N.L.R.B. v. Windemuller Elec., Inc.

• Decision Date: 14 September 1994
• Docket Number: No. 92-6240,92-6240
• Citation: 34 F.3d 384
• Parties: 147 L.R.R.M. (BNA) 2302, 128 Lab.Cas. P 11,183 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WINDEMULLER ELECTRIC, INC., and Construction Employment Services, Inc., Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 384

34 F.3d 384

147 L.R.R.M. (BNA) 2302, 128 Lab.Cas. P 11,183

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WINDEMULLER ELECTRIC, INC., and Construction Employment Services, Inc., Respondents.

No. 92-6240.

United States Court of Appeals, Sixth Circuit.

Argued Aug. 3, 1993.

Decided Sept. 14, 1994.

Aileen A. Armstrong, Dep. Asso. Gen. Counsel, Peter Winkler (briefed), Margaret E. Luke (argued and briefed), N.L.R.B., Office of Gen. Counsel, Washington, DC, Stephen M. Glasser, Acting Regional Dir., N.L.R.B., Detroit, MI, for N.L.R.B.

Peter J. Kok (argued and briefed), Elizabeth M. McIntyre (briefed), Miller, Johnson, Snell & Cumminskey, Grand Rapids, MI, for Windemuller Elec., Inc.

Construction Employment Services, Inc., pro se.

Before: NELSON, Circuit Judge; and WELLFORD and GUY, ^* Senior Circuit Judges.

NELSON, Circuit Judge, delivered the opinion of the court, in which GUY, Senior Circuit Judge, joined. WELLFORD, Senior Circuit Judge (p. 397), delivered a separate opinion concurring in part and dissenting in part.

DAVID A. NELSON, Circuit Judge.

Having determined that the respondents (who were found to be "joint employers") committed certain unfair labor practices, the National Labor Relations Board has applied to us for enforcement of a remedial order. One of the respondents, a minority-owned company that supplies temporary labor to contractors, has failed to appear in the enforcement proceeding. The other respondent, an electrical contractor, vigorously contests several of the Board's findings.

The main issues we must decide are these: (1) whether substantial evidence supports the Board's finding that a humorous reference by one of the electrical contractor's owners to a dramatic influx of employment applications from union members several months earlier had a tendency "to interfere with, restrain, or coerce" the contractor's employees in the exercise of their statutory rights to organize and to join or assist labor unions; (2) whether the Board was justified in concluding that the contractor could not lawfully request the removal of union stickers from company-owned hard hats, notwithstanding that the temporary employees to whom the hats had been issued could and did continue wearing a variety of union insignia on their own clothing; (3) whether substantial evidence supports a finding that three temporary employees were laid off prematurely because of their union activities; and (4) whether there was sufficient evidence for the Board to find, as it did, that a fourth employee was reassigned and that his employment was then effectively terminated because he intended to engage in organizational activity.

We conclude that the first, second and fourth issues must be resolved in favor of the contractor. The third will be resolved in favor of the Board.

I

Respondent Windemuller Electric, Inc., is a non-union electrical contractor based in a suburb of Grand Rapids, Michigan. ¹ The company has a branch office in Kalamazoo, some 50 miles away. During 1990, when the unfair labor practices are alleged to have occurred, the company employed between 130 and 150 people and worked on over 300 different jobs. The projects ranged in size from a few hundred dollars to over a million dollars.

To meet fluctuating personnel needs at its various job sites, Windemuller routinely moves people from one job to another, scheduling overtime as necessary. It sometimes borrows employees from other contractors on a short-term basis, and in 1989 it started to make occasional use of temporary employees carried on the payroll of respondent Construction Employment Services, Inc. ("CES").

CES, according to testimony introduced at a hearing before an administrative law judge, was founded in May of 1989 by an African-American entrepreneur named Roosevelt Tillman. Mr. Tillman ran CES with the assistance of one other employee. The firm supplied contractors with temporary help in a variety of trades, ranging alphabetically from block masons and bricklayers to sprinkler fitters and welders.

Mr. Tillman, who represented CES at the hearing without the assistance of counsel, was called as a witness by Windemuller. Tillman testified that the first temporary employees furnished to Windemuller by CES were two apprentices whom he sent to Windemuller's vice president and part owner, Mike Windemuller, in September or October of 1989. The apprentices worked for Windemuller "[a] [c]ouple of weeks."

