Kentucky General, Inc. v. N.L.R.B.

• Decision Date: 18 February 1999
• Docket Number: 97-6537,Nos. 97-6467,s. 97-6467
• Citation: 177 F.3d 430
• Parties: 161 L.R.R.M. (BNA) 2435 KENTUCKY GENERAL, INC., d/b/a Norman King Electric, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 430

177 F.3d 430

161 L.R.R.M. (BNA) 2435

KENTUCKY GENERAL, INC., d/b/a Norman King Electric Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.

Nos. 97-6467, 97-6537.

United States Court of Appeals Sixth Circuit.

Argued Dec. 11, 1998.

Decided and Filed Feb. 18, 1999. ^*

Preston Pugh (argued), Peter Winkler, Aileen A. Armstrong (briefed), NATIONAL LABOR RELATIONS BOARD, APPELLATE COURT BRANCH, Washington, D.C., for Respondent.

James U. Smith, III (argued and briefed), Andrew J. Russell (briefed), SMITH & SMITH, Louisville, Kentucky, for Petitioner.

Before: SUHRHEINRICH and CLAY, Circuit Judges; CARR, District Judge. ^**

CLAY, Circuit Judge.

Kentucky General, Inc., doing business as Norman King Electric ("Electric"), petitions for review of a National Labor Relations Board ("Board") order finding Electric guilty of unfair labor practices in violation of §§ 8(a)(1) and (3) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 158(a)(1), (3) (1994). The Board cross-petitions for enforcement of the same order. On appeal, Electric contests the Board's findings that Electric unlawfully discriminated against two employees and six job applicants because of their union affiliations, and challenges the relief provided to the alleged discriminatees by the Board's order. For the reasons stated herein, we DENY Electric's petition and ENFORCE the Board's order.

I.

Following an investigation of unfair labor practice charges filed by union members, the International Brotherhood of Electrical Workers, Local Union 1701, AFL-CIO ("Local 1701") filed a consolidated complaint against Electric on September 26, 1995. The complaint alleged, among other things, that Electric violated §§ 8(a)(1) and (3) of the NLRA by interrogating employees and job applicants about their union activities; prohibiting employees from talking with other individuals who were members of Local 1701; advising employees that other employees had been laid off because they filed charges under the Act against the company; failing to hire or consider to hire six union applicants for employment; and terminating two employees because of their union activities.

The Administrative Law Judge ("ALJ") hearing this dispute issued a decision and order on April 7, 1997, sustaining most of Local 1701's allegations of unfair labor practices against Electric. Significantly, the ALJ determined that Electric unlawfully discriminated against six job applicants because of their union affiliation, and unlawfully discriminated against two employees because of their participation in picketing activity. Electric filed timely objections to the ALJ's decision, but on November 7, 1997, the Board overruled Electric's objections and adopted the ALJ's order with minor modifications. The Board ordered Electric to cease and desist its unfair labor practices, and ordered Electric to offer reinstatement and back pay to the two employees improperly discharged and to the six job applicants wrongly denied consideration for employment. Electric filed this timely appeal.

The essential facts, as found by the ALJ and adopted by the Board, are not in dispute. Electric is a Kentucky corporation that installs electrical service in residential, commercial, and industrial establishments. Electric secured an electrical maintenance contract with its client, Vandenburg Foods (also known as "Ragu Foods") in June 1994, to perform electrical installation work at its Ragu plant (the "Ragu project"). Electric then had a workforce of only nine journeymen electricians and three helpers. Electric needed an additional twenty workers, consisting of both electricians and helpers, to staff the Ragu project.

In response to the need for additional employees, Norman King ("King"), the president and owner of Electric, visited the home of Robert McBride, an electrician with thirty years experience, in early June 1994. McBride was employed with Electric from 1989 to 1993, and participated in an unsuccessful union effort to organize Electric's workforce in 1993. ¹ Presumably because McBride had previously demonstrated pro-union sentiments, King asked McBride what he would do if the union again tried to organize the company, to which McBride responded that he would not "drag [Electric] into it." King replied that "that was not the answer he was looking for," but nonetheless offered McBride a job on the Ragu project, beginning June 22, 1994.

