H.B. Zachry Co. v. N.L.R.B.

• Decision Date: 20 September 1989
• Docket Number: Nos. 88-2615,s. 88-2615
• Citation: 886 F.2d 70
• Parties: 132 L.R.R.M. (BNA) 2377, 58 USLW 2181, 112 Lab.Cas. P 11,437 H.B. ZACHRY COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Associated Builders and Contractors, Inc.; Associated General Contractors of America, Inc.; International Brotherhood of Boilermakers, Amici Curiae. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. H.B. ZACHRY COMPANY, Respondent, Associated Builders and Contractors, Inc.; Associated General Contractors of America, Inc.; International Brotherhood of Boilermakers, Amici Curiae. (L), 88-2616.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 70

886 F.2d 70

132 L.R.R.M. (BNA) 2377, 58 USLW 2181,

112 Lab.Cas. P 11,437

H.B. ZACHRY COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Associated Builders and Contractors, Inc.; Associated

General Contractors of America, Inc.;

International Brotherhood of

Boilermakers, Amici Curiae.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. H.B. ZACHRY COMPANY, Respondent,

Associated Builders and Contractors, Inc.; Associated

General Contractors of America, Inc.;

International Brotherhood of

Boilermakers, Amici Curiae.

Nos. 88-2615(L), 88-2616.

United States Court of Appeals,

Fourth Circuit.

Argued May 9, 1989.

Decided Sept. 20, 1989.

William E. Twomey, Jr. (Thomas G. Hardy, III, McGuire, Woods, Battle & Boothe, Richmond, Va., on brief) for petitioner H.B. Zachry Co.

Collis Suzanne Stocking, Supervisory Atty. (Rosemary M. Collyer, Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., on brief) for respondent N.L.R.B.

Michael E. Kennedy, on brief, for amicus curiae, The Associated General Contractors of America, Inc. in support of petitioner.

Robert G. Ames, Patrick J. Stewart, Venable, Baetjer, Howard & Civiletti, Washington, D.C., on brief, for amicus curiae Associated Builders and Contractors, Inc. in support of petitioner.

Michael T. Manley, Robert L. Dameron, Blake & Uhlig, P.A., Kansas City, Mo., on brief, for amicus curiae International Broth. of Boilermakers in support of the NLRB.

Before RUSSELL and WILKINSON, Circuit Judges, and TURK, Chief United States District Judge for the Western District of Virginia, sitting by designation.

WILKINSON, Circuit Judge:

H.B. Zachry Company petitions for review of a decision by the National Labor Relations Board which found Zachry guilty of unfair labor practices. 289 NLRB 117 (1988). The Board held that Zachry violated various sections of the National Labor Relations Act when it refused to hire a fully-paid professional union organizer. Because we find that Edwards was not a bona fide applicant for employment and therefore not covered under the Act, we deny enforcement of the Board's order.

I.

Barry Edwards was first employed by Zachry at its Roxboro, North Carolina site as a journeyman boilermaker welder on March 28, 1980. Edwards successfully completed welding tests for heavy and light wall construction. The record reflects that his work was satisfactory, and that he was proficient at his trade.

Edwards, however, was discharged in what the Board found to be an unfair labor practice in violation of sections 8(a)(1) and (3) of the Act, H.B. Zachry Co., 261 NLRB 681 (1982). Zachry was ordered, inter alia, to reinstate Edwards to his former job at the Roxboro project with full backpay. By the time the reinstatement order was issued, however, the work at the Roxboro project had been completed.

In 1984 and 1985, Edwards applied without success to work for Zachry in Chesapeake, Virginia, where the company was constructing and repairing boilers for the Virginia Electric and Power Company. Zachry's final refusal to hire Edwards occurred on August 20, 1985. At the time he was applying to work for Zachry in Chesapeake, Edwards was a full-time union organizer and planned to remain, concurrent with his employment by Zachry, in the employment of the union. If Edwards had been able to gain employment with Zachry, the union had intended to make up any shortfall in his salary. In addition, the union would have continued payments for his health and life insurance and pension. It also would have paid his daily transportation expenses to and from the job and any living expenses related to the job. Edwards concedes that he sought employment in order to enter the plant and organize.

Zachry never hired Edwards at the Chesapeake site. The Board, in agreement with the administrative law judge, found that the company violated sections 8(a)(1), (3), and (4) of the Act by refusing to hire Edwards because he had participated in a Board proceeding against the company in connection with his work at Roxboro and because he was a union organizer. ¹ In so holding, the Board relied heavily on a line of its decisions originating with Oak Apparel, 218 NLRB 120 (1975). In Oak Apparel, the Board ruled that a professional union organizer is an employee within the meaning of the NLRA.

