Fivecap, Inc. v. N.L.R.B.
| Decision Date | 28 June 2002 |
| Docket Number | No. 00-2162.,No. 00-2390.,No. 01-1058.,No. 00-2398.,00-2162.,00-2390.,00-2398.,01-1058. |
| Parties | FiveCAP, Inc., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Richard D. McNulty (argued and briefed), Cohl, Stoker & Toskey, Lansing, MI, for Petitioner.
Jill Griffin (argued and briefed), National Labor Relations Board, Office of the General Counsel, Washington, DC, Aileen A. Armstrong (briefed), Dep. Asso. Gen. Counsel, Charles P. Donnelly, Jr. (briefed), National Labor Relations Board, Appellate Court Branch, Washington, DC, for Respondent in No. 00-2162 and 00-2390.
Aileen A. Armstrong (briefed), Dep. Asso. Gen. Counsel, Charles P. Donnelly, Jr. (briefed), National Labor Relations Board, Appellate Court Branch, Washington, DC, for Respondent in No. 00-2398.
David Habenstreit, National Labor Relations Board, Office of the General Counsel, Deirdre Fitzpatrick (argued and briefed), National Labor Relations Board, Appellate Court Branch, Washington, DC, Meredith L. Jason (briefed), National Labor Relations Board, Washington, DC, for Respondent in 00-2398 and 01-1058.
Before: MARTIN, Chief Circuit Judge; COLE, Circuit Judge; SHARP, District Judge.*
This case involves events arising out of a union organizing campaign by the General Teamsters, Local No. 406 ("the Union"), at FiveCAP, Inc. ("FiveCAP"), a non-profit corporation. The National Labor Relations Board ("NLRB" or "the Board") petitions for enforcement of two orders against FiveCAP. First, the NLRB seeks enforcement of an August 25, 2000 Decision and Order finding that FiveCAP engaged in anti-union activity in violation of Sections 8(a)(1), 8(a)(3), 8(a)(4), and 8(a)(5) of the National Labor Relations Act (). Second, the NLRB seeks enforcement of an October 31, 2000 Decision and Order finding that FiveCAP committed further violations under Sections 8(a)(1), 8(a)(3), 8(a)(4), and 8(a)(5) of the Act while labor proceedings were pending against FiveCAP. For the following reasons, this Court ENFORCES both orders, except as to the temporary layoff of Art Burkel.
FiveCAP is a non-profit corporation that administers general welfare programs in four impoverished counties in Michigan. In particular, FiveCAP maintains an energy assistance program, also called a "weatherization" program, Head Start educational assistance programs, housing programs, and meal assistance programs. Mary Trucks ("Trucks") serves as FiveCAP's executive director and works in FiveCAP's principal office in Scottsville, Michigan. In the past, Trucks has openly opposed the organization of FiveCAP employees by unions.
FiveCAP receives federal funding from the Community Services Block Grant Act ("CSBG"). See 42 U.S.C. §§ 9901-26. Pursuant to the CSBG and analogous Michigan law1, FiveCAP is required to maintain a tripartite board of directors one-third of its members are elected public officials or their representatives; one-third are selected from the private sector; and one-third are "persons chosen in accordance with democratic selection procedures adequate to assure that [they] are representative of low income individuals and families in the neighborhood served." 42 U.S.C. § 9910. As to this third category of members, any member of the community can be considered for the board by submitting a petition with the signatures of twenty low-income residents. In practice, however, Trucks often hand-picked individuals to serve on the board and asked FiveCAP employees to obtain the necessary signatures from FiveCAP clients.
In the fall of 1994, the Union initiated an organizational campaign among FiveCAP employees. On December 22, 1994, Marv Holland, a business representative at the Union, wrote a letter to Trucks notifying her of the Union's intention to "organize most FiveCAP employees." On January 20, 1995, the Union filed a petition seeking to represent FiveCAP employees. In furtherance of this petition, the Union held a representation hearing on February 10, 13, and 14. Dale Smith, Tom Belongia, David Monton, Verna Fugere, Bruce Kent, Melissa Kukla, and Amanda Lange were asked by the Union to attend the hearing and potentially testify. Smith, Belongia, Monton, Fugere, and Kukla, among other FiveCAP employees, actually testified at the hearing.