King employed Thaddeus McCormic for the Ragu project at the end of July and asked that he report to work on August 8, 1994. McCormic was not a member of Local 1701 and had never been a member of a labor organization. King asked McCormic if he knew of electricians seeking employment. McCormic responded that he knew only electricians that held union memberships. Thereafter, King explained to McCormic that he had been a member of Local 1701, but resigned because the union could not do anything for him. King stated that the union had tried to organize the company but he would avoid signing a contract by attending negotiations four times a year and making impossible demands that the union could not meet. He warned McCormic that union members might approach him because there were union contractors at the Ragu job site. While driving to the Ragu site on August 8, 1994, King told McCormic that he did not care if McCormic became a union member, but cautioned him not to drag Electric into a union campaign.

In an attempt to attract yet more employees, Electric placed an employment advertisement in a local newspaper in early August, 1994, which ran approximately one month. In response to the advertisement, electricians Roger Daniel and Rodney Albin, members of Local 1701, applied for employment at Electric on August 10, 1994. Both men were told by Electric's secretary that the company was still accepting employment applications. Daniel and Albin completed the application and met with King briefly. It was evident that Albin and Daniel were members of the union since Albin was wearing a t-shirt with the union's logo and Albin's and Daniel's application listed that they were previously employed with companies known to King as union companies. King briefly discussed their employment history and questioned Daniel about his relationship with Harold Baggett, a business agent for Local 1701. King responded that he himself "never could get along with Baggett." King then asked Daniel and Albin several more questions pertaining to the union's organizing efforts with other contractors and specifically asked them whether they were planning to cause any trouble for Electric. Daniel and Albin responded no, and submitted their application to King.

Electricians Timothy Blandford, Jerry Frey, and Alan Rafferty applied for employment at Electric the next day. The secretary informed them that the company was still accepting applications, and King met with these applicants briefly. He asked them where they had been employed, and they responded with the name of contractors that were known by King as union employers.

Jerry Rogers, a union member who is now deceased, applied for an electrician position with Electric on August 15, 1994, and likewise listed recognized union companies as his prior employers. It was apparent from Rogers' application that he had served as a business manager for Local Union 238.

Although Electric received applications from union members Daniel, Albin, Blandford, Frey, Rafferty, and Rogers (the "six applicants"), Electric did not interview or hire any of these men. Instead, Electric hired Tim Cureton on August 16, Gil Therber on August 17, and Jeff McManaway on September 3, 1994. ² Between August 14 and September 5, 1994, Electric regularly sought electricians from other projects to work overtime on the Ragu project. King also recruited electricians from the graduating classes at local schools and training institutes. As a result of his search, King recruited Monty Hardman on September 16, 1994. King hired Jeff Jones on October 24, 1994, and Alan Hoffnagle on October 31, 1994. The new hires were not members of Local 1701 or any labor organization.

Despite their statements to King indicating that they would not join a union, McBride and McCormic joined Local 1701 in early August 1994, and engaged in a campaign to organize Electric's workforce. McBride and McCormic participated in a strike and picketing activity against Electric which extended from August 30 to September 6, 1994. Therber joined in the picketing activity. When the strike ended on September 6, 1994, King told them that their positions had been filled, but called them to return to work two days later. King had expressed to McBride his disbelief that McBride was attempting to organize Electric's workforce. Specifically, King stated that he could not believe that "he was doing that to him again."

Supervisor Manuel Bennett informed Electric that he was overstaffed with electricians on September 14, 1994, and requested that King reduce his staff by three electricians by reassigning the workers to different departments. King reviewed the staffing on the Ragu project, and reassigned Michael Cooper, who performed both electrician and service work, to the shop department. However, King laid off McBride and McCormic.

On September 16, 1994, six days after the picketers returned to work, King told McBride that work was "getting slow" and that he had to lay him off. That same day, however, King hired electrician Monty Hardman and informed him that some workers had been causing union problems for the company. King told Hardman that he hoped he was not with them. He stated that Electric would not become a union shop. King testified before the ALJ, however, that he decided to lay off McBride, instead of reassigning him to another department, because he performed poorly on the wiring of a control panel, and because Ragu Foods had complained to Electric that it was the poorest...