Kamtech, Inc. v. N.L.R.B.

• Decision Date: 04 September 2002
• Docket Number: No. 01-1391.,No. 01-1558.,01-1391.,01-1558.
• Citation: 314 F.3d 800
• Parties: KAMTECH, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmith, Forgers and Helpers, AFL-CIO, Intervenor.
• Court: U.S. Court of Appeals — Sixth Circuit

314 F.3d 800

KAMTECH, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmith, Forgers and Helpers, AFL-CIO, Intervenor.

No. 01-1391.

No. 01-1558.

United States Court of Appeals, Sixth Circuit.

Submitted: August 7, 2002.

Decided and Filed: September 4, 2002^*.

COPYRIGHT MATERIAL OMITTED

J. Roy Weathersby, Eric K. Smith (briefed), Littler Mendelson, Atlanta, GA, for Petitioner Cross-Respondent.

Ailen A. Armstrong, Dep.Asso.Gen.Counsel, National Labor Relations Board, Appellate Court Branch, Washington, DC, Meredith L. Jason (briefed), Julie Marcus, National Labor Relations Board, Washington, DC, for Respondent Cross-Petitioner.

Michael J. Stapp (briefed), Michael T. Manley, Blake & Uhlig, Kansas City, KS, for Intervenor.

Before: KEITH and DAUGHTREY, Circuit Judges; CARR, District Judge.^**

OPINION

DAUGHTREY, Circuit Judge.

The petitioner in this dispute, Kamtech, Inc., seeks review of an order of the National Labor Relations Board directing Kamtech to refrain from numerous acts found to have been committed in violation of the provisions of the National Labor Relations Act, 29 U.S.C. §§ 141-187, to reinstate one employee terminated from the company, and to offer a welding test to another former employee. The Board has filed a cross-application seeking enforcement of its order. For the reasons set out below, we order enforcement of the Board's order.

FACTUAL AND PROCEDURAL BACKGROUND

From August 1995 through April 1997, Kamtech, a New York residential, industrial, and commercial construction company, was engaged in projects in Owensboro and Hawesville, Kentucky. By May 1996, the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmith, Forgers and Helpers, AFL-CIO, had decided that it would attempt to organize the Kamtech jobs and thus dispatched union workers to the Kamtech sites to begin the process from within the plants.

Sometime in late May 1996, two union welders, James "Mitch" Dotson and Robert Young, visited the Owensboro site and informed the piping superintendent that they wished to apply for welding jobs. Although the men were told at that time that no such positions were then open, Dotson received a call in early June to return to the work site because Kamtech was again hiring welders. Both Dotson and Young responded to the request and were ultimately given welding tests by one of Kamtech's quality control agents, Wilmer Sellers. Dotson completed his test weld in approximately 15-20 minutes, inspected his work with a flashlight and telescopic mirror, and proclaimed his weld "perfect." Young also inspected Dotson's work and, based upon Young's approximately 20 years of experience as a welder, stated that he saw nothing wrong with the test weld done by his co-applicant.

When Sellers was summoned to inspect the "test," the Kamtech agent first looked at the welding job for almost a minute. He then inquired whether Dotson had been welding boiler tubes and, after receiving an affirmative response, asked bluntly, "Are y'all union?" When Dotson replied that he was indeed a union member, Sellers re-examined the test weld, pointed out a number of flaws that he, but not Dotson, saw, and informed the applicant that he had failed the test.

Similarly, after Young completed his test weld, both he and Dotson perused the work and found no defect in it. Again, however, Sellers stated that the veteran welder had failed the test, this time after examining the applicant's work for only a few seconds. Young, who testified to the numerous welding certifications he had received over his nearly-quarter century in the profession, expressed his surprise at the results, especially given the fact that he recalled failing only one other welding test of the more than 100 he had taken over the years.

After Dotson's and Young's experiences with Kamtech, the union stepped up its organizing activities and, at a meeting on June 18, 1996, formed a committee of 14 Kamtech employees, including Michael Cornell and Mark Rountree, who agreed to distribute union cards and solicit for the labor organization. At work on June 18, prior to the meeting, Rountree discussed the plans for that evening's gathering with a number of fellow employees. Coincidentally, on that same day, Rountree was selected for one of the company's random drug tests, a procedure that usually took approximately 20 minutes. According to Rountree, however, on June 18, his test took "well over two hours" because he was first asked to accompany the safety officer as he rounded up the other individuals to be tested and then because, upon arriving at the testing trailer, he found that the nurse had gone into town with another employee who had suffered an eye injury on the job.

