Jhp & Associates, LLC v. N.L.R.B.
| Decision Date | 16 March 2004 |
| Docket Number | No. 03-2303.,03-2303. |
| Citation | 360 F.3d 904 |
| Parties | JHP & Associates, LLC, doing business as Metta Electric, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Local 1, International Brotherhood of Electrical Workers, AFL-CIO, Intervenor on Appeal. JHP & Associates, LLC, doing business as Metta Electric, Respondent, v. National Labor Relations Board, Petitioner. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Lawrence P. Kaplan, argued, St. Louis, MO (Joshua M. Avigad, St. Louis, MO, on the brief), for appellant.
Jeffrey L. Horowitz, argued, of the NLRB of Washington, D.C. (Charles Donnelly of the NLRB, Washington, D.C. appeared on the brief), for appellee.
James I. Singer, argued, St. Louis, MO, intervenor, International Brotherhood of Electrical Workers, Local No. 1, AFL-CIO.
Before RILEY, RICHARD S. ARNOLD, and MELLOY, Circuit Judges.
JHP & Associates, LLC, doing business as Metta Electric (Metta), petitions this court to review and set aside portions of a decision and order of the National Labor Relations Board (Board). The Board's General Counsel (General Counsel) has cross-applied for enforcement of the Board's order. We grant, in part, the General Counsel's application for enforcement of the Board's order.
Metta, a small electrical contractor in Missouri routinely employing nine to twelve people, is owned by Steve and Kim Tunze, husband and wife. In early September 1999, a Metta employee began talking with fellow employees about unionizing the company. The Tunzes did not want their employees to unionize.
On September 14, 1999, Mr. Tunze met with Michael P. Thomson (Thomson) as part of a scheduled employee evaluation. Thomson was the second employee Metta hired, Metta's most senior employee at the time, and Metta's highest-paid employee. Mr. Tunze met with Thomson to discuss money issues, review Thomson's performance, explain newly established job descriptions, and discuss their relationship, which Mr. Tunze characterized as the most important reason for the meeting. Mr. Tunze told Thomson his productivity appeared to be slipping, his current assignment seemed to be taking too long, and his salary would be reduced to conform to his new job description. At the end of the meeting, Mr. Tunze said he still had confidence in Thomson's ability, Thomson was "very much a part" of Metta's plans, and Thomson was a valued employee Metta wanted to retain.
On September 15, Metta employee Matt Stewart (Stewart) told the Tunzes five of their nine employees, including Thomson, were union supporters. Stewart testified that, in response, Mrs. Tunze made a list of the nine employees, and Stewart told Mrs. Tunze the list included five union supporters and four non-union supporters.
On September 16, Mr. Tunze discharged Thomson, informing him "it just wasn't working out." Mr. Tunze then informed the remaining employees he discharged Thomson for poor productivity. When contesting Thomson's claim for unemployment benefits, Metta stated it discharged Thomson because of his "unsatisfactory job performance and poor productivity," and because Thomson was "displeased about change and caused discord among other employees." When responding to the General Counsel during its investigation, Mrs. Tunze characterized Thomson as a "very disgruntled employee" who was "going to affect the productivity and moral[e] of all the other employees because of his display of negative actions."
Between November 1999 and January 2000, Metta conducted an anti-union campaign. On December 9, 1999, Mr. Tunze told his employees Metta would "do anything legally and by any other means to remain an open shop." On January 10, 2000, Local 1 of the International Brotherhood of Electrical Workers (Union) filed unfair labor practice charges against Metta for firing Thomson and unilaterally increasing pay for certain employees. On February 18, the Union won a representation vote; on February 28, the Union was certified as the bargaining representative of Metta's employees. On March 9, Metta unilaterally changed certain terms and conditions of employment without bargaining with the Union. On March 10, the Union objected and requested that Metta bargain. Five days later, the Union went on strike based on Metta's failure to bargain and the unilateral changes. Metta hired replacement employees, and the Union found replacement work for its striking members. On April 5, the Union asked Metta for the names, home addresses, and home telephone numbers of Metta's replacement employees. Metta refused to provide the requested information.
