Conclusion . . . . 30 Appendix A . . . . 1a Appendix B . . . . 12a TABLE OF AUTHORITIES Cases: American Hosp. Ass'n V. NLRB, 499 U.S. 606 (1991) . . . . 15 Anthony Forest Products Co., 231 N.L.R.B. 976 (1977) . . . . 20, 27 Bayside Enterprises, Inc. V. NLRB, 429 U.S. 298 (1977) . . . . 12 Beth Israel Hosp. V. NLRB, 437 U.S. 483 (1978) . . . . 12 Chevron U.S.A. Inc. V. National Resources Defense Council, Inc., 467 U.S. 837 (1984) . . . . 12, 24 Dee Knitting Mills, Inc., 214 N.L.R.B. 1041 (1974), enforced mem., 538 F.2d 312 (2d Cir. 1975) . . . . 27 Edward G. Budd Manufacturing Co. v. NLRB, 138 F.2d 86 (3d Cir. 1943), cert. denied, 321 U.S. 778 (1944) . . . . 20 Escada (USA), Inc., 304 N.L.R.B. 845 (1991), enforced mem., 970 F.2d 898 (3d Cir. 1992) . . . . 27 Escada (USA) Inc. V. NLRB, 970 F.2d 898 (3d Cir. 1992) . . . . 9,24,27 Fall River Dyeing & Finishing Corp. V. NLRB, 482 U.S. 27 (1987) . . . . 12, 18 George A. Hormel & Co. v. NLRB, 962 F.2d 1061 (D.C. Cir. 1992) . . . . 25 (III) ---------------------------------------- Page Break ---------------------------------------- IV Cases--Continued: Page H.B. Zachry Co.,289 N.L.R.B. 838 (1988), enforce- ment denied, 886 F.2d 70 (4th Cir. 1989) . . . . 7 H.B. Zachry CO. V. NLRB, 886 F.2d 70 (4th Cir. 1989) . . . . 9, 24, 25 Kelley V. Southern Pac. Co., 419 U.S. 318 (1974 ) . . . . 14 NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775 (1990) . . . . 12, 18 NLRB V. E.C. Atkins & Co. V. NLRB, 331 U.S. 398 (1947) . . . . 13 NLRB V. Elias Brothers Big Boy, Inc., 327 F.2d 421 (6th Cir. 1964) . . . . 9, 24 NLRB V. Erie Resistor Corp., 373 U.S. 221 (1963) . . . . 12 NLRB V. Hearst Publications, Inc., 322 U.S. 111 (1944) . . . . 13 NLRB V. Hendricks County Rural Electric Mem- bership Corp., 454 U.S. 170 (1981) . . . . 12 NLRB V. Henlopen Manufacturing Co., 599 F.2d 26 (2d Cir. 1979) . . . . 9, 20, 23-24, 26, 27 NLRB V. Transportation Management Corp., 462 U.S. 393 (1983) . . . . 12 NLRB V. United Food & Commercial Workers Union, 484 U.S. 112 (1987) . . . . 12 Nationwide Mutual Insurance Co. V. Darden, 112 S. Ct. 1344 (1992) . . . . 13 Oak Apparel, Inc., 218 N.L.R.B. 701 (1975) . . . . 15, 27 Packard Motor Car Co. V. NLRB, 330 U.S. 485 (1947) . . . . 13 Phelps Dodge Corp. V. NLRB, 313 U.S. 177 (1941) . . . . 8, 12, 16, 22, 23 Republic Aviation Corp. V. NLRB, 324 U.S. 793 (1945) . . . . 16, 21 Sunland Construction Co., 309 N.L.R.B. 1224 (1992) . . . . 8, 15, 16, 17, 18, 27 Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984) . . . . 13, 23 Texaco, Inc. V. NLRB, 462 F.2d 812 (3d Cir.), cert. denied, 409 U.S. 1008 (1972) . . . . 21 Ultrasystems- Western Constructors, Inc. V. NLRB, 18 F.3d 251 (4th Cir. 1994) . . . . 24 ---------------------------------------- Page Break ---------------------------------------- V Cases-Continued: Page Willmar Electric Service, Inc., 303 N.L.R.B. 245 (1991), enforced, 968 F.2d 1327 (D.C. Cir. 1992), cert. denied, 113 S. Ct. 1252 (1993 ) . . . . 21-22 Willmar Electric Service, Inc. V. NLRB, 968 F.2d 1327 (D.C. Cir. 1992), cert. denied, 113 S. Ct. 1252 (1993) 9, 14, 15, 23, 24, 25, 26 statutes: Labor Management Relations Act, 1947, ch. 120, 101, 61 Stat. 137 . . . . 14-15 Labor Management Relations Act, 1947, Tit. III, 29 U.S.C. 185-187 . . . . 15 302(a), 29 U.S.C. 186(a) . . . . 15 302 (C) (l), 29 U.S.C. 186 (C) (1) . . . . 15 National Labor Relations Act, ch. 372, 52(3), 49 Stat. 450 (1935) . . . .14 National Labor Relations Act, 29 U.S.C. 151 et seq.: 2 (3),29 U.S.C. 152 (3) . . . . passim 7,29 U.S.C. 157 . . . . 6 8(a) (1),29 U.S.C. 158 (a) (1) . . . .6, 7, 9, 18, 20 24, 26 8(a) (3),29 U.S.C. 158 (a) (3) . . . . 6, 7, 18, 20, 24, 26 Miscellaneous: Black's Law Dictionary (6th ed. 1990) . . . . 22 79 Cong. Rec. 9686 (1935) . . . . 14 Legislative History of the National Labor Rela- tions Act of 1935 (1949): Vol. I . . . . 14 Vol. II . . . . 14 National Labor Relations Board: Hearings on S. 1958 Before the Senate Comm. on Educ. and Labor, 74th Cong., 1st Sess. (1935) . . . . 14 Restatement (Second) of Agency (1958) . . . . 8, 10, 14, 25 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1994 No. NATIONAL LABOR RELATIONS BOARD, PETITIONER v. TOWN & COUNTRY ELECTRIC, INC., AND AMERISTAFF PERSONNEL CONTRACTORS, LTD. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT The Solicitor General, on behalf of the National Labor Relations Board, petitions for a writ of cer- tiorari to review the judgment of the United States Court of Appeals for the Eighth Circuit in this case. OPINIONS BELOW The opinion of the court of appeals, App., infra, 1a-11a, is reported at 34 F.3d 625. The decision and order of the National Labor Relations Board, App., infra, 12a-42a, and the decision and recommended order of the administrative law judge, App., infra, 43a-135a, are reported at 309 N.L.R.B. 1250. JURISDICTION The judgment of the court of appeals was entered on August 31, 1994. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). (1) ---------------------------------------- Page Break ---------------------------------------- 2 STATUTORY PROVISION INVOLVED Section 2(3) of the. National Labor Relations Act (Act), 29 U.S.C. 152 (3), provides: The term "employee" shall include any em- ployee, and shall not be limited to the employees of a particular employer, unless this [Act] ex- plicitly states otherwise, and shall include any individual whose work has ceased as a conse- quence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantiality equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any in- dividual employed by his parent or spouse, or any individual having the status of an independ- ent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act [45 U.S.C. 151 et seq.], as amended from time to time, or by any other person who is not an em- ployer as herein defined. STATEMENT This case involves the determination of the Na- tional Labor Relations Board (Board) that a "paid union organized' applying for or holding a job with an employer that he intends to organize is an "em- ployee" within the meaning of Section 2(3) of the Act and is therefore entitled to the protections that the Act affords to employees? The Board thus held ___________________(footnotes) 1 The term "paid union organizer," as used by the Board in its decisions and as used in this petition, encompasses both (1) union officials who draw a salary from the union, and ---------------------------------------- Page Break ---------------------------------------- 3 that respondents had violated the Act by refusing to consider union-member applicants for employment on account of their union affiliation, and by discharg- ing a newly hired union-member employee for engag- ing in organizational activity protected by the Act. The court of appeals refused to enforce the Board's order, holding that the Board had erred in conclud- ing that paid union organizers are "employees" under the Act. 1. Respondent Town & Country Electric, Inc., is a large nonunion electrical contractor based in Wis- consin. In early September 1989, Town & Country was awarded a contract to perform electrical renova- tion work at a paper mill in International Falls, Minnesota. App., infra, 2a. After being awarded the contract, Town & Country learned that Minne- sota requires an electrical contractor to employ at least one electrician licensed by that State for every two unlicensed electricians working at a job site. At the time, none of Town & Country's electricians had a Minnesota license. Ibid. To help it recruit Minnesota-licensed electricians, Town & Country retained respondent Ameristaff Personnel Contractors, Ltd., an employment agency. App., infra, 2a, Town & Country instructed Ameri- staff that applicants had to be able to work in a non- union shop. Id. at 16a. On September 3, 1989, Ameristaff advertised for "licensed journeymen elec- tricians" in a Minneapolis newspaper. Applicants responding to the advertisements were asked, inter alia, whether they preferred to work union or non- union. Ibid. Ameristaff arranged for interviews with ___________________(footnotes) (2) union members to whom the union pays a stipend in return for their organizational efforts. This case involves persons in both categories. ---------------------------------------- Page Break ---------------------------------------- 4 seven applicants to be held September 7, 1989, at a Minneapolis hotel. Id. at 2a-3a, 16a. Members of the International Brotherhood of Elec- trical Workers, Locals 292 and 343 (the Union), learned of the job. The Union encouraged its un- employed members to apply, with the understanding that those members, if hired, would attempt to or- ganize the job site. The Union had established a fund to reimburse members for wage, travel, and health- benefit differentials incurred on nonunion jobs. App., infra, 16a. On September 7, 1989, officials of respondents ap- peared at the hotel to interview applicants. Only one of the seven applicants with a scheduled interview was present. App., infra, 3a. Also present for in- terviews were approximately one dozen members of the Union, two of, whom were full-time paid union officials, and the rest of whom were unemployed elec- tricians. Id. at 3a, 17a. Respondents' officials inter- viewed the nonunion applicant and a union member who had no appointment but who stated that he had to leave soon to care for his children. Neither was hired. Id. at 3a, 17a. Steven Buelow, Ameristaff's president, then ad- vised the remaining applicants, all of whom were union members, that the job was nonunion. The union members stated that they were interested in any job available. App., infra, 18a. Buelow then ad- vised Ron Sager, Town & Country's manager of human resources, that he had concluded that the re- maining applicants were all "union." Id. at 3a, 18a. Sager thereupon cancelled further interviews, Id. at 3a, 18a. One of the unemployed union members, Malcolm Hansen, protested that he had called Ameristaff that ---------------------------------------- Page Break ---------------------------------------- 5 morning and had been told to report for an inter- view at the hotel, and that he would refuse to leave until interviewed. App., infra, 3a, 18a-19a. Sager at first threatened to have the union members for- cibly removed. Id. at 19a. Sager then stated that he would check on Hansen's situation and honor the commitment to Hansen if Hansen's account was veri- fied. Ibid. Upon obtaining verification of that ac- count, Sager interviewed Hansen, and hired him. Id. at 3a-4a, 19a. Sager advised the remaining union members that he would not interview them, despite Town & Country's stated need for more than one licensed electrician, and despite the fact that only five days remained before work on the project was to commence. Id. at 19a, 56a. Hansen's job began on September 12, 1989. The following day, during a recess, Hansen announced that he was seeking to organize employees for the Union. App., infra, 4a, 91a. Town & Country's proj- ect superintendent, who was present, immediately telephoned his superiors. When he returned from the call, he told Hansen that Hansen would be fired if he continued to talk about the Union. Id. at 91a-92a. The following day, at the noon recess, Hansen sought to convince the work crew of the merits of union organization. Id. at 102a. Later that day, Hansen was discharged. Id. at 4a, 100a, 106a-107a.2 ___________________(footnotes) 2 The company's stated reason for the discharge was that it had terminated its contract with Ameristaff, having learned that, under Minnesota law, an electrical contractor could not use temporary employees such as Hansen from an employ- ment agency; rather, all employees had to be directly em- ployed by the contractor. Town & Country, however, rejected Hansen's request that the company hire him directly. App., infra, 4a, 107a. ---------------------------------------- Page Break ---------------------------------------- 6 2. The Board's General Counsel issued a complaint alleging, inter alia, that respondents violated Section 8(a) (1) and (3) of the, Act, 29 U.S.C. 158(a) (1) and (3), by refusing to consider the union members for employment because of their union affiliation, and by terminating Hansen because of his union activi- ties.3 Respondents contended that they had acted for nondiscriminatory reasons, and that, in any event, neither the applicants nor Hansen were bona fide "employees" within the meaning of Section 2(3) of the Act, 29 U.S.C. 152(3). App., infra, 20a-21a. a. The administrative law judge (ALJ) found that respondents had violated Section 8(a) (1) and (3) of the Act. He found that respondents had re- fused to consider the job applicants for employment because of their presumed union affiliation. App., infra, 56a-69a. He further found that Town & Coun- try had terminated Hansen's employment because of his attempts to unionize the other electricians. Id. at 109a. The ALJ rejected Town & Country's claim that Hansen had been fired for poor performance, terming that claim a "thinly veiled attempt to mis- lead as to the true reasons" for the discharge, and 3 Section 8(a) (1) of the Act makes it an unfair labor practice "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [Section 7]." 29 U.S.C. 158(a) (1). Section 7 of the Act grants employees the right, inter alia, "to self-organization, to form, join, or assist labor organizations, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining." 29 U.S.C. 157. Section 8(a) (3) of the Act makes it an unfair labor practice to discriminate "in regard to hire or tenure of employment * * * to encourage or. discourage mem- bership in any labor organization." 