E & L Transport Co. v. N.L.R.B., Nos. 94-3490

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore BAUER, MANION, and KANNE; KANNE
Citation85 F.3d 1258
Parties152 L.R.R.M. (BNA) 2449, 64 USLW 2786, 132 Lab.Cas. P 11,598 E & L TRANSPORT COMPANY, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, and Local Union 710, Highway Drivers, Dockmen, Spotters, Rampmen, Meat Packing House and Allied Products Drivers and Helpers, Office Workers and Miscellaneous Employees, Intervenor-Respondent.
Decision Date05 June 1996
Docket Number94-3685,Nos. 94-3490

Page 1258

85 F.3d 1258
152 L.R.R.M. (BNA) 2449, 64 USLW 2786,
132 Lab.Cas. P 11,598
E & L TRANSPORT COMPANY, Petitioner/Cross-Respondent,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner,
and
Local Union 710, Highway Drivers, Dockmen, Spotters,
Rampmen, Meat Packing House and Allied Products
Drivers and Helpers, Office Workers and
Miscellaneous Employees,
Intervenor-Respondent.
Nos. 94-3490, 94-3685.
United States Court of Appeals,
Seventh Circuit.
Argued Oct. 26, 1995.
Decided June 5, 1996.

Page 1261

R. Ian Hunter (argued), Patricia M. Morrow, Troy, MI, for E & L Transport Co.

Julie B. Broido (argued), N.L.R.B., Washington, DC, Scott A. Gore, Elizabeth Kinney, N.L.R.B., Chicago, IL, Aileen A. Armstrong, Linda J. Dreeben, N.L.R.B., Appellate Court, Enforcement Litigation, Washington, DC, for N.L.R.B.

Marvin Gittler, Susan Brannigan, Asher, Gittler, Greenfield, Cohen & D'Alba, Chicago, IL, for intervenor-respondent.

Before BAUER, MANION, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

The National Labor Relations Board found that E & L Transport Company violated the National Labor Relations Act by threatening not to hire the union-affiliated ex-employees of a former competitor and by discriminating against those applicants by either refusing to consider or refusing to hire them for various positions. E & L challenges the Board's order and requests that we deny enforcement; the general counsel asks us to grant enforcement. We deny enforcement in part and grant enforcement in part and remand the remainder of the case to the Board for further proceedings.

I

Petitioner E & L Transport Company is a motor carrier engaged in the interstate transportation of newly manufactured automobiles. It operates several terminals, including one in Chicago. In February 1990, E & L was awarded the contract to be the sole carrier in Chicago for the Ford Motor Company. Previously, E & L had been the secondary carrier for Ford; Nu-Car Carriers had been the primary carrier. As a result of the 1990 contract, Nu-Car phased out and eventually closed its Chicago operations, and

Page 1262

E & L assumed all of Ford's Chicago business by the middle of April 1990.

Local 710 of the Highway Drivers, Dockmen, Spotters, Rampmen, Meat Packing House and Allied Products Drivers and Helpers, Office Workers and Miscellaneous Employees Union ("union") represents E & L and Nu-Car employees. Pursuant to the National Master Automobile Transport Agreement--the collective bargaining agreement between the union, E & L, and Nu-Car--when Nu-Car closed its doors E & L was obligated to offer employment to the former Nu-Car drivers. The agreement did not obligate E & L to employ the former Nu-Car garage workers or the former Nu-Car office employees.

On March 29, 1990, Eugene Wade, the union representative, and Bob Brown, the union steward at Nu-Car and soon-to-be E & L driver, 1 met with Al Schaeffer, E & L's terminal manager, to discuss E & L's potential employment of the former Nu-Car union employees. Schaeffer told them that E & L would hire the garage workers. Schaeffer explained that E & L did not currently need the office clericals because the office was fully automated. Schaeffer mentioned that E & L would consider hiring the office employees at some later point but that "we will not hire the Union office people." On two other occasions, Schaeffer stated that E & L's Chicago office "would be a non-union office. There would not be any union employees." On one occasion, Lisa Buschman, E & L's sole check-in dispatch supervisor at the time, overheard Schaeffer making the statement to another member of management. On the other occasion, Schaeffer made the statement directly to James Houseman, E & L's operations supervisor, at the same time Schaeffer instructed Houseman to determine which of the former Nu-Car office employees were nonunion and to discretely obtain their resumes.