Based on the Union's unfair labor practice charges, the General Counsel issued a complaint against Metta for violating (1) section 8(a)(1) of the National Labor Relations Act (NLRA) by interrogating and threatening employees, (2) sections 8(a)(1) and 8(a)(3) by discharging Thomson, (3) section 8(a)(5) by making unilateral changes to the terms of employment, and (4) section 8(a)(5) by failing to provide the Union with the requested information. Metta asserted no unfair labor practice charges against the Union. Attempting to bypass a hearing by submitting the case to the Board on record evidence only, the parties offered a joint stipulation of facts, which contained the following stipulations: The Board rejected the stipulation for purposes of deciding the case without a hearing, "because it contains ambiguities that may prevent resolution of the dispute." Specifically, the Board recognized paragraph 14 stated Metta was motivated, in part, to discharge Thomson because Metta believed Thomson had engaged in union activities, but noted the stipulation was "silent as to whether Thomson would have been discharged even in the absence of [Metta]'s belief that he engaged in union activities."
An administrative law judge (ALJ) held a hearing on the charges, and found Metta had violated the NLRA as the General Counsel alleged. In reaching his decision, the ALJ relied, in part, on the unambiguous portions of the stipulation of facts, as well as live testimony.1 The General Counsel did not call Thomson to testify at the hearing, even though he was available. Affirming the ALJ's rulings, findings and conclusions, the Board adopted the ALJ's recommended order. Metta petitions this court for review of the Board's order, asking us to set aside the findings that Metta violated (1) sections 8(a)(1) and 8(a)(3) by discharging Thomson, and (2) section 8(a)(5) by not providing the Union with the names, home addresses, and home telephone numbers of the replacement employees. The General Counsel cross-applies for enforcement of the Board's order.
Section 7 of the NLRA provides employees certain rights: "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. § 157 (2000). Section 8(a) contains unfair labor practices applicable to employers: Id. § 158(a).
The Board's factual findings are conclusive if substantial evidence supports them. Id. § 160(e)-(f). Thus, we will enforce the Board's order "so long as the Board has correctly applied the law and substantial evidence in the record supports its findings." New World Communications v. NLRB, 232 F.3d 943, 945 (8th Cir.2000).
An employer violates sections 8(a)(1) and 8(a)(3) of the NLRA when the employer (1) discharges an employee for engaging in, or even for mistakenly believing an employee is engaging in, protected union activity or (2) discourages other employees from engaging in union activity. See JCR Hotel, Inc. v. NLRB, 342 F.3d 837, 840 (8th Cir.2003); Wilson Trophy Co. v. NLRB, 989 F.2d 1502, 1510 (8th Cir. 1993). Relying on NLRB v. MDI Commercial Services, 175 F.3d 621 (8th Cir. 1999), Metta argues the General Counsel's failure to have Thomson testify at the hearing is fatal to its claim that Metta's discharge of Thomson violated the NLRA. Metta contends the Board failed to follow the adverse inference rule discussed in MDI Commercial Services. According to Metta, the adverse inference rule required the Board to infer Thomson's testimony would have supported Metta's reasons for discharging Thomson, precluding a finding that Metta had violated the NLRA.
Metta hitches its entire adverse inference argument to MDI Commercial Services, but that decision cannot pull the load. Although it may appear from MDI Commercial Services that the adverse inference rule is mandatory in all cases where a potential material witness is within the General Counsel's control, that has never been our holding and is not today. In Rockingham Machine-Lunex Co. v. NLRB, 665 F.2d 303, 305 (8th Cir.1981), our court stated "[t]he adverse inference rule is an important one that should be applied by the Board whenever it is appropriate." We then announced "[t]he rule permits an adverse inference to be drawn; it does not create a conclusive presumption against the...
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