During 1989, according to Mike Windemuller's testimony, Windemuller Electric received over 100 direct applications for employment. Of that number, 26 employment applications were received on a single day--October 18, 1989--when several car loads of International Brotherhood of Electrical Workers members drove to Windemuller's Grand Rapids office and presented applications on behalf of themselves and other members of the union. Among the applicants were the presidents of IBEW Local Unions 131 and 275, various other union officers, and two full-time paid union employees.

Many of the applications were accompanied by form letters from the IBEW advising Windemuller that "[s]hould you fail or refuse to fairly and nondiscriminatorily consider this applicant for employment ... we reserve the right to bring such failure or refusal to the attention of the National Labor Relations Board as violations of Section 8(a)(1) and (3) of the Act." Windemuller processed the employment applications in the normal manner, but none of the applicants was hired.

The unions subsequently filed unfair labor practice charges with the NLRB, alleging that Windemuller had refused to hire the applicants because they belonged to a union. These charges were ultimately picked up by the NLRB's general counsel in a complaint that triggered the administrative proceeding now under review. The administrative law judge who heard the case found other allegations in the complaint to be meritorious, but not these; the ALJ concluded that the general counsel "failed to prove that the Company discriminatorily refused to hire or consider the union applicants for employment...."

On January 17, 1990--a full three months after the mass submission of employment applications by the IBEW in Grand Rapids--Windemuller held a breakfast meeting at a Kalamazoo restaurant for those of its employees who worked in the Kalamazoo area. (The meeting--one of a series of monthly breakfast sessions--provided an opportunity for management officials and others to update everyone on current and future projects in the area.) Mike Windemuller gave a talk in which he indicated that staffing on the company's jobs was growing tight, so the company was looking for people to hire. Someone asked if there were any applications on file. Mr. Windemuller's response--which evoked laughter from the audience--was "yeah, [we've] had a lot of applications from the union." (Mr. Windemuller was referring, obviously, to the preceding October's flood of applications in Grand Rapids.) When the laughter subsided he added that he had checked with other contractors in the Grand Rapids area, and they too had received a lot of applications from the union. At the conclusion of Mr. Windemuller's talk, the Kalamazoo branch manager for Windemuller, Bill DeDoes, said that anyone who knew of any journeyman electricians in the Kalamazoo area should have them get hold of DeDoes, because more electricians would be needed.

It is the theory of the Board's general counsel that Mr. Windemuller's wry allusion to the union's October surprise in Grand Rapids constituted an unfair labor practice; in the general counsel's view it tended to coerce Kalamazoo-area employees by telling them, in effect, that Windemuller would not consider union applicants for employment. The record nonetheless indicates that Windemuller had repeatedly hired known union members in the past and was to do so again as early as January 23, 1990, six days after the breakfast meeting, at which time the company recalled an IBEW member named Eugene Roberts. (On January 22, 1990, the company recalled a black employee, Michael Hudnell, and a week later it hired a female applicant, Brenda Jackson, who started as an apprentice and is now a journeyman electrician.)

Windemuller wanted to increase the number of African-Americans and members of other racial minorities in its employ, and early in May of 1990 Mike Windemuller and a company superintendent named Kirk Strong had a luncheon meeting with Roosevelt Tillman, of CES, to discuss possible ways of achieving this goal. In addition to talking about how Windemuller might improve its minority recruitment effort, Mr. Tillman made a sales pitch for CES. He then invited the men from Windemuller to accompany him to his office after lunch to examine employment applications on file from electricians who were seeking temporary jobs.

The invitation was accepted, and Messrs. Windemuller and Strong proceeded to review the qualifications of 20 to 30 applicants. Windemuller "pre-approved" approximately 10 applicants as acceptable candidates. At the hearing before the ALJ Mike Windemuller identified four of the people thus pre-approved as individuals whose work histories, which were set forth on their applications, showed that they were IBEW members or had union backgrounds. The union label did not deter Windemuller from pronouncing the applicants acceptable.

Mr. Tillman testified that Kirk Strong telephoned him on May 11, 1990, soon after their luncheon meeting, with a request for several electricians in the journeyman and apprentice categories. Strong told him, according to Tillman, that he would need the people for one to two weeks. Mr. Tillman promptly called the applicants who had been pre-approved--taking it upon himself to tell them, based on past experience with construction work, that he thought the job would last approximately four weeks--and on the following Monday morning, May 14, 1990, five CES temporary employees reported for work...