29 U.S.C. 158(a) (3). ---------------------------------------- Page Break ---------------------------------------- 7 finding the claim to be "lacking in credible support." Id. at 121a. The ALJ also rejected respondents' claim that the union members were not "employees" under the Act. Following the Board's ruling in H.B. Zachry Co., 289 N.L.R.B. 838 (1988), enforcement denied, 886 F.2d 70 (4th Cir. 1989), that paid union organizers are "employees" within the meaning of Section 2(3) of the Act, the ALJ found that the two union officials and the other union members who had applied for employment were protected by the Act against dis- crimination based on their union activity or affilia- tion. App., infra, 53a n.13. Hansen's goal of organiz- ing the other electricians did not deprive him of the Act's protection, the ALJ held. Rather, Hansen was "a rank-and-file union member," and "was dependent financially on employment as a journeyman electri- cian in the construction industry." Id. at 107a n.69. Thus, "Hansen's intention to organize was not in- compatible with his basic employment needs and ob- jectives and did not debar him from statutory pro- tection." Ibid. b. The Board, in agreement with the ALJ, con- cluded that respondents had violated Section 8(a) (1) and (3) of the Act, by refusing to interview the union members and by discharging Hansen. App., infra, 12a-42a.4 The Board reconsidered and reaffirmed its position in Zachry that paid union organizers are "employ- ees" within the meaning of Section 2(3) of the Act and are therefore protected against discrimina- tory refusals to hire and discriminatory termina- ___________________(footnotes) 4 The Board adopted the ALJ's findings of fact. App., infra, 13a & n.3. ---------------------------------------- Page Break ---------------------------------------- 8 tion. App., infra, 22a, 32a-33a.5 The Board noted that applicants for employment have been held to be "employees" within the meaning of Section 2(3) ever since Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941). App., infra, 22a. The fact that an applicant is a paid union organizer seeking to unionize an em- ployer's work force does not change that result, the Board reasoned. Section 2(3) defines "employee" as "any employee," and paid union organizers do not fall within any of the Act's specific exclusions. Id. at 23a-24a. Moreover, both the legislative history and this Court's interpretations of the Act support a broad definition of the statutory term "employee." Id. at 24a-29a For a paid union organizer simul- taneously to be an "employee" of another entity also comports with the common law principles of agency to which this Court has looked to define the term "employee" in cases in which it was left undefined by statute, the Board concluded. Under the common law, "[a] person may be the servant of two masters, not joint employers, at one time as to one act, if the service to one does not involve abandonment of the service to the other." Id. at 28a (quoting Restate- ment (Second) of Agency 226, at 498 (1958)). Finally, protecting paid union organizers as "em- ployees" furthers the Act's goal of promoting the right to organize, while leaving intact management's legitimate rights to direct and control employees un- der its supervision and to limit union solicitation to nonwork time. Id. at 33a-39a. As a remedy, the Board adopted the ALJ's recom- mended order that Town & Country, inter alia, offer ___________________(footnotes) 5 The Board reached the same result in a companion case. See Sunland Construction Co., 309 N.L.R.B. 1224 (1992]. ---------------------------------------- Page Break ---------------------------------------- 9 employment to Hansen and the union members who had been denied interviews, and make the union mem- bers whole for any losses suffered as a result of Town & Country's discrimination. App., infra, 40a, 131a-133a.6 3. The court of appeals accepted respondents' con- tention that a paid union organizer is not an "em- ployee" within the meaning of Section 2(3) of the Act, and denied enforcement of the Board's order.7 App., infra, 1a-11a. The court noted that the circuits are split on whether paid union organizers are em- ployees under the Act, with the District of Columbia, Second, and Third Circuits holding that they are, and the Fourth and Sixth Circuits holding that they are not. Id. at 5a-7a; see Willmar Electric Service, Inc. v. NLRB, 968 F.2d 1327, 1329-1331 (D.C. Cir. 1992), cert. denied, 113 S. Ct. 1252 (1993) ; NLRB v. Hen- lopen Manufacturing Co., 599 F.2d 26, 30 (2d Cir. 1979) ; H.B. Zachry Co. V. NLRB, 886 F.2d 70, 72 (4th Cir. 1989); NLRB v. Elias Brothers Big Boy, Inc., 327 F.2d 421, 427 (6th Cir. 1964) ; see also Escada (USA) Inc. v. NLRB, 970 F.2d 898 (3d Cir. 1992) (Table). ___________________(footnotes) 6 The Board left to compliance proceedings the determina- tion of how many electricians Town & Country would have hired absent its antiunion discrimination, and thus how many of the 10 applicants were actually entitled to a remedy. App., infra, 130a. 7 The court of appeals did not disturb the Board's findings of fact. In the court of appeals, respondents did not contest the Board's findings that they had violated Section 8(a) (1) of the Act by interrogating job applicants about their union membership, banning union activity during nonwork time, and threatening to discharge Hansen if he did not refrain from engaging in such activity. NLRB C.A. Br. 14-15. ---------------------------------------- Page Break ---------------------------------------- 10 The court of appeals found the Fourth Circuit's reasoning in Zachry to be persuasive. App., infra, 7a. The court stated that it found the definition of "employee" in the Act to be of "little help." Ibid. Instead, the court `looked to the common law for guid- ance. It noted that an individual may be "the servant of two masters at one time only if service to one does not involve abandonment of or conflict with service to the other." Id. at 8a (citing Restatement, supra, 226, at 498). Ordinarily, a job applicant may be simultaneously loyal to his union and to his nonunion employer, the court stated. Ibid. But the Union's two full-time organizers "were not typical applicants," the court stated, because they already had a job and "wanted to enter Town & Country's work force not for financial gain, but to organize its workers." Ibid. And " [w]hen a union official applies for a position only to further the union's interests, " * * an inherent conflict of interest exists," the court reasoned, for "the union official will follow the mandates of the union, not his new employer." Id. at 8a-9a. For ex- ample, "[i]f the union asks him to quit working for his second employer, he will do so." Id. at 9a. Further, the court stated, a full-time union official "has a reduced incentive to be a good employee for his second employer," because, if terminated, "he simply returns to his full-time union job." Ibid. The court of appeals further held that the unem- ployed electricians who belonged to the Union (in- cluding Hansen) were also not "employees" within the meaning of Section 2 (3) of the Act, because they "were also under [the Union's] control." App., infra, 9a. The. court based this conclusion on three factors. First, the unemployed union members had been en- ---------------------------------------- Page Break ---------------------------------------- 11 couraged by the Union to apply. Ibid. Second, the Union had committed to paying the difference be- tween their salaries and union-scale wages. Ibid. Third and most important, the court noted that the union members in this case were subject to the Union's "job salting organizing resolution," which provided that members could work for nonunion em- ployers "only if they work for organizational pur- poses," and that union members were to. leave the nonunion job upon notification by the Union. Id. at 9a-10a. That last provision, the court stated, was "controlling," for a union's "control over a putative employee's job tenure * * * is inimical to, and in- consistent with, the employer-employee relationship." Id. at 10a. REASONS FOR GRANTING THE PETITION The Board has long held that a paid union organ- izer is an "employee" within the meaning of Section 2(3) of the National Labor Relations Act (Act), 29 U.S.C. 152(3), and is therefore protected against discrimination because of his union activities or affili- ation. The Eighth Circuit's rejection of the Board's position deepens a conflict in the circuits on that issue, with three circuits accepting the Board's interpreta- tion and three circuits rejecting it. The question is a recurring one that is important to the administra- tion of the Act. In order to resolve the conflict and to reaffirm that judicial deference is owed to the Board's interpretations of the Act where, as here, its positions are rational and consistent with the statute, this Court's review is warranted. As this Court has often explained, Congress gave the Board the "primary responsibility for developing ---------------------------------------- Page Break ---------------------------------------- 12 and applying national labor policy." NLRB V. Curtin Matheson Scientific, Inc., 494 U.S. 775, 786 (1990); see Beth Israel Hosp. v. NLRB, 437 U.S. 483, 500-501 (1978); NLRB v. Erie Resistor Corp., 373 U.S. 221, 236 (1963). Where the Act does not speak directly to an issue, the Court gives "considerable deference" to the Board's interpretation and will uphold it if it is "rational and consistent with the Act," even if the Members of this Court "would have formulated a different rule had [they] sat on the Board." Curtin Matheson, 494 U.S. at 786-787; NLRB v. United Food & Commercial Workers Union, 484 U.S. 112, 123 (1987); Fall River Dyeing & Finishing Corp. V. NLRB, 482 U.S. 27, 42 (1987); see Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Those principles apply with special force when the interpretation in question is a "con- sistent, longstanding interpretation of the NLRA by the Board." NLRB v. Hendricks County Rural Elec- tric Membership Corp., 454 U.S. 170, 189-190 (1981); see also NLRB v. Transportation Management COrp., 462 U.S. 393, 401-402 (1983); Bayside Enterprises, Inc. v. NLRB, 429 U.S. 298, 303 (1977). In light of these principles, the court of appeals erred in reject- ing the Board's statutory interpretation. 1. The Act does not expressly address whether it applies to a paid union organizer who applies for work with an employer, while retaining an affiliation with the union and intending to engage in organiza- tional activity. But it has long been established that an applicant for work is an "employee" under the Act. See Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941). And the Act defines "employee" broadly to include "any employee," 29 U.S.C. 152(3), subject to six specific exclusions, none of which embraces a ---------------------------------------- Page Break ---------------------------------------- 13 paid union organizer who, applies for a job with an- other employer. As this Court has observed, "[t] he breadth of 2(3)`s definition is striking: the Act squarely applies to `any employee []' [and] [t] he only limitations are specific exemptions" in the statute. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891 (1984). In Sure-Tan, this Court held that undocumented aliens "plainly come within the broad statutory defini- tion of `employee' " because they "are not among the few groups of workers expressly exempted by Con- gress." Id. at 892. The Court specifically noted that "the Board's construction of th[e] term ["employee"] is entitled to considerable deference, and we will up- hold any interpretation that is reasonably defensible." Id. at 891.8 This Court has indicated that common law prin- ciples inform the interpretation of the term "employ- ee" unless Congress "clearly indicates otherwise." Nationwide Mutual Insurance Co. v. Darden, 112 S. Ct. 1344, 1349 (1992) (construing ERISA; refer- ring to other statutes, including the Act). The common law imposes no per se prohibition against concurrent employment by two entities, such as by an employer and a union. On the contrary, as the ___________________(footnotes) 8 See also NLRB v. Hearst Publications, Inc., 322 U.S. 111 (1944) (sustaining Board holding that newsboys who might be considered independent contractors under state law are "employees"); Packard Motor Car Co. V. NLRB, 330 U.S. 485 (1947) (sustaining Board holding, prior to the addition to the statute of language excluding "any individual employed as a supervisor," that supervisors and foremen are "employ- ees") ; NLRB V. E.C. Atkins & Co., 331 U.S. 398_ (1947) (sustaining Board holding that war-production employer's security personnel, who were required by the government to be hired as "civilian auxiliaries to the military police," are "employees"). ---------------------------------------- Page Break ---------------------------------------- 14 District of Columbia Circuit has noted in holding that a paid union organizer is an "employee" within the meaning of Section 2(3) of the Act, "[u]nder common law principles `[al person may be the servant of two masters, not joint employers, at one time as to one act, if the service to one does not involve abandonment of the service to the other.'" Willmar Electric Service, Inc. v. NLRB, 968 F.2d 1327, 1329- 1330 (1992) (quoting Restatement (Second) of Agency 226, at 498 (1958), and citing Kelley v. Southern Pac. Co., 419 U.S. 318, 324 (1974)), cert. denied, 113 S. Ct. 1252 (1993). Thus, nothing in the text of the Act excludes paid union organizers apply- ing for a job from the class of "employees" covered by the Act.9 ___________________(footnotes) 9 Nor, as the Board noted, is there anything in the legisla- tive history of Section 2(3) that requires excluding a person who is actually performing work for hire for an employer from the scope of the statutory term "employee" simply be- cause he is also a paid union organizer. App., infra, 24a-26a. As enacted in 1935, the structure and wording of Section 2(3) were quite similar to its current version, although with fewer express exceptions. See National Labor Relations Act, ch. 372, 2(3), 49 Stat. 450 (19%). The history of that provision indicates that Congress used the term "employee" to embrace generally the class of "workers," "wage earners," and "workmen" who comprise the work forces of "employ- ers." See, e.g., 79 Cong. Rec. 9686 (1935) (Rep. Connery) (referring to "every man on a pay roll"), reprinted in II Legislative History. of the National Labor Relations Act of 1935, at 3119 (1949) [hereinafter NLRA Leg. Hist.]; Na- tional Labor Relations Board: Hearings on S. 1958 Before the Senate Comm. on Educ. and Labor, 74th Cong., 1st Sess. 42 (1935) (Sen. Wagger) (referring to "the workers"), re- printed in I NLRA Leg. Hist. 1418. Although Congress, in 1947, amended Section 2(3) to ex- clude certain additional categories of individuals from its coverage (see Labor Management Relations Act, 1947, ch. ---------------------------------------- Page Break ---------------------------------------- 15 2. The Board has determined, as an exercise of its authority to interpret the Act's provisions, that paid union organizers do come within the scope of the term "employee" as defined in the Act. That position is of long duration, see Oak Apparel, Inc., 218 N.L.R.B. 701 (1975), and has been adhered to consistently. In this case and in a companion case, see Sunland Con- struction Co., 309 N.L.R.B. 1224 (1992), the Board thoroughly reexamined the issue and reaffirmed its view that the Section 2(3 ) definition of "employee" covers paid union organizers. As the Board explained in this case and in Sun- land, affording the Act's protection to paid union organizers furthers the policies of the Act. "The right to organize is at the core of the purpose for which the statute was enacted." App., infra, 33a; Sunland, 309 N.L.R.B. at 1229; see American Hosp. Ass'n v. NLRB, 499 U.S. 606, 609 (1991). A flat rule that an employer may reject an applicant based on its hostility to that person's desire to organize the work force would be antithetical to that core purpose. App., infra, 34a; Sunland, 309 N.L.R.B. at 1229. ___________________(footnotes) 120, 101, 61 Stat. 137), it did not otherwise limit the broad scope of that provision. Indeed, in contemporaneously enact- ing Title III of the Labor Management Relations Act, 1947 (LMRA), 29 U.S.C. 185-187, Congress manifested an assump- tion that an "employee" maybe employed simultaneously by a union and another entity. Although Section 302 (a) of the LMRA, 29 U.S.C. 186(a), generally prohibits payments by an employer to an employee of a union, Section 302 (c) (1) ex- cepts from that ban payments made "to any * * * employee of a labor organization, who is also an employee * * * of such employer, as compensation for, or by reason of, his service as an employee of such employer." 