Fluor Daniel, Inc. v. N.L.R.B., 01-1337.

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: Cole
• Citation: 332 F.3d 961
• Parties: FLUOR DANIEL, INC., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO; Plumbers and Steamfitters Local Union No. 198 of the United Association of Journeymen and Apprentices of the Plumbing And Pipe Fitting Industry of the United States and Canada, AFL-CIO; International Brotherhood of Electrical Workers, Local Union No. 995, Intervenors.
• Docket Number: No. 01-1337.,No. 01-1448.,01-1337.,01-1448.
• Decision Date: 09 June 2003

332 F.3d 961 FLUOR DANIEL, INC., Petitioner/Cross-Respondent,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner,
International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO; Plumbers and Steamfitters Local Union No. 198 of the United Association of Journeymen and Apprentices of the Plumbing And Pipe Fitting Industry of the United States and Canada, AFL-CIO; International Brotherhood of Electrical Workers, Local Union No. 995, Intervenors. No. 01-1337. No. 01-1448. United States Court of Appeals, Sixth Circuit. Argued February 5, 2003. Decided and Filed June 9, 2003.

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Charles T. Davis, Ogletree, Deakins, Nash, Smoak & Stewart, Nashville, TN, Kristofer K. Strasser (briefed), Lewis T. Smoak (argued and briefed), Ogletree, Deakins, Nash, Smoak & Stewart, Greenville, South Carolina, Ingrid Blackwelder Erwin (briefed), Nexsen, Pruet, Jacobs & Pollard, Greenville, South Carolina, for Petitioner.

Aileen A. Armstrong (briefed), Charles P. Donnelly, Jr., National Labor Relations Board, Washington, D.C., Joan Hoyte (argued and briefed), National Labor Relations Board, Washington, D.C., for Respondent.

Charles R. Schwartz, Michael J. Stapp (briefed), Michael T. Manley (argued and Briefed), Blake & Uhlig, Kansas City, KS, for International Brotherhood of Electrical Workers.

Francis J. Martorana (briefed), Keith R. Bolek, O'Donoghue & O'Donoghue, Washington, DC, for Plumbers and Steamfitters Local Union No. 198.

Jonathan D. Newman (briefed), Sherman, Dunn, Cohen, Nora H. Leyland (briefed), Sherman, Dunn, Cohen, Leifer & Yellig, Washington, DC, for Local Union No. 995.

Before: BOGGS, DAUGHTREY, and COLE, Circuit Judges.

OPINION

COLE, Circuit Judge.

Petitioner-Cross-Respondent Fluor Daniel, Inc. ("Fluor Daniel" or the "Company") appeals the decision of Respondent-Cross-Petitioner National Labor Relations Board ("NLRB" or the "Board") finding that Fluor Daniel violated Sections 8(a)(1) and (3) of the National Labor Relations Act (the "Act"), 29 U.S.C. §§ 158(a)(1) and (3) (1998), by failing to hire 124 applicants because of their union affiliations. The NLRB filed a cross-petition for enforcement of the unfair labor practice order issued by the NLRB after review of the case. Three unions, including two of the original charging parties, filed briefs as intervenors. Specifically, Fluor Daniel argues that: (1) the NLRB failed to require the General Counsel to allege and prove at the liability stage that jobs existed at the time the discriminatees had active applications on file; (2) the NLRB failed to take into account Fluor Daniel's hiring rules and policies regarding applicants when making its findings with respect to liability; and (3) the NLRB's order is not supported by substantial evidence.

For the reasons stated below, we find that the NLRB's decision that Fluor Daniel violated §§ 8(a)(1) and (3) of the Act¹

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was supported by substantial evidence and we GRANT the NLRB's cross-petition for enforcement for all employees except the five rebar helpers. We DENY the Board's cross-petition in regard to the rebar helpers and REMAND to the Board for further proceedings consistent with this opinion.

I. BACKGROUND A. Factual Background

Fluor Daniel is the nonunion subsidiary of the Fluor Corporation, a holding company that also has a unionized subsidiary, Fluor Constructors. Fluor Daniel has a unionized subsidiary called TRS. Fluor Daniel, Fluor Corporation, and TRS are separate corporations with separate boards, officers, labor relations, and personnel policies.

In 1993, Fluor Daniel was hired for two distinct contracting projects — one to rebuild a coker plant destroyed by fire at the Exxon refinery in Baton Rouge, Louisiana ("Exxon"), and another to take over maintenance of the nuclear power plant at the Palo Verde Nuclear Generating Station near Phoenix, Arizona ("Palo Verde"). Fluor Daniel intended both projects to be "open shop," i.e., employees at the sites would not be part of labor organizations and there would be no union labor contract between Fluor Daniel and the hired employees.