When Rountree finally returned to his post after giving a urine sample, he was approached by his foreman, Bob Browning, who proceeded to write up a disciplinary notice for "a loss of production, and being away from [the] work area entirely too long." When Rountree protested and attempted to explain the extenuating circumstances that led to the delay in returning to work, Browning proclaimed that "the walls have ears" and that Rountree "better watch [his] step and what [he] get[s] involved in."

The following day, June 19, 1996, union organizer Eugene Forkin delivered a letter containing the names of the 14 volunteer union organizers at the Owensboro projects to Kamtech's piping superintendent, John Webster. Immediately after delivery of the letter, numerous Kamtech employees began displaying union stickers and other paraphernalia on their hats and other clothing. Rountree, one of the organizers, also brought union literature with him to work that day and placed it on his lunch box in the employee break room. While working on a pipe rack in that area, Rountree saw Browning, who had been "hound dogging" him the entire day, kick the union information off the lunch box.

During Rountree's first break on June 19, he distributed some of the union materials to other employees. Eventually, however, Browning joined the group, confiscated the authorization cards, and announced that "it's time to go back to work... — you know you only get five-minute breaks." Rountree began to explain that the employees always received ten-minute breaks and that the rest period had just begun prior to Browning's entrance. At that point, the foreman explained that the company had obviously been too kind to the workers and then stated to Rountree, "I've just got the job for your instigating ass."

Browning led Rountree to an area of the plant where he directed the employee to perform a welding job approximately 14 feet in the air in the vicinity of a concrete, square column, with a drop of 16 to 22 feet on the other side of an adjacent two-foot-high wall. Rountree, after assessing the job, explained that he would need either a lift or scaffolding to complete the welding safely. Browning insisted, however, that the job be done immediately without any such equipment that might delay the project's completion, and suggested that the welder make use of an extension ladder that was nearby. Rountree again balked at the suggestion, noting that the logistics of the job would require welding with heavy equipment in just one hand, and requested a consultation with David Frew, the company's safety officer.

Although Frew initially agreed with Rountree that the proposed plan of action did not appear to be safe, he later changed his mind after conversing with Browning and John Webster, who had also been summoned to the site. While Browning, Webster, and Frew were talking, Rountree noticed in Webster's hands the letter the superintendent had received earlier in the day with the list of union organizers. Rountree also overheard Webster comment "I want to get rid of him."

Browning then again insisted that Rountree complete the task using only an extension ladder and not a scaffold or a lift. When Rountree continued to question the safety of the proposed assignment, Browning asked directly whether the employee intended to undertake the job. Rountree responded that such a scenario was "not likely," and Browning immediately fired Rountree for insubordination and failure to complete an assigned task. As the two men were walking to the warehouse to complete the severance forms, Browning commented to Rountree, "I warned you about this; it didn't have to be this way and you should have just stayed out of this shit."

Despite Browning's insistence upon immediate completion of the welding job, the assigned task was not performed for a couple of days after Rountree's termination. Moreover, when the job was finally attempted, the welder tackling it was allowed to use scaffolding to assist in the performance of the procedure.

After the passage of 30 days from his termination, Rountree tried to obtain another job with Kamtech at its project site in Hawesville, Kentucky, but the hiring officials at that location never responded to his inquiries. Ricky Cox, himself a Kamtech employee who had been fired for unsatisfactory work, testified before the administrative law judge that Okie Lacey, Kamtech's foreman at Hawesville, had stated to him that he couldn't hire Rountree at the Hawesville work site, despite the need for experienced welders, because Rountree had "started some union problems out at [Owensboro], trying to organize the union."

Moreover, Rountree was not the only Kamtech employee who testified to instances of anti-union animus at the Owensboro and Hawesville sites. Tony Wayne Holcomb, a pipefitter, stated that after he began wearing pro-union stickers to work, he was subjected to harassment from his foreman, Jimbo Haberzettle. According to Holcomb, Haberzettle referred to him as a "union punk," placed a sign in the break room stating that "union punks eat here," and laughed with other people about one of Holcomb's paychecks, derisively...