McGlaughlin v. N.L.R.B.
| Decision Date | 02 July 1981 |
| Docket Number | No. 80-1218,AFL-CI,U,No. 1059,I,1059,80-1218 |
| Citation | 652 F.2d 673 |
| Parties | 108 L.R.R.M. (BNA) 2721, 92 Lab.Cas. P 13,083 Kenneth and Mary M. McGLAUGHLIN, Co-Partners, d/b/a Hudson-High Super Duper, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Retail Clerks Union Localnited Food & Commercial Workers International Union,ntervenor. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Peter J. Gee, John F. Gillespie, Lucas, Prendergast, Albright, Gibson, Newman & Gee, W. Joseph Strapp, Columbus, Ohio, for petitioners.
Elliott Moore, Deputy Associate Gen. Counsel, National Labor Relations Bd., Washington, D. C., Emil C. Farkas, Director, Region 9, N.L.R.B., Cincinnati, Ohio, Collis Stocking, Washington, D. C., for respondent.
Before LIVELY, KEITH and MERRITT, Circuit Judges.
Kenneth and Mary McGlaughlin, co-owners of a Super Duper Market in Columbus, Ohio, petition this Court to review an NLRB decision (247 N.L.R.B. No. 199) that they violated § 8(a)(1) of the National Labor Relations Act by coercively interrogating a job applicant concerning his union activities, and § 8(a)(3) by refusing to hire that applicant because of his union activities. They also request that this Court deny enforcement of the Board's order, which requires that the applicant be offered immediate employment in the position applied for (or one substantially equivalent) and that he be given backpay to the date he would have commenced employment. The NLRB cross-petitions for enforcement of its order. 29 U.S.C. §§ 160(e) and (f).
The case arises from petitioners' failure to hire a job applicant for the position of produce clerk. Shortly after the super market opened under the petitioners' ownership, vacancies appeared imminent in two of its produce positions one because a clerk failed to appear for work and the other because a clerk planned on leaving the job to return to college. Petitioner Kenneth McGlaughlin told his manager to contact Gary Motz, who had earlier applied for a position in the produce department, to see if he was still interested in employment there. At the time Motz worked full-time as a truck driver and part-time as a produce clerk at another store. The focal event of the case is a telephone conversation between Douglas Jones, the manager of petitioner's store, and Motz. After reiterating his interest and availability for the position, Motz told Jones that he was still working at the other grocery store but was on strike supporting a union recognitional drive. The two then argued about the value of unions. The close of the conversation is disputed. Petitioners claim that Jones simply thanked Motz for his time and said he had all the information he needed. Motz testified, the administrative law judge found, and the Board argues, that Jones told Motz he would be wasting his time if he came to the store to work out any further details of the job. That was the final contact between the parties. The clerk who had planned to return to college decided to stay on at the market, and petitioners hired no one in Motz's stead.
Charges were filed with the NLRB shortly thereafter. After a hearing the administrative law judge found that petitioners had violated §§ 8(a)(1) and (3) (App. 91-106). On review the Board upheld the bulk of the administrative law judge's decision (App. 106-14), but it modified the remedy. The Board found that when contacted by...
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