Halstead Metal Products, a Div. of Halstead Industries, Inc. v. N.L.R.B., s. 90-1853

• Decision Date: 03 July 1991
• Docket Number: Nos. 90-1853,90-1868,s. 90-1853
• Citation: 940 F.2d 66
• Parties: 137 L.R.R.M. (BNA) 3022, 119 Lab.Cas. P 10,829 HALSTEAD METAL PRODUCTS, A DIVISION OF HALSTEAD INDUSTRIES, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. HALSTEAD METAL PRODUCTS, A DIVISION OF HALSTEAD INDUSTRIES, INCORPORATED, Respondent, v. NATIONAL LABOR RELATIONS BOARD, Petitioner.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 66

940 F.2d 66

137 L.R.R.M. (BNA) 3022, 119 Lab.Cas. P 10,829

HALSTEAD METAL PRODUCTS, A DIVISION OF HALSTEAD INDUSTRIES, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

HALSTEAD METAL PRODUCTS, A DIVISION OF HALSTEAD INDUSTRIES, INCORPORATED, Respondent, v. NATIONAL LABOR RELATIONS BOARD, Petitioner.

Nos. 90-1853, 90-1868.

United States Court of Appeals, Fourth Circuit.

Argued April 10, 1991.

Decided July 3, 1991.

Terry Allen Clark, argued (James F. Edwards, Jr., on brief), Edwards, Ballard, Bishop, Sturm, Clark & Keim, Spartanburg, S.C., for petitioner.

Lisa Nanette Richardson, argued (Jerry M. Hunter, Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, Collis Suzanne Stocking, Supervisory Atty., on brief, N.L.R.B., Washington, D.C., for respondent.

Before WIDENER, Circuit Judge, CHAPMAN, Senior Circuit Judge, and WILLIAMS, District Judge for the Eastern District of Virginia, sitting by designation.

OPINION

CHAPMAN, Senior Circuit Judge:

Donald Hazelwood ("Hazelwood") filed an unfair labor practice complaint with the National Labor Relations Board ("Board") against Halstead Metal Products ("Halstead"), claiming that Halstead refused to rehire him because he had engaged in protected concerted activity. The Administrative Law Judge ("ALJ") concluded that Halstead had committed an unfair labor practice under the National Labor Relations Act (the "Act"), and the Board affirmed the decision. Halstead now appeals, and we reverse and remand for proceedings consistent with this opinion.

I.

Halstead manufactures copper tubing products, employing approximately 500 employees at its facility in Pine Hall, North Carolina. It operates this facility on a continuous 24 hour basis. The "C" maintenance crew at the plant worked a "4-3" schedule under which a crew member worked a twelve hour night shift for four nights with three nights off the first week and worked a twelve hour shift for three nights with four nights off the next week. Hazelwood worked on the "C" crew from December 2, 1986 to August 16, 1988.

In August 1988, Halstead, in an attempt to improve the efficiency of the maintenance program, proposed a schedule change which would require the workers to work seven consecutive nights and receive two nights off. When Hazelwood believed this schedule change was imminent, he voluntarily resigned, stating that, although he hated to leave, he could not work seven consecutive nights due to a sleep disorder.

The following Saturday, August 20, 1988, the remaining members on the "C" crew were informed by a bulletin board notice that the new schedule was going into effect. The crew worked approximately two hours and then informed their foremen that they were not going to continue working. The crew requested a meeting with management to address their concerns over the new schedule. The foremen could not reach any upper management at that time, and the workers clocked out, walked out of the plant and congregated at a nearby picnic area called the "oak tree." One of the members then called Hazelwood, and he joined the crew at the oak tree. Soon after Hazelwood had joined the group, representatives of Halstead's management arrived and discussed the scheduling problem. When management promised to correct the problem the next day, the crew returned to work. At that time, Hazelwood asked Piper, the plant manager, for his job back. Piper encouraged Hazelwood to fill out an application stating that "we need good maintenance men."

The following Monday, August 22, 1988, Hazelwood went to the plant employment office and completed an application. Hazelwood told Employment Manager Diane Coffill, who was responsible for hiring, that Piper had told him to file the application. After speaking with Piper, Coffill accepted the application and checked Hazelwood's employment record. She then told Hazelwood that she would let him know when the schedule was straightened out. A week later, Hazelwood returned to the plant to find out why he had not heard from Coffill. Coffill told him that she had not heard about the schedule, but would check with Piper. Later, Coffill talked with Piper who allegedly directed Coffill not to rehire Hazelwood because he had demonstrated with the "C" crew workers at the oak tree. When Hazelwood checked with Coffill during the next several weeks, Coffill always told him that the schedule had not been worked out.

Eventually Halstead resolved the scheduling problem by discarding the proposed "7-2" schedule for a "4-4" schedule with the workers on four days and off four days. Hazelwood was not rehired, his position remained vacant, and Halstead actively sought applications for maintenance men. In March 1989, Hazelwood spoke with Halstead's former Employee Relations Director Tommy Cook. Cook told Hazelwood that he had spoken with Coffill and that she had said that Piper did not want to hire Hazelwood because of the incident at the oak tree.