29 U.S.C. 186(c) (1). See Willmar Electric, 968 F.2d at 1329. That provision thus ex- pressly recognizes that a person can simultaneously be an "employee" of both a union and another employer. ---------------------------------------- Page Break ---------------------------------------- 16 The Board added that protecting paid union organ- izers against discrimination based on their union ac- tivity does not interfere with any legitimate manage- ment right. App., infra, 34a (citing Phelps Dodge, 313 U.S. at 182); Sunland, 309 N.L.R.B. at 1229. The Board noted that, "[w]hile working for the em- ployer, the paid organizer is subject to its direction and control, and is responsible for performing as- signed work." App., infra, 34a; Sunland, 309 N.L.R.B. at 1229. The employer may prohibit any employee, including paid organizers, from engaging in union activity during working time, but "[o]ut- side work time * * * the organizer-like other work- ers-is free to solicit for the union." App., infra, 34a (citing Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 n.10 (1945)); Sunland, 309 N.L.R.B. at 1229. The Board, citing its experience, also re- jected the argument that its position could lead to "unions packing bargaining units with their paid functionaries." App., infra, 36a; Sunland, 309 N.L.R.B. at 1229. Under Board policy, "employee status is not synonymous with voter eligibility," and paid union organizers are excluded from voting where they are "temporary" employees or where they do not share a community of interests with fellow employ- ees. App., infra, 35a-36a; Sunland, 309 N.L.R.B. at 1229. The Board also reiterated that "employers may lawfully refuse to hire individuals seeking temporary employment, where the refusal is based on neutral hiring policies, uniformly applied." App., infra, 36a n.32; Sunland, 309 N.L.R.B. at 1229 n.33. The Board further rejected the claim that accord- ing employee status to paid union organizers is in- compatible with "the adversary relationship between employer and union." App., infra, 36a; Sunland, 309 ---------------------------------------- Page Break ---------------------------------------- 17 N.L.R.B. at 1229.. That argument, the Board ex- plained, assumes that "paid union organizers will engage in union activities to the detriment of work assigned by the employer or will embark on. acts inimical to the employer's. legitimate interests." App., infra, 37a; Sunland, 309 N.L.R.B. at 1230. But, the Board stated, [t]he statute's premise is at war with the idea that loyalty to a union is incompatible with an employee's duty to the employer. The fact that paid union organizers intend to organize the em- ployer's work force if hired establishes neither their unwillingness nor their inability to per- form quality services for the employer. Indeed, because the organizers seek access to the jobsite for organizational purposes, engaging in conduct warranting discharge would be antithetical to their objective. No body of evidence has been presented that would support any generalized, or specific, finding that paid union organizers as a class have a significant, or indeed any, tendency to engage in such conduct. App., infra, 37a; Sunland, 309 N.L.R.B. at 1230. The Board emphasized that paid union organizers are sub- ject to the same disciplinary rules as any other em- ployee, and therefore enjoy no "carte blanche in the workplace." App., infra, 38a; Sunland, 309 N.L.R.B. at 1230. And absent objective evidence, there is no reason for inferring that, "if hired, paid union or- ganizers will engage in activities inimical to the employer's operations." App., infra, 38a; Sunland, 309 N.L.R.B. at 1230. Indeed, the Board noted, "a paid union organizer employee arguably poses no greater threat to an employer's property rights than a prounion employee who voluntarily engages in or- ---------------------------------------- Page Break ---------------------------------------- 18 ganizational activity." App., infra, 37a n.34; Sun- land, 309 N.L.R.B. at 1230 n.35.10 3. In light of its careful weighing of the labor- relations interests involved, the Board's rule-that paid union organizers are covered by Section 2 (3)- is certainly a rational one that is consistent with the statute. That is particularly so in light of the stat- ute's broad definition of "employee," the comprehen- siveness of which is emphasized by the very existence of the express exclusions from that definition. Ac- cordingly, that rule is "entitled to deference from the courts." Fall River Dyeing, 482 U.S. at 42; Curtin Matheson, 494 U.S. at 796. The court of appeals, however, dismissed the broad language of the statute as being of "little help," App., infra, 7a, and refused to defer to the Board's resolution of the issue, or even to take into account the Board's considered appraisal of the policy interests involved. The court relied in- stead on its own perception of the harm to an em- ployer of having a union organizer on his work force, in holding that such an organizer is not an "em- ployee" protected by the Act. That holding was error. The premise of the court of appeals' decision was that, unlike a "typical" union member who applies to ___________________(footnotes) 10 The Board in Sunland went on to consider whether the employer's refusal to hire an organizer who applied for work during a strike of the employer by his union violated Section 8(a) (1) and (3) of the Act. The Board held that, in the strike setting, the refusal to hire was not unlawful discrimi- nation. 309 N.L.R.B. at 1230-1231. Sunland thus illustrates that the Board's approach permits room for legitimate em- ployer interests to prevail against a discrimination claim by a union organizer who applies for a job. The reasoning of the Eighth Circuit, by contrast, would resolve each and every case by denying the union organizer protection. ---------------------------------------- Page Break ---------------------------------------- 19 a nonunion employer, a paid union organizer cannot be "simultaneously loyal" to a union and to an em- ployer, and thus is not an "employee" of that em- ployer. App., infra, 8a. The court held that result to apply even to Hansen, whom respondents actually did hire. Id. at 9a. In the case of the unemployed union members (a group that included Hansen), the court asserted that they were under the union's "control," and might have either participated in "an employee-initiated decision to engage in a work stop- page" at the Union's direction or resigned if di- rected to do so by the Union. Id. at 9a-10a. In the case of the two union officials, the court asserted that they would likewise have ignored the employer's man- dates, might have either "increase [d] [their] organi- zational activities at [the] employer's expense" or quit work if directed to do so, and would have had a "reduced incentive to be * * * good employee [s] ." Id. at 9a. Termination was a prospect that such a union official might "relish," the court stated, because it would permit the official to file an unfair labor prac- tice charge. Ibid. In holding paid union organizers not to be "employees," the court thus permitted em- ployers not to hire (and to fire) such paid union organizers solely on account of their union affiliation. The contrary result, the court suggested, would re- quire employers "to place and retain on its payroll those whose continued presence on the job will be determined by an entity other than itself." Id. at 10a. The court of appeals' analysis is flawed in four respects. First, the court's bare assumption that paid union organizers will act in a disloyal manner toward their nonunion employers is belied by the Board's experi- ---------------------------------------- Page Break ---------------------------------------- 20 ence. The Board is aware of no evidence "that paid union organizers as a class have a significant, or indeed any, tendency to engage in * * * conduct" that is "inimical to the employer's legitimate interests." App., infra, 37a. Accordingly, "[t]he fact that paid union organizers intend to organize the employer's work force if hired establishes neither their unwill- ingness nor their inability to perform quality serv- ices for the employer." Ibid. Second, in seeking to accommodate employers con- fronted with a genuinely disloyal employee, the court of appeals ignored the wide latitude that employers already have under the Act to respond to employee infractions and abuses. Section 8(a) (1) and (3) of the Act protects employees only from discipline based on union-related or other concerted activities. Noth- ing in the Act prohibits an employer with an irre- sponsible, underproductive, or uncooperative employee from taking appropriate disciplinary measures against that employee, including discharge, so long as those measures are neutrally imposed without re- gard to the employee's union affiliation or activity. Indeed, "an employer may discharge an employee for a good reason, a poor reason or no reason at all so long as" the discharge is not motivated by unlaw- ful considerations. Edward G. Budd Manufactur- ing Co. v. NLRB, 138 F.2d 86, 90-91 (3d Cir. 1943), cert. denied, 321 U.S. 778 (1944). See Anthony Forest Products Co., 231 N.L.R.B. 976, 977-979 (1977) (no violation in discharge of paid union or- ganizer for cause)"; NLRB v. Henlopen Manufactur- ing Co., 599 F.2d 26, 29-30 (2d Cir. 1979) (same). Contrary to the court of appeals' suggestion, App., infra, 9a, termination of such an employee for just cause would not constitute an unfair labor practice. ---------------------------------------- Page Break ---------------------------------------- 21 But to the extent that the court of appeals viewed the increased organizational activities of a union- member employee as an instance of such misconduct, see ibid., it erred. The Act protects such organiza- tional activities so long as they are confined to non- work hours and do not otherwise interfere with pro- duction or discipline. See Republic Aviation, 324 U.S. at 803 n.10; Texaco, Inc. v. NLRB, 462 F.2d 812, 814 (3d Cir.) (employer may not insist that employees forgo organizational activities, or treat such activi- ties as disloyalty), cert. denied, 409 U.S. 1008 (1972). A third flaw in the court's holding that paid union organizers who apply to or actually work for an em- ployer are not "employees" is its assumption that the employer otherwise would be "required" (App., infra, 10a) to hire such organizers without regard to their likely tenure. The court stated that, as a result of the Union's "job salting organizing resolution," an employer might be saddled with workers who would abruptly leave respondents' employ if directed to do so by the Union. Id. at 9a-10a. However, as the Board has noted, an employer may validly guard against employee resignations of the sort feared by the court of appeals by refusing on a neutral basis to hire temporary workers. App., infra, 36a n.32. An employer may also validly ask an ap- plicant whether there is any obstacle (including, inter alia, an agreement with another employer or a union) that could prevent that applicant from com- pleting his job or serving for a given duration. The employer would be free not to hire a person so con- strained, providing again that it applied this bar without regard to whether the source of the constraint was an agreement with the applicant's union. See Willmar Electric Service, Inc., 303 N.L.R.B. 245, 246 ---------------------------------------- Page Break ---------------------------------------- 22 n.2 (1991) ("[a]n employer may * * * lawfully refuse to hire a statutorily protected employee appli- cant, including a paid union organizer, on the basis of a nondiscriminatory policy against hiring any in- dividual who, for example, seeks only temporary em- ployment, applies while working for another em- ployer, or intends to work simultaneously for more than one employer"), enforced, 968 F.2d 1327 (D.C. Cir. 1992), cert. denied, 113 S. Ct. 1252 (1993). The employer may also design its compensation scheme and other contractual terms so as to encourage lon- gevity of employment. The need to protect employers against unsatisfactory employees, in short, may read- ily be met by other means short of depriving workers who are also paid union organizers of the coverage of the Act. Finally, the decision below would create anomalies and frustrate important policies of the Act. Under that decision, a union member such as Hansen who is working for pay for an employer is not an "em- ployee" entitled to protections against discrimination, but an as-yet unhired job applicant with no union affiliation is a statutory "employee." See Phelps Dodge Corp. v. NLRB, supra. To deem such an on- the-job worker not to be an "employee" confounds the common understanding of that term. See Black's Law Dictionary 525 (6th ed. 1990) ("employee" encompasses any "person in the service of another under any contract of hire * * * where the employer has the power or right to control and direct the em- ployee in the material details of how the work is to be performed"). And because the sole basis for accord- ing the Act's protections to the nonunion applicant but not to the union worker is that the worker has made a commitment to attempt to organize his em- ---------------------------------------- Page Break ---------------------------------------- 23 ployer's work force and stands to receive supplemental income for doing so, the decision below is at odds with the "central purpose" of the Act-''the achievement and maintenance of workers' self-organization." Phelps Dodge, 313 U.S. at 193. The decision below would have other anomalous results. A worker who has long satisfactorily per- formed his job may be discharged as a non-''em- ployee" solely because the employer has learned that the worker has been engaged in paid organizational activity. Such a discharge would be inimical to "the Act's avowed purpose of encouraging and protecting the collective-bargaining process." Sure-Tan, 467 U.S. at 892. Indeed, in this case, respondents appar- ently did not even know at the time that they refused to hire the unemployed union members and at the time that Hansen was discharged that those union members and Hansen had a financial arrangement with the Union. To allow an employer successfully to interpose the defense that the employee was a paid union organizer, even if the employer has learned of that fact only after an unlawfully motivated dis- charge, is inconsistent with the antidiscrimination provisions of the Act. The decision below would also dictate, remarkably, that a longtime satisfactory worker would cease to become a protected "employee" within the meaning of Section 2(3) if during the course of his employment he took on the additional role of a paid union organizer-even if that added role did not adversely affect his work at all. 4. As the court of appeals acknowledged, App., infra, 5a-7a, the decision below conflicts with the de- cision of the District of Columbia Circuit in Willmar Electric Service, Inc. v. NLRB, supra, the decision of the Second Circuit in NLRB v. Henlopen Manu- ---------------------------------------- Page Break ---------------------------------------- 24 facturing Co., supra, and the decision of the Board that was enforced by the Third Circuit in Escada (USA) Inc. v. NLRB, 970 F.2d 898 (3d Cir. 1992) (Table).11 a. In Willmar Electric, a union's field organizer applied for work as an electrician. He advised the employer that he intended to remain a union official and, during breaks and after hours, to attempt to organize the work force. He stated that he would "probably" stop receiving money from the union during his employment. The company did not hire him. An official explained that "it's kind of hard to hire you when you're out there on the other side, picketing." 