By the end of March 1990, six of the former Nu-Car office employees had submitted their resumes to E & L for consideration relative to available office positions. They included two nonunion employees, Nancy Norton, Nu-Car's office manager, and Pat Garcia, the personal secretary to Nu-Car's terminal manager, and four union members who were Nu-Car's general office employees, Rebecca Pyka, Kathy Williams, Kathy Parker, and Dawn Sczcepaniak. All six ceased working for Nu-Car by March 30, 1990.

In late March 1990, E & L interviewed the two nonunion Nu-Car office employees, Norton and Garcia, for the position of confidential secretary. E & L did not interview Pyka, Williams, Parker, or Sczcepaniak, all of whose resumes were on file. Both Garcia and Norton were asked during their interviews why they were not members of the union. E & L hired Norton for the job on March 31, 1990, but she was terminated on April 5, 1990, for unsatisfactory job performance. Her termination coincided with the removal of Al Schaeffer as E & L's terminal manager and the hiring of his replacement, Ron O'Reilly. Instead of interviewing to permanently fill the then-vacant confidential secretary position, on April 6, E & L sought a temporary replacement through Kelly Temporary Services. The temporary secretary, Judy Nilsen, was offered the job of confidential secretary on a permanent basis on April 19, 1990.

In addition to requesting one temporary secretary, the April 6 order to Kelly Temporary Services also requested one temporary data-entry clerk. E & L made seven subsequent orders to Kelly Temporary Services for secretaries, data-entry clerks, and typists. Several of those orders involved replacing individuals E & L had found unsatisfactory. The total number of temporary secretaries, data entry clerks, and typists utilized by E & L at any one time ranged from two to four. 2 E & L ceased utilizing Kelly temporaries in September 1990.

Page 1263

In May 1990, E & L placed an advertisement in a local newspaper seeking "dispatch supervisors." Shortly thereafter, O'Reilly spoke with Wade and Brown, and Wade again asked if E & L would hire the former office employees. O'Reilly responded that the former office workers would be considered if they put in resumes but that if E & L hired them "they will not be Union." O'Reilly had made an identical statement to Wade and Brown during another discussion in late April 1990.

In June 1990, E & L interviewed applicants for the two check-in dispatch supervisor positions. The interviewees included Williams and Sczcepaniak, both former Nu-Car office employees and union members. Parker and Pyka applied, but E & L did not interview them. In July 1990, E & L offered the positions to Williams and Vern Joyner, who had responded to the newspaper advertisement.

On April 27, 1990, the union filed an unfair labor practices charge against E & L with the Regional Director of Region 13 of the NLRB, alleging that E & L had violated sections 8(a)(1), (3), and (5) of the National Labor Relations Act ("Act"), 29 U.S.C. §§ 158(a)(1), (3), (5), by refusing to consider the four former Nu-Car office employees for various positions because of their union membership and activities. The Regional Director issued a complaint on June 29, 1990, charging E & L with unfair labor practices in violation of §§ 158(a)(1) and (3). Specifically, the complaint alleged that (1) Schaeffer's statement that E & L would not hire the union members constituted a threat, (2) O'Reilly's statement that if E & L hired the union members they would be nonunion constituted a threat, (3) E & L discriminated against the four union members on the basis of their union membership or activities when it failed to consider them for the confidential secretary position, and (4) E & L discriminated against the four union members when it failed to consider them for one temporary clerical position. The Regional Director issued an amended complaint on December 7, 1990, alleging, in addition to the claims in the original complaint, that E & L discriminated against the union members when it refused to consider two and refused to hire one for one check-in dispatch supervisor position. On April 2, 1991, the Regional Director submitted her notice of intent to amend the amended complaint to include the allegation that E & L refused to consider the four union members for more than one temporary clerical position.

The administrative law judge held a hearing on the alleged unfair labor practices on April 8-10 and June 11-12, 1991. The ALJ issued his decision and order on December 16, 1992. He found that Schaeffer's statement to Brown that E & L would not hire the union former office workers constituted a threat in violation of § 158(a)(1). The ALJ also found that O'Reilly's statement to Brown that if E & L hired the former union office workers they would be nonunion was a threat in violation of § 158(a)(1). He further found that the check-in dispatch supervisor position did not qualify as a supervisory position within the meaning of 29 U.S.C. § 152(11) and that E & L had discriminated against three of the union members because of their union activities when E & L did not consider two and did not hire one for that position.

