N.L.R.B. v. Howard Elec. Co., 88-7107
| Decision Date | 03 May 1989 |
| Docket Number | No. 88-7107,88-7107 |
| Citation | 873 F.2d 1287 |
| Parties | 131 L.R.R.M. (BNA) 2511, 111 Lab.Cas. P 11,198 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HOWARD ELECTRIC COMPANY, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Joseph A. Oertel, Howard E. Perlstein, and Aileen A. Armstrong, Deputy General Counsel, National Labor Relations Board, Washington, D.C., for the petitioner.
David R. Gorsuch, Gorsuch, Kirgis, Campbell, Walker and Grover, Denver, Colorado, for the respondent.
On Application for Enforcement of an Order of the National Labor Relations Board.
Before CHAMBERS, BRUNETTI and NOONAN, Circuit Judges.
The National Labor Relations Board (the Board) petitions for enforcement of its order against Howard Electric Company (Howard) for violation of Secs. 8(a)(1) and 8(a)(3) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1) and (3). We grant enforcement of the order.
The case arises through Howard's discharge of Rue Stears, Joe M. Dyer, and Marshall Rapp, electricians in its employ in the building of a power plant on the Snake River in Idaho in 1981-1982.
The project had two general contractors--S.J. Groves Co., which held the prime contract for civil and structural work, and Voest-Alpine, which held the contract for furnishing and installing generator equipment. Howard was the electrical subcontractor to Groves and also agreed to furnish electricians to Voest-Alpine's subcontractor, Eagle Construction Company.
Howard was subject to a collective bargaining agreement between the Eastern Idaho Chapter of the National Electrical Contractors Association and the International Brotherhood of Electrical Workers. The agreement required that on jobs requiring three or more journeymen one would be designated by the employer as a foreman. The agreement also provided that an outside firm doing electrical work within the jurisdiction of the local Idaho union would not be allowed to bring in more than one nonlocal journeyman. The union was the sole and exclusive source of referrals of applicants for employment. The agreement further stated that the handling and moving of any electrical materials, equipment and apparatus should be performed by workmen working pursuant to the collective bargaining agreement.
The union had a right to appoint a steward to "see that the agreement and working conditions are observed." If a workman discovered an alleged violation of the agreement he was to present it to the steward and immediately return to work. The agreement provided for a labor-management committee of three union and three employer representatives to decide by majority vote all grievances that the representatives of the union and employer did not resolve within 48-hours.
Howard, an outside firm within the meaning of the collective bargaining agreement, employed Elmer Bishop as both the project manager and a journeyman. In May 1981 Howard sent Charles White, a nonresident journeyman, to work on the project as a foreman; Howard took the position that his employment was not governed by the collective bargaining agreement. The union did not refer him for employment and objected to his employment as violating both its exclusive right to refer applicants and the provision for only one outside journeyman. On June 2, 1981 the labor-management committee concluded that Howard had violated the referral procedure. Nonetheless, White continued to work on the project.
Rue Stears was hired as an electrician by Howard in June 1981. He became the steward of the union. He protested White's work on the job. In an attempt to meet Stears' objection, Bishop agreed that White would serve merely as a time-keeper and procurer of materials giving no orders. In early February 1982 Stears so informed fifteen electricians in White's presence. On February 18, 1982 Howard transferred Stears to Eagle. On February 19, Eagle said that they did not want him and he was thereupon discharged.
Joe Dyer was hired by Howard in August 1981. Marshall Rapp was hired in September 1981. On January 27, 1982 Rapp was in a manhole feeding electrical wire into a conduit at the other end of which were Dyer and another employee. A boom truck, manned by a member of a different union, arrived at Bishop's direction to pull the wire with the truck. Dyer operated the boom until White intervened. White got on a two-way radio to talk to Bishop, who was in his office. Rapp keyed into the conversation on his radio and managed to disrupt the conversation between White and Bishop. The following day Bishop fired Rapp. Another supervisor told Dyer that White had been angered by Dyer operating the boom truck and that White was going to run Dyer off the job "with the slightest provocation."
A week later, in February 1982, there was a second wire pull and a nonelectrician was assigned to pull the wire. Dyer objected. Bishop told Dyer he could stand by but Dyer feared the union might fine him if he allowed a nonelectrician to pull the wire. The union steward, Stears, was called to the scene. Stears suggested that on a one-time basis the nonelectrician should be allowed to pull the wire provided that no electrician was required to stand by. The work then proceeded. After this incident White told a company supervisor that if Dyer had a problem, the company had a cure. Dyer was fired on February 18, 1982, the same day that Stears was transferred to Eagle. On February 22 White told Eagle's project manager, "We got three of the hard heads."
The General Counsel of the Board brought charges of unfair labor practices against Howard. The case was tried in Idaho on February 28-29, 1983 before David G. Heilbrun, an administrative law judge. Bishop testified that Rapp and Dyer had been unproductive in their work. He testified that he was unhappy with Stears' performance because he caused delays by talking to other employees and because he refused to communicate with White and advised other employees not to take orders from White. Bishop said that the project had been winding down in February 1982 as far as Howard was concerned and so he selected Stears for transfer to Eagle. When Eagle refused to take him, Bishop said he had no alternative but to terminate his employment.
Judge Heilbrun concluded: On December 13, 1983 the judge dismissed the General Counsel's complaint. The General Counsel filed...
To continue reading
Request your trial
-
Griffin v. Jtsi, Inc.
...would have occurred regardless of the protected activity.'" Crosby, 76 Hawai'i at 342, 876 P.2d at 1310 (quoting N.L.R.B. v. Howard Elec. Co., 873 F.2d 1287, 1290 (9th Cir.1989)); see also N.L.R.B. v. Searle Auto Glass, Inc., 762 F.2d 769, 773 (9th Cir.1985) ("[A]s an affirmative defense, t......
-
State of Cal. ex rel. State Water Resources Control Bd. v. F.E.R.C.
...omitted). We generally apply the substantial evidence standard when reviewing an agency's factual findings. NLRB v. Howard Elec. Co., 873 F.2d 1287, 1290 (9th Cir.1989). The FERC decision demonstrates that the Commission properly weighed the evidence and balanced the beneficial public purpo......
-
Grant v. Marriott Ownership Resorts, Inc.
...defend affirmatively by showing that the termination would have occurred regardless of the protected activity." NLRB v. Howard Elec. Co., 873 F.2d 1287, 1290 (9th Cir. 1989) (citing NLRB v. Transportation Management Corp., 462 U.S. 393, 401-03, 103 S. Ct. 2469, 2474, 76 L. Ed. 2d 667 (1983)......
-
Bloom v. Universal City Studios, Inc.
... ... Southern California Gas Co., 881 F.2d 638, 643 (9th Cir.1989) ... ... ...