Hazelwood then filed his complaint with the Board, alleging that he was punished for participating in protected concerted activity. The ALJ agreed with Hazelwood, finding that Halstead had violated section 8(a)(1) of the Act by refusing to rehire Hazelwood because of the concerted activity. On review, the Board affirmed the ALJ's decision. Halstead now appeals.

II.

The Board's findings of fact are conclusive if they are supported by "substantial evidence on the record considered as a whole." NLRA Sec. 10(e), 29 U.S.C. Sec. 160(e). If the Board misconstrues the Act or makes an error of law, the court reviews the decision de novo. American Trucking Assocs. v. NLRB, 734 F.2d 966 (4th Cir.1984), cert. denied, 473 U.S. 904, 105 S.Ct. 3524, 87 L.Ed.2d 650 (1985). The court, however, should accept the Board's construction of the Act if it is reasonably defensible. NLRB v. Local Union No. 103, Iron Workers, 434 U.S. 335, 350, 98 S.Ct. 651, 660, 54 L.Ed.2d 586 (1978).

III.

Section 7 of the Act (29 U.S.C. Sec. 157) guarantees employees the right to engage in "concerted activities for the purpose of ... mutual aid or protection." Section 8(a)(1) of the Act (29 U.S.C. Sec. 158(a)(1)) implements this guarantee by making it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of rights guaranteed by section 7. These two sections of the Act effectively insulate employees from discharge, refusal to rehire, or other employer retaliation for engaging in concerted activities for mutual aid or protection, "even though no union activity be involved, or collective bargaining be contemplated." Joanna Cotton Mills Co. v. NLRB, 176 F.2d 749, 752-53 (4th Cir.1949). Discrimination in hiring is just as significant as a discriminatory discharge for, as the Supreme Court observed in Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 185, 61 S.Ct. 845, 848, 85 L.Ed. 1271 (1941), "the effect of such discrimination is not confined to the actual denial of employment; it inevitably operates against the whole idea of the legitimacy of organization."

Employees who collectively refuse to work in protest over wages, hours, or other working conditions are engaged in "concerted activities" for "mutual aid or protection" within the meaning of the Act. NLRB v. Washington Aluminum Co., 370 U.S. 9, 17, 82 S.Ct. 1099, 1104, 8 L.Ed.2d 298 (1962), accord United Merchants & Mfrs., Inc. v. NLRB, 554 F.2d 1276, 1278 (4th Cir.1977). Accordingly, retaliatory action motivated by an employee's participation in, or instigation of, such activity violates section 8(a)(1) of the Act. Washington Aluminum, 370 U.S. at 17, 82 S.Ct. at 1104. The broad protection of the Act applies with particular force to unorganized employees, who, because they have no designated bargaining representative, have "to speak for themselves as best they [can]." Id. at 14, 82 S.Ct. at 1103.

This appeal presents three issues regarding section 8(a)(1) of the Act: First, whether Hazelwood and the "C" crew workers should be considered "employees" under the Act while they were protesting at the oak tree; second, whether Hazelwood and the "C" employees were engaged in "protected concerted activities" under the Act; and third, whether Halstead refused to rehire Hazelwood for his "concerted activity" in joining the protest at the oak tree.

IV.

As a threshold matter, an employer only violates the Act if the individuals against whom he discriminates are employees for the purposes of the Act. In other words, unless the workers who protest are employees, their concerted activity is not protected by the Act. We first address whether Hazelwood and the other "C" crew workers were actually employees under the Act when the alleged concerted activity occurred.

A. Whether Hazelwood should be considered an employee for purposes of section 8(a)(1) of the Act.

It is undisputed that Hazelwood voluntarily resigned on August 16, 1988, because he was dissatisfied with the proposed work schedule. Because Hazelwood actually resigned, he was not protected by the Act from future discrimination, even if the discrimination arose from participation in concerted activities with employees who were protected by the Act. See Model A & Model T Motor Car Reproduction Corp., 259 N.L.R.B. 555 (1981) (section 7 did not protect former employee who had quit job from legal action by former employer).

However, once Hazelwood reapplied for employment at Halstead, Halstead had to treat Hazelwood as if he were an employee for purposes of the Act. It is well settled that a job applicant is to be treated as an employee entitled to protection under the Act. See, e.g., NLRB v. Mt. Desert Island Hosp., 695 F.2d 634, 638 (1st Cir.1982); NLRB v. Southern Plasma Corp., 633 F.2d 1210, 1210 (5th Cir.1981); Reliance Ins. Cos. v. NLRB, 415 F.2d 1, 6 (8th Cir.1969); Time-O-Matic, Inc. v. NLRB, 264 F.2d 96, 99 (7th Cir.1959); see also H.B. Zachry Co. v. NLRB, 886 F.2d 70 (4th Cir.1989). In this case, Hazelwood orally...