N.L.R.B. v. Pentre Elec., Inc., No. 92-5408

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtBOYCE F. MARTIN, Jr.
Citation998 F.2d 363
Parties143 L.R.R.M. (BNA) 2761, 62 USLW 2079, 125 Lab.Cas. P 10,752 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PENTRE ELECTRIC, INC., Respondent.
Docket NumberNo. 92-5408
Decision Date08 July 1993

Page 363

998 F.2d 363
143 L.R.R.M. (BNA) 2761, 62 USLW 2079,
125 Lab.Cas. P 10,752
NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
PENTRE ELECTRIC, INC., Respondent.
No. 92-5408.
United States Court of Appeals,
Sixth Circuit.
Submitted March 18, 1993.
Decided July 8, 1993.

Page 365

Aileen A. Armstrong, Deputy Associate Gen. Counsel, Collis Suzanne Stocking (briefed), Angela Washington, Office of the Gen. Counsel, Washington, DC, James L. Ferree, N.L.R.B., Cincinnati, OH, for petitioner.

Brett L. Thurman (briefed), Fred A. Ungerman, Jr., Coolidge, Wall, Womsley & Lombard, Dayton, OH, for respondent.

Before: MARTIN and SILER, Circuit Judges, and WELLFORD, Senior Circuit Judge.

BOYCE F. MARTIN, Jr., Circuit Judge.

The National Labor Relations Board petitions for enforcement of its order finding Pentre Electric, Inc. guilty of an unfair labor practice. The Board adopted the conclusion of the administrative law judge that Pentre had violated section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), by making statements to its employees about the effect that unionization would have on the company during the representation campaign. Pentre argues that its statements were permissible under section 8(c) of the Act, 29 U.S.C. § 158(c), which allows an employer to express certain views, arguments, or opinions about the prospect of unionization without being guilty of an unfair labor practice. We agree and decline to enforce the Board's order.

Pentre is an electrical contracting company whose primary business is electrical wiring in the commercial building and construction industry. The company, which has been in business since 1984, is co-owned by its president, Phil Luff, and its vice-president and business manager, Pat Meehan. At all times relevant to this action, Pentre had nineteen employees, and the company held regular meetings with its employees to discuss safety and other matters.

In November 1989, the International Brotherhood of Electrical Workers, Local 648, AFL-CIO, began a campaign to organize Pentre's employees. During the campaign before the representation election, Luff briefly expressed his opinion about the prospect of union representation at a safety meeting. In the week before the election, Meehan met individually with about ten of the company's employees to discuss the union. 1 The election was conducted on August 20, 1990. A majority of Pentre employees voted against union representation. The union filed timely objections to the election, alleging that Pentre had engaged in unlawful conduct which affected the outcome of the election. The National Labor Relations

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Board filed similar charges against Pentre for allegedly engaging in unfair labor practices, and the charges against Pentre were consolidated into one action.

An administrative law judge conducted a hearing on the charges on January 29, 1991. Meehan and Luff both testified, along with several current and former Pentre employees. Luff testified about the nature of the speech he made to Pentre's employees at the safety meeting on July 24. He presented his speech from notes he prepared from an outline he had received from a law firm specializing in labor law. Luff testified that he informed the employees that he "didn't care how they voted, but [he] hoped they voted for [Pentre]." He then made other comments which he described at the hearing:

I then went into why I felt--why I felt it was in their best interest to vote against the union, vote in favor of Pentre Electric. And I talked about the fact that I did not think we would have a customer base or we would certainly not have the same customer base if we were to go to union.

Luff also said, "... I did talk at length about our customer base and the fact that our customers don't use union contractors." He specifically mentioned three customers for whom Pentre was working at that time. In reference to those customers, he said, "I thought that if we went union, these people would not use us." Luff added, however, "I told them that Pentre would prosper, that I thought we would make it, that we'd been working for six years and we wanted to keep on that way." During cross-examination of Luff, the following dialogue took place between Luff and Eric Taylor, counsel for the National Labor Relations Board:

TAYLOR: Okay. It's true, isn't it, that you told the employees that if they went ahead and voted union that you'd lose your customer base and basically your company wouldn't have any work?

