947 F.2d 588 (2nd Cir. 1991), 163, Holo-Krome Co. v. N.L.R.B.

Docket Nº:163, 322, Dockets 91-4061, 91-4085.
Citation:947 F.2d 588
Party Name:HOLO-KROME COMPANY, Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner, International Union, United Automobile, Aeorspace and Agricultural Implement Workers of America, (UAW), Local 376, Intervenor.
Case Date:October 15, 1991
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 588

947 F.2d 588 (2nd Cir. 1991)

HOLO-KROME COMPANY, Petitioner-Cross-Respondent,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner,

International Union, United Automobile, Aeorspace and

Agricultural Implement Workers of America, (UAW),

Local 376, Intervenor.

Nos. 163, 322, Dockets 91-4061, 91-4085.

United States Court of Appeals, Second Circuit

October 15, 1991

Argued Sept. 11, 1991.

Opinion on Denial of Rehearing Filed

Jan. 17, 1992.

Page 589

Burton Kainen, Hartford, Conn. (Diana Garfield, Siegel, O'Connor, Schiff, Zangari

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& Kainen, P.C., on the brief), for petitioner-cross-respondent.

Marilyn O'Rourke, Washington, D.C. (Jerry M. Hunter, Gen. Counsel, D. Randall Frye, Acting Deputy Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, and William R. Stewart, Deputy Asst. Gen. Counsel, on the brief), for respondent-cross-petitioner.

Gregg D. Adler, Hartford, Conn. (Stephen E. Meili, Gould, Livingston, Adler & Pulda, on the brief), for intervenor.

Before NEWMAN and PRATT, Circuit Judges, and POLLACK, District Judge. [*]

MILTON POLLACK, Senior District Judge:

Holo-Krome Co. asks us to set aside a supplemental decision and order of the National Labor Relations Board (the "Board") issued on April 5, 1991, reversing the conclusion of an Administrative Law Judge (the "ALJ") that Holo-Krome, the employer, did not violate Sections 8(a)(1), (3) and (4) of the National Labor Relations Act (the "Act"), 29 U.S.C. §§ 151-68. Holo-Krome Co., 302 N.L.R.B. No. 71, 137 L.R.R.M. 1208 (Apr. 5, 1991). The Board's order directs reinstatement and back pay relief and the Board's General Counsel has made a cross-application for enforcement. The International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Local 376 (the "Union"), the charging party, was granted leave to intervene in support of the Board. Because there simply is not substantial evidence that the employer violated the Act, or that the failure to rehire Union supporters Giuseppe Pace and John Rutkauski was unlawfully motivated and prompted by the employees' exercise of protected activity, we grant the petition, set aside the Board's finding of violation, deny enforcement and dismiss the proceedings.

BACKGROUND

Giuseppe Pace and John Rutkauski had worked in Holo-Krome's West Hartford, Connecticut industrial fastener manufacturing plant for 11 and eight years, respectively, when the Union attempted to organize Holo-Krome's workers in 1985. Both employees openly and actively supported this effort, which ultimately failed. Following the unsuccessful Union election, Holo-Krome worker George Campbell, an election observer, refused to shake Pace's hand when Pace told him "no hard feelings." Campbell later became plant manager.

More than six months after the election, Holo-Krome laid off Pace and Rutkauski along with several other of the plant's 170 employees. The Union claimed that the layoff was discriminatory, but the Board's regional office refused to issue a complaint, finding in June 1986 that the layoff and failure to recall certain employees, including Pace and Rutkauski, was a legitimate economic measure. The regional office determined that Holo-Krome did not have a policy of recalling former employees and that neither Pace nor Rutkauski had even reapplied for employment since the layoff.

The following month, Rutkauski inquired about reemployment with Holo-Krome and was told that the company was not hiring. The next day Holo-Krome began advertising job openings in several newspapers. Pace also contacted Holo-Krome about rehiring and was told to come in and fill out an application. The next day Campbell, who by then had been promoted to plant manager, informed the hiring employee to stop taking applications for the advertised positions because one was being automated and the other was being filled internally. A few days later Pace and Rutkauski submitted applications but were not hired. Holo-Krome did not hire anyone to fill the advertised positions. Three months later, in late September 1986, the Board issued a complaint alleging that Holo-Krome violated

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the Act by refusing to hire Pace and Rutkauski because of their unionizing activities and involvement with the prior unfair labor practices complaint, which the regional office of the Board had rejected.

In January 1987, Holo-Krome notified Rutkauski and Pace by mail of a job opening, for which Rutkauski promptly applied. Holo-Krome hired him shortly thereafter. Later that month, Holo-Krome tried to call Pace several times about another job opening, but only reached his family. Holo-Krome also sent him a certified letter, which Pace never picked up. Pace did not contact Holo-Krome until the end of February, when the opening was no longer available.

On March 17, 1988 an ALJ found that the Board's General Counsel did not establish a prima facie case that Holo-Krome acted unlawfully by failing to rehire Pace and Rutkauski. See Wright Line, Div. of Wright Line, Inc., 251 N.L.R.B. 1083, (1980), enforced as modified, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982). The Board reversed the ALJ's ruling the following year. Holo-Krome Co, 293 N.L.R.B. No. 65, 1988-89, NLRB Dec. (CCH) p 15,451 (March 31, 1989). 1 Holo-Krome petitioned for review and the General Counsel cross-petitioned for enforcement.

This Court found in July 1990 that the Board improperly relied on Holo-Krome's lawful expressions of opinion about union activity 2 as a basis for finding anti-union animus. Holo-Krome Co. v. NLRB, 907 F.2d 1343 (2d Cir.1990)...

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