N.L.R.B. v. ADCO Elec. Inc.
| Decision Date | 17 November 1993 |
| Docket Number | No. 92-5175,92-5175 |
| Citation | 6 F.3d 1110 |
| Parties | 144 L.R.R.M. (BNA) 2763, 126 Lab.Cas. P 10,929 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ADCO ELECTRIC INCORPORATED, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Deborah E. Shrager, Charles Donnelly, Aileen Armstrong, Deputy Associate General Counsel, NLRB, Washington, DC, for petitioner.
Jerrald L. Shivers, Emile C. Ott, Fuselier, Ott, McGee & Shivers, P.A., Jackson, MS, for respondent.
Joseph Norton, Regional Dir., NLRB, Region 15, New Orleans, LA, for other interested parties.
Application for Enforcement of an Order of the National Labor Relations Board.
Before POLITZ, Chief Judge, HIGGINBOTHAM, Circuit Judge, and DAVIDSON, 1 District Judge.
This case is before the court on application of the National Labor Relations Board ("NLRB" or "Board") for enforcement of its order against Adco Electric, Inc., ("Adco"). The NLRB's order was issued on June 30, 1992. The Board's jurisdiction arises under section 10(a) of the National Labor Relations Act ("the Act"), which empowers the NLRB to prevent unfair labor practices. This court's jurisdiction for the application of enforcement arises under section 10(e) of the Act, 29 U.S.C. Sec. 160(e). Following oral argument in this cause, and a review of the record and briefs submitted by the parties, we enter judgment enforcing the NLRB's order. Before examining the specific issues which we are called upon to consider today, it is appropriate to present a little background information which has brought us this far.
Adco Electric is an electrical contractor based in Jackson, Mississippi. The company employs both "inside" (service electricians) and "outside" (construction) electricians. Adco's outside personnel are under the direction of general superintendent, William Richard Buie, who reports directly to the company president, Whit Adams. Job foremen are journeyman electricians that Adco retains on the payroll in layoff preference to journeyman electricians (who are not foremen). Apprentice electricians, or helpers, are the lowest in seniority. The layoff and retention policy helps explain that for the summer of 1990, the total outside construction workforce consisted of approximately twenty people, with six to eight electricians classified as foremen.
Adco is adamantly anti-union. The employee handbook clearly explains the company's position on unionized shops:
5. A FEW WORDS ABOUT UNIONS
There is always a chance that in the future a labor union organizer will try to persuade some of our employees to sign union authorization cards. For this reason, it is important that you understand our position concerning unions.
To say it simply and clearly, although you have the legal right to join a labor union, you also have the legal right NOT to join a labor union. We prefer to work with our employees informally, personally, and directly, rather than through third party outsiders intervening between us. We think you agree. So we will make every effort that is legally permissible to retain our status as an ABC Merit Shop, NON-union contractor.
We have the ability, the desire, the expertise, and the personnel to solve our problems and move forward by working together in the Merit Shop Way--without interference from union outsiders. Based on these facts, we believe a labor union is unnecessary and unwanted here at Adco Electric, Inc.
On July 24, 1990, Eric Muncy interviewed for an apprentice job with Mr. Buie. Superintendent Buie noted on the job application that Muncy had worked for an Adco competitor, Thompkins Electric, a union contractor. Buie asked Muncy what his feelings were about unions, and Muncy responded that he did not "have anything for them or against them." Buie then asked Muncy if he was a union member. Muncy responded that he was not, and he was hired at the conclusion of the interview.
The next month, August 1990, the International Brotherhood of Electrical Workers, Local 480, began an active organizing campaign among Adco's employees. A union representative made first contact with Raymond Langford, a foreman who had been with Adco for one year. Following a few telephone calls and a meeting with the union representative, Langford spoke with other Adco employees about the union benefits. A few days later, a group of Adco employees, including Langford and Muncy, attended a meeting at the union hall where the employees signed union authorization cards. At a second meeting, attended by five or six employees, they agreed to start wearing union caps and promotional badges beginning at break time the following day. The next day, August 14th, the employees went forward with their plans, and Superintendent Buie noticed the union promotional campaign. Also on this same day, three union representatives hand delivered a letter to Adco informing the company that the union and Adco employees were engaging in organizing activity. The letter also listed nine employees who "wished to be identified as members of the organizing committee." The list included the names of Raymond Langford and Eric Muncy along with LaFrance Smith, Jeffrey Calender, David Lewis, Eric Lott, John Newell, Orby Renfroe and Cory Williams.
Three days later, on August 17, 1990, Superintendent Buie fired Raymond Langford. Langford's termination slip stated that he was fired "for solicitation." On August 27th, the union filed an election petition with the NLRB seeking to represent all employees of Adco doing electrical work. On October 31, 1990, the regional director issued a decision directing an election in a unit of Adco's electricians and electrical apprentices. The unit excluded job foremen whom the regional director found, as a group, to be supervisors under the Act. On March 22, 1991, the NLRB denied Adco's request for review of the direction of election. However, no election has been held due to events subsequent to the firing of Raymond Langford and pending charges of unfair labor practices at Adco.