The ALJ determined that a company may not discriminate against nonemployee applicants for a confidential position on the basis of their prior union status or activities, and he found that E & L had done just that by not interviewing the four union members for the confidential secretary position.

Finally, the ALJ found that E & L had discriminated against the four union members by not considering them for the temporary clerical positions. The ALJ ordered E & L to offer positions to the three union members who were not hired and to make all four whole for any lost earnings that resulted from the discrimination. E & L filed exceptions to the ALJ's decision and order.

A panel of the NLRB ("Board") issued its decision and order on October 18, 1994. E & L Transport Co., 315 N.L.R.B. 303, 1994 WL...

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  • Nat'l Labor Relations Bd. v. NSTAR Elec. Co., Nos. 14–1622
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • August 17, 2015
    ...a listed supervisory function. See, e.g., McClatchy Newspapers, Inc., 307 NLRB 773, 773 (1992) ; see also E & L Transp. Co. v. NLRB, 85 F.3d 1258, 1270 (7th Cir.1996) (“Although not determinative on their own, where one of the enumerated indicia in § 152(11) is present, secondary indicia su......
  • Slusher v. N.L.R.B., No. 04-3793.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 23, 2005
    ...act is, of course, a question of fact. E.g., SCA Tissue N.A. LLC v. NLRB, 371 F.3d 983, 988 (7th Cir.2004); E & L Transp. Co. v. NLRB, 85 F.3d 1258, 1268 (7th Cir.1996); Central Transp., Inc. v. NLRB, 997 F.2d 1180, 1191 (7th Cir.1993). Like other aspects of a person's state of mind, one's ......
  • Architectural Glass & Metal Co., Inc. v. N.L.R.B., Nos. 95-5421
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 30, 1997
    ...as to what qualifies as a defense against an unfair labor practice charge is a question of law, see E & L Transport Co. v. NLRB, 85 F.3d 1258, 1265 (7th Cir.1996), subject to de novo review, see Fluor Daniel, 102 F.3d at 826. We conclude that the Board's decision in this respect was based o......
  • N.L.R.B. v. Dole Fresh Vegetables, Inc., No. 01-1978.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 28, 2003
    ...that the Third Circuit relies on the statutory text and not secondary indicia in determining statutory status); E & L Transp. Co. v. NLRB, 85 F.3d 1258, 1270 (7th Cir.1996) ("Although not determinative on their own, where one of the enumerated indicia in § 152(11) is present, secondary indi......
  • Request a trial to view additional results
15 cases
  • Nat'l Labor Relations Bd. v. NSTAR Elec. Co., Nos. 14–1622
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • August 17, 2015
    ...a listed supervisory function. See, e.g., McClatchy Newspapers, Inc., 307 NLRB 773, 773 (1992) ; see also E & L Transp. Co. v. NLRB, 85 F.3d 1258, 1270 (7th Cir.1996) (“Although not determinative on their own, where one of the enumerated indicia in § 152(11) is present, secondary indicia su......
  • Slusher v. N.L.R.B., No. 04-3793.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 23, 2005
    ...act is, of course, a question of fact. E.g., SCA Tissue N.A. LLC v. NLRB, 371 F.3d 983, 988 (7th Cir.2004); E & L Transp. Co. v. NLRB, 85 F.3d 1258, 1268 (7th Cir.1996); Central Transp., Inc. v. NLRB, 997 F.2d 1180, 1191 (7th Cir.1993). Like other aspects of a person's state of mind, one's ......
  • Architectural Glass & Metal Co., Inc. v. N.L.R.B., Nos. 95-5421
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 30, 1997
    ...as to what qualifies as a defense against an unfair labor practice charge is a question of law, see E & L Transport Co. v. NLRB, 85 F.3d 1258, 1265 (7th Cir.1996), subject to de novo review, see Fluor Daniel, 102 F.3d at 826. We conclude that the Board's decision in this respect was based o......
  • N.L.R.B. v. Dole Fresh Vegetables, Inc., No. 01-1978.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 28, 2003
    ...that the Third Circuit relies on the statutory text and not secondary indicia in determining statutory status); E & L Transp. Co. v. NLRB, 85 F.3d 1258, 1270 (7th Cir.1996) ("Although not determinative on their own, where one of the enumerated indicia in § 152(11) is present, secondary indi......
  • Request a trial to view additional results

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