N.L.R.B. v. Interstate Builders, Inc., 02-9507.

Citation351 F.3d 1020
Decision Date26 November 2003
Docket NumberNo. 02-9507.,02-9507.
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERSTATE BUILDERS, INC., Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Charles W. Ellis, Oklahoma City, OK, appearing for Respondent.

David B. Schwartz, Attorney (David Habenstreit, Supervisory Attorney, Arthur F. Rosenfeld, General Counsel, John E. Higgins, Jr., Deputy General Counsel, John H. Ferguson, Associate General Counsel, and Aileen A. Armstrong, Deputy Associate General Counsel, with him on the brief), National Labor Relations Board, Washington, DC, appearing for Petitioner.

Before TACHA, Chief Circuit Judge, McWILLIAMS and McCONNELL, Circuit Judges.

TACHA, Chief Circuit Judge.

This matter is before the court on the National Labor Relations Board's ("NLRB") petition for an order enforcing its July 31, 2001, order. The order concludes that Interstate Builders, Inc. ("Interstate") committed unfair labor practices in Oklahoma in violation of sections 8(a)(1) and (3) of the National Labor Relations Act (the "Act" or "NLRA"), codified at 29 U.S.C. § 158(a)(1) & (3). The Board adopted the rulings, findings, and conclusions of the administrative law judge ("ALJ") who conducted hearings on the alleged unfair practices. We exercise jurisdiction pursuant to 29 U.S.C. § 160(e) and grant enforcement of the order.

BACKGROUND

This case arises from an attempt by the International Association of Bridge, Structural, Ornamental & Reinforcing Iron Workers Local 48 (the "Union") to unionize the employees at Interstate. Based solely on credibility determinations, the Board found that Interstate coercively interrogated applicants and employees about their union membership and activities, created the impression that employees' union activities were under surveillance, threatened to impose more onerous working conditions if the employees unionized, implied that support of a union would be futile, and violated sections 8(a)(1) and (3) of the Act by imposing more onerous working conditions on — and ultimately laying off — employee David Hibdon. Interstate does not object to these determinations. NLRB July 31, 2001 Final Order ("NLRB Order") at 1 n. 3. We therefore grant the Board's application for enforcement of the general cease-and-desist provisions and the remedy provisions relating to Mr. Hibdon.

We address below Interstate's objections to enforcement of the order requiring Interstate to reinstate John Norman and make him whole as to backpay and other benefits, and to offer John Buntin, Derrick Haggard, Wesley Stillsmoking, and Floyd Woods the jobs for which they attempted to apply (or to substantially equivalent positions) without prejudice to seniority or other benefits and to make them whole "for any loss of earnings and other benefits suffered" as a result of Interstate's refusal to hire them. See id. at 3.

In February 1998, after eight or ten of his employees had signed union cards, Bill Napier, Interstate's president, met with the Union to discuss voluntary unionization of the business. Napier, a former union member himself, told the Union that he would sign a post-dated agreement (dated three months ahead) to unionize, but Union officials refused the offer. The Union immediately assigned the unionized Interstate employees to jobs with Union contractors competing with Interstate, causing them to leave Interstate's employ and raising concerns that the Union would try to run Interstate out of business.

Interstate advertised for replacement certified welders or ironworkers in February and May of 1998. During this period, the Union continued to engage in an active campaign to organize employees at Interstate. Norman, a full-time Union employee and organizer who is also a journeyman ironworker, applied for an ironworker job with Interstate on February 23, noting on his application that he worked for the Union as an organizer. Norman listed $22.57/hour on his application as "salary expected." According to Norman, Tommy Young, Interstate's supervisor, interviewed him and, holding his thumb and index fingers close together, stated that Interstate was "that close to signing a contract" with the Union. Young also stated that Napier needed more time before signing a union contract.

It is undisputed that Young told Norman that Interstate paid $16/hour, not $22.57/hour, and Young memorialized that statement by writing "$16.00 an hour, no benefits" in the corner of Norman's application. Norman's reply was, "[D]o you want me to leave.... Or can I sit down and talk?" Norman stated that when he asked if Young was going to hire him, Young responded, "no." According to Young, Norman asserted that "if he could not organize us, he was going to take our employees." Norman did not deny making that statement. Young testified that he did not hire Norman because Norman demanded more on his application than the $16/hour Interstate was offering for the position.

