Masiongale Electrical-Mechanical, Inc. v. N.L.R.B.

• Citation: 323 F.3d 546
• Decision Date: 21 March 2003
• Docket Number: No. 02-1591.,No. 00-3576.,No. 02-1227.,No. 00-3194.,00-3194.,00-3576.,02-1227.,02-1591.
• Parties: MASIONGALE ELECTRICAL-MECHANICAL, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner, and Indiana State Pipe Trades Association, Intervenor.
• Court: U.S. Court of Appeals — Seventh Circuit

323 F.3d 546

MASIONGALE ELECTRICAL-MECHANICAL, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner, and Indiana State Pipe Trades Association, Intervenor.

No. 00-3194.

No. 00-3576.

No. 02-1227.

No. 02-1591.

United States Court of Appeals, Seventh Circuit.

Argued September 23, 2002.

Decided March 21, 2003.

Rehearing Denied May 14, 2003.

COPYRIGHT MATERIAL OMITTED

Kenneth B. Siepman (argued), Ogletree Deakins Nash Smoak & Stewart, Indianapolis, IN, for Petitioner.

Siobhan M. Kelly (argued), National Labor Relations Board Appellate Court, Enforcement Litigation, Washington, D.C., Roberto G. Chavarry, National Labor Relations Board, Indianapolis, IN, Aileen Armstrong, National Labor Relations Board Office of the General Counsel, Washington, D.C., for Respondent.

William R. Groth (argued), Fillenwarth, Dennerline, Groth & Towe, Indianapolis, IN, for Intervenor-Respondent.

Before DIANE P. WOOD, EVANS, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Because of terminations, work restrictions, and failures to hire, the National Labor Relations Board (the Board) determined that Masiongale Electrical-Mechanical, Inc. (Masiongale) violated various provisions of the National Labor Relations Act (the Act). We find that there was substantial evidence supporting the Board's findings and enforce the orders except for Masiongale's coercive interrogation of two employees and its termination of a different employee.

I. BACKGROUND

Masiongale is based in Muncie, Indiana, and performs electrical, HVAC (heating, ventilation and air-conditioning), and plumbing contracting for the construction industry. From December 1996 through September 1997, Masiongale placed advertisements in local newspapers seeking to hire plumbers for two job sites, one in Mishawaka, Indiana, and the other in Greenwood, Indiana. The ads were for "licensed plumbers and licensed assistants only." Locals 172 and 661 of the Indiana State Pipe Trades Association (the union) were interested in these notices, and encouraged their unemployed members to apply. Jack Neal, a business agent for Local 661, went to Masiongale's office and picked up an application, which he photocopied and made available to members of both locals in January 1997.

A. Refusal to Hire Self-Identified Union Members

In December 1996, three union members delivered completed applications to Masiongale's superintendents at the Mishawaka jobsite. They identified themselves as union organizers and discussed their work experience and certifications with the superintendent. Though the superintendents told these applicants that the jobsite was in need of plumbers and they submitted completed applications indicating that they were voluntary union organizers, they were never contacted by the company. In August 1997, four different union members went to Masiongale's office and requested job applications, which they completed on the spot. They wore union T-shirts and wrote the phrase "Voluntary Union Organizer" at the top of their applications. They submitted their applications to Masiongale's receptionist, but were never contacted by the company.

On March 28, 1997, Jack Neal submitted 13 completed applications, along with his own, to Masiongale's office. All the applicants held valid plumber's licenses and had written the phrase "Voluntary Union Organizer" across the top of their applications. None of the 13 applicants were contacted by Masiongale for work on either job site, though Neal, after a follow-up telephone conversation, was offered a position in April.

B. Gary Gravit and Jeffrey Jehl

Gary Gravit applied for a job as a plumber at the Mishawaka jobsite in December 1996. He met a superintendent, Ron Curd, and was offered a position. The morning of his first day at the jobsite, Gravit met with Jeffrey Jehl, an organizer for the union, and they both went to the jobsite. Gravit introduced Jehl to Curd and told Curd that though Jehl did not have a plumber's license, he was experienced and would do good work. Jehl filled out a job application and was hired on the spot. Neither Gravit nor Jehl revealed their union affiliation on their job applications or while talking with Curd.

