Center Const. Co., Inc. v. N.L.R.B
| Decision Date | 03 April 2007 |
| Docket Number | No. 05-2326.,No. 05-2259.,No. 05-2425.,05-2259.,05-2425.,05-2326. |
| Parties | CENTER CONSTRUCTION CO., INC., d/b/a Center Service System Division, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Local 370, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, Intervenor. Center Construction Co., Inc., d/b/a Center Service System Division, Petitioner/Cross-Respondent, v. National Labor Relations Board, Respondent/Cross-Petitioner. Local 370, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, Petitioner, v. National Labor Relations Board, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: Hiram S. Grossman, Daniel & Grossman, Flint, Michigan, Tinamarie Pappas, Ann Arbor, Michigan, for Petitioner. Jeffrey Barham, National Labor Relations Board, Washington, D.C., for Respondent. ON BRIEF: Hiram S. Grossman, Daniel & Grossman, Flint, Michigan, Tinamarie Pappas, Ann Arbor, Michigan, for Petitioner. Jeffrey Barham, Aileen A. Armstrong, David Habenstreit, National Labor Relations Board, Washington, D.C., for Respondent.
Before MOORE, ROGERS, and GIBSON, Circuit Judges.*
GIBSON, J., delivered the opinion of the court, in which MOORE, J., joined. ROGERS, J. (pp. 440-42), delivered a separate opinion concurring in part and dissenting in part.
Center Construction Co. petitions for review of the National Labor Relations Board's order finding Center committed numerous unfair labor practices to combat the organization of Center's two-man plumbing staff by Local 370 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO. Local 370 intervened to oppose Center's petition and also petitions for review of the one claim on which the Board reversed the ALJ, finding Center had not committed an unfair labor practice. The Board cross-petitions for enforcement. We deny Center's petition for review, grant Local 370's petition, and grant the Board's petition for enforcement except insofar as the Board held that Center had not committed an unfair labor practice in threatening the sheet metal workers with loss of jobs.
Center Construction does mostly heating and air-conditioning, employing about twenty to forty HVAC (heating, ventilation, and air-conditioning) workers who are represented by the Sheet Metal Workers' Union, Local 7. Plumbing is a small part of Center's business, and at the time of the events in this case, Center only employed two plumbers-a licensed plumber, Wayne Rose, and an apprentice plumber, Lance Lockhart. The plumbers' union, Local 370, had tried to organize Center twice before, in 1994 and 1998, but had been defeated. The owner and president of the business was Robert Eagleson.
In July 2003, Center's two plumbers, Rose and Lockhart, signed authorization cards and gave them to Local 370's organizer, Benjamin Ranger. On August 4, 2003, Ranger and Local 370's business manager, Mark Johnson, met with Center's owner, Robert Eagleson, presented him with the two cards, and asked him to recognize Local 370 as the representative of the bargaining unit. Ranger and Johnson said Eagleson took the cards and examined them for several minutes, but Eagleson said he could not recall taking the cards. Both Ranger and Johnson testified that Eagleson said that he would never recognize Local 370 and that he would go out of business first. Eagleson, on the other hand, recalled a very different conversation; he testified that what he said was: "I would never sign an agreement without seeing a Contract." Eagleson said he requested a copy of Local 370's existing collective bargaining contract.
The next day, Ranger sent Eagleson a letter that wrongly stated in the first line that Local 370 represented a majority of the HVAC technicians at Center, although the body of the letter requested bargaining on behalf of Center's plumbing employees only. The sheet metal workers' representative learned about the letter and called Ranger about it. As soon as Ranger found out about his mistake, he faxed a corrected letter to the sheet metal workers and to Center saying it was the plumbers he represented, not the HVAC workers. Ranger filed a petition for a representation election with the Board three days after his meeting with Eagleson. The petition stated that there were two employees in the bargaining unit.
