Interior Alterations, Inc. v. N.L.R.B., 82-2569
| Decision Date | 02 July 1984 |
| Docket Number | No. 82-2569,82-2569 |
| Citation | 738 F.2d 373 |
| Parties | 116 L.R.R.M. (BNA) 3068, 101 Lab.Cas. P 11,100 INTERIOR ALTERATIONS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Stephen E. Tinkler, Denver, Colo., (Donald R. Carwin, Denver, Colo., with him on briefs) of Tinkler & Carwin, Denver, Colo., for petitioner.
Abby Propis Simms, Atty., N.L.R.B., Washington, D.C. (Peter M. Bernstein, Atty., William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel and Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., with her on brief), for respondent.
Before McWILLIAMS, BREITENSTEIN and McKAY, Circuit Judges.
Petitioner, Interior Alterations, Inc., seeks review of an order of the National Labor Relations Board, NLRB, finding that Petitioner had violated Sec. 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. Secs. 158(a)(1) and (3), by discharging two employees. The NLRB has filed an application for enforcement of its order. We order enforcement.
Interior Alterations is a general contractor specializing in demolition and remodeling of high-rise office buildings and in remodeling commercial properties. The two discharged employees, Stark and Brookman were carpenters and members of the United Brotherhood of Carpenters and Joiners of America, the Union. The collective bargaining agreement in effect between the Company and the Union during the relevant time provided that the carpenters were to perform all work involved in "the unloading, handling, stockpiling and erection of all fabricated materials, such as ... doors...." Although the NLRB found that no procedure for dispute resolution was included in the contract, there was an accepted practice that normally an employee was to attempt to resolve work assignment disputes before going to the Union.
In the summer of 1980, the Company was in the process of renovating separate areas on eleven floors of the Security Life Building in downtown Denver. At this project, laborers regularly performed work which belonged to the carpenters, including the transportation of the doors. Several of the carpenters expressed their dissatisfaction with this situation to Company management and Union officials. Stark's testimony, supported by Company's project manager Albert Cappella, was that he had complained to his superiors that laborers were doing work that belonged to the carpenters. Complaints had also been made to Prickett, the Union business representative.
On September 24, 1980, three of the four carpenters working at the site, dissatisfied with having their work performed by laborers, chose Wallace to serve as steward. Stark was not present at the meeting and it was undisputed that when Brookman located Stark to ascertain whether he had any objections, field superintendent Thom Guggenheim and laborers' foreman, Charlie Trainer overheard the conversation. Tr. 59-60.
The next day, September 25, 1980, Stark and Brookman encountered two laborers with a stack of doors which they said they were taking to storage. Brookman told them to tell the supervisor, Guggenheim, that if they were taking the doors to storage, it was carpenters' work and they were not supposed to do it. The carpenters then left the area.
A series of conversations took place that morning among Guggenheim, Stark, and Brookman. Guggenheim told them that the doors were intended for the trash, which was the laborers' work. Brookman pointed out that the laborers involved in the incident had told them that they were transporting the doors to storage, which under the agreement, would be carpenters' work. Guggenheim testified that he asked the two of them if they would stop obstructing the job and stop complaining. They said that they would not stop complaining; they felt the work was carpenters' work. Tr. 273-277. After calling Cardone, the Company president, and asking Stark and Brookman again if they were going to stop complaining, Guggenheim fired the two, ostensibly for "lack of production." Tr. 278. As Stark and Brookman left the building, they checked the trash area and there were no doors there. Tr. 69-70, 173-174.
Guggenheim testified that he had recommended termination because they stopped the laborers from working. Cardone, the Company president, testified that he decided to fire Stark because of longstanding objections to his work performance and insubordination. Cardone did not claim such serious problems with Brookman.
On the evidence, the Administrative Law Judge, ALJ, found, and the Board agreed, that the Company violated Sec. 8(a)(1) and (3) by discharging Stark and Brookman for protesting the assignment of unit work to nonunit employees. The Board also found that the Company violated Sec. 8(a)(1) by threatening to discharge the employees for protesting assignment of unit work to nonunit employees and for seeking to implement the terms of the collective bargaining agreement. As the Board found to have occurred in this case, the employer violates the Act when it discharges an employee on the basis of his union or other protected activities.
In determining the Company's reasons for a discharge, the Board may draw reasonable inferences from the credited evidence and may rely on circumstantial as well as direct evidence. NLRB v. Montgomery Ward & Co., Inc., 10 Cir., 554 F.2d 996, 1002. Factual findings by the Board are entitled to affirmance if supported by substantial evidence on the record as a whole. 29 U.S.C. Sec. 160(e); see Universal Camera Corp. v. NLRB, 340 U.S. 474, 488-490, 71 S.Ct. 456, 464-465, 95 L.Ed. 456. The scope of review under the "substantial evidence" standard is a limited one which does not involve a reweighing of the evidence or redetermination of the proper factual inferences to be drawn. NLRB v. Wilhow Corp., 10 Cir., 666 F.2d 1294, 1299; NLRB v. Montgomery Ward & Co., Inc., 10 Cir., 554 F.2d 996, 999.
The Company argues that the ALJ abused his discretion in making Findings of Fact and Conclusions of Law. Therefore, it says that the NLRB could not have followed appropriate standards of review in deciding to accept the ALJ's findings. Although the Company is right that the NLRB is free to draw its own conclusions and is not bound by the findings and conclusions of the ALJ, there is nothing in the record to suggest that the Board failed properly to exercise its discretion.
The Company says that Stark and Brookman's conduct on September 25 was not protected and that the Board failed to consider the conduct and the right of the employer to maintain discipline. It argues that the conduct was not protected because the discharged employees failed to follow accepted procedures for resolving disputes, did not have the right to stop another union from working, and they were insubordinate and had a history of work problems.
The ALJ held that the classification of the work was irrelevant. The Company argues that if the work was properly assigned, Stark and Brookman were not protected in challenging it. The Company argues that the doors were trash and laborers' work. If they were going to storage and were to be reused, the work was that of the carpenters. The Company says that the classification of the work was ambiguous and that the Company's interpretation was not unreasonable. The protection of the Act is not dependent on the merits of the underlying complaint. As the ALJ noted, employees are engaged in protected activity when they protest their employer's failure to assign work as required by the collective bargaining contract with the Union. The Board need not find the complaints to be meritorious in order to hold the activity protected. The fact that the complaints were reasonable supports the conclusion that they were...
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