On March 31, 1995, the Regional Director of the Union issued a Decision and Direction of Election ("Decision"), stating that, with the exception of FiveCAP coordinators and supervisors, all other categories of positions would be included in the bargaining unit. The Decision also stated that a Union election would be held on April 28, 1995. At that election, the majority of FiveCAP employees voted in favor of representation by the Union. The Union was certified as the representative for FiveCAP on May 8, 1995.
The NLRB concluded that during this period of time, Trucks openly expressed disdain towards Union representation of FiveCAP employees and outwardly threatened retaliation for those "untrustworthy" employees that became involved in Union activities. Trucks had told various FiveCAP employees that "if the Union was voted in, she would just fire everybody, she had done it once, and she can do it again." Trucks also stated that those employees that testified at the representation hearing could "kiss their jobs goodbye." Trucks stated that certain employees who testified at the representation hearings, namely Smith and Belongia, could no longer be trusted because of their involvement in the Union.
In making these findings, the NLRB concluded that despite official statements by FiveCAP that employees supporting the Union would not be treated differently, Trucks's threats constituted interference with the right to organize, as proscribed by Section 8(a)(1) of the NLRA.2 FiveCAP does not challenge that conclusion here.
Trucks's open disdain towards the organization of FiveCAP employees was only the first of several charges filed against FiveCAP for unfair labor practices. The facts relevant to each alleged violation of the Act are recounted in detail below.3 In general, the first Complaint Order filed by the General Counsel ("FiveCAP I") alleges that ten FiveCAP employees were unlawfully discharged, laid off without recall, or reprimanded based upon their involvement in the Union in violation of Sections 8(a)(1), 8(a)(3)4, 8(a)(4).5 The Complaint further alleges that FiveCAP failed to bargain with the Union regarding compensation terms for bus drivers under 8(a)(5).6 In addition, a second Complaint Order filed by the General Counsel (FiveCAP II) alleges that while the proceedings against FiveCAP before the NLRB were taking place, FiveCAP constructively discharged one employee who testified against FiveCAP in violation of Sections 8(a)(3) and (4). The General Counsel also alleges that FiveCAP failed to bargain with the Union over the elimination of two employee positions in violation of Section 8(a)(5).
After investigating the charges filed against FiveCAP, the NLRB's General Counsel issued a Complaint Order alleging that FiveCAP violated the NLRA by unlawfully discharging, laying off, and failing to recall ten Union supporters and bypassing the Union by negotiating directly with employees. The Union presented its case before Administrative Law Judge ("ALJ") Stephen Fish over the course of nine days from January 29, 1996 to February 8, 1996. On January 31, 1997, the ALJ issued a decision and recommended order concluding that FiveCAP had committed multiple violations of the NLRA. In particular, the ALJ concluded that FiveCAP had, in violation of Sections 8(a)(1), 8(a)(3), and, where applicable, 8(a)(4),7 of the Act: (1) unlawfully discharged Dale Smith from the weatherization department; (2) unlawfully discharged Tom Belongia from the weatherization department; (3) unlawfully failed to recall Art Burkel and David Monton from the weatherization department; (4) unlawfully discharged community support worker Verna Fugere; (5) unlawfully eliminated the Home Start program, and in so doing, unlawfully failed to recall Home Start teachers Melissa Kukla, Amanda Lange, Karen Sandstedt, and Jane Myers; (6) unlawfully reprimanded Bruce Kent for the manner in which he recorded his time; and (7) unlawfully bypassed the Union by negotiating directly with bus drivers about compensation policies. FiveCAP timely filed exceptions to the ALJ's decision. On August 25, 2000, the Board issued a Decision and Order affirming the findings of the ALJ. FiveCAP filed a petition to review the Board's order on October 6, 2000. The Board filed a cross-application for enforcement on November 22, 2000.
The NLRB's General Counsel issued a second Complaint Order on January 30, 1998, alleging that FiveCAP had committed further violations of the Act, including the unlawful constructive discharge of Melissa Kukla as well as the failure to bargain with the Union over the elimination of two employee positions. The Union presented its case before ALJ James Rose on various days between May 11 through June 8, 1998. On December 17, 1998, the ALJ issued a decision and recommended order concluding that FiveCAP had: (1) unlawfully harassed and retaliated against Kukla for her participation in Union activities and caused her constructive discharge in violation of Sections 8(a)(1), 8(a)(3), and 8(a)(4); and (2) failed to notify and bargain with the Union regarding the elimination of the data entry position and the consolidation of the Head Start classrooms in violation of Sections 8(a)(1) and 8(a)(5). On October...
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