On March 2, Norman filed a complaint alleging that Interstate had committed unfair labor practices, including unlawful interrogation of an unnamed employee about his union activity and subsequent refusal to provide work to the employee. Norman did not, however, allege that he had been unlawfully denied employment on February 23.

In response to notice of the interrogation charge, Interstate called Norman on March 17, offering him the job for $16/hour, which Norman accepted. Norman was not available to work until March 23; he started work on Tuesday, March 24. Richard Hopper was assigned as his helper, grinding Norman's welds. During the course of their two and one-half days of working together, Norman convinced Hopper to join the Union. Hopper testified that Norman "hound[ed]" him up to four times a day while they worked together, telling him to leave Interstate because the Union needed him.

Norman took half a day off work on Thursday, March 26 for a doctor's appointment. On March 27, a Friday rain day that closed the job site, Norman saw Hopper at the Union offices, and the Union sent Hopper to work for a Union contractor instead of Interstate. On Monday, March 30, when Norman returned to work at Interstate for his first full week on the job, Harry Young, Interstate's job foreman and Tommy Young's brother, asked where Hopper was. Norman told him that he had "signed [Hopper] to the Union" and that Hopper would not be returning to work at Interstate. Norman then complained that he could not do the work assigned to him alone and asked for another helper. Young refused, saying that Norman would just organize whoever he hired and Interstate would lose him. It is undisputed that Norman replied, "That's my job. I'm a Union organizer." It is also undisputed that Norman then demanded a raise, stating that the job was worth $22.57. Young told him that Interstate was not offering that wage. According to Young, Norman said he had to have $22.57/hour or he could not work. According to Norman, Young said, "I ain't putting up with this shit" and told Norman to go pick up his final paycheck.

John Dyer, a disinterested witness who overheard part of the conversation, corroborated Young's version of the incident. According to Dyer, Norman became adamant, erroneously claimed that $22/hour was the prevailing job wage for the job, and implied that if he didn't get a $6/hour raise, he would quit and walk off the job. Dyer also testified that he did not hear Norman state that he would quit if he did not receive the requested pay raise.

Norman testified that he complained about the welding leads on the job to Young immediately after Young told him to pick up his paycheck, implying that the equipment violated OSHA requirements. Norman also claimed to have backed down and told both Harry and Tommy Young that he would work for $16/hour, an assertion the Youngs denied at trial.

Norman returned to his full-time job at the Union and filed an amended charge for unfair labor practices against Interstate on April 1. In this amended charge, he alleged for the first time that Interstate had discriminated against him since February 23 by refusing to consider him for employment. He also filed a separate charge on the same day, alleging that he was fired for his union activity.

Hopper testified that, after he had joined the Union and worked on a couple of union jobs, Norman called him in and asked him to work for Interstate again and "get them on [OSHA] violations and call [Norman] every day at noon ... [i]f I found any violations." He testified that Norman told him that if the Union could not make Interstate go union, they wanted to put Interstate out of business. Hopper's testimony was unrebutted.

The Union mailed ironworker job applications of Union members to Interstate in April. In a letter dated April 9, 1998, Napier informed the Union in writing that it dealt directly with job applicants and did not recognize the Union as the representative of job applicants. Napier invited any individual to come to Interstate's office, submit an application, and engage in a short interview. On May 10, Interstate ran another ad seeking ironworkers. Norman spoke to Buntin and Haggard (whose applications the Union had sent to Interstate in April) and Woods and Stillsmoking, all members of the Union, asking if they "were willing to serve as volunteer organizers." When they agreed to apply for jobs at Interstate, he had them fill out job applications, putting "ironworker" and "volunteer organizer" in the spaces under "employment experience." Norman then took the men to Interstate's office on May 12.

Norman entered Tommy Young's office with Buntin, an executive board director for the Union. He told Young that he had four union men who wanted to fill out applications in response to the ad. Young told Norman that Interstate did not want union representation and asked whether Norman had received Napier's April 9 letter informing the Union it did not...

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