968 F.2d at 1328. Upholding findings of violations of Section 8(a) (1) and (3), the District of Columbia Circuit held that the Board had "reasonably determined] that [a person] who is employed simultaneously by a union and a company is an `employee' under 2(3) of the Act." 968 F.2d at 1330-1331. Congress, the court determined, had not "clearly resolved the issue" of whether the term "employee" in the Act encom- passes paid union organizers. Id. at 1329 (citing Chevron, 467 U.S. at 842-843). But it was "plain" that the word "employee" did not exclude concurrent employment generally, and "[o]nce that (obvious) ___________________(footnotes) 11 As the court of appeals also noted (App., infra, 5a-6a), its decision is in accord with decisions of the Fourth and Sixth Circuits. See.H.B. Zachru Co. v. NLRB, 886 F.2d '70 (4th Cir. 1989); NLRB v. Elias Brothers Big Boy, Inc., 327 F.2d 421 (6th Cir. 1964). The Fourth Circuit has recently reaffirmed its holding in Zachry. See Ultrasystems Western Constructors, Inc. V. NLRB, 18 F.3d 251, 254 (1994) (paid union organizer is "not a bona fide applicant for employment within the meaning of the NLRA"). ---------------------------------------- Page Break ---------------------------------------- 25 step is taken, it is hard to see how one could exclude employment by a union as well as another employer except on grounds either of some implication from the structure of the Act or some powerful legislative history." Ibid. The court found no such evidence. On the contrary, it noted that under common law an employee could work for two masters so long as `(the service to one does not involve abandonment of the service to the other." Id. at 1329-1330 (quoting Re- statement, supra, 226, at 498). And "[u]ntil such time as an employee `abandons' the nonunion em- ployer for the union employer, it is hard to see why he should be denied the protection of the Act." Id. at 1330. The District of Columbia Circuit also rejected the central premise underlying both the decision below and the Fourth Circuit's decision in H.B. Zachry Co. v. NLRB, 886 F.2d 70 (1989), on which the court below relied: that hiring a union organizer "would subject [the employer] to intolerable risks of dis- loyalty." 968 F.2d at 1330 (citing Zachry, 886 F.2d at 73). The court noted that the "risk of disloyalty is surely not to be discounted," and that an employer may discipline or discharge an employee "for disloy- alty," ibid. (citing George A. Hormel & Co. v. NLRB, 962 F.2d 1061, 1064 (D.C. Cir. 1992)), much as it could "for arson." Ibid. But, the court explained, the employer may not discharge such a person "by saying that arsonists are not `employees'; it must prove that it would have fired the arsonist even if he hadn't been engaged in union-related activities." Ibid. The Eighth Circuit's acknowledged disagreement with Willmar Electric is evident at every stage of analysis. While Willmar Electric found that the im- ---------------------------------------- Page Break ---------------------------------------- 26 placations of the statutory language as amplified by the common law made it `hard to see why [the union organizer] should be denied the protection of the Act," 968 F.2d at 1330, the Eighth Circuit found the statute to be of `little help," App., infra, 7a. Fur- ther, whereas Willmar Electric found a union or- ganizer's joint employment insufficient to constitute "abandonment" under the common law, 968 F.2d at 1330, the Eighth Circuit found an "inherent conflict of interest," App., infra, 8a-9a. Finally, while the District of Columbia Circuit deferred under Chevron to the Board's determination that holding a union organizer an "employee" would not impair labor- management relations, the Eighth Circuit ignored the Board's analysis altogether and substituted its own appraisal of the impact in the workplace of such a holding. Id. at 8a-10a. The Eighth Circuit's ap- proach therefore cannot be reconciled with the ap- proach taken by either the Board or the District of Columbia Circuit. b. In Henlopen, an applicant sought employment at a cosmetics-supply company without disclosing that she was a union organizer and was being paid $50 a week by the union to organize the employer and to report information back to the union. 599 F.2d at 27-28. `The employee was hired and later fired. The Second Circuit overturned the Board's findings of violations of Section 8(a) (1) and (3), because insufficient evidence of discriminatory con- duct existed. 599 F.2d at 29-30. But in so doing, the court also rejected the company's claim that " `a paid union infiltrator' is not a bona fide. employee under the Act." Id. at 30. The court based its dic- tum on the Board's rulings that paid union organiz- ers are in fact "employees" within the meaning of ---------------------------------------- Page Break ---------------------------------------- 27 Section 2(3) of the Act, Ibid. (citing Anthony Forest Products CO., 231 N.L.R.B. 976 (1977); Oak Apparel, Inc., 218 N.L.R.B. 701 (1975) ; Dee Knit- ting Mills, 214 N.L.R.B. 1041 (1974), enforced mem., 538 F.2d 312(2d Cir. 1975) (Table) (No. 75-4016)). c. In Escada, the Third Circuit summarily en- forced an order of the Board finding the discharge of a paid union organizer to have been discrimina- tory. See 970 F.2d 898 (3d Cir. 1992), enforcing 30.4 N.L.R.B. 845 (1991). The Board there declined the invitation of the company and a dissenting Board member to adopt, based on the Fourth Circuit's deci- sion in Zachry, a reading of Section 2(3) under which union employees would not be considered "em- ployees" within the meaning of the Act. See 304 N.L.R.B. at 845, 846.12 d. While factual differences exist among the cases decided in the courts of appeals, as we read these cases, those differences were not decisive. Instead, each court, like the Board, adopted a broader ration- ale that paid union organizers as a rule either are, or are not, "employees" within the meaning of Sec- tion 2 (3) of the Act.13 Moreover, to the extent that ___________________(footnotes) 12 That dissenting Board member (Oviatt) later reconsid- ered his position in Zachry, and concurred in the Board's decision in the instant case. App., infra, 41a; see Sunland, 309 N.L.R.B. at 1231. 13 The "job salting organizing resolution" in this case, for example, is a factor present in no other decided case. The court of appeals cited that resolution as a "controlling" factor in the aspect of its decision holding that the unemployed union members were not "employees." APP., infra, 10a. But it is apparent from the court's opinion that the Eighth Cir- cuit would have reached the same result absent this resolu- ---------------------------------------- Page Break ---------------------------------------- 28 -factual distinctions among paid union organizers may be seen as germane, this case involves union organiz- ers in the varied contexts of a full-time union official, a member who is applying for-a job, and a member (Hansen) actually hired by the employer. The exis- tence of multiple fact patterns may assist the Court to resolve the issue in a conclusive manner that pro- vides maximum guidance to the courts of appeals. The discord in the circuits on the issue of whether a paid union organizer is an "employee" within the meaning of Section 2(3) of the Act is likely to per- sist absent this Court's intervention. The Board has already reexamined its position on that issue in light of an adverse decision (the Fourth Circuit's decision in Zachry). In this case and in a companion case, the Board reaffirmed its position. Thus, to the extent that the circuits have deferred to the Board's inter- ___________________(footnotes) tion, for two reasons. First, the court endorsed the Fourth Circuit's reasoning in Zachry, a case that involved no such resolution. Id. at 7a. Second, in the aspect of its decision holding that the two union organizers were not "employees," the court did not indicate that it was relying on the resolu- tion. Id. at 8a-9a. Indeed, the resolution did no more than put in writing the situation that generally exists for union members who work for nonunion employers. Union constitu- tions or bylaws, as in this case, see id. at 46a-47a, 62a, often call for disciplining or expelling members who work at non- union jobs without the permission of the union. Thus, whether or not a resolution exists requiring a union member to leave a nonunion job upon the union's demand, a member whose union withdraws approval of his nonunion work will always have an economic incentive to leave that job, for if he does not leave that job, he may face a fine or loss of union bene- fits. Moreover, whether or not a resolution exists, the union member (such as the workers in this case who were unem- ployed prior to taking the nonunion job) is also free to con- clude that it is worth his while to spurn the union's demand. ---------------------------------------- Page Break ---------------------------------------- 29 pretation of the term "employee," that interpretation is not likely to change. There is also no reason to be- lieve that the circuits will gravitate towards a com- mon position in light of the reasoning of sister cir- cuits. It was after Zachry that the District of Co- lumbia Circuit (in Willmar Electric) and the Third Circuit (in Escada) accepted the Board's view that paid union organizers are "employees," and it was after Willmar Electric and Escada that the court be- low adopted Zachry opposite view. The Fourth Circuit has recently reaffirmed its position in Zachry. See note 11, supra. The same issue is also presented in two other cases pending in the courts of appeals. See Tualatin Electric, Inc. v. NLRB, No. 93-70775 (9th Cir.); Mathis Electric Co. v. NLRB, No. 94- 1948 (4th Cir. ). The Board has advised us that the same issue is presented in more than 70 unfair labor practice cases presently pending before it. ---------------------------------------- Page Break ---------------------------------------- 30 CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted, FREDERICK L. FEINSTEIN General Counsel LINDA SHER Acting Associate General Counsel DREW S. DAYS, III Solicitor General LAWRENCE G. WALLACE Deputy Solicitor General PAUL A. ENGELMAYER Assistant to the Solicitor General NORTON J. COME Deputy Associate General Counsel PETER WINKLER Attorney National Labor Relations Board NOVEMBER 1994 ---------------------------------------- Page Break ---------------------------------------- APPENDIX A UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 92-3911 TOWN & COUNTRY ELECTRIC, INC., PETITIONER v. NATIONAL LABOR RELATIONS BOARD, RESPONDENT INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Local 292, INTERVENOR/RESPONDENT No. 93-1218 TOWN & COUNTRY ELECTRIC, INC.; AMERISTAFF PERSONNEL CONTRACTORS, LTD., RESPONDENTS v. NATIONAL LABOR RELATIONS BOARD, PETITIONER INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 292, INTERVENOR/PETITIONER Petition for Review of an Order of the National Labor Relations Board Submitted: October 11, 1993 Filed: August 31, 1994 (la) ---------------------------------------- Page Break ---------------------------------------- 2a Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN and LOKEN, Circuit Judges. WOLLMAN, Circuit Judge. The National Labor Relations Board found that Town & Country Electric, Inc. had violated sections 8(a) (1) and 8(a) (3) of the National Labor Rela- tions Act (the "Act"), 28 U.S.C. 158(a) (1) & (3), by discriminating against two full-time union organizers and nine other union members. Town & Country petitions for review of the Board's decision and order, and the Board cross petitions for enforce- ment of its order. Because we find that the union organizers and the other union members were not "employees" within the meaning of section 2 (3) of the Act, .29 U.S.C. 152 (3), and therefore not en- titled to the Act's protection, we deny enforcement of the order. I. In early September 1989, Town & Country, a large nonunion electrical contractor from Appleton, Wis- consin, obtained a contract to do electrical work at Boise Cascade's paper mill in International Falls, Minnesota. After being awarded the contract, Town & Country learned that Minnesota law requires elec- trical contractors to employ one electrician licensed by the State of Minnesota for every two unlicensed electricians working at a job site in the state. None of Town & Country's electricians had a Minnesota license. To help it recruit Minnesota-licensed elec- tricians, Town & Country retained, Ameristaff Per- sonnel Contractors, Ltd., a temporary employment agency from Green Bay, Wisconsin. Ameristaff ad- ---------------------------------------- Page Break ---------------------------------------- 3a vertised in a Minneapolis newspaper for licensed journeymen electricians. Ameristaff prescreened those who responded to the advertisement and sched- uled interviews for seven "applicants at a Minneapolis hotel on September 7. Ron Sager, Town & Country's human resources manager, Dennis Defferding, one of its project man- agers, and Steven Buelow, Ameristaff's president, flew from Appleton to Minneapolis to conduct the in- terviews. Due to inclement weather, they arrived at the hotel one and one-half hours late. Of the seven applicants with scheduled interviews, only one, Gary Weseman, was present. Also present for interviews, however, were approximately one dozen members of Local 292 of the International Brotherhood of Elec- trical Workers, including two full-time paid union officials. Officials of Local 292 had learned of the job advertisement and had encouraged union members to respond and, if hired, to organize the job site. Sager and Defferding interviewed union member Craig Jones first because he said that he had to leave early. They then interviewed Weseman and offered him a job. Following these two interviews, Buelow informed Sager that none of the remaining appli- cants had prescheduled interviews and that from their applications they appeared to be union mem- bers. Sager then informed the applicants that he had decided to interview only applicants who had sched- uled interviews because he had to return to Appleton to attend an important meeting that afternoon. When Sager asked all those without appointments to leave,, Malcolm Hansen protested that he had called Ameri- staff's office earlier that day and had been told to. report to the hotel for an interview. After Buelow ---------------------------------------- Page Break ---------------------------------------- 4a had called his office and confirmed that Hansen had indeed called Ameristaff after they had left for Min- neapolis, Sager interviewed Hansen. Sager hired Hansen, knowing that he was a union member. Al- though interviewed and selected by Town & Country, Hansen was technically employed by Ameristaff as a temporary employee for referral to Town & Country. On September 12, Town & Country's crew, includ- ing Hansen, began work at Boise Cascade's mill. At the job site, Hansen announced to the crew that he was there to organize for the union. Hansen talked continuously to his coworkers about the benefits of the union and relentlessly solicited them to sign with the union, even though they indicated that they were not interested. Hansen's crewmates complained to their foreman about Hansen's nonstop talking as well as his poor workmanship and low productivity. After the crew had begun work at the job site, Sager learned that under Minnesota law an electrical contractor could not use temporary employees from an employment agency; rather, all employees had to be directly employed by the contractor itself. Sager informed Buelow about this law and about Hansen's low productivity and poor workmanship; Buelow then discharged Hansen on September 14. Hansen asked Sager if Town & Country would hire him di- rectly, but Sager refused to do so. Affirming the Administrative Law Judge's deci- sion, the Board found that Town & Country had vio- lated sections 8 (a) (1) and 8(a) (3) of the Act by refusing to interview two union officials and eight other union members because of their union affilia- tion and by refusing to retain Hansen because of his union activity at the job site. Town & Country Elec., ---------------------------------------- Page Break ---------------------------------------- 5a Inc., 309 N.L.R.B. .1250 (1992). In so holding, the Board found that the two union organizers and the other union members, including Hansen, were em- ployees within the meaning of section 2 (3) of the Act. In its petition, Town & Country argues that this finding was improper. II. The Act "confers rights only on employees, not on unions or their nonemployee organizers." Lechmere, Inc. v. NLRB, 112 S. Ct. 841, 845 (1992). Appli- cants for employment, however, have long been con- sidered to be employees under the Act. Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 181-88 (1941). Al- though the task of defining the term "employee" has been assigned primarily to the Board as the agency created by Congress to administer the Act, Sure-Tan, Inc. V. NLRB, 467 U.S. 883, 891 (citing NLRB v. Hearst Publications, Inc., 322 U.S. 111, 130 (1944)), the Board's construction of the term is not immune from judicial review, Allied Chemical & Alkali Work- ers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 166 (1971 ). We will uphold the Board's interpretation only if it is reasonable. Sure-Tan, 467 U.S. at 891; Pittsburgh Plate Glass, 404 U.S. at 166. In this case, we must decide whether two separate but related classes of individuals were employees within the meaning of the Act. We first consider whether the two full-time union organizers were stat- utory employees and then decide the same issue for the other nine union members, including Hansen. A. The circuits are split on whether paid union organ- izers are employees under the Act. In H.B. Zachry ---------------------------------------- Page Break ---------------------------------------- 6a Co. v. NLRB, 886 F.2d 70, 72 (4th Cir. 1989), the Fourth Circuit, joining the Sixth Circuit, NLRB v. Elias Brothers Big Boy, Inc., 327 F.2d 421, 427 (6th Cir. 1964), held that a union organizer is not a bona fide employee within the meaning of section 2(3). Zachry had refused to hire a paid full-time union organizer who had applied for work, upon the union's instruction, to organize Zachry's employees. Had the organizer been hired, he would have remained con- currently employed and supervised by the union. The union would have made up any shortfall in his salary, continued to make payments for his fringe benefits, and paid for his travel expenses and any other living expenses related to the job. In reaching its holding, the court stated that the "plain meaning of the term `employee' contemplates an employee working under the direction of a single employer. The term plainly does not contemplate someone working for two dif- ferent employers at the same time and for the same working hours." Zachry, 886 F.2d at 73. On the other hand, in Willmar Electric Service, Inc. v. NLRB, 968 F.2d 1327, 1329-31 (D.C. Cir. 1992), cert. denied, 113 S. Ct. 1252 (1993), the D.C. Circuit, agreeing with the Second Circuit, NLRB v. Henlopen Manufacturing Co., 599 F.2d 26, 30 (2d Cir. 1979), reached a contrary decision. See also Escada (USA) Inc. v. NLRB, 970 F.2d 898 (3d Cir. 1992) (enforcing the Board's order without an opin- ion). Willmar had refused to hire a job applicant who was employed by a union when he applied, sought the job for the purpose of organizing Will- mar's work force, planned to retain an employment relationship with the union, and planned to return to being a full-time union employee. Rejecting ---------------------------------------- Page Break ---------------------------------------- 7a Zachry's holding, the court held that the Board could reasonably determine that an individual "who is em- ployed simultaneously by a union and a company is an `employee' " under section 2(3 ). Willmar, 968 F.2d at 1330-31. The Fourth Circuit has recently adhered to its decision in Zachry, expressly declining to revisit it in the light of Willmar. Ultrasystems Western Con structors, Inc. v. NLRB, 18 F.3d 251, 255 (4th Cir. 1994). We find Zachry to be more persuasive than Will- mar. Section 2(3)`s definition of "employee,"1 pro- vides little help in deciding the issue before us. See Nationwide Mutual Ins. Co. v. Darden, 112 S. Ct. 1344, 1349 (1992 ) ; Zachry, 886 F.2d at 72. Section 2(3 ) merely defines employee to mean "any em- ployee" and outlines several types of employment not covered by the statute. When a federal statute does not helpfully define the term "employee," we infer ___________________(footnotes) 1 Section 2 (3) provides in full: The term "employee" shall include any employee, and shall not be limited to the em- ployees of a particular employer, unless this subchapter ex- plicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantiality equivalent employment, but shall not in- clude any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent con- tractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act, as amended from time to time, or by any other person who is not an employer as herein defined. 29 U.S.C. 152(3). ---------------------------------------- Page Break ---------------------------------------- 8a that " `Congress intended to describe the conventional master-servant relationship as understood by common- law agency doctrine.'" Darden, 112 S. Ct. at 1348 (quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 740 (1989) ). Under common law, an agent has a duty to act solely for the benefit of his principal in all matters connected with his agency. Restatement (Second) of Agency 387 (1957). More specifically, an agent is subject to a duty not to act on behalf of a person or entity whose interests conflict with those of the principal in matters in which the agent is employed. Id. 394. Pursuant to this obligation, a person may be the servant of two masters at one time only if service to one does not involve abandonment of or conflict with service to the other. Id. 226. Ordi- narily, however, the control a master can properly exercise over the conduct of a servant prevents simul- taneous service for two independent employers. Id. cmt a. The Board argues that working simultaneously for the union as a paid organizer and for a nonunion employer does not involve a conflict of interest. The Board contends that the Act is founded on a belief that an employee may Legitimately give allegiance to both a union and an employer. Were this a case involving a typical job applicant, we might well agree that an employee may be simul- taneously loyal to his union and to his nonunion em- ployer. The two union organizers, however, were not typical applicants. They were not in search of a job; they already had one. The organizers wanted to enter Town & Country's work force not for financial gain, but to organize its workers. When a union offi- ---------------------------------------- Page Break ---------------------------------------- 9a cial applies for a position only to further the union's interests, we believe that an inherent conflict of in- terest exists. In this situation, the union official will follow the mandates of the union, not his new em- ployer. If the union commands him to increase his organizational activities at his second employer's ex- pense, he will do so. If the union asks him to quit working for his second, employer, he will do so. Addi- tionally, a union organizer in this position has a reduced incentive to be a good employee for his sec- ond employer. If he is terminated, he simply returns to his full-time union job. Indeed, he may even relish being discharged, because he then can file an unfair labor practice charge, claiming that he was termi- nated because of his organizing efforts. Accordingly, we find that the two full-time paid union organizers were not employees under the Act. B. We further find that the union members who ap- plied, including Hansen, were not employees entitled to the Act's protection. Like the union organizers, these applicants were also under Local 292's control. Although not full-time organizers, they were encour- aged by Local 292 to apply and to organize Town & Country's employees if hired. The union would pay those hired the difference between union scale and Town & Country's wages as well as their travel expenses.2 Most important, these applicants were subject to Local 292's job salting organizing resolu- tion. Pursuant to this resolution, Local 292 members ___________________(footnotes) 2 Indeed, for Hansen's organizational efforts at the Boise Cascade job site, he received almost $1100 from the union, as compared to $725 from Ameristaff. ---------------------------------------- Page Break ---------------------------------------- 10a may work for nonunion employers only if they work for organizational purposes. In particular, the reso- lution provides that the union's business manager is (empowered to authorize members to seek employ- ment by nonsignatory contractors for the purpose of organizing the unorganized." The resolution further provides that "such members, when employed by non- signatory employers, shall promptly and diligently carry out their organizing assignments, and leave the employer or job immediately upon notification." We find this last provision controlling, for third-party control over a putative employee's job tenure, in con- . trast to, say, an employee-initiated decision to engage in a work stoppage, is inimical to, and inconsistent with, the employer-employee relationship. Fidelity to the principles and goals of one's chosen labor organi- zation is to be expected and is of course protected by the Act. On the other hand, traditional common- law principles governing the establishment of the employer-employee relationship should not be jetti- soned in an effort to broaden the protections of the Act beyond those which it was intended to provide. Town & Country may not deny employment, to those who, in addition to performing the work they were employed to do, zealously seek to persuade their fellow employ- ees to join their union, but it should not be required to place and retain on its payroll those whose con- tinued presence cm the job will be determined by an entity other than itself. Accordingly, we hold that Town & Country committed no unfair labor practice in refusing to interview the two union organizers and the other union members. Having found that none of the alleged discrimi- natees were employees under the Act and that there- ---------------------------------------- Page Break ---------------------------------------- 11a fore no violations of the Act occurred, we need not consider Town & Country's remaining two argu- ments: that the Board improperly approved the ALJ's use of an irrebuttable presumption that all nonunion employers are unlawfully motivated to discriminate against individuals who are affiliated with a union, and that the Board failed to follow precedent that permits employers to prohibit solicitation during work time. Enforcement of the order is denied. A true copy. Attest: Clerk, U.S. Court of Appeals, Eighth Circuit. ---------------------------------------- Page Break ---------------------------------------- 12a APPENDIX B BEFORE THE NATIONAL LABOR RELATIONS BOARD Cases 18-CA-11035, 18-CA-11044, and 18-CA-11080 TOWN & COUNTRY ELECTRIC, INC. and AMERISTAFF PERSONNEL CONTRACTORS, LTD. and CHARLES EVANS TOWN & COUNTRY ELECTRIC, INC. and AMERISTAFF PERSONNEL CONTRACTORS, LTD. and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 292, AFL-CIO TOWN & COUNTRY ELECTRIC, INC. and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION 343, AFL-CIO December 16, 1992 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY, OVIATT, AND RAUDABAUGH On September 18, 1990, Administrative Law Judge Joel A. Harmatz issued the attached decision. Re- spondent Town & Country Electric filed exceptions and a supporting brief; the General Counsel filed cross-exceptions, a supporting brief, and an answering brief to the Respondent's cross-exceptions; and Re- ---------------------------------------- Page Break ---------------------------------------- 13a spondent Town & Country Electric filed an answering brief to the General Counsel's cross-exceptions. On January 22, 1992, the Board scheduled oral ar- gument because this case raised important 8(a) (3) and (1) issues with respect to whether paid union organizers are "employees" within the meaning of the Act, if so, whether it violates the Act to refuse to hire a paid organizer.' Thereafter, the Respondent, the General Counsel, and the Charging Party Union, and, as amici curiae, the American Federation of Labor and Congress of Industrial Organizations and its Building and Construction Trades Department, AFL-CIO, the Chamber of Commerce of the United States of America, the Associated General Contract- ors of America, Inc., and the Associated Builders and Contractors Inc., presented oral argument before the Board. The Respondent and the amici also filed briefs.' The Board has considered the decision and the record in light of the exceptions, briefs, and oral ar- gument, and has decided to affirm the judge's rul- ings, findings,3 and conclusions and to adopt the rec- ___________________(footnotes) 1 Oral argument additional y was held in Sunland Construc- tion Co., Cases 15-CA-10618-1 et al. and Sunland Construction Co., Cases 15-CA-10927-2 et al. 2 The Chamber of Commerce did not file a brief. Subse- quently, the AFL-CIO submitted a letter citing a recently issued relevant court decision. 