161 F.3d 953 (6th Cir. 1998), 94-6108, N.L.R.B. v. Fluor Daniel, Inc.

Docket Nº:94-6108.
Citation:161 F.3d 953
Party Name:NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FLUOR DANIEL, INC., Respondent, International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, Intervenor.
Case Date:November 16, 1998
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 953

161 F.3d 953 (6th Cir. 1998)

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

FLUOR DANIEL, INC., Respondent,

International Brotherhood of Boilermakers, Iron

Shipbuilders, Blacksmiths, Forgers and Helpers,

AFL-CIO, Intervenor.

No. 94-6108.

United States Court of Appeals, Sixth Circuit

November 16, 1998

        Argued Nov. 27, 1995.

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[Copyrighted Material Omitted]

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        Melvin Hutson (argued and briefed), Dallas G. Kingsbury (briefed), Thompson & Hutson, Greenville, South Carolina, for Respondent.

        Joseph J. Jablonski, Jr. (argued and briefed), National Labor Relations Board, Office of the General Counsel, Washington, DC, Aileen A. Armstrong (briefed), Deputy Associate General Counsel, Peter Winkler (briefed), William M. Bernstein, John H. Ferguson, National Labor Relations Board, Appellate Court Branch, Washington, DC, for Petitioner.

        Charles R. Schwartz, Michael J. Stapp (argued and briefed), Michael T. Manley (briefed), Blake & Uhig, Kansas City, Kansas, for Intervenor.

        Before: BOGGS and DAUGHTREY, Circuit Judges; and McKEAGUE, District Judge. [*]

        BOGGS, J., delivered the opinion of the court, in which McKEAGUE, D.J., joined. DAUGHTREY, J. (pp. 975-76), delivered a separate concurring opinion.

        AMENDED OPINION

        BOGGS, Circuit Judge.

        The National Labor Relations Board ("NLRB") has petitioned for enforcement of its order finding respondent, Fluor Daniel, Inc., to have committed various unfair labor practices against job applicants who are also union organizers and against an employee sympathetic to the union involved. The NLRB order imposed various remedial sanctions on Fluor Daniel as a result. We grant the NLRB's petition for enforcement in part and remand the remaining issues for further consideration in light of our opinion.

        I

        Fluor Daniel is a large California corporation engaged in the engineering, construction, and maintenance business throughout the United States. It is a so-called "open-shop" contractor.

        In 1990, Fluor Daniel entered into a three-year contract to conduct service and maintenance work at various electric power generating facilities for the Big Rivers Electric Corporation. This work was to be performed during "outages," which occur when generating stations completely shut down for maintenance purposes. These outages were usually scheduled during off-peak times in the spring and fall. Below is a list, by location, of the outage times when Fluor Daniel performed work in 1990 1:

Plant Location in KY Dates 1. Henderson Sebree 2/22—3/10 2. Coleman I Hawesville 3/11—3/31 3. Wilson Centertown 4/09—4/21 4. Green II Sebree 4/23—5/19 5. Coleman III Hawesville 5/20—6/02 6. Coleman II Hawesville 6/02—6/30 7. Green II Sebree 3 weeks in Sept. 8. Wilson Centertown 6 weeks in Oct. & Nov.

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        Fluor Daniel was terminated by Big Rivers in the fall of 1990, allegedly because of poor performance on Fluor Daniel's part.

        Most of the workers Fluor Daniel hires are former employees, and the initial stages of the re-hiring process are typically conducted by phone, except that workers are not formally hired until they arrive at the work site. Fluor Daniel's typical secondary source is workers who hear about upcoming opportunities for work and simply show up at the work site looking for a job. The Wilson outage in April was larger than most, so the company took the unusual step of using a human resources coordinator to design and implement a staffing plan. Part of this staffing plan included creating a tertiary source of workers by accepting applications through the Kentucky Employment Service and running advertisements for employment during the Wilson outage in local newspapers.

