Architectural Glass & Metal Co., Inc. v. N.L.R.B.
| Decision Date | 30 June 1997 |
| Docket Number | Nos. 95-5421,95-5591,s. 95-5421 |
| Citation | 107 F.3d 426 |
| Parties | 154 L.R.R.M. (BNA) 2560, 65 USLW 2575, 133 Lab.Cas. P 11,763 ARCHITECTURAL GLASS & METAL CO., INC., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner. |
| Court | U.S. Court of Appeals — Sixth Circuit |
David W. Miller (argued and briefed), Todd M. Nierman, Baker & Daniels, Indianapolis, IN, for Architectural Glass & Metal Co., Inc.
Joseph J. Jablonski, Jr., N.L.R.B., Washington, DC, Aileen A. Armstrong, Deputy Associate Gen. Counsel, Charles P. Donnelly, Jr. (argued and briefed), N.L.R.B., Appellate Court Branch, Washington, DC, for N.L.R.B.
Before KENNEDY, NELSON, and VAN GRAAFEILAND *, Circuit Judges.
Architectural Glass & Metal Co., Inc. (AGM) petitions this Court to review a decision and order of the National Labor Relations Board (Board or NLRB) finding that it committed unfair labor practices by interrogating and refusing to hire a paid union organizer, in violation of sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (Act), 29 U.S.C. § 158(a)(1), (a)(3). AGM contends that the Board erred (1) in rejecting its primary defense to the unfair labor practice charges; (2) in failing to hold that the paid union organizer's admitted falsification on his job application precluded the Board from ordering AGM to offer the organizer employment and to make him whole for lost wages; and (3) in finding that the paid union organizer was a bona fide job applicant. The Board cross-appeals for enforcement of its order. For the following reasons, we GRANT the petition for review and DENY the Board's cross-application for enforcement.
AGM, a non-union employer, is engaged in the business of installing metal and glass components for the construction of buildings. Its principal place of business is Indianapolis, Indiana. At the time of the alleged unfair labor practices, the company had three principals: Greg Menefee, company president; Tim Nelson, vice president and secretary; and Robert Peel, vice president and financial officer. Menefee was responsible for hiring job applicants.
On August 1, 1993, Harry Zell became a full-time paid field representative for Local 1165, Glaziers, Architectural Metal & Glass Workers Union, AFL-CIO (Union). His salary was $600 per week plus expenses. Additionally, Zell received full medical insurance and pension coverage. As a field representative, Zell's primary responsibilities were to organize the employees at non-union businesses and deal with prevailing wage issues. Zell was authorized by the Union to apply for and accept employment at non-union employers. If he did go to work for a non-union employer, Zell would continue to receive his full union salary and benefits. The Board found that Zell would perform his union duties during his off hours if he began working simultaneously for another employer.
On August 3, 1993, Zell went to AGM to apply for a job in response to an advertisement that the company had placed in the local newspaper seeking applicants for employment. While at AGM's office, Zell completed a job application form, leaving blank the space on the form where the applicant was asked to identify his current employer. He did not state anywhere on the form that he was an employee of the Union. Zell certified by his signature on the application that the facts contained in the application were true and complete. The application explained that "falsified statements on this application shall be grounds for dismissal."
After Zell completed the application, Peel and Nelson interviewed him, because Menefee was on vacation. Although the subject of the Union did not come up during the interview, Peel and Nelson could tell from the application that Zell had worked for union contractors in the past. Zell's application also revealed that he had participated in the Union's apprenticeship program. Peel and Nelson told Zell that they would get back to him. Sometime that day, after Zell left AGM's offices, Peel and Nelson decided that they would offer Zell a job as a "helper."
The following day, Peel called Zell and left him a message. Zell called back and, unbeknownst to Peel, tape recorded the telephone conversation. During the conversation, Peel offered Zell an $8-an-hour job as a helper to start the following Monday. The following exchange then occurred:
Peel thought that Zell's statement was "rather strange," especially because Zell laughed as he said it. Peel put Zell on hold and went to ask Nelson's advice. Peel and Nelson decided that they should discuss the matter with Menefee before proceeding. They got back on the telephone with Zell and told him that they were going to have to consider the issue, and that they would get back to him.