3 Respondent Town & Country Electric has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credi- bility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Stand- ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 ---------------------------------------- Page Break ---------------------------------------- 14a ommended Order as modified below.4 For the reasons' discussed below, we find that paid union organizers Michael Priem and Greg Shafran- ski, as well as nine other union members who sought "employment with the Respondent: are "employees" within the meaning of the Act. Thus, we agree with the judge that the Respondent violated Section 8(a) (3) and (1) of the Act by refusing to interview and `consider for employment Priem, Shafranski, and eight other union members because of their union affiliation and by discharging employee Malcolm Hansen because of his union activities.6 ___________________(footnotes) F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. Respondent Town & Country Electric further contended that the judge was biased in that he prejudged the issues before him. Based on our review of the entire record, includ- ing the judge's decision, we conclude that the Respondent's contentions are without merit. 4 Although he found that Respondent Ameristaff Personnel Contractors, Ltd. coercively interrogated an applicant for employment, the judge concluded that the violation was ade- quately remedied by his recommended Order regarding Ameristaff's principal. Respondent Town & Country, which he found also violated Sec. 8(a) (1) of the Act by this con- duct. We find merit in the General Counsel's exception to the judge's failure to require that Respondent Ameristaff, which was acting as the agent for Respondent Town & Coun- try in the procurement of employees, also cease and desist from interrogating employees in violation of the Act. Ac- cordingly, we shall order Respondent Ameristaff to cease and desist from such conduct and to post an appropriate notice. 5 The Union offered to pay these members the difference between union scale and the Respondent's wages and benefits if they would attempt to organize the Respondent's nonunion employees. 6 In adopting the judge's finding that Respondent Town & Country Electric violated Sec. 8(a) (3) of the Act by refusing ---------------------------------------- Page Break ---------------------------------------- 15a I. BACKGROUND A. Facts Town & Country Electric, Inc. (Town & Country) is the largest nonunion electrical contractor in the State of Wisconsin. In early September 1989,' Boise Cascade awarded Town & Country a contract to per- form electrical renovation work at Boise's facility in International Falls, Minnesota, Town & Country was to begin work on September 11. There is a Min- nesota statutory requirement that an electrical con- tractor employ one electrician licensed by the State for every two unlicensed electricians engaged in such work on the jobsite. Town & Country did not have a single electrician licensed in Minnesota at the time Boise Cascade awarded it the contract. To obtain electricians licensed in Minnesota, Town & Country retained Ameristaff, a temporary employ- ment agency based in Minneapolis, for recruitment purposes. Under this arrangement, Ameristaff was responsible for advertising job opportunities related to the Boise-Cascade operation and assumed liability for fringe benefits earned by employees on its pay- roll who worked there. Town & Country, however, retained exclusive discretion regarding interviewing, hiring, the setting of wage rates and granting of increases, supervising and the discharge of employees on the Boise-Cascade project. The judge found, and we agree, that Town & Country exercised plenary ___________________(footnotes) to retain employee Malcolm Hansen, we stress the evidence here that, as the judge found, the pivotal event leading to Town & Country's decision was Hansen's protected concerted activity in seeking to organize the unit employees during their lunch break on September 14, 1987. 7 All dates are in 1989 unless otherwise noted. ---------------------------------------- Page Break ---------------------------------------- 16a authority and control over employees retained by Ameristaff for its account and that, even absent a joint-employer relationship, Ameristaff was an agent whose conduct in connection with hiring for the Boise project was binding on Town & Country. On September 3, Ameristaff ran an advertisement in a major Minneapolis newspaper announcing em- ployment opportunities for "licensed journeymen electricians" and including its telephone number. Ron Sager, Town and Country's manager of human resources, made it clear to Ameristaff before the ad- vertisement was placed that job applicants had to be "able to work a merit [nonunion] shop." When ap- plicants responded to the advertisement, Ameristaff's receptionist, Lorrie Ann O'Mellan, asked them whether they preferred to work union or nonunion and, if the job seeker had worked only union projects, whether the person would work nonunion.8 Steven Buelow, Ameristaff's president, arranged for Town & Country to interview applicants at the Embassy Suites in Minneapolis on September 7. Members and officials of International Brother- hood of Electrical Workers, Locals 292 and 343, learned of Ameristaff's job advertisements. The Unions, which had authorized their members to work nonunion for organizational purposes, encouraged un- employed members to apply and, if hired, to organize the jobsite. There was a fund the Unions had estab- lished to reimburse members for wage, travel, and health benefit differentials they incurred on nonunion jobs. ___________________(footnotes) 8 The General Counsel did not allege that O'Mellan's ques- tioning of the phone applicants violated Sec. 8(a) (1) of the Act. ---------------------------------------- Page Break ---------------------------------------- 17a On September 7, Sager and Dennis Defferding, the Respondent's project manager, traveled from Apple- ton, Wisconsin to Minneapolis to conduct job inter- views for the Boise-Cascade project. They did not arrive at the Embassy Suites until about 11 a.m. be- cause their flight had been delayed for several hours by adverse weather conditions. When they arrived, there were about a dozen unemployed members of IBEW Local 292, including Priem and Shafranski, waiting to interview. None had previously scheduled interviews, except for Malcolm Hansen who had called Ameristaff that morning and was told by O'Mellan to report for an interview at the Embassy Suites. The only other applicant appearing for an interview, Gary Weseman, was not a union member and had previously scheduled an interview through Ameristaff. Buelow distributed applications, under the Ameristaff logo, to all the applicants. Town & Country began the interviews with Craig Jones, a union member who had no appointment, ap- parently because Jones said that he had to leave soon to care for his children. During the interview, Jones characterized Town and Country's starting rate of $15 per hour as an insult. Jones also told the Town & Country representatives that he would have to dis- cuss out-of-town work with his wife. Town & Coun- try told Jones that it would keep his application on file. There was no further contact between Jones and Town & Country representatives.9 Town & Country ___________________(footnotes) 9 We adopt the judge's finding that the Respondent did not violate Sec. 8(a) (3) by refusing to consider Jones for em- ployment, or another union member, Roger Chartrand, who arrived at the Embassy Suites as the Respondent's representa- tives were departing. ---------------------------------------- Page Break ---------------------------------------- 18a next interviewed Gary Weseman but did not hire him.10 Meanwhile, Buelow informed the remaining appli- cants that the job was nonunion. The union mem- bers responded that they were interested in any work available. Buelow left the room and, about 15 minutes later, returned and read off a list, of seven names. None were present. After identifying that group of names as those applicants with prearranged appointments, Buelow said that he did not know if anyone without an appointment would be inter- viewed. Priem, one of the two paid union organizers, told Buelow that there were at least eight licensed journeymen present who could take the place of those applicants who had failed to appear. After Town & Country interviewed Jones and Weseman, Buelow reported to Sager that none of the other applicants had appointments. Sager expressed curiosity as to how those applicants without appoint- ments had known about the interviews. Buelow at some point showed him several of the applications and cemented, "I think they're union." Sager decided to cancel further interviews and return to Appleton purportedly because his attendance was re- quired for a manpower meeting at 3:30 that after- noon. Yet, Sager admitted that he had previously learned, on September 5, of the licensed journeyman helper ratio that Minnesota law requires. It is un- disputed that Town & Country employed no electri- cians licensed in Minnesota at the time Sager decided to return to Appleton. When Sager announced to the remaining applicants that he would conduct no further interviews, Hansen ___________________(footnotes) 10 The General Counsel did not allege that Town & Country's failure to hire Weseman constituted a violation. ---------------------------------------- Page Break ---------------------------------------- 19a protested that he had called the number - in the news- paper advertisement and was told to "show up." Hansen announced that he would not leave until Sager interviewed him. After threatening to call local authorities and have the union members re- moved from the hotel room, Sager said that he would check about Hansen's situation and "honor the com- mitment" if Hansen had made" an appointment. Bue- low confirmed that Hansen had called Ameristaff so Sager interviewed him. Sager then announced to the other applicants that he would not interview anybody else. Town & Country conducted several interviews with Hansen before deciding to hire him. On September 14, 2 days after Hansen began work, the Respondent discharged Hansen because, as the judge found, he attempted to organize the Respondent's nonunion employees working at the jobsite. B. Judge's Findings The judge found that, considering Town & Coun- try's dire need at the time for electricians who were licensed in Minnesota and the evidence that Town & Country aborted the Embassy Suites interviews im- mediately after learning of the remaining applicants: union affiliation, the General Counsel established a prima facie case that Town & Country had discrimi- natorily refused to consider these applicants for hire notwithstanding its subsequent hire of Hansen. In considering Town & Country's defenses, the judge rejected its contention that Sager did not want to interview anyone whom Ameristaff had not pre- screened. The judge stressed that Town & Country had interviewed Jones without this condition being met and that Sager, who should have known that ---------------------------------------- Page Break ---------------------------------------- 20a Ameristaff had screened only seven applicants, ex- pressed pleasure on arriving at the Embassy Suites and observing that the turnout was larger than an- ticipated. The judge found it incomprehensible that, given Sager's purported urgency about attending the manpower meeting later that day, Sager made no effort on his arrival at the Embassy Suites to monitor the interviewing process so as to best utilize the lim- ited time he claimed was available for the interviews. For these reasons, the judge found that, except for Jones and Chartrand, discussed supra, Town & Coun- try violated Section 8(a) (3) by failing to demon- strate that it would not have interviewed and consid- ered for hire those named in the complaint in the absence of their union affilliation. Regarding Hansen's discharge, the judge concluded that Town & Country had failed to substantiate by credible evidence that it would have discharged Han- sen even in the absence of his organizational activity. The judge distinguished the Fourth Circuit's decision in H.B. Zachry Co. v. NLRB, 886 F.2d 70 (1989), denying enf. to 289 NLRB 838 (1988), discussed infra, from the present case because, in his view, the evidence showing that the Union planned to re- imburse Hansen for any wage and benefit losses he incurred on the nonunion job did not warrant a find- ing that Hansen was a paid union organizer. C. Exceptions Based on the court's decision in Zachry, supra, the Respondent argues in its exceptions that the dis- criminatees were not bona fide applicants under the statute. The Respondent notes that Priem and Sha- franski were full-time salaried business representa- ---------------------------------------- Page Break ---------------------------------------- 21a tives and that the Union paid Hansen full journey- man's scale, in addition to the pay he received from Ameristaff, for the 31 hours that he worked at the Respondent's jobsite. The Respondent claims that the Union's payments to Hansen put him in the same category as full-time salaried business agents whom the court excluded from the definition of employee under Section 2(3 ). Regarding the rest of the alleged discriminates, the Respondent argues that no viola- tion occurred when it rejected their applications be- cause, if they had been hired, the Union's "salting resolution" would have paid them the difference be- tween the Respondent's wages and union scale and thus disqualified them under Zachry. The Respondent also contends that the alleged dis- criminatees did not qualify as statutory employees because their first obligation under the salting reso- lution was to fulfill the Union's organizing purpose. The Respondent asserts that it was the Union which was the discriminates' employer in the circumstances here. According to the Respondent, these union mem- bers would only work for it under the Union's direc- tion and, in the process, they would interfere with the self-determination rights of its other employees. Further, because the salting resolution required mem- bers to leave the nonunion jobsite once organizing had ceased, the Respondent argues that none of the alleged discriminatees met the statutory definition of employee because they were not seeking permanent employment. Thus, for the above reasons, the Re- spondent urges the Board to find that the applicants for employment whom it rejected and Hansen were not employees under Section 2(3 ) of the Act. ---------------------------------------- Page Break ---------------------------------------- 22a II. ANALYSIS A. Overview We agree, for the reasons stated by the judge, that the Respondent violated Section 8 (a) (3) and (1) by refusing to hire Priem, Shafranski, and eight other union members who applied for work and by later discharging employee Malcolm Hansen because of his union activities. Additionally, in finding these 8(a) (3) violations, we specifically affirm the judge's findings that Hansen, as well as the discriminates that Town & Country rejected for employment be- cause of their union affiliation, are statutory em- ployees for the reasons fully discussed below. B. Paid Union Organizers as "Employees" Within the Meaning of Section 2(3) 1. The definition of "employee" We begin our analysis recognizing that applicants are "employees." Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941 ). As applicants are "employees," the question is whether paid union organizer applicants are employees. Congress, in 1935, broadly defined "employee" in Section 2(3), providing that: The term "employee" shall include any employee, and shall not be limited to the employees of a par- ticular employer, unless the Act explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in con- nection with, any current labor dispute or be- cause of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment ---------------------------------------- Page Break ---------------------------------------- 23a The word "employee" both in common usage and in the law ordinarily includes individuals concurrently working for different employers. "Employee" com- monly refers to individuals "employed by another," "under wages or salary,".11 without reference to any requirement that they be employed by only a single employer. Similarly, a standard legal definition of "employee" encompasses any "person in the service of another under any contract of hire, express or im- plied, oral or written, where the employer has the power or right to control the employee in the material details of how the work is to be performed," without reference to, or proscription of, dual employment. Black's Law Dictionary 471 (rev. 5th ed 1979). As long as union organizers employed by or seeking work with an employer do so for wages in return for as- signed work, they meet the standard dictionary defini- tion of "employee." Giving Section 2(3), as amended, its "ordinary meaning,"12 we find that the definition of "employee" as "any employee" is sufficiently expan- sive to encompass paid union organizers. 2. Exclusions Next we look to the exclusions in Section 2(3). Congress in 1935 excluded specific categories from its broad definition of "employee," i.e., agricultural la- borers and individuals performing domestic service in ___________________(footnotes) 11 Websters Third New International Dictionary, 743 (rev. 1971). We also Funk & Wagnalls Standard College Diction- ary, 433 (1973), which defines "employee" as "one who works for another in return for salary, wages, or other consider- ation." 12 We assume that the statutory purpose is expressed by the ordinary meaning of its words. INS v. Phinpathya, 464 U.S. 183, 189 (1984) . ---------------------------------------- Page Break ---------------------------------------- 24a the home. In 1947, Congress added to the exclusions so that the 2(3) definition of "employee" now ex- cludes: any individual employed as an agricultural la- borer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any in- dividual employed by an employer subject to the Railway Labor Act, as amended from time to time, or by any other person who is not an employer as herein defined. "Paid union organizers" do not appear in these ex- clusions. Under the well-settled principle of statutory construction-expressio unius est exclusio alterius- only these enumerated classifications are excluded from the definition of "employee."" Accordingly, full-time, paid union organizers are "employees" within the ordinary meaning of this provision. See generally State Bank of India v. NLRB, 808 F.2d 526, 531-532 (7th Cir. 1986), cert. denied 483 U.S. 1005 (1987) . 3. Legislative History We must also look to the legislative history, how- ever, because a statute will not be given its ordinary meaning if there is "a clearly expressed legislative in- tention to the contrary." Consumer Product Safety Commission v. GTE Sylvania, 447 U.S. 102, 108 (1980). There is no evidence in the Legislative history ___________________(footnotes) 13 2A Singer, Sutherland Statutory Construction, Sec. 47.23 (4th ed. 1973) (Suppl. 1991). ---------------------------------------- Page Break ---------------------------------------- 25a that Congress intended Section 2(3 ), at least as to paid union organizers, to be more restrictive than the ordinary meaning of its terms.14 On the contrary, the legislative history reflects Congress' intent to expan- sively interpret "employee." Although Congress did not specifically consider the status of union organizers when enacting Section 2(3), it expansively referred to "employees" as "work- ers, " "wage earners," "workmen,"'15 and "every man on the payroll."" Even when Congress amended Sec- tion 2(3 ) in 1947 specifically to exclude additional classifications from the definition of "employee," it did not narrow the general definition of "employee." Rather, Congress continued to describe "employees" inclusively as individuals "work[ing] for another for hire," and "work[ing] for wages and salaries under direct supervision."17 Further, Congress reassessed and rebalanced the right of an employer to require undivided loyalty from some of its workers with respect to labor unions by its 1947 amendment of Section 2 (3) excluding "supervisors" from the definition of "employee."18 ___________________(footnotes) 14 Compare NLRB V. Bell Aerospace CO., 416 U.S. 267 (1974) (based on legislative history of the Taft-Hartley Act, managerial employees are not covered by Act, although not explicitly excluded from Sec. 2 (3)). 15 H.R. Rep. No. 969, 74th Cong., 2 Leg. Hist. 2917-2918 (NLRA 1935). 16 2 Leg. Hist. 3119, 3220 (NLRA 1935). 17 H.R. Rep, No. 245, 80th Cong., 1st Sess., 1 Leg. Hist. 309 (LMRA 1947). 18 See Florida Power & Light v. Electrical workers Local 2164, 417 U.S. 790, 807-811 (1974) . ---------------------------------------- Page Break ---------------------------------------- 26a Had Congress concluded that paid organizers were not entitled to the protection afforded "employees" by the statute, it knew how to exclude them. It did not. Under the broad terms employed by Congress when enacting and amending Section 2(3 ), paid organizers applying for work, or hired to work for wages under the employer's direct supervision, meet the require- ments for statutory "employee" status. 4. Interpretations of Section 2(3) a. The Supreme Court Consistent with the inclusive language of Section 2(3), and Congress' expressed intent to expansively define "employee," the Supreme Court has consist- ently interpreted Section 2(3) broadly to cover indi- viduals not explicitly excluded. The seminal case is Phelps Dodge CORP v. NLRB, supra, where the Su- preme Court broadly interpreted the Act to include applicants for work as well as actual hires. The Court also rejected Phelps Dodge's argument that certain strikers who had obtained employment else- where were not entitled to reinstatement because they were not statutory "employees." Writing for the Court, Justice Frankfurter twice characterized the definition of "employee" in Section 2(3) as a "broad" "one, which "expressed the conviction of Congress "that disputes may arise regardless of whether the disputants stand in the proximate relation of em- ployer and employee . . . ." Id. at 192 (quoting from H.R. Rep. No. 1147, 74th Cong., 1st Sess, p. 9). In these situations, emphasized Justice Frankfurter, "to deny the Board power to wipe out the prior discrimi- -nation . . . would sanction a most effective way of defeating the right of self-organization." Id. at 193. ---------------------------------------- Page Break ---------------------------------------- 27a Following Congress' 1947 amendment of Section 2(3 ) to exclude supervisors, independent contractors, and others, the Supreme Court reaffirmed an expan- sive interpretation of "employee." In Chemical Work- ers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 166- 168 (1971), the Supreme Court held that "employee" under Section 2(3 ) broadly covers those who work for another for hire, although not those who have retired. Similarly, in Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891 (1984), the Court said that the "breadth of 2(3)`s definition is striking: the Act squarely applies to `any employee.' The only limita- tions are specific exemptions" contained in the stat- ute. In concluding that undocumented aliens were statutory "employees," the Court relied not only on Section 2(3)'s broad language, but also on the con- clusion that an expansive interpretation of the stat- ute was consistent with "the Act's avowed purpose of encouraging and protecting the collective-bargaining process." Id. at 892. The Supreme Court's analysis of the word "em- ployee" under the Employee Retirement Income Se- curity Act (ERISA ), a statute that also addresses work place issues, endorses the application of common law agency principles. Thus, in Nationwide Mutual Insurance Co. v. Darden, 112 S. Ct. 1344, .1349 (1992), the Supreme Court, finding that "employee" under ERISA was ill defined, turned to the common law, quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739-740 (1989): [W]hen Congress has used the term "employee" without defining it, we have concluded that.Con- gress intended to describe the conventional mas- ---------------------------------------- Page Break ---------------------------------------- 28a ter-servant relationship as understood by common law agency doctrine. Only where employing traditional agency principles would thwart congressional intent or produce absurd results will the Court refuse to apply those principles. Nationwide Mutual Insurance Co. v. Darden, supra, 112 S. Ct. at 1349. Under common law agency principles: A person maybe the servant of two masters, not joint employers, at one time as to one act, if the service to one does not involve abandonment of the service to the other. Restatement (Second) of Agency, Section 226, pp. 498-500 (1957).19 NLRA Section 2(3), like its ERISA counterpart, circuitously defines "employee" as `(any employee." There being no contrary congressional intent, we find no bar to applying common law agency principles to the determination whether a paid union organizer is an `{employee." Under those principles, paid union organizers cannot be excluded from the definition of "employee" on the basis that they are paid by their union as well as by the employer they are attempting to organize.20 ___________________(footnotes) 19 See also Kelley v. Southern Pacific Co., 419 U.S. 318, 324 (1974); Dellums v. Powell, 566 F.2d 216,222 and fn. 22 (D.C. Cir. 1977), cert. denied, 438 U.S. 916 (1978); Beaver v. Jacuzzi Bros., 454 F.2d 284,285 (8th Cir. 1972); Mazer v. Lip- shutz, 360 F.2d 275, 278 (3d Cir. 1965), cert. denied, 385 U.S. ` 833 (1966). 20 This position recently was endorsed by the District of , Columbia Court of Appeals in Willmar Electric Service v. NLRB, 968 F.2d 1327 (D.C. Cir. 1992). ---------------------------------------- Page Break ---------------------------------------- 29a In sum, Supreme Court decisions support a reading of Section 2(3) that includes paid union organizers within the definition of employee. b. The Board Courts repeatedly have held that the task of deter- mining "the contours of the term `employee' properly belongs to the Board." Chemical Workers v. Pitts- burgh Plate Glass, supra, 404 U.S. at 167.21 When undertaking this task, the Board has uniformly inter- preted "employee " in the "broad generic sense" to "include members of the working class generally."" Under this expansive interpretation, the Board has found that Section 2 (3) covers not only employees of a particular employer, but also employees of another employer, former employees of a particular employer, applicants for work, temporary and part-time em- ployees, and individuals attending school or working a second job.23 In accord with its broad interpretation of Section 2(3 ), the Board historically has held that paid union organizers are "employees" entitled to the Act's pro- tections. Thus, in Dee Knitting Mills, 214 NLRB ___________________(footnotes) 21 See also Sure-Tan, Inc. v. NLRB, supra, 467 U.S. at 891; Bayside Enterprises v. NLRB, 429 U.S. 298, 304 (1977); NLRB v. Hearst Publications, 322 U.S. 111 at 130 (1944); Iron Workers v. Perko, 373 U.S. 701, 706 (1963). 22 Briggs Mfg. Co., 75 NLRB 569, 570 (1947); Oak Apparel, 218 NLRB 701 (1975). See also Consolidation Co., 266 NLRB 670, 674 (1983); Giant Food Markets, 241 NLRB 727, 728 fn. 3 (1979); Little Rock Crate& Basket Co., 227 NLRB 1406 (1977) . 23 Briggs Mfg. Co., supra, 75 NLRB at 570; Little Rock Crate & Basket Co., supra; Oak Apparel, supra, 218 NLRB at 707; L.D. Brickman Southeast, 261 NLRB 204,210 (1984). ---------------------------------------- Page Break ---------------------------------------- 30a 1041 (1974), enfd. mem. 538 F.2d 312 (2d Cir. 1975), the Board held that "an employee does not lose his status because he is also paid to organize." Id. In Oak Apparel, supra, the Board adopted the administrative law judge's conclusion that: The definition in the Act provides that "the term `employee' shall include any employee, and shall not be limited to the employees of a particular employer, unless the Act explicitly states other- wise. . . ." While the definition expressly ex- cludes particular kinds of employees, [paid union organizers] would not fall into any of these ex- cluded categories. In accord with the broad appli- cation given to this definition, the Board and the courts find generally that individuals who are hired by, work under the control of, and receive compensation from, an employer, are employees of that employer and entitled to the protection of the Act, including cases where they were em- ployed on a part-time or temporary basis; were attending school; were working on a second job; or in other circumstances which indicated they intended to remain on a particular job for a limited time. [Footnote omitted.] The Board in Oak Apparel rejected the argument that the discharged union organizers were not "em- ployees" because they did not intend to remain in the respondent's employ beyond the period required for organization.24 The Board found it immaterial for ___________________(footnotes) 24 The Board also rejected the contention that the Paid organizers in Oak Apparel were not employees because the union directed their organizational activities and controlled their employment through compensation. ---------------------------------------- Page Break ---------------------------------------- 31a purposes of Section 8(a) (3) whether the discharged organizers sought permanent employment with the respondent. Permanency of employment, the Board held, was relevant for election purposes, but was unrelated to the issue of "employee" status. Id. at 701, citing Phelps Dodge Corp. v. NLRB, supra, 313 U.S. at 192; Dee Knitting Mills, supra. To hold otherwise, concluded the Board, would result in em- ployers discriminating "with impunity against tem- porary or casual employees who are not includable in any bargaining unit." Id. Since Oak Apparel, the Board consistently has held that paid union organiz- ers are statutory employees entitled to the Act's protection.25 c. The courts of appeals The Second, Third, and District of Columbia Cir- cuit Courts of Appeals agree with the Board that a paid union organizer can nonetheless be an "em- ployee" under the Act. See NLRB v. .Henlopen Mfg., 599 F.2d 26, 30 (2d Cir. 1979) (dictum);26 Escada (USA), Inc. v. NLRB, 140 LRRM 2872 (3d Cir. 1992), enfg. mem. 304 NLRB 845 (1991); Willmar Electric Service v. NLRB, 968 F.2d 1327 (D.C. Cir. 1992 ). Two courts of appeals disagree with the Board. See NLRB v. Elias Bros. Big Boy, 327 F.2d ___________________(footnotes) 25 Anthony Forest Products, 231 NLRB 976, 977-973 (1977); Lyndale Mfg. Corp., 238 NLRB 1281, 1283 fn. 3 (1978); Margaret Anzalone, Inc., 242 NLRB 879,888 (1979); Palby Lingerie, Inc., 252 NLRB 176, 182 (1980); Pilliod of Mississippi, "275 NLRB 799, 811 (1985); Multimatic Products, 288 NLRB 1279, 1312 fn. 226, 1316 (1988). 