Fluor Daniel has developed a hiring priority that it applies to all of its projects. The Company gives first preference to previous Fluor Daniel employees who have been certified through the Company's craft certification program. In order to be certified, Fluor Daniel employees are given a written test, or a demonstration test for welders, and an evaluation of their job performance after a certain period of time on the job, usually thirty days. Employee certification also requires a total of forty-two months of craft experience. Employees attaining certain scores on both their written or demonstration test, and job evaluation, are eligible for in-house certification in their craft. An employee may be certified in more than one craft.

When a project begins, Fluor Daniel first looks to its company database of employees with certification, and sends those former employees solicitations by mail, called mailgrams, describing the job and inviting them to the jobsite for processing, interviewing, and possible hiring. After attempting to fill open positions with certified applicants, Fluor Daniel prefers to hire applicants with previous Company experience. Lastly, Fluor Daniel looks at all other applicants, including those from the general public responding to newspaper advertisements and job postings at project sites. According to Company policy, all applications submitted at jobsites are entered into the Craft Employment Application Disposition Log and held active for sixty days from the time of submission. Additional Company policies adopted at jobsites include policies that applications were only accepted when positions were available and that applicants could only apply for one position.

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1. Palo Verde

Fluor Daniel was hired by the Arizona Public Service Company ("APS") to provide service and maintenance at Palo Verde, the largest nuclear power facility in the United States, for a total of three years beginning in the summer of 1994. Fluor Daniel was responsible for the maintenance of the plant generally, and for maintenance and refueling during scheduled outages when the plant was shut down. Before Fluor Daniel won the bid, the plant had been constructed, serviced and maintained by Bechtel Corporation ("Bechtel"), one of the world's largest general contractors and a unionized employer. In performing its contract at Palo Verde, Bechtel previously had contracted with craftsmen from several local unions, including the Boilermakers Local 627, Millwright Local 1914, and Ironworkers Local 75.

In its bid proposal for the Palo Verde project, Fluor Daniel stated that it had "determined that an open shop labor posture can best meet our goals." The proposal also emphasized that Fluor Daniel had a database of its former employees that included many with nuclear experience, and that the Company had the expertise to transition Palo Verde from a closed shop facility, i.e., one where all employees are union members, to an open shop facility.

Staffing at Palo Verde began in June 1994, and by February 1996 Fluor Daniel had hired 962 craft employees. Periodically, APS would prepare requisitions called Contract Labor Requests ("Requests") for Fluor Daniel, which indicated the number and type of craft employees that were needed at any particular time. Based on the Requests, Fluor Daniel was authorized to hire a certain number of employees for its base crew and for meeting its staffing needs during outages. Fluor Daniel relied heavily on telephone and mailgram recruiting of former employees, including many who lived outside of Arizona. The Company also posted available positions at the jobsite and allowed the general public to submit applications on a walk-in basis. Out of the 200 former Bechtel employees who previously had worked at the site, received training from the APS, and obtained security clearance, ninety-one were hired by Fluor Daniel.

Area trade unions decided to organize and apply for jobs at the site as voluntary union organizers ("VUOs"). Gary Evenson, a paid organizer from a local union of boilermakers, organized the effort at Palo Verde with former Bechtel employees. The VUOs "agreed to accept employment if offered, to stay until laid off, to do a good job ... to discuss the benefits of union representation with other employees [on the site] and to record notes of actions that appeared to interfere with protected rights." They were instructed to wear conspicuous union insignia and write "voluntary union organizer" on their applications. Fifty-two former Bechtel employees agreed to serve as VUOs and submitted applications at the jobsite between June 16 and June 23, 1994. None of these fifty-two former Bechtel employees were hired, though monthly reports in 1995 indicated Fluor Daniel had trouble meeting staffing needs for the project. On June 27, 1994, twenty-six former Bechtel employees serving as VUOs attempted to submit applications and were refused.

2. Exxon

After winning the Exxon bid, Fluor Daniel recruiters solicited applications from former Fluor Daniel employees through the Company database by mailgram, called other jobsites that were closing, and maintained a telephone log of persons calling the Company for work at

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the site. Recruitment at the site was coordinated by Senior Site Manager Bill Austin and recruiter Rhonda Glover. Fluor Daniel also began three weeks of open staffing, posting job notices on-site and advertising in local papers. By January 19, 1994, Company recruiters had received 700 applications. Fluor Daniel followed its general hiring policies and procedures except that it made a significant change to the length of time for which applications were held active. The Company claimed that the urgent nature of the Exxon project necessitated a deviation from its normal...