Peel and Nelson later spoke with Menefee and described to him the telephone conversation with Zell. Menefee subsequently contacted Mark Officer, President of Pre-Fab Companies, Inc., who told Menefee that Zell was a field representative for the Union.
Menefee then called Zell. Zell returned the call on August 23, 1993. This conversation was not recorded, and Menefee and Zell recounted different versions of its contents. Zell claims that Menefee asked him whether he was in the Union and whether he was going to stay in the Union. Menefee maintains that he asked Zell whether he was an employee of the Union and whether he intended to continue working for the Union if he came to work at AGM. According to both versions, after Zell responded affirmatively, Menefee then said that AGM would not hire him.
On January 3, 1994, the Union filed charges with the NLRB alleging that AGM had violated sections 8(a)(1) and 8(a)(3) of the Act, 29 U.S.C. § 158(a)(1), (a)(3). The focus of these charges was the telephone conversation between Menefee and Zell, during which the NLRB claimed that Menefee unlawfully interrogated and refused to hire Zell. AGM admitted that it questioned and refused to hire Zell, but it denied that its conduct was unlawful, because (1) it had applied its nondiscriminatory rule prohibiting the hire of individuals who hold and will continue to hold a full-time job elsewhere, (2) Zell falsified his job application, and (3) Zell was not an "employee" within the meaning of the Act.
The Administrative Law Judge (ALJ) held a hearing on September 27, 1994. On November 18, 1993, the ALJ issued a decision finding that AGM had violated the Act as charged. The ALJ first found that it is unlawful to refuse to hire a full-time paid union organizer because of that status. He therefore concluded that under either Zell or Menefee's version of the second, unrecorded telephone conversation, AGM had engaged in unlawful interrogation in violation of section 8(a)(1) of the Act.
With regard to the refusal to hire allegation, the ALJ found that both Zell and Menefee were credible. Therefore, because the Board had the burden of proof, he credited Menefee's version of the conversation. The ALJ then found that it was "clear from the record that Menefee refused to hire or withdrew the offer of employment ... because Zell was a full-time paid union field representative who would, if hired, try to organize [AGM's] employees."
The ALJ then rejected AGM's defenses. First, it found that although Zell was "less than candid" when he omitted his union position from the job application, AGM had only discovered this ground for dismissal after it had refused to hire Zell. Second, adhering to Board precedent, see, e.g., Sunland Construction Co., Inc., 309 N.L.R.B. 1224, 1992 WL 390105 (1992), the ALJ found that Zell was a bona fide applicant for employment even though he was a paid union organizer. 1 Finally, the ALJ found no merit to AGM's claim that it did not hire Zell because he was a full-time employee elsewhere, because Menefee never asked Zell whether the union job would interfere with a job at AGM. The ALJ further noted:
[M]any working women, especially those with younger children, quite reasonably look on their mothering responsibilities as a full time or close to it job that they do in addition to their 'outside the home' jobs. What about employees who spend large amounts of time participating in coaching, scouting, or other voluntary efforts. Should they lose protection under the Act because they serve two masters?
The ALJ thus concluded that AGM violated sections 8(a)(1) and 8(a)(3) of the Act when it refused to hire Zell.
AGM filed exceptions to the ALJ's proposed order. The Board subsequently affirmed with minor modification the ALJ's findings and conclusions and adopted the proposed order. The Board thus ordered AGM (1) to cease and desist from the unfair labor practices it was found to have committed; (2) to offer Zell the position of helper or its substantial equivalent; and (3) to make Zell whole for any loss of pay. On March 23, 1995, AGM petitioned for review of the Board's order. On May 1, 1995, the Board filed a cross-application for enforcement of its order. Because AGM does business in the State of Ohio, this Circuit has jurisdiction pursuant to 29 U.S.C. § 160(e) and (f).
The standard of review when the Board finds a violation of sections 8(a)(1) and 8(a)(3) is well established. This court upholds the Board's findings of fact if "they are supported by substantial evidence on the record viewed as a whole." NLRB v. Pentre Elec., Inc., 998 F.2d 363, 368 (6th Cir.1993); see also 29 U.S.C. § 160(e), (f); Universal Camera Corp. v. NLRB, 340 U.S. 474, 493, 71 S.Ct. 456, 467, 95 L.Ed. 456 (1951). We also review the Board's application of the law to the facts under the substantial evidence...
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