LUFF: I told them that I thought we would not have the same customer base if we went union. And I told them that I--I don't know how we would go about getting another customer base. I'm certain that Pat [Meehan] and I would probably succeed, we're too young to quit, but--

TAYLOR: Okay. But you also told them, as a result of losing the customer base, you wouldn't have any work for them?

LUFF: I don't think I put it in those words, no.

TAYLOR: Well, what words did you put it in, do you recall?

LUFF: I told them that we would not have the jobs we have now, if we had been union. And I told them that I thought it would be very difficult to get work if we were union. But I did not tell anybody that they were going to lose their job if we went union.

Luff also emphasized that many of Pentre's customers did not employ union contractors, and that there "were ... three jobs [Pentre] had going at the time [of the election campaign] and if we were union contractors we would not have had the three large jobs we were doing with those people."

Meehan testified extensively about the speeches he made to ten individual employees in the week before the election. He testified that at no point did he ask any of the employees if they had signed union cards or how they planned to vote in the election. Meehan then explained that he covered four essential points in each speech. According to Meehan, "The very first thing I started out with is, I tried to explain what the election was for, to make sure that no one misunderstood, again, that they weren't voting to get into the union and that simply by voting to be represented or simply by voting to the affirmative doesn't mean you're going to be a union electrician." Meehan's second point was "to reiterate ... was to explain how we were an open shop business." As part of this point, Meehan explained the nature of the electrical contracting industry, and "about how the work that we're doing, Pentre Electric is doing, is traditionally done by open shop companies.... So, what I was trying to establish with them is that we're not doing union work and we're not competing with union contractors." Meehan justified these statements by referring to specific jobs on which Pentre had been employed and explaining how Pentre had received the contract

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on those jobs. Meehan also discussed the nature of Pentre's customers by making the following statements:

... [W]hat I was doing was establishing that all of our customers--all ... large customers were almost strictly open shop companies, some, of course, did do work with unions. And I said, "That's fine," I said, "That simply means that they're free enterprise and so am I."

But, for the most part, it was open shop and some of our very good companies were very involved in the open shop industry, so to speak, like, associations and the like.

So, it would be difficult to maintain those particular customers if we were a union contractor and then if we were a union contractor, we'd have to establish new customers.

Meehan then testified that he told the employees, "I really don't want to go through that again, that's exactly where I was seven years ago, when we started Pentre Electric, was, you know, trying to knock on doors, get cold calls and establish the company and I'm not prepared to do that again." According to his testimony, Meehan then explained the nature of their current contracts with customers and the effect that the union could have on those contracts.

Meehan's third major topic involved laying a "map" establishing the consequences of either electing or not electing the union. Meehan then expressed his opinion about unionization to each of the employees. At the hearing, Meehan explained his closing remarks to the employees: "And my conclusion was ... that I wanted to stress that it was important that everybody vote." Moreover, Meehan testified that he made this statement without asking any employee how he intended to vote and without attempting to coerce the employee into voting a certain way.

Five employees testified that they did not feel that the speeches by Luff and Meehan were threatening, nor did they know of any other Pentre employees who felt threatened or coerced by the message in the speeches.

The administrative law judge found that Pentre, through Luff and Meehan, had violated section 8(a)(1) of the National Labor Relations Act. 2 To support his finding that Luff's speech constituted an unfair labor practice, the administrative law judge characterized Luff's testimony as containing the following statement:

[W]e would not have the same customer base if we went union. I don't know how we would go about getting another customer base. I'm certain that Pat [Meehan] and I would probably succeed--we're too young to quit, but.... we would not have the jobs we have now if we had been union [and] it would be very difficult to get work if we were union.

The administrative law judge did not consider any of Luff's other testimony. Although he noted the difficult interplay between speech protected by section 8(c) 3 and that made unlawful by section 8(a)(1), the administrative law judge emphasized that Luff had not provided extrinsic evidence to support his statement that Pentre's customers did not use union contractors. Thus, the administrative law judge found that section 8(c) did not protect Luff's statement about the nature of Pentre's customers. The administrative law judge...