During the week of September 10, 1990, Superintendent Buie informed Eric Lott, who was filling in as job foreman, that his crew was need to work overtime on Saturday, September 15th. Buie explained that Adco's client, McCarty Foods, would halt production on that day allowing electrical work to be performed. Eric Lott passed this information on to Eric Muncy and Cory Williams. However, both Muncy and Williams informed Lott that they had made weekend plans and could not work on Saturday. On Friday, September 14th, Buie visited the job site to deliver paychecks. When Buie asked Eric Lott if everyone would be working on Saturday, Lott related to Buie that Muncy and Williams had other plans for the weekend. Buie then instructed Lott to tell Muncy and Williams to "be here." The weekend passed, and neither Eric Muncy nor Cory Williams reported to the job on Saturday. Additionally, Lott allowed Muncy and Williams to leave work on Friday between 3:00 and 3:30 p.m., although Lott logged on the time sheets that the crew left at the regular quitting time, 3:30 p.m. On Monday morning, Superintendent Buie fired Cory Williams and Eric Muncy. Williams was told that he was fired for "cussing on the job," and Muncy's termination notice stated that he was fired for missing work on Saturday and for lying about when he left work on Friday. 2
Another "incident" occurred on November 15, 1990. While at the McCarty Foods job site, Eric Lott had a conversation with Adco president, Whit Adams. Eric Lott suggested to Adams that the company could procure bigger jobs if Adco went union. Adams responded that he did not want to go union and that the best thing for Lott to do, if he wanted a union, was to quit his job and "go union." During the same conversation, Lott brought up the issue of a pay raise. Adams responded that he could not give a raise at that time "because of the cost of the union movement."
The original charges in this case were filed by the Local Union 480, on August 24, 1990, September 24, 1990, September 26, 1990 and November 23, 1990. On January 30, 1991, an amended charge was filed which incorporated some of the allegations contained in prior charges, along with some additional allegations. The complaints were as follows: (1.) alleged unlawful interrogation of Eric Muncy by Superintendent Buie in the July 1990, job interview; (2.) alleged unlawful termination of Raymond Langford on August 17, 1990; (3.) alleged unlawful termination of probationary apprentice, Eric Muncy, on September 17, 1990; (4.) alleged promulgation and enforcement of an unlawful rule prohibiting employees from discussing the union; and (5.) an alleged unlawful statement by company president, Whit Adams, that he could not grant a raise because of the union movement.
The case was heard by an Administrative Law Judge ("ALJ") in Jackson, Mississippi, on June 24 and 25, 1991. On October 4, 1991, the ALJ issued his decision in which he found against the company on all issues, with the exception of the alleged promulgation and enforcement of a rule prohibiting employees from discussing the union. The ALJ's order contained cease and desist directives regarding; (1.) coercive interrogation of any employee or job applicant about union support; (2.) threatening employees that pay raises were not possible because of union organizing activity; and, (3.) discharging or otherwise discriminating against any employee for supporting Local 480 or any other union. With regard to former employees Langford and Muncy, Adco was ordered to reinstate both employees with back pay, without loss of seniority, and with no adverse entry in their personnel files. Adco filed timely objections with the NLRB. On June 30, 1992, the NLRB issued its decision and order wherein it adopted the ALJ's order. Thereafter, the NLRB filed with this court an application for enforcement of its June 30, 1992, order.
There are four issues into which the court's...
To continue reading
Request your trial
-
Inova Health Sys. v. Nat'l Labor Relations Bd.
...rebuttal burden when it enforced a policy with “zero-tolerance” against the discharged employee, but not others); NLRB v. ADCO Electric, Inc., 6 F.3d 1110, 1119 (5th Cir.1993) (employer failed to meet rebuttal burden when it claimed to have discharged an employee for failing to work overtim......
-
Cooper/T. Smith, Inc. v. N.L.R.B., 97-7024
...alone does not indicate supervisory status. Id. at 148. Other circuits take the same position. See, e.g., NLRB v. Adco Elec., Inc., 6 F.3d 1110, 1117 (5th Cir.1993) (holding that employee "recommend[ing] someone for hire and [bringing] problems with apprentice employees to the attention of ......
-
N.L.R.B. v. Thermon Heat Tracing Services, Inc.
...a pretextual reason, we use a very lax standard to determine whether the employer has violated § 8(a)(3). See NLRB v. Adco Elec., Inc., 6 F.3d 1110, 1116 (5th Cir.1993) ("Where it is shown via direct or circumstantial evidence that anti-union considerations were a 'motivating factor' in an ......
-
N.L.R.B. v. Pneu Elec., Inc.
...employees because of their union activity.'" See Poly-America, Inc. v. NLRB, 260 F.3d 465, 488 (5th Cir.2001)(quoting NLRB v. Adco Elec., 6 F.3d 1110, 1116 (5th Cir.1993), in turn citing NLRB v. Transportation Mgmt. Corp., 462 U.S. 393, 397-98, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983)). The Bo......