Clock Elec., Inc. v. N.L.R.B., 38

Citation162 F.3d 907
Decision Date09 December 1998
Docket NumberNo. 38,97-6106,Nos. 97-5999,38,s. 97-5999
Parties159 L.R.R.M. (BNA) 3025, 137 Lab.Cas. P 10,310 CLOCK ELECTRIC, INC., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, International Brotherhood of Electrical Workers Local(97-5999), Intervenor.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Tim Tusek (argued and briefed), Boardman, Ohio, for Petitioner/Cross-Respondent.

Aileen A. Armstrong (briefed), Frederick C. Havard (briefed), John D. Burgoyne, Robert J. Englehart, Jeffrey Horowitz (argued and briefed), National Labor Relations Board, Appellate Court Branch, Washington, DC, for Respondent/Cross-Petitioner.

Joyce Goldstein (briefed), Bryan P. O'Connor (briefed), Goldstein & Roloff, Cleveland, Ohio, for Intervenor in No. 97-5999.

Before: KENNEDY, WELLFORD, and BOGGS, Circuit Judges.

KENNEDY, J., delivered the opinion of the court. WELLFORD, J. (pp. 919-20) and BOGGS, J. (p. 920), delivered separate opinions concurring in part and dissenting in part.

OPINION

KENNEDY, Circuit Judge.

Adopting recommendations made by an Administrative Law Judge, the National Labor Relations Board (the "Board") concluded that the petitioner, Clock Electric, Inc. ("Clock Electric" or "the Company") violated the National Labor Relations Act by (1) refusing to hire two employees because of union membership, and (2) photographing an employee while picketing. Clock Electric has petitioned this court for review of the Board's order, and the Board has cross-petitioned for enforcement. For the reasons set forth in this opinion, we conclude that the Board's unfair labor practice findings are not supported by substantial evidence on the record as a whole with regard to one of the Company's two hiring decisions. We shall therefore grant the Company's petition and deny the Board's cross-petition as to this hiring decision only. We shall grant enforcement of the Board's order insofar as it relates to the Company's second hiring decision and its unlawful photographing of a picket.

I.

Clock Electric is a nonunion electrical contractor that has been operating in Cleveland, Ohio for over 24 years. The Company is principally owned and run by Charles ("Chuck") Clock, the Company's president, who was an electrician for 15 years before going into business for himself. Chuck Clock's daughter, Lisa Clock, is the Company's office manager, who performs a number of administrative duties including oversight of the hiring process.

In May 1994, the Company placed an advertisement in a local newspaper seeking to hire journeyman electricians. When the International Brotherhood of Electrical Workers, Local Union No. 38 ("IBEW" or the "Union") learned that the Company was hiring, it encouraged several Union members who were unemployed to apply for the job in an effort to organize the Company. Among the applicants sent by the Union were Richard Crumbley, James Embrescia, and Orin Lemin. The Company also considered numerous other applicants, and eventually hired two of the applicants: Orin Lemin and Joseph Gelski, not a union member.

Richard Crumbley arrived to complete the application for employment on May 16, 1994. At the time, he was wearing a jacket with the Union logo. On his application, Crumbley indicated that he possessed thirteen years of experience as an electrician, served a four-year apprenticeship program at a union-affiliated trade school, had a fire alarm license, and had graduated from high school. The application also requested information about past employment. Crumbley listed his most recent salary as $23.48 per hour, which was the union rate applicable at the time. His "reason for leaving" each of the three jobs listed on the application was "lack of work." After Crumbley completed his application, the Company gave him a review electrical test on which he scored 15 out of 19 questions correctly. Upon Crumbley's submission of his application to Lisa Clock, she told Crumbley that the Company would contact him for an interview. It never did.

