Electrical Contractors v. Nat'l Labor Rel. Bd.

• Decision Date: 31 January 2001
• Docket Number: Docket Nos. 00-4161
• Citation: 245 F.3d 109
• Parties: (2nd Cir. 2001) ELECTRICAL CONTRACTORS, INC., Petitioner-Cross-Respondent, -v- NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner. (L), 00-4189(XAP) Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 109

245 F.3d 109 (2nd Cir. 2001)

ELECTRICAL CONTRACTORS, INC., Petitioner-Cross-Respondent, -v- NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.

Docket Nos. 00-4161(L), 00-4189(XAP)

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: Jan. 31, 2001

Decided: March 28, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

STEVEN B. KAPLAN, Michelson, Kane, Royster & Barger, P.C., Hartford, CT, for Petitioner-Cross-Respondent.

JEFFREY L. HOROWITZ, Attorney, National Labor Relations Board (Leonard R. Page, General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Frederick C. Havard, Supervisory Attorney, on the brief), Washington, DC, for Respondent-Cross-Petitioner.

Before: STRAUB, POOLER, and SACK, Circuit Judges.

STRAUB, Circuit Judge:

Petitioner-Cross-Respondent Electrical Contractors, Inc. ("ECI") petitions this Court to set aside a decision and order by Respondent-Cross-Petitioner, the National Labor Relations Board ("NLRB" or the "Board"), finding that ECI had engaged in unfair labor practices in violation of Section 8(a)(1) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 158(a)(1), by coercing employees to sign anti-union letters addressed to the Connecticut Department of Labor ("DOL") in the presence of their supervisors and threatening to retaliate against at least one employee who initially refused to sign such a letter. The Board cross-petitions for enforcement of its order requiring ECI to cease and desist from its unfair labor practices, to notify the government agencies and other entities that received the anti-union letters that the letters were null and void and to be given no effect, and to post remedial notices to its employees. For the reasons that follow, we deny ECI's petition and grant the Board's cross-petition for enforcement of its order.

BACKGROUND

ECI is a nonunion contractor that installs electrical systems on construction sites throughout the state of Connecticut. Since 1986, Local 90, International Brotherhood of Electrical Workers, AFL-CIO ("Local 90") has been engaged in an attempt to unionize ECI's workforce. As part of its effort to organize the ECI workforce, Local 90 compiled a mailing list of ECI employees derived from certified payroll records that were maintained and publicly filed by ECI as required by the state prevailing wage law, CONN. GEN. STAT. § 31-53(f) (1997), and obtained by Local 90 under the Connecticut Freedom of Information Act ("CFOIA"),¹ CONN. GEN. STAT. § 1-212. Upon obtaining copies of ECI's certified payroll records, Local 90 sent information about the union and the prevailing wage regulations-including the wage rates that ECI was obligated to pay under those regulations, the wage rates and benefits that ECI actually claimed to be paying in its publicly filed and certified payroll records, and information on how to pursue state law remedies in the event of wage disputes-to the employees listed in ECI's certified payroll records.² This information was sent by Local 90 in the name of the Connecticut Labor Management Cooperative Committee ("CLMCC"), a joint labor-management organization with which Local 90 is affiliated.

Beginning in May 1999, ECI initiated a campaign to transmit letters to the Connecticut Department of Labor ("DOL") from its employees objecting to the disclosure of ECI's payroll information to Local 90. The decision to commence this effort was made by ECI's owner and president, Lou Bona, in response to Local 90's correspondence to ECI's employees. With the assistance of counsel, Bona drafted a form letter that was distributed to ECI's employees for their signatures. The signed letters were then collected and forwarded to the DOL Commissioner. The ECI employee responsible for maintaining payroll records, Jan Berry, instructed supervisors to obtain signatures on the form letters from their employees, characterizing the initiative as an effort to send a "petition" to DOL. The letters were prepared for distribution to and signature by the employees at each of ECI's work sites, and the employees' signatures actually were solicited at all of the ECI work sites except for one.

