N.L.R.B. v. Wolfe Elec. Co.

• Decision Date: 24 December 2002
• Docket Number: No. 02-1382.,02-1382.
• Citation: 314 F.3d 325
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, International Brotherhood of Electrical Workers Local 265, Intervenor on Appeal, v. WOLFE ELECTRIC COMPANY, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

314 F.3d 325

NATIONAL LABOR RELATIONS BOARD, Petitioner, International Brotherhood of Electrical Workers Local 265, Intervenor on Appeal, v. WOLFE ELECTRIC COMPANY, Respondent.

No. 02-1382.

United States Court of Appeals, Eighth Circuit.

Submitted: September 12, 2002.

Filed: December 24, 2002.

William Harding, argued, Lincoln, NE, for Wolfe Electric Co.

David Fleischer, argued, Washington, DC, for NLRB.

Michael J. Stapp, argued, Kansas City, KS, for IBEW Local 265.

Before McMILLIAN, BRIGHT and BOWMAN, Circuit Judges.

McMILLIAN, Circuit Judge.

The National Labor Relations Board (the Board) petitions for enforcement of a final order finding that Wolfe Electric Company (the company) violated Sections (a)(1) and (3) of the National Labor Relations Act (the Act or NLRA), 29 U.S.C. §§ 158(a)(1), (3), by refusing to hire nine applicants because of their union membership, and by other actions. NLRB v. Wolfe Elec. Co., 336 N.L.R.B. No. 48 (2001). The International Brotherhood of Electrical Workers, Local 265 (the union), intervenes in support of the Board. We enforce the order.

The evidence before the Board established the following. Richard Wolfe (Wolfe) is president of the company, a non-union electrical contractor. After learning that the union was attempting to organize non-union contractors by getting them to hire its members, Wolfe told his employees that, in light of the union's organizing activities, the company would quit advertising for workers in the newspaper and would hire employees through word-of-mouth referrals. Wolfe also stated that he would close the business before he would allow the union to organize it. In early 1996, Wolfe told employees that the company would begin using an employment agency, Advantage Personnel, to hire workers, noting that the agency was experienced in screening out union members. On April 3, 1996, Advantage Personnel referred Doyle Horwart to Wolfe. Horwart, a union organizer, had concealed his union membership from Advantage. Horwart began working for the company on April 9, 1996.

On June 20, 1996, Wolfe told Horwart that two electricians had just quit and that he immediately needed six more workers. Horwart told the union's business agent, Bill Roussan, about his conversation with Wolfe. On July 8, 1996, Roussan and seven other union journeymen electricians and one union welder went to the company to apply for work. They had a video camera and tape recorder and identified themselves as union members. They asked Wolfe's wife, Karen, who was working as a receptionist, whether work was available. She told them that they would have to speak to her husband. Roussan gave her a list of the nine applicants and thanked her, and she replied: "You're very welcome." Unbeknownst to the applicants, Mrs. Wolfe had terminal cancer. After they left, she called her husband, telling him that she was upset because she might have said something that could be the basis of a lawsuit against the company.

After speaking to his wife, Wolfe posted signs outside the office stating that the company was not accepting applications and that audio and video equipment was prohibited. About two hours later, five of the applicants returned to the company. Wolfe told them that they had upset this wife and that she was suffering from cancer. They apologized, informing him that their encounter with Mrs. Wolfe had been cordial. Wolfe told them that he was not accepting applications and asked them to leave.

The next day, Wolfe held a employee meeting at which he expressed his anger at the union applicants for upsetting his wife. Wolfe further stated if any of the employees wanted to join the union, they could leave and that he would fight "to the end" the union or anyone who upset his wife. On July 22, 1996, Wolfe called another meeting at which he told the employees that he had refused to accept a certified letter from the union, reaffirming that he would fight the union to the end, if necessary. He asked the employees if they knew of any electricians that he could hire and that, if his attorneys approved, would take the "no applications" signs down for five minutes so that they could apply.

Between July 8 and September 9, 1996, the company hired six workers, but did not hire or consider any of the union applicants. At a November 1, 1996, employee meeting, Wolfe stated that if the employees voted in favor of the union, his customers would leave and he would have "to close the book on growth" because he could not pay union benefits. On December 23, 1996, Horwart gave the company a letter disclosing his status as a union organizer. That afternoon, Wolfe called an employee meeting. Before the meeting, Wolfe met with Horwart and gave him a copy of the company's new no-solicitation policy. At the meeting, Wolfe gave the employees the policy and the letter disclosing Horwart's status as a union organizer. Wolfe also mentioned that "union thugs" had been distributing handbills in front of the company and that he would file trespassing charges against anyone whose name appeared on a handbill found on the company's premises.

Adopting the decision of an administrative law judge (ALJ), the Board found that the company had violated Sections 8(a)(3) and (1) of the Act by refusing to hire the union applicants and by other actions, including threatening employees of adverse consequences if they unionized, changing employment practices to preclude the hiring of union members, and promulgating and enforcing the no-solicitation policy. As to the refusal-to-hire violation, the Board found that the company had concrete plans to hire workers on July 8, 1996; the applicants were qualified; and that the company had refused to hire the union applicants because of their union membership. The Board rejected the company's personal animosity defense under Wright Line, 251 N.L.R.B. 1083 (1980), enforced on other grounds, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1...