Zachry appeals, claiming primarily that Edwards' position as a professional union organizer fully justified its refusal to hire him under the Act. The record reflects that Edwards' status as a paid union organizer would alone have caused the company to deny him employment. See NLRB v. Transportation Management, 462 U.S. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983). We must therefore address the lawfulness of that decision.

II.

We deny enforcement of the Board's order because we find that Edwards was not a bona fide applicant for employment as that term is understood in the National Labor Relations Act. Although the Act explicitly refers only to the protections afforded "employees," the Supreme Court has held that "applicants" for employment are likewise protected. See Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271 (1940). Thus, in defining "applicant," we are called upon to give content to a term not actually found within the relevant portions of the Act. Because an "applicant" is a prospective employee, however, we look to the meaning of the term "employee" to inform our understanding of what it means to be an "applicant."

Although the task of defining the term "employee" or, in this case, "applicant," has been assigned primarily to the NLRB as the agency created by Congress to administer the Act, the Court has "never immunized Board judgments from judicial review in this respect." Chemical Workers v. Pittsburgh Glass, 404 U.S. 157, 166, 92 S.Ct. 383, 390, 30 L.Ed.2d 341 (1971) citing NLRB v. Hearst Publications, 322 U.S. 111, 131, 64 S.Ct. 851, 860, 88 L.Ed. 1170 (1944). The Act itself provides a section defining "employee" for purposes of the Act, 29 U.S.C. Sec. 152(3). ² The definitional section, however, merely outlines the types of employment covered by the statute; it does not absolve courts of the duty to interpret the plain language of the statute or the plain meaning of the term "employee" itself.

The Board argues that the definition of the term "employee" is sufficiently broad to include persons concurrently employed, supervised, and paid by another employer. It asserts that if hired, Edwards would do the work assigned him by Zachry and would work under the same conditions as any other Zachry employee. Thus, the Board contends, Edwards should be protected under the Act just as any other employee or, in this case, just as any other applicant.

The Board's argument exalts form over substance. Though if hired Edwards would undoubtedly share some of the external characteristics of a Zachry employee, at core he would remain an employee of the union. An employee is a person who while on the job works under the direction of a single employer. Although discrimination on the basis of union membership, union sympathies, or protected union activities is plainly forbidden under the Act, 29 U.S.C. Sec. 158(a), many of the normal incidents of the employer-employee relationship remain intact. The House of Representatives, when proposing in 1947 to override the Board's interpretation of "employees" to include independent contractors, described the intended definition of employee under the Act as follows: " 'Employees' work for wages or salaries under direct supervision .... It is inconceivable that Congress, when it passed the Act, authorized the Board to give to every word in the act whatever meaning it wished. On the contrary, Congress intended then, and it intends now, that the Board give to words not far-fetched meanings but ordinary meanings." H.R.Rep. No. 245, 80th Cong. 1st Sess., 18 (1947), quoted in Chemical Workers v. Pittsburgh Glass, 404 U.S. 157, 167-68, 92 S.Ct. 383, 391-92, 30 L.Ed.2d 341 (1971) (holding that retired workers were clearly not included in the ordinary meaning of "employee").

If Edwards simultaneously performs services for Zachry at his union employer's behest, he nonetheless remains in the union's employ, even though he receives some remuneration from Zachry. He cannot be considered an employee of Zachry since he is performing services for Zachry only because instructed to do so by his union employer. This is not to say that an employee owes his employer some type of transcendent loyalty; rather, it is only to emphasize that the plain meaning of the term "employee" contemplates an employee working under the direction of a single employer. The term plainly does not contemplate someone working for two different employers at the same time and for the same working hours.

The terms under which Edwards proposed to work for Zachry illustrate well why he is not an "employee" of Zachry within the meaning of the Act. Edwards testified at trial that he had been employed since 1983 as a full-time, professional organizer for the union. He first served as an organizer for Local 30 of the International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers, and Helpers, AFL-CIO. Since January 1, 1987, he has been an organizer and representative of the International Union. Zachry further testified that he was instructed by his supervisor in the union to go to the Chesapeake job site, secure employment and begin organizing. During the entire time Edwards sought employment with Zachry he was employed by the union as a paid full-time organizer. The parties also stipulated that Edwards would have remained at all times employed by the union and supervised by the union, even during the precise hours he was to work for Zachry. Once Edwards obtained employment from Zachry the amount of his salary from the union would have been reduced by the amount of his wages from...