Progressive Elec., Inc. v. N.L.R.B.
| Decision Date | 14 July 2006 |
| Docket Number | No. 05-1127.,No. 05-1157.,05-1127.,05-1157. |
| Citation | 453 F.3d 538 |
| Parties | PROGRESSIVE ELECTRIC, INC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent. International Brotherhood of Electrical Workers Local 265, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
William A. Harding argued the cause and filed the briefs for petitioner.
Kira Dellinger Vol, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Arthur F. Rosenfeld, Acting General Counsel, John H. Ferguson, Assistant General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Fred B. Jacob, Attorney.
Michael J. Stapp was on the brief for intervenor.
Before: SENTELLE, BROWN and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge BROWN.
Progressive Electric, Inc. ("Progressive") petitions for review of the National Labor Relations Board ("the Board") decision and order finding that Progressive violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act ("the Act"), 29 U.S.C. § 158(a)(1), (3). The Board concluded that Progressive committed unfair labor practices by (1) threatening employees with job loss and facility closure on account of union activities and (2) failing to consider and hire a group of union members. Finding substantial evidence, we deny the petition for review and grant the Board's cross-application for enforcement.
Progressive, located in Lincoln, Nebraska, is a non-union electrical contractor in the construction business. Over a decade ago, the International Brotherhood of Electrical Workers, Local 265 ("the Union") targeted Progressive for organizational purposes. Progressive did not go quietly.
In February 1996, Progressive advertised in the local paper that it was "accepting applications" for "electrician/technician," and directed interested parties to Progressive's physical address. At the behest of the Union, David Cousins responded to the ad in order to organize Progressive. During the application process Cousins did not reveal his Union affiliation. He was hired and began work in early March. Around the same time, Charles Randall, a member of an out-of-town union, also responded to the ad and was hired. His past union affiliation was apparent on his resume and he initiated a discussion of it at his job interview with Randy Neeman, Progressive's president. Randall started work on February 20 and, in early March, he agreed to help the Union in its organizational efforts. On March 27, Cousins sought an application for a friend but was informed that there were no longer open positions and that Progressive was not accepting applications.
On March 29, pursuant to a decision by the Union's executive board, eight union journeymen electricians ("the Union Applicants") went as a group to Progressive's office to apply for jobs.1 They were "equipped with a video camera and tape recorder" and were wearing clothing identifying their union affiliation. Gathered outside the office, the Union Applicants, talking among themselves, made statements such as "We should go in there before they have a chance to react"; "That son-of-a-bitch [Neeman]"; "; and "
When the Union Applicants entered Progressive's office and stated their desire to apply for employment, Neeman told them:
You guys, we are not hiring. We are not taking no [sic] applications. We advertised three [or] four weeks ago. We hired a couple of people and filled the spots. So I would love to put you all on and as soon as I get an opening I will give you guys a call.
The Union Applicants provided Neeman with a letter stating they wished to be considered for employment and listing their names and contact information. As soon as the Union Applicants left, Neeman threw away the information. Neeman later admitted that he never intended to call the Union Applicants, but only made that statement to get them to leave. On April 2, Progressive posted the following notice in its window:
On April 8, