N.L.R.B. v. Pneu Elec., Inc.

• Decision Date: 10 October 2002
• Docket Number: No. 01-60360.,01-60360.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PNEU ELECTRIC, INC.; Nan Ya Plastics Corp., Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

309 F.3d 843

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PNEU ELECTRIC, INC.; Nan Ya Plastics Corp., Respondents.

No. 01-60360.

United States Court of Appeals, Fifth Circuit.

October 10, 2002.

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Aileen A. Armstrong, Deputy Associate Gen. Counsel, Eric David Duryea (argued), Charles P. Donnelly, NLRB, Washington, DC, Rodney D. Johnson, NLRB, New Orleans, LA, for NLRB.

Charles H. Hollis (argued), Sam Zurik, III, The Kullman Firm, New Orleans, LA, for Pneu Elec. Inc.

Gregg R. Kronenberger (argued), Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman, Baton Rouge, LA, for Nan Ya Plastics Corp.

Application for Enforcement of an Order of the National Labor Relations Board.

Before JONES, WIENER, and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

The National Labor Relations Board ("NLRB" or "the Board"), in seeking enforcement of its order against Respondents Pneu-Electric, Inc. ("Pneu-Elect") and Nan Ya Plastics Corp. ("Nan Ya"), raises three issues before us. First, whether substantial evidence supports the Board's finding that Pneu-Elect and Nan Ya violated Section 8(a)(1) of the National Labor Relations Act ("the Act"), 29 U.S.C. § 151, et seq., by numerous coercive anti-union acts and statements, including interrogation, threats, and imposition of invalid no-solicitation rules. Second, whether substantial evidence supports the Board's finding that Pneu-Elect and Nan Ya violated Section 8(a)(3) and (1) of the Act by discharging or causing the discharge of Clifford Zylks and Andras Aycock because of their union activities. Third, whether substantial evidence supports the Board's finding that Pneu-Elect violated Section 8(a)(3) and (1) of the Act by discriminatorily refusing to consider known union supporters Russell, Longupee, and Goetzman for employment. We grant the NLRB's petition in part, except as to the potential award of back pay associated with the third issue, and vacate and remand its Order in part.

I. BACKGROUND.

Respondent Nan Ya operates a plastics plant in Batchelor, Louisiana. In 1995, it hired respondent Pneu-Elect, an electrical contracting company in Lafayette, Louisiana. Pneu-Elect performed at the Nan Ya site via five contracts from spring to December 1996, in which time it doubled its workforce to over 100 on that site. Neither company recognized union representation of their employees.

On June 14, 1996, Pneu-Elect's Field Manager Freddie Zeringue interviewed Andras Aycock and Clifford Zylks and directed each to report for work the following Monday at the Nan Ya site.

They did so on June 17. As they walked into the job site, Pneu-Elect Foreman Mark Miller recognized Zylks as a union supporter and commented to a Pneu-Elect employee, "Here comes union trash. They're here to start trouble." After filling out their W-4 forms, Aycock and Zylks informed Zeringue that they were members of the International Brotherhood of Electrical Workers, Local Union No. 995, AFL-CIO ("the Union" or "IBEW") and that they intended to organize the Pneu-Elect employees. They put on IBEW buttons. After they left Pneu-Elect's trailer, Miller entered and asked Zeringue if he had hired them. Zeringue said that he had. Miller replied that they were "union guys," that he did not want them on his crew, and that he contemplated assigning them to "dirt work" in an isolated location. The conversation occurred before Pneu-Elect employee Simon Lopez, as did most of the conversations reported herein. The two were assigned to work on a transformer, under Miller's supervision, isolated from other employees.

Miller later asked Zeringue, "What's happening with the union guys?" Zeringue said that he had spoken with the Nan Ya Safety Manager, who would "run off" an otherwise-unidentified man and that Nan Ya did not want a union on the site.

That same day, a 10-foot piece of conduit fell from above, landing near Zylks and Aycock. Zeringue told them that it had probably been dropped by the "elevator men" who did not like the Union. He also told the two to take their Union buttons off. He later told Miller, Lopez, and others that he had talked to Nan Ya officials who said not to do or say anything, but that they would "figure something out."

While commuting together that evening, Miller told Lopez that he had "started to wait 30 minutes and throw another piece of conduit at them." He also said that he would not allow Zylks and Aycock to commute in the company van and that he would defecate in their lunch boxes, as he had done at other job sites.

On June 18, Zylks introduced himself to Pneu-Elect's owner, president, and CEO, Lester Colomb, and identified himself as a union organizer with a Union letter confirming that he and Aycock were acting in that capacity. Also that morning, Pneu-Elect Foreman Tim Benoit asked Miller if he could "find anybody on [your] crew [we] could get rid of ... before [we] get rid of the union guys," so that firing Zylks and Aycock "wouldn't look so bad." Miller replied that it would not be a problem.

On June 19, in response to Pneu-Elect employee Walter Porche's concern of being laid off, Zeringue said, "I'm not going to lay nobody off ... The first ones to be gone will be those union guys ... Don't worry about nothing ... We got a lot of work that needs to be done." The same morning, Zylks and Aycock used the phone in the company's trailer, in Zeringue's presence, to contact a Union representative for OSHA's phone number to report the dropped conduit and other safety issues. Zeringue told them to return to work and that Nan Ya's Safety Manager would find them. Nan Ya Safety Manager Paul Bergeron later introduced himself to Zylks and Aycock and told them that, if they were organizing on the job site, he would have to ask them to leave. He said that he would not allow any organizing activity to occur "on this site." The two replied that they were Pneu-Elect employees and entitled to organize on the site and would continue to do so. Bergeron then told them that they had to leave immediately. Zylks and Aycock asked if he was firing them and Bergeron said that he was.

The two told Zeringue that Bergeron had fired them. Zeringue asked them to cease their organizing activities. He said, "You can't [organize] on site," and accused the two of disrupting work. They replied that they had been working and not disrupting anyone. Bergeron then joined in, repeating that he would not allow any organizing on the site. Zeringue again claimed that they had stopped others from working. Bergeron then said, "[I]t doesn't matter, done did and over with," and again ordered Zylks and Aycock to leave. They asked if Zeringue agreed they were being fired; he stated that he could not override Bergeron's order and accused them again of interrupting work, which they again denied.

Colomb later called Zylks at home and said that he and Aycock were not fired and that Nan Ya could ask them to leave the site, but could not fire them. He also said he was continuing to pay the two, at least until the matter was straightened out. Zylks said that they wanted to return to work. Colomb thought he could put them back to work, but because he was unsure if they could return to Nan Ya immediately, they arranged to meet off-site the next morning, June 20.

At the meeting, Zylks told Colomb that Bergeron had fired them for organizing on-site. Colomb asked them, "if I can get y'all back in the plant ... will y'all agree not to organize during work time?" Zylks replied that he would organize during working hours without stopping anyone from working. Colomb indicated that he had "documented cases that during work time y'all did go talk to people about organizing." Zylks said, "As long as I'm working I'm going to talk. I'm not stopping anybody else from working. If I go over there to pick up some pipe or go get some wire or whatever, and the guys are in there terminating and I'm cutting wire, I'm working ... I'm not stopping nobody from working." Both refused to restrict themselves to breaks and lunches. Pneu-Elect employees at the Nan Ya site had previously been allowed to talk about anything on the job, not interfering with work.

The three disagreed whether Zylks and Aycock could be prohibited from organizing if it did not interfere with work, whether Bergeron's prohibition applied to organizing on "work time" or "on the site," and whether Bergeron had told them they were fired. Colomb again said he would talk to Nan Ya about returning them to the site.

On June 21, Colomb told them that he had spoken to Nan Ya and that he could not return them to Nan Ya as long as they refused to stop organizing during work time. Zylks said that they would continue to organize; Colomb said there was nothing he could do. That was the last contact between Zylks and Aycock and Pneu-Elect.

Also on June 21, Zeringue asked Pneu-Elect employee Johnny Byrd, of whose union affiliation Zeringue was unaware, if employee George Hughes was a "union man." Byrd said he did not know.

On June 24, journeyman electrician Russell Anderson called Zeringue to inquire about hiring. He identified himself as a journeyman with an OSHA card. Zeringue said, "I pretty much need people right now ... If you're ready to go to work, I need people bad, got a lot working right now until the end of this week, for sure this weekend." Anderson said he would apply the next day.

On June 25, three individuals wearing Union organizer buttons appeared at the Nan Ya gate. Kendrick Russell, Donald Longupee, and Roland Goetzman wanted to apply for work with Pneu-Elect. Russell was the Union's business manager and organizer; the others were electricians on its out-of-work list. Russell introduced himself to Zeringue as the Union's business manager and told him that all three wanted to apply. Zeringue told them, "I'm kinda caught up at the moment but I may be hiring ... we're fixing to cut back some guys here" when the power...