Picket Incident. Within a day or two after presenting the cards to Eagleson, Local 370 began picketing Center. Lance Lockhart, Center's apprentice plumber, as well as a few other Center employees, participated in the picketing. The remaining Center employees refused to cross the picket line to report to work. Supervisor Matt Welsh1 came out to the picket line and photographed the picketers. Welsh told the Center employees in the parking lot that "he wanted everybody to get back to cork or else he was going to see that they were fired." Production manager Kristie Eagleson2 came out to the workers who were waiting in the parking lot outside the picket line and gave them letters signed by Eagleson saying they were subject to discipline for not showing up to work because their absence was not "excused."
Eagleson's statements to Ruddy. Johnson delivered to Eagleson a copy of Local 370's collective bargaining agreement with the Flint Association of Plumbing and Mechanical Contractors the next day after the initial meeting. Eagleson said he asked if the collective bargaining agreement was negotiable and Johnson said no. Eagleson said he reviewed the contract and noticed that it covered some work that was assigned to the sheet metal workers and that it contained a clause saying that if the union gave better terms to any employer than those in the contract, all employers were entitled to the same terms. Eagleson said that the sheet metal workers representatives were telling his employees that the plumbers were not claiming sheet metal work, but that after reading the contract he concluded the plumbers were indeed claiming that work.
Patrick Ruddy, the union steward for the sheet metal workers' union, had picketed on behalf of the plumbers on August 6. Ruddy testified that the next day he spoke to Eagleson in Eagleson's office. Eagleson had Local 370's existing collective bargaining agreement in his hand and was reading parts of it aloud and explaining it to Ruddy. Eagleson said, Ruddy said Eagleson told him that the plumbers "do the same thing that we [the sheet metal workers] do." Eagleson offered Ruddy the contract and urged him to read it. A couple of days later, Eagleson repeated the same kind of remarks to Ruddy, "trying to impress on me the point that the Plumbers were going to take [our] jobs."
Eagleson's conversation with Wayne Rose. In mid-August, Center's licensed plumber, Wayne Rose, had his first conversation ever with Eagleson. On payday, supervisor Welsh told Rose he should go to Eagleson's office to pick up his pay check, instead of picking it up in Welsh's office as usual. When Rose went to Eagleson's office, Eagleson detained him for 45 minutes, telling him the history of the company, and in particular, how the company had resisted organization by the plumbers' union in 1994 and 1998. Eagleson told Rose he "eventually got rid of the sons of bitches." Rose said he asked whether Eagleson considered him useless, but Eagleson replied, "I hear you're a good one." When Rose told Eagleson he did not have health insurance, Eagleson said the company would provide it. Rose quoted Eagleson as saying:
Rose's union t-shirt. Rose bought a t-shirt with Local 370's insignia. Kristie Eagleson stopped him as he was leaving to go to a job and told him he must change shirts because she did not want contractors at the job to think that Center paid union wages. Center employees regularly wore t-shirts and other clothing with logos of various kinds. There was conflicting testimony about whether the company had a pre-existing, enforced rule limiting what clothes employees could wear to job sites, but Kristie Eagleson's version of the rule at the hearing was that employees could not wear anything offensive, religious, or political. She never said which of these categories the union insignia fell within.
Rose's termination. On Monday, September 22, Eagleson saw the company truck assigned to Rose on I-75 near Pierson Road at 6 p.m. The company's policy is that its trucks are only to be driven to the job and straight home, although there was disagreement among the witnesses at the hearing over whether it was permissible to do errands on the way. On Thursday of the same week, Welsh called Rose in and asked him about it.
Rose said that when Welsh asked him about why he was at I-75 and Pierson, he told Welsh he had stopped by the Local 370 office on the way home. Welsh said that it was "3, 5, 10 miles out of [Rose's] way." Rose cited instances where employees were allowed to do personal errands in a company truck. Welsh responded that Rose could no longer drive the company's truck. Rose said he told Welsh he would need a ride home and that he could not come to work the next day because his van needed a repair. Rose said Welsh told him to try to come in the next day. Rose said he called in that Friday and told a secretary that he could not get to work that day. Rose recounted that when he reported to work the next Monday, Welsh told him that he knew Rose was not happy at Center and Welsh would therefore accept Rose's resignation. Rose said he had not...
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