James Embrescia applied for the job on May 17, 1994. He was also wearing a Union logo. Embrescia had approximately eight years of experience as a journeyman electrician and indicated on the application that he had attended a four-year IBEW/NCEA Joint Apprenticeship program, had fire alarm and fiber optics training, and had graduated from high school. Several past employers listed on his employment record were contractors known to Chuck Clock to be union contractors. Embrescia documented all of his past employers back to 1986, which even covered his four-year apprenticeship period. He listed more than seven past employers between 1989 and 1994. In some cases his "reason for leaving" was a "reduction in work force," and in others he indicated he had quit. Embrescia too indicated he was most recently paid at the union rate of $23.48. He scored 13 out of 19 questions correctly on the electrical review test. Lisa Clock told Embrescia, as she had told Crumbley, that the Company would contact him for an interview. On his own initiative, Embrescia contacted the Company on May 24, 1994 and a few times thereafter to ask about the status of his application. Each time he was told to call back later because hiring had been placed on hold. Finally, on June 10, 1994, Embrescia returned to Clock Electric to fill out a new application because he believed the Company's policy was to discard applications after 30 days. At that time, Lisa Clock told him there was no need to reapply because the Company was not hiring.

Joseph Gelski, like Embrescia, applied on May 17, 1994. Gelski had worked in the past for one of the Company's customers and was recommended by its owner, Hank Schwartz. In the course of his employment with Schwartz, Gelski performed some simple work alongside some of Clock Electric's employees for a period of two weeks, approximately two years before he applied for the job with Clock Electric. Gelski did not graduate from high school or serve an apprenticeship, but indicated on his application that he had attended the West Side Institute of Technology and was receiving fire alarm training. He worked for three employers between 1989 and 1994 and was most recently compensated at $11.00 per hour. Gelski received a test score of 16 out of 19. On the afternoon of May 17, 1994, Chuck Clock reviewed the applications of Crumbley, Embrescia and Gelski, and telephoned Gelski to arrange an interview. He was interviewed and hired on May 19, 1994.

Orin Lemin, a covert union applicant, submitted an application for the position about a week later, on May 24, 1994. He did not reveal that he was a Local 38 member and his application was largely fabricated. His application accurately indicated that he had been a journeyman electrician for approximately three years, but listed as past employers three small non-union contractors for whom Lemin had never worked. For two of these employers, he neglected to include a "reason for leaving." For the remaining employer, he failed to provide the name of his supervisor as requested. He stated that his most recent wage rate was $10.25. Like Crumbley, Lemin answered 15 out of 19 test questions correctly. The Company interviewed and hired him on May 26, 1994, two days after he applied. At the time of the interview, Lemin asked Lisa Clock whether he could refer friends to Clock Electric to apply for jobs. She told Lemin that they were not hiring, but if an applicant mentioned Lemin's name as a reference they would be considered. Lemin started work on June 1, 1994.

Shortly after starting at Clock Electric, Lemin asked the Field Superintendent, Jim Bratsch, several times without success about the possibility of obtaining a wage increase for himself and for "the men." In response, Bratsch initially told him that he would think about it, and later told Lemin that he needed to do more work before the Company would give him a raise. In early July, after having been sent to work on a project at B.F. Goodrich, Lemin revealed his union affiliation to fellow Clock Electric employees and informed them that he was there to "organize the unorganized." Meanwhile, Lemin continued to approach Lisa Clock and Jim Bratsch about a pay increase. On July 14, Bratsch gave Lemin his 30-day performance evaluation with an overall rating of slightly less than fair. The next day, the Union picketed the B.F. Goodrich job site. Lemin picketed with two other Union agents just before the morning shift and again during the lunch break. Lemin's foreman, Alan Conn, called the office to inform management that Lemin had been picketing. Conn was instructed to "take a picture and see what the sign says." During the lunch break, Conn drove closely past the pickets and snapped a still photograph of Lemin, who was grinning and holding a sign that read, "Clock Electric Turns Back The Clock On Fair Wages and Benefits."

Over the several weeks that followed the picketing at B.F. Goodrich, Lemin was reassigned to various projects. According to the Company, Lemin performed substandard work at several of these job sites. On one occasion he neglected to wear safety glasses and was instructed to redo some work on circuit breakers and an outlet he had installed improperly. At another site he twice entered restricted areas at the customer's facility and failed to leave the premises when the Company was ordered off the job. The Company eventually discharged Lemin on August 23, 1994. 1

Based on the foregoing events, the Union filed several charges against the Company between July and September 1994 alleging unfair labor practices. On March 27, 1997, the Administrative Law Judge (the "ALJ") issued a recommended decision and order in which he concluded that Clock Electric violated Sections 8(a)(1) and (3) of the Act by refusing to hire Crumbley and Embrescia, and violated Section 8(a)(1) of the Act by photographing Lemin on the picket...

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