For example, on May 13, 1999, a project manager, Cliff Clausen, distributed sets of papers to eight employees during their lunch break, including the form letter addressed to the DOL Commissioner, and stated, "Here, I have this paper that I need you guys to sign for me." When asked what the letter regarded, Clausen replied, "It's a letter we're going to send to our lawyer to get the union off our back." The letter explicitly complained about DOL's disclosure of "personal and confidential employment and financial information" to Local 90 and about the correspondence from the CLMCC, describing that organization as an "outfit [that] is simply a front for the electrical workers union" and characterizing that correspondence as "nothing more than harassment, as well as an insult to my intelligence." The letter attributed to its signatories the following view: "I am not a member of that union. I do not want to become a member of that union. I work for a merit shop, non-union contractor, by my free choice, and am very happy doing so." The letter closed by insisting that the signatories be informed in writing "before my personal and confidential employment information is released to anyone" (emphasis omitted).

After distributing copies of the letter addressed to DOL, Clausen then proceeded to distribute copies of a second document, stating, "I need you to sign this too, it just says that you weren't forced to sign this first letter." The first page of that stapled, two-page document explained ECI management's motivation for requesting its employees to sign the letter addressed to DOL:

We need to get as many of these letters as possible signed-we are doing this in an effort to stop the D.O.L. and any one [sic] else from releasing YOUR personal information contained on the certified payroll forms to any one [sic] who asks for it.

Upon signature return to Jan- we will type in your names and addresses on the heading and forward them-in one big package to the commissioner.

We have got to put a stop to this.

In relevant part, the second page-bearing the header, "NON-REPRISAL NOTICE"-purported to release the employees from any obligation to sign the letter:

You do not have to sign and transmit the attached letter to the department [sic] of Labor.

There will be no reprisals if you choose not to sign and transmit the attached letter. Your position on this issue will not subject you to any reprisal from ECI, nor will your position result in any benefit being given to you by ECI.

However, at least one employee, Jose Oliveira, refused to sign the letter when the documents were distributed and, as a result, was paged by Clausen later that afternoon. When Oliveira called Clausen in response to that page, Clausen directed Oliveira to "just sign it."

Ultimately, 83 out of ECI's approximately 100 employees actually signed the letters that ECI had prepared, and upon receipt of the signed letters ECI bundled and mailed them together to the DOL Commissioner.³ Thereafter, Local 90 requested from the Town of Hamden, pursuant to the CFOIA, ECI's prevailing wage payroll records. That request was denied; the Town of Hamden offered instead to provide copies of those payroll records with the employees' names and addresses redacted. Local 90 formally filed a complaint regarding this incident with the State Freedom of Information Commission; that complaint was still pending at the time of the hearing before the administrative law judge. A similar incident occurred involving the Town of Norwich, which, after initially denying Local 90's CFOIA request, provided the prevailing wage records after intervention by the DOL Commissioner.

On June 22, 1999, Local 90 brought an unfair labor practice charge against ECI to the National Labor Relations Board. In its amended charge, filed on September 20, 1999, Local 90 maintained that ECI

interfered with, restrained and coerced employees in the exercise of the right guaranteed by Section 7 of the Act by soliciting employees to sign letters expressing opposition to the International Brotherhood of Electrical Worker, [sic] a labor organization, and by interrogating employees regarding the [sic] union activities and sympathies.

After investigating Local 90's allegations, the NLRB General Counsel brought a complaint upon that charge on September 24, 1999. In its answer to the Board's complaint, ECI admitted that it was a Connecticut corporation with its place of business in Hartford, that it had been engaged in the business of providing electrical contracting services, that it had performed services valued in excess of $50,000 to customers located outside of Connecticut during the prior twelve months, and that it was an employer engaged in commerce within the meaning of NLRA §§ 2(2), (6), and (7), 29 U.S.C. §§ 152(2), 156, and 157. However, ECI denied that the company had interfered with or coerced its employees in the exercise of their rights under NLRA § 7, or that any such conduct had affected commerce within the meaning of NLRA § 2(6) and (7).

A hearing was held in Hartford before an administrative law judge on December 15, 1999. On April 14, 2000, the ALJ issued a Decision and Order finding that ECI had improperly solicited its employees to express opposition to being contacted or represented by the Union and therefore had engaged in unfair labor practices affecting commerce, in violation of NLRA § 8(a)(1), 29 U.S.C. § 158(a)(1), by "interrogat[ing] its employees and interfer[ing] with, restrain[ing], and coerc[ing] them in the exercise of their" rights under NLRA § 7, 29 U.S.C. § 157. The ALJ recommended that the Board issue an order requiring ECI to cease and desist from interrogating its employees about union support or union...