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37 practice notes
  • Pleasantview Nursing Home, Inc. v. N.L.R.B., No. 01-2288.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 10, 2003
    ...the order has no reasonable basis in law." NLRB v. Good Shepherd Home, 145 F.3d 814, 816 (6th Cir.1998) (quoting NLRB v. Pentre Elec., 998 F.2d 363, 368 (6th Cir. 1993)). We review the NLRB's factual findings under a deferential standard. "The findings of the Board with respect to questions......
  • N.L.R.B. v. Fluor Daniel, Inc., AFL-CI
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 16, 1998
    ...with the substantial evidence test. Smiths Indus., Inc. v. NLRB, 86 F.3d 76, 79 (6th Cir.1996) (citing NLRB v. Pentre Elec., Inc., 998 F.2d 363, 368 (6th II. VOLUNTEER UNION ORGANIZERS AS "EMPLOYEES" UNDER THE ACT AND THE CONTENTION THAT THE NLRB'S PROCESSES WERE ABUSED BY THE BOILERMAKERS'......
  • Nat'l Labor Relations Bd. v. Alt. Entm't, Inc., No. 16-1385
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 26, 2017
    ...evidence as a reasonable mind might accept as adequate to support a conclusion.’ " Id. at 879 (quoting NLRB v. Pentre Elec., Inc. , 998 F.2d 363, 368 (6th Cir. 1993) ). "When there is a conflict in the testimony, ‘it is the Board's function to resolve questions of fact and credibility,’ and......
  • N.L.R.B. v. Fluor Daniel, Inc., AFL-CI
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 18, 1996
    ...comports with the substantial evidence test. Smiths Indus. v. NLRB, 86 F.3d 76, 79 (6th Cir.1996) (citing NLRB v. Pentre Elec., Inc., 998 F.2d 363, 368 (6th II. VOLUNTEER UNION ORGANIZERS AS "EMPLOYEES" UNDER THE ACT AND THE CONTENTION THAT THE NLRB'S PROCESSES WERE ABUSED BY THE BOILERMAKE......
  • Request a trial to view additional results
37 cases
  • Pleasantview Nursing Home, Inc. v. N.L.R.B., No. 01-2288.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 10, 2003
    ...the order has no reasonable basis in law." NLRB v. Good Shepherd Home, 145 F.3d 814, 816 (6th Cir.1998) (quoting NLRB v. Pentre Elec., 998 F.2d 363, 368 (6th Cir. 1993)). We review the NLRB's factual findings under a deferential standard. "The findings of the Board with respect to questions......
  • N.L.R.B. v. Fluor Daniel, Inc., AFL-CI
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • November 16, 1998
    ...with the substantial evidence test. Smiths Indus., Inc. v. NLRB, 86 F.3d 76, 79 (6th Cir.1996) (citing NLRB v. Pentre Elec., Inc., 998 F.2d 363, 368 (6th II. VOLUNTEER UNION ORGANIZERS AS "EMPLOYEES" UNDER THE ACT AND THE CONTENTION THAT THE NLRB'S PROCESSES WERE ABUSED BY THE BOILERMAKERS'......
  • Nat'l Labor Relations Bd. v. Alt. Entm't, Inc., No. 16-1385
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 26, 2017
    ...evidence as a reasonable mind might accept as adequate to support a conclusion.’ " Id. at 879 (quoting NLRB v. Pentre Elec., Inc. , 998 F.2d 363, 368 (6th Cir. 1993) ). "When there is a conflict in the testimony, ‘it is the Board's function to resolve questions of fact and credibility,’ and......
  • N.L.R.B. v. Fluor Daniel, Inc., AFL-CI
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 18, 1996
    ...comports with the substantial evidence test. Smiths Indus. v. NLRB, 86 F.3d 76, 79 (6th Cir.1996) (citing NLRB v. Pentre Elec., Inc., 998 F.2d 363, 368 (6th II. VOLUNTEER UNION ORGANIZERS AS "EMPLOYEES" UNDER THE ACT AND THE CONTENTION THAT THE NLRB'S PROCESSES WERE ABUSED BY THE BOILERMAKE......
  • Request a trial to view additional results

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