Brandeis Machinery & Supply Co. v. N.L.R.B.
| Citation | 412 F.3d 822 |
| Decision Date | 24 June 2005 |
| Docket Number | No. 04-3156.,No. 04-3537.,04-3156.,04-3537. |
| Parties | BRANDEIS MACHINERY & SUPPLY COMPANY, a wholly owned subsidiary of Bramco, LLC, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner, and International Union of Operating Engineers Local 150, Intervening Respondent, Cross-Petitioner. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Walter L. Sales (argued), Louisville, KY, for Petitioner, Cross-Respondent.
Gregory P. Lauro (argued), National Labor Relations Board, Appellate Court Branch, Aileen Armstrong, National Labor Relations Board, Office of the General Counsel, Washington, DC, for Respondent, Cross-Petitioner.
Elizabeth LaRose (argued), IUOE Local 150 Legal Department, Countryside, IL, for Intervening Respondent, Cross-Petitioner.
Before RIPPLE, EVANS and WILLIAMS, Circuit Judges.
In this petition, Brandeis Machinery & Supply Company ("Brandeis" or the "Company") seeks review of an order of the National Labor Relations Board ("NLRB" or the "Board"). The NLRB determined that Brandeis had violated the National Labor Relations Act ("NLRA" or the "Act"), 29 U.S.C. § 151 et seq., with respect to actions taken in response to union-organizing activities at its South Bend, Indiana facility. Brandeis timely petitioned for review of the Board's order, and the NLRB and the intervener, International Union of Operating Engineers (the "Union"), filed a cross-application for enforcement of the order. For the reasons set forth in this opinion, we deny the petition for review and grant enforcement of the Board's order.
Brandeis sells and services heavy construction and mining equipment throughout Kentucky and Indiana. The Company is nonunion and explains its approach to "employee relations" at length in its employee handbook:
We, as a Company, prefer to deal with people directly rather than through a third party. This is a non-union organization. It always has been and it is certainly our desire that it always will be that way....
....
You have a right to join and belong to a union and you have an equal right NOT to join and belong to a union. If any other employee should interfere or try to coerce you into signing a union authorization card, please report it to your Supervisor and we will see that the harassment is stopped immediately.
A.R. Vol. III, General Counsel's ("G.C.") Ex.7 at 16.
In early 2000, Brandeis took steps to open a small branch office and service shop in South Bend, Indiana. Sam Freeman was chosen to be the manager for the office. Freeman hired Tom Muraski as the product support manager in charge of parts and service. From mid-2001 through February 2002, Freeman and Muraski interviewed and hired employees for the South Bend facility.
In December 2001, Muraski interviewed Bob Cook for the position of shop mechanic.1 During the interview, Muraski inquired what union represented the employees at Cook's former employer. Muraski then told Cook that Brandeis was a nonunion company and that he could not foresee the Company going union in the future. Additionally, Muraski asked Cook how he felt about working for a nonunion company.
Muraski also interviewed Steve Benefield for the position of field service mechanic. Benefield was a long-time member of the Union and, like Cook, had been informed of the position at Brandeis through a Union organizer. Muraski did not inquire about Benefield's union membership during the initial interview. However, when Benefield was called back to interview with both Muraski and Freeman, Freeman recounted the history of Brandeis and told Benefield that Brandeis was nonunion and that Brandeis "would close the doors before they went union." A.R. Vol. II at 169. Benefield subsequently was hired and began work in March 2002.
In April 2002, Phil Overmyer, an organizer for the Union, told Cook to begin a campaign at the South Bend facility. Cook first spoke to Brandeis employee Ken Lubinski, who, after considering the matter overnight, informed Cook that he was not interested in joining a union. Lubinski did not inform anyone at Brandeis about his conversation with Cook.
Cook next approached fellow mechanic Mike Karre. Over lunch on May 1, 2002, Cook informed Karre about union wages and benefits. Karre asked to meet with the Union's organizer, and, the following day, Karre met with Cook, Benefield and organizers Overmyer and Delbert Watson at a local restaurant.
On May 3, Karre went to lunch with Freeman and Muraski and informed them that Cook and Benefield had inquired about his (Karre's) interest in joining the Union. Freeman was caught off guard by the news. After returning to the office, Freeman called Benefield into his office to inform him that he and Karre would not be attending a scheduled training session in Atlanta, Georgia, but that they would attend a class in July.