        Barry Edwards, an organizer for the International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers, and Helpers, AFL-CIO ("Boilermakers' Union" 2), obtained Fluor Daniel job applications from a Kentucky Employment Service office. He then distributed these applications to members who had indicated they would be willing to work as volunteer union organizers at Fluor Daniel. As a result of Edwards's efforts, the Boilermakers' Union returned 43 completed applications to Fluor Daniel. The company claims to have been unaware of the source of these applications at the time, but 42 of the 43 individuals wrote on their applications "voluntary union organizer" or similar words. 3

        By the time Fluor Daniel picked up the job applications from the Kentucky Employment Service office on March 26, 1990, Fluor Daniel claims that nearly all of the positions were filled. Fluor Daniel claims to have needed only 6 carpenters, 2 pipe welders, and 8 boilermakers at that time. This allowed Fluor Daniel's human resources coordinator to leave Kentucky by March 30, 1990, delegating the remaining hiring process to local project management. The NLRB disputes this assertion, pointing to the cross-examination of Fluor Daniel's human resources coordinator. During this cross-examination, an affidavit from the company's human resources coordinator was referred to indicating that on March 29, 1990, Fluor Daniel needed 112 workers in unspecified crafts. Unfortunately, neither the ALJ nor the NLRB resolved this dispute.

        Fluor Daniel placed 19 of the 43 applications into a pipe fitters category. Two of these applications, from Edward DeWitt and George Saltsman, were not fully completed. DeWitt had been employed previously by Fluor Daniel. DeWitt and Saltsman were less qualified than those who were actually hired, but the other 17 applicants sponsored by the Boilermakers Union were just as qualified. The NLRB's administrative law judge found that DeWitt had been discriminated against because of his union affiliation, but the NLRB ultimately reversed the ALJ on this point.

        Four of the 43 applications were put into a boilermaker file, including those of brothers John Coons and Steven Coons. Each of these four applicants had experience equivalent to those who were actually hired by

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Fluor Daniel. Two of the 43 applications were placed into a boilermaker pipe welder file. Their experience level was also equal to that of those hired. Three of the 43 applications were placed into a pipefitter welder file. These applicants had extensive experience. Twelve of the 43 applications were placed into the ironworkers file. These applicants also had extensive experience. The last three of the 43 applications were placed into the laborers file. Fluor Daniel had not advertised or asked the Kentucky Employment Service for laborer applications, but it did hire some laborers, nevertheless.

        Not one of these 43 applicants was hired, although Fluor Daniel did hire a significant number of other workers who had connections of some sort with organized labor. 4 For instance, some of the workers the company hired had been trained in union apprentice programs, or had worked for well-known union shop operations. It also hired a total of 52 workers with no apparent connection to organized labor, however. 5 The ALJ specifically refused to credit the testimony of a Fluor Daniel representative who stated that he telephoned a number of "voluntary union organizer" applicants that had been classified as boilermakers and pipefitters in order to fill welder vacancies.

        While Fluor Daniels was still its maintenance contractor, Big Rivers obtained an unexpected opportunity to sell additional power, delaying the originally scheduled start of the Wilson outage. As a result, some of the craftsmen who had been lined up for employment by Fluor Daniel obtained other work. In particular, Fluor Daniel developed a great need for boiler tube welders. Four individuals who had written "volunteer union organizers" on their application were found to be qualified as boiler tube welders by Fluor Daniel's human resources coordinator. Three of them, Jerry Jackson and the Coons brothers, were offered positions contingent on passing a welding test or having the requisite certifications. Jackson never showed up at the work site (and his name was subsequently removed from the complaint at the hearing before the ALJ). The Coons brothers, however, did present themselves for employment at the work site.

        Tube welding is more difficult than some other kinds of welding, and typically requires experience working with different materials. As a result, tube welders need current certification because of local building codes. The Coons brothers' certifications had expired and they were unable to complete successfully a test where a sample weld is analyzed by x-ray at an independent laboratory to see if there are any cracks or flaws in it. Fluor Daniel asked several other of its current employees working in different welding categories to attempt the test. One Fluor Daniel employee failed the test on the same day the Coons brothers did. He came back and asked to be retested. He passed on his second attempt and was hired. Fluor Daniel maintains that it used a simpler stick-welding test only for other kinds of welders, never tube welders.

        The ALJ found that three workers in addition to the one who asked to be retested were given easier welding tests, passed them and were then hired, although the ALJ did not find whether they were hired as tube welders. Scotty Bolen was one of those who was allowed to take the easier stick-welding test.

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        After failing the tube-welding test, John Coons asked whether any other work was available, telling a Fluor Daniel representative over the phone that he had scaffolding experience. The representative told John Coons to call back so that the representative could check on the need for...

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