Their first morning at work, Gravit and Jehl observed two people with jackets bearing union insignia talking to Curd. After the two individuals left, Curd approached Jehl and Gravit and asked whether either of them knew the two union members. Gravit said that he knew one of the employees. Curd then turned to walk away, but returned and asked, "Have either of you been a member of the union before?" Gravit said he "worked permit" a couple of times in the past, and Jehl said that he was never a member of Local 172.

The next morning, Gravit and Jehl began distributing union literature and discussing the union with the employees on the jobsite. Jehl wore a white jacket with a union organizer logo on it and Gravit wore a Local 172 baseball hat. Curd arrived at the job site a little while after Gravit and Jehl began talking with other employees, and was told by Jehl that he was a organizer for the union. Curd replied that he was not surprised, and said "If Masiongale had to pay union wages, they might as well pull off the job, they would go broke."

Gravit told Jehl while they were working on the jobsite that Masiongale was not completing some of the plumbing up to code. Instead of telling Curd, Gravit decided he would send a letter to the plumbing inspector. They then met with Curd and told him that they felt that they were underpaid compared to other plumbers on the jobsite. Curd replied by telling them that he could not grant wage increases. Jehl said that until he was given a raise, he was going on strike. Curd asked, "Are you both union members?" and they replied "Yes." Curd then asked, "Are you both going out on strike?" Gravit replied "Yes." Both left the jobsite and did not return to work. Gravit then sent his letter to the plumbing inspector describing the code violations he noticed on the jobsite.

Jehl and other union organizers had several meetings with Curd over the next two months discussing the union's picketing of the jobsite and other matters. In March 1997, after learning from his last conversation with Curd that the jobsite was in dire need of help, Jehl went to the jobsite and told Curd that he would unconditionally return to work. Curd began to laugh, saying that Jehl was not allowed on the project, and that "around here you are considered a marked man, everyone on the job has a hunting license and shotguns." Jehl left the jobsite and wrote a letter to Masiongale reiterating his offer to unconditionally work on the jobsite, but never received a response.

C. Jack Neal and Anthony Bane

As mentioned above, Jack Neal was the business agent for Local 661, and distributed copies of Masiongale's job application to unemployed union members in January 1997. Shortly thereafter, Neal saw a different Masiongale advertisement and called the company. He was asked whether he had a plumber's license and was encouraged to pick up an application. In March, 1997, Neal delivered his completed application to Masiongale's office, along with 13 other applications. He called Masiongale's office two weeks later regarding his application and was put in contact with the supervisor at the Greenwood jobsite, Michael Woods. Woods asked about his plumber's license and prior experience, asked for his driver's license number to do a background check, and offered him a position beginning that next Monday. Neal told Woods about a friend, Anthony Bane, who also had a plumber's license and was looking for work. Woods asked Bane to call him, and after Woods asked about Bane's plumber's license, experience, and driver's license number for a background check, Woods also offered Bane a position beginning that next Monday. Neither Neal nor Bane told Woods that they were union members.

The next Monday morning, Woods asked Neal and Bane to fill out job applications and other paperwork, telling them that plumbers were needed for the 18-month job. Bane listed the union's apprenticeship program on his job application, but Woods did not look over the applications before telling Neal and Bane to report to their foreperson on the jobsite.

Before Neal and Bane left Wood's office to report to their foreperson, Bane told Woods that he and Neal were union organizers. Woods's demeanor apparently changed dramatically, as he slammed both hands down on his desk and told Neal and Bane to "sit in your truck until Mike Masiongale comes to the jobsite." As they were leaving the office, Neal and Bane saw Woods make a telephone call. Woods then came to Neal and Bane's truck and told them that Masiongale's standard hiring procedure was to have a private detective conduct a background check before people were hired. Neither Bane nor Neal had previously been informed of a background check that required more than their driver's license numbers. Bane and Neal reminded Woods of their conversations with him earlier, but Woods said, "Well, that is just part of it." Bane told Woods as they were leaving the jobsite that they were there to do a good job, to which Woods replied, "no you didn't, you are here to screw up my operation."

Bane telephoned Masiongale's office when he returned home that day and scheduled an appointment to meet with the private detective, which he had to cancel due to a prior commitment. A second appointment was canceled by the company, and Bane never heard anything else about the background check or resuming work on the jobsite.

Neal met with the private detective for about 30 minutes and was asked about his union background and affiliation. He did not hear anything from Masiongale for three weeks, so he called Masiongale's office, and was told that they did not think he was still interested in a job. He said that he was still interested, and he was contacted the next day by a...