Benefield believed the Company knew that a union campaign was afoot and contacted Overmyer shortly after his discussion with Freeman. Overmyer faxed Freeman notice that Cook and Benefield were Union members and were launching a union campaign at Brandeis' South Bend facility. Freeman then contacted Brandeis President Gene Snowden and Vice President of Operations Larry Shuck concerning the events that were taking place. Snowden and Shuck informed Freeman that they would contact legal counsel and instructed Freeman not to make any major personnel decisions without first consulting them.
On May 7, Cook and Benefield were working near Lubinski when Benefield commented that nobody was talking to Cook or to Benefield except for Lubinski. Lubinski—who had been approached by Overmyer at his home about the Union and had informed Overmyer repeatedly that he was not interested in joining the Union—became upset and yelled at Benefield to stop talking to him and stop sending union organizers to his home. Another employee, Kevin Hardy, intervened and told Benefield to leave Lubinski alone or he (Hardy) might do something he would regret.
The following day, Lubinski complained to Freeman that Benefield was talking to him about the Union. Lubinski told Freeman that he wanted to avoid contact with Cook and Benefield unless such contact was related to work. In response, Freeman met with Benefield to discuss Lubinski's complaint. During that discussion, Benefield informed Freeman that Lubinski was the person who had escalated the discussion into a shouting match and that Hardy had threatened him (Benefield); Freeman instructed Benefield to stay away from Lubinski and stated that he would look into the matter of Hardy's threat. Later, Freeman informed Benefield that Hardy had not meant to threaten him; Hardy only meant "that he would quit his job" if the Union solicitations persisted. A.R. Vol. II at 180. Freeman then told Benefield that if he or Cook2 needed to speak with either Lubinski or Hardy, they would have to do so through Muraski.
Snowden and Shuck arrived in South Bend and met with facility employees on the morning of May 8, 2002. During the meeting, they explained the Company's position with respect to the Union. Although Snowden had a written speech that he worked from, he did not follow his script verbatim. Cook secretly taped the meeting, which included the following comments by Snowden:
Well they have the right to talk to you. If they want to talk to you they can. But again you have the right not to listen. If they follow you on your property you have a right to tell them to leave the property. They don't have any right on your property if you don't want them on it. So, once again, if the union gets so aggressive that you feel you're being harassed, then we need to know about it because we will do everything within our legal means to keep you from being harassed.
A.R. Vol. III, G.C. Ex.12a at 2.
While Snowden and Shuck were visiting, a customer experienced transmission problems with a truck leased from Brandeis. All of the mechanics were at lunch at the time; consequently, Muraski attempted to assist the customer. Only a few minutes later, Karre returned from lunch and took over for Muraski. In light of these events, Shuck "suggested to [Freeman] that he consider staggering lunches so that these kinds of situations did not occur." A.R. Vol. II at 441. Freeman took Shuck's suggestion. On May 9, Freeman implemented a staggered and shortened lunch policy; according to the new policy, only one employee could be off for lunch at a given time, and the time allotted for lunch was shortened from one hour down to one-half hour.3
Also, on May 9, Freeman observed that Benefield was wearing a union button on his uniform that covered the Brandeis logo. Freeman told Benefield that he did not appreciate Benefield wearing the button at work and asked him to remove the button from the Brandeis logo.4 The following week, on May 14, Muraski observed Cook wearing a union hat. Muraski, who was carrying a Brandeis hat, handed Cook the hat and told Cook that he might want to wear the Brandeis hat instead of a union hat. There were no repercussions for the employee for either incident.
Around this same time, Benefield had approached Karen Bailey, the office secretary, to gauge her interest in the Union. Bailey stated that she was not interested. Benefield then suggested that the Union could send a representative to speak to Bailey's husband, who owned his own excavation business, at their home. Bailey became upset and told Benefield: A.R. Vol. II at 184.
Muraski had witnessed the end of the conversation between Bailey, who had begun her working day, and Benefield, who had not. Muraski approached Benefield and told him that it was his understanding that Benefield could not solicit other employees during their work...
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