170 F.3d 418 (4th Cir. 1999), 97-2519, Eastern Omni Constructors, Inc. v. N.L.R.B.

Docket Nº:97-2519, 97-2659.
Citation:170 F.3d 418
Party Name:EASTERN OMNI CONSTRUCTORS, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. National Labor Relations Board, Petitioner, v. Eastern Omni Constructors, Incorporated, Respondent.
Case Date:March 09, 1999
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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170 F.3d 418 (4th Cir. 1999)




National Labor Relations Board, Petitioner,


Eastern Omni Constructors, Incorporated, Respondent.

Nos. 97-2519, 97-2659.

United States Court of Appeals, Fourth Circuit

March 9, 1999

Argued Sept. 21, 1998.

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[Copyrighted Material Omitted]

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ARGUED: Catherine Ricks Piwowarski, Ward & Smith, P.A., New Bern, North Carolina, for Eastern Omni. Christopher Warren Young, National Labor Relations Board, Washington, DC, for Board. ON BRIEF: William Joseph Austin, Jr., Ward & Smith, P.A., New Bern, North Carolina, for Eastern Omni. Frederick L. Feinstein, General, Linda Sher, Associate General, Aileen A. Armstrong, Deputy Associate General, Charles Donnelly, Supervisory Attorney, National Labor Relations Board, Washington, DC, for Board.

Before WIDENER, HAMILTON and LUTTIG, Circuit Judges.

Petition for review granted and cross-petition for enforcement denied by published opinion. Judge HAMILTON wrote the opinion, in which Judge WIDENER and Judge LUTTIG joined.


HAMILTON, Circuit Judge:

Eastern Omni Constructors, Inc. (EOC) petitions this court to review a decision and order of the National Labor Relations Board (the Board), and the Board cross-petitions for enforcement of its order. The Board's decision affirmed the decision of the administrative law judge (the ALJ). The ALJ held that EOC violated § 8(a)(1) of the National Labor Relations Act (the NLRA), 29 U.S.C.A. § 158(a)(1), by: (1) threatening to discharge employees who distributed union literature; and (2) maintaining and enforcing a rule prohibiting employees from placing non-company authorized decals on company-owned hardhats. The ALJ also ruled that EOC violated § 8(a)(3) of the NLRA, 29 U.S.C. § 158(a)(3), by terminating two employees because of their union activities. For the reasons stated below, we grant EOC's petition for review and deny the Board's cross-petition for enforcement of its order.


EOC provides industrial construction services for Proctor & Gamble's manufacturing facility in Brown Summit, North Carolina. Based on Proctor & Gamble's needs, EOC is frequently required to hire large numbers of employees for short-term projects and then to reduce its work force by way of a reduction-in-force (RIF). According to Mike Barnum, EOC's vice president in charge of project management:

It's a very fluctuating need. Our clients will come in one day and come up with a project and we have to ... hire sometimes 50 to 100 people for a short term project and then lay off and get back down to a level. So if you look at our work force over [the] years, it looks like the Alps. Extreme fluctuations up and down.

In December 1995, EOC developed a short-term need for employees. At that time, EOC had two projects in progress that

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needed to be completed for Proctor & Gamble by February 1, 1996. Consequently, EOC hired five pipefitters, two pipewelders, five electricians, and two electrician apprentices. Among those hired were Wacon Cottingham, Bill Forester, and Tommy West, all electricians, and Matt Steiner, an electrician apprentice. Each employee hired in December 1995 was informed of the short-term nature of the work. As Fred Redman, the electrical superintendent testified:

It was basically the same with everyone I talked to. I wanted to point out to everyone the length of the job because I didn't want anyone giving up a job that they were holding for a short term job. At the time, we estimated the work we had to go to the end of January.

The addition of five electricians to EOC's work force necessitated the creation of a new electrical crew. To head the new crew, EOC promoted one of its electricians, Mitch Williams, to electrician foreman. Mitch Williams knew his promotion was temporary and would end once the projects with the February 1, 1996 deadline were completed.

EOC has a written distribution policy, which is contained in its employee handbook. The distribution policy prohibits employees from distributing union literature on EOC property "during working time." Working time is defined in the employee handbook "as time an employee is expected to be working." Excluded from the definition of working time is "an employee's free time, i.e., before or after work, lunch, break time or other free time, whether the employee is being paid for that time or not."

On December 26, 1995, on his way to EOC's non-smoking break trailer, Ted Williams, an EOC foreman, saw Forester, a member of the International Brotherhood of Electrical Workers, AFL-CIO (the Union or IBEW), distributing union literature five minutes before Forester's break was to begin.

Inside the non-smoking break trailer, Ted Williams reported his observation to Forester's foreman, Daryl Bailey. Exactly what Ted Williams told Bailey is disputed by the parties. The Board found that Ted Williams, who did not know Forester's name at the time, told Bailey "that if Ted Gammon [EOC's construction manager] saw the Union guy giving out Union literature on the job he was going to send [him] up the hill." 1 The Board's finding was based on Ted Williams' answer when asked on direct examination: "What did you say to Mr. Bailey." In response to this question, Ted Williams said "that if Ted Gammon saw the Union guy giving out Union literature on the job he was going to send [him] up the hill." When asked on cross-examination: "What exactly did you say to Mr. Bailey," Ted Williams responded: "I said that if Ted Gammon saw the Union guy giving out Union literature on company time he was going to run him up the hill." Steiner, who overheard Ted Williams' statement to Bailey, testified, both on direct and cross-examination, that Ted Williams used the phrase "on company time." Steiner was certain because he wrote Ted Williams' statement down "word for word."

On January 22, 1996, at a safety meeting with supervisors, Carl Harbin, EOC's project manager, announced that he had observed an employee with a Confederate flag decal on his company-owned hardhat. Harbin told the supervisors that he wanted all decals not supplied or authorized by EOC removed from company-owned hardhats. This directive was consistent with EOC's longstanding, yet laxly enforced, unwritten policy banning non-company authorized decals on company-owned hardhats.

The policy banning non-company authorized decals on company-owned hardhats was promulgated because of safety concerns. Decals on hardhats were used by EOC to enable supervisors to identify if an employee working on a particular piece of equipment actually possessed the necessary training and skills to operate that piece of equipment. For example, forklift operators and employees trained to work with high voltage wore decals to indicate their specialized training.

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Further, decals on hardhats also served to assist in emergency situations, as some employees wore decals indicating they were trained in certain types of first-aid, such as CPR.

The following day, January 23, 1996, John Bauer, an electrical foreman, announced the rule to the electricians in a brief meeting. At the conclusion of the meeting, Cottingham and Forester, who had IBEW decals on their hardhats, conferred and decided to strike to protest being required to remove their IBEW decals. Cottingham and Forester informed Bauer that they were on an "unfair labor practice strike, and if he had any questions, he could call [the Union]." As they were punching out for the day, Cottingham and Forester told Bauer that they were going to wear their IBEW decals on their hardhats. Afterwards, Bauer reported to EOC management that two electricians had walked out claiming to be on strike.

On January 25, 1996, West returned to work after two days of leave. Mitch Williams informed West of the rule barring anything but company-authorized decals on hardhats. West asked Mitch Williams if he would be fired if he placed a union decal on his hardhat. Bauer overheard the conversation and asked West to come with him to Redman's office. There, Bauer and Redman told West that he would be disciplined if he put anything but a company-authorized decal on his hardhat. West put the union decal on his...

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