26 The Second Circuit refused to enforce the Board's order on other grounds, however. ---------------------------------------- Page Break ---------------------------------------- 32a 421, 427 (6th Cir. 1964); H.B. Zachry Co. v. NLRB, 886 F.2d 70 (4th Cir. 1989). 5. Reexamination of our interpretation of Sec- tion 2(3) On reexamination of our analysis of the scope of Section 2(3) in Oak Apparel and its progeny, we conclude that the definition of "employee" encom- passes paid union organizers. As more fully explained above, we rely on: (1) the language of Section 2(3) which, given its ordi- nary meaning and Congress' determination not to place paid union organizers among its other exclu- sions, must be read inclusively to encompass paid organizers; (2) the Supreme Court's consistently broad interpretation of Section 2 (3) and its applica- tion of common law agency principles to find that an individual cannot be excluded from the definition of "employee" on the basis that he is being paid by two employers; (3) the reasoning found in our own pre- cedents, most recently approved by the District of Columbia Circuit in Willmar Electric Service, supra, that, among other things, rejects the position that because the employment of paid union organizers is of limited duration they cannot be "employees." The Respondent and its amici rely on the Fourth Circuit's reasoning in H. B. Zachry v. NLRB, supra. The court held that it would distort the "ordinary meaning" of "employee" to include within the 2(3) definition someone -who was employed and directed in his organizing efforts by the union and who would continue to receive wages and benefits from the union while he was also employed by the employer being or- ganized (citing Chemical Workers v. Pittsburgh Plate ---------------------------------------- Page Break ---------------------------------------- 33a Glass, supra, 404 U.S. at 167-168). H.B. Zachry v. NLRB, supra, 886 F.2d at 73. The District of Columbia Circuit in Willmar Elec- tric Service v. NLRB, supra, recently addressed this point. The court applied common law agency princi- ples to interpret Section 2(3) to include concurrently employed paid union organizers.27 Observing that a paid organizer's employment would give him a better perch from-which to propagandize, the Willmar court nonetheless found that this was inadequate to distin- guish the paid organizer from an unpaid union zealot, who was plainly an "employee." We agree and con- clude that union organizers are "employees." 28 C. Policy Considerations We next consider whether protecting paid union or- ganizers as "employees" furthers the policies of the National Labor Relations Act. The right to organize is at the core of the purpose for which the statute was enacted.29 No coherent pol- ___________________(footnotes) 27 The court cited Nationwide Mutual Insurance Co. v. Dar- den, supra, 112 S. Ct. at 1344, in support of its application of common law agency principles. Id. at 1329. 28 In our view, the Respondent's restrictive definition of "employee" to exclude those working for two employers at the same time draws little support from its citation to Chemi- cal Workers v. Pittsburgh Plate Glass, supra. There the Su- preme Court held that the statutory language must be given its "ordinary meaning;" nothing in that decision points to a conclusion that dual-employed individuals fall outside the ordinary meaning of "employee." On the contrary, the Su- preme Court expansively interpreted "employee" in Pitts- burgh Plate Glass to include anyone working for another for hire. 29 NLRB v. Hearst Publication.s, supra at 126 (1944); Phelps Dodge Corp. v. NLRB, supra, 313 U.S. at 193 ("the ---------------------------------------- Page Break ---------------------------------------- 34a icy considerations to the contrary have been advanced that do not, on analysis, resolve themselves into argu- ments that employers be permitted to discriminate based on an individual's presumed or avowed inten- tion to join or assist a labor organization.30 We find no conflict between protecting paid union organizers as employees and legitimate managerial rights : Protection of the workers' right to self-organiza- tion does not curtail the appropriate sphere of managerial freedom; it furthers the wholesome conduct of the business enterprise. Phelps Dodge Corp v. NLRB, supra, 313 U.S. at 182. While working for the employer, the paid organizer is subject to its discretion and control, and is respon- sible for performing assigned work. The organizer's activities, like those of any employee, may be limited pursuant to lawful no-solicitation rules. Republic Aviation Corp. v. NLRB, supra, 324 U.S. at 802-803 fn. 10. Outside work time, however, the organizer- like other workers free to solicit for the union. Id. The fact that a paid organizer may approach his non- work time organizing activities with greater vigor than an unpaid union adherent is not an acceptable basis for denying the organizer statutory protections. ___________________(footnotes) central purpose of the Act [is] directed . . . toward the achievement and maintenance of workers' self-organization"); Republic Aviation v. NLRB, 324 U.S. 793, 797 (1945). 30 Paid organizers are not employees because they fulfill the important function of providing coworkers with information on their rights to self-organization. Having concluded that paid organizers are employees, however, their employment furthers this fundamental policy of the Act. ---------------------------------------- Page Break ---------------------------------------- 35a The Respondent and its amici also contend that finding that an organizer is an "employee" within the ambit of Section 2(3) would impinge on the em- ployees self-determination rights because the union organizer -would be paid by the union to vote for it in an election. . The organizer's status as a statutory employee does not, however, ensure his right to vote.31 In determin- ing whether statutory "employees" are eligible to vote, the Board applies a traditional "community of inter- est" test. Multimatic Products, supra, 288 NLRB at 1316. Under this test,32 paid union organizers fre- ___________________(footnotes) 31 Note, H.B. Zachry Co. v. NLRB: Paid Full-Time Union Organizer Not an "Employee," 50 La. L. Rev. 1211, 1217 (1990). The Board is free to exclude statutory employees from bargaining units who are otherwise protected by the Act. NLRB v. Action Automotive, 469 U.S. 490, 498 (1985). See generally NLRB v. Hendricks County, Rural Electric Corp., 454 U.S. 170, 190 (1981). As stated in Oak Apparel, supra, 218 NLRB at 701: The distinction between an employee's status with respect to the appropriate unit and his or her status as an "em- ployee" within the meaning of Section 2 (3) has been recognized since the infancy of the administration of the Act. 32 Paid union organizers do not, however, forfeit their status as "employees" because they do not intend to retain their employment beyond the duration of an organizing cam- paign. Although the permanency of employment is relevant to the issue of voter eligibility, it is. irrelevant to "employee" status. Oak Apparel, 218 NLRB at 701. It is well settled that temporary employees are within the ambit of Sec. 2 (3) and are entitled to the Act's protections. "See, e.g., Pennsylvania Electric Co., 289 NLRB 1200 (1988);' EDP Medical Com- puter System, 284 NLRB 1232 (1987). To hold otherwise and single out paid union organizers for exclusion from 2(3) ---------------------------------------- Page Break ---------------------------------------- 36a quently are excluded from voting, either as "tem- porary" employees, or because their interests suffi- ciently differ from those of their coworkers.33 In short, employee status is not synonymous with voter eligi- bility. Willmar, supra at 1330. Accordingly, any con- cern over unions packing bargaining units with their paid functionaries is, in our experience and judgment, misplaced. Next, the Respondent relies on the Fourth Circuit's determination that our approach does not sufficiently account for the adversary relationship between em- ployer and union. The circuit relied on the Supreme Court's decision in NLRB v. Babcock & Wilcox, su- pra, among other things, as supported for this view. Our determination that paid union organizers are "employees" is, however, completely consistent with the philosophy of NLRB v. Babcock & Wilcox Co., supra. Babcock & Wilcox, as recently reaffirmed by the Supreme Court in Lechmere, Inc. v. NLRB, 112 S. Ct. 841 (1992), balances the property rights of employers against the Section 7 rights of employees to learn about self-organization from nonemployees. This balancing process, however, is inapplicable to 2(3) employees. Neither Babcock & Wilcox nor Lechmere interpret Section 2 {3 ), or so much as hint that property rights may be resurrected as a device ___________________(footnotes) coverage as "temporaries" flies in the face of Sec. 7 protec- tions. Of course, employers may lawfully refuse to hire in- dividuals seeking temporary employment, where the refusal is based on neutral hiring policies, uniformly applied, Will- mar Electric Service, supra, 303 NLRB 245, 246 fn. 2. 33 Oak Apparel, supra, 218 NLRB at 701; Dee Knitting Mills, supra, 214 NLRB at 1041; 299 Lincoln Street, Inc., 292 NLRB 172, 180 (1988) . ---------------------------------------- Page Break ---------------------------------------- 37a to bar activity long protected by the statute.34 In- stead, they address the lawful restrictions that em- ployers can place on nonemployees. See Willmar at 1330. The Respondent and its amici vigorously contend that paid union organizers will engage in union ac- tivities to the detriment of work assigned by the em- ployer or will embark cm acts inimical to the employ- er's legitimate interests. We do not agree. The statute's premise is at war with the idea that loyalty to a union is incompatible with an employee's duty to the employer. The fact that paid union organizers intend to organize the employer's work force if hired establishes neither their unwillingness nor their in- ability to perform quality services for the employer. Indeed, because the organizers seek access to the job- site for organizational purposes, engaging in conduct warranting discharge would be antithetical to their objective. No body of evidence has been presented that would support any generalized, or specific, find- ing that paid union organizers as a class have a sig- nificant, or indeed any, tendency to engage in such conduct. ___________________(footnotes) 34 Amici argue that paid union organizers are not "em- ployees" because their request for employment is a guise to gain access to the employer's private property to further the union's objectives. Although gaining such access likely will facilitate the paid organizer's union activities, as long as the, organizer is able, available, and fully intends to work for the employer if hired, he will not be disqualified from "employee" status. Further, a paid union organizer employee arguably poses no greater threat to an employer's property rights than a prounion employee who voluntarily engages in organiza- tional activity. Note H. B. Zachry Co. v. NLRB: Paid Full Time Union Organizer Not an "Employee," 50 La. L. Rev. 1211, 1215-1216 (1990). ---------------------------------------- Page Break ---------------------------------------- 38a The statute is founded on the belief that an em- ployee may legitimately give `allegiance to both a union and an employer. To the extent that may ap- pear to give rise to a conflict, it is a conflict that was resolved by Congress long since in f aver of the right of employees to organize. To hold otherwise at this late date would require "some type of transcendent loyalty" on the part of an "employee" to the em- ployer that, in theory, even the Fourth Circuit would "not require. Zachary, supra, 886 F.2d at 73.35 Our decisions finding that union organizers are not meaningfully distinguishable from other "employees" under the statute should not be read, however, to give paid union organizers carte blanche in the workplace. If the organizer violates valid work rules, or fails to perform adequately, the organizer lawfully may be subjected to the same nondiscriminatory discipline as any other employee. See Wellington Mfg. v. NLRB, 330 F.2d 579 (4th Cir. 1964), cert. denied, 379 U.S. 882 (1964); Sears, Roebuck & Co., 170 NLRB 533 (1968 )." In the absence of objective evidence, how- ever, we will not infer a disabling conflict or presume that, if hired, paid union organizers will engage in activities inimical to the employer's operations. Thus, ___________________(footnotes) 35 Although employers lawfully may insist that employees adequately perform assigned work, they cannot insist that. employees forego organizing activities, or treat those activi- ties as, disloyalty. Texaco, Inc. v. NLRB, 462 F.2d 812, 814 (3d Cir. 1972), cert. denied 409 U.S. 1008 (1972); Misericordia Hospital Medical Center v. NLRB, 623 F.2d 808, 813 (2d Cir. 1980). Employees have the fundamental right to urge their coworkers to support the union, cm company property, outside working hours. Republic Aviation V. NLRB, supra. ---------------------------------------- Page Break ---------------------------------------- 39a we find no policy reason to disregard present deci- sional law to find that since a union organizer serves the union as well as the company he is eliminated from the definition of employee under Section 2(3) of the Act.36 Having carefully reviewed the language of Section 2(3), its legislative history, policy, and the wealth of decisional law interpreting this statutory provision, ---------------------------------------- Page Break ---------------------------------------- 36 We find no merit in the Respondent's contention that because an employer's payment of wages to the organizer partially offsets the union's obligation to pay him, this pay- ment may violate Sec. 8(a) (2)'s proscription against em- ployers contributing financial support to unions. Organizer employees are paid by the employer for work performed for the employer, not for the union. We also note that Sec. 302 of the Labor Management Relations Act specifically con- templates that paid union personnel can be "employees" of other employers. Thus, although Sec. 302 generally prohibits employers from paying union employees, it. expressly ex- empts payments by employers "to any . . . employee of a labor organization, who is also an employee . . . of such em- ployer, as compensation for, or by reason of, his service as an employee of such employer. 29 U.S.C. 186 (c) (1) (1988). The Chamber of Commerce asserted at oral argument that paid organizers are not 2 (3) employees because they work for labor organizations which are not "employers" under Sec. 2(2). We reject this argument. Although Sec. 2(3) expressly excludes individuals who work for persons who are not stat- utory "employers," labor organizations are 2(2) "employers" of their own employees. Further, it it immaterial for pur- poses of our analysis whether unions are statutory employers; the organizer derives his "employee" status from his employ- ment or attempted employment, with the hiring entity. Thus, for example, an agricultural employee (who is excluded under Sec. 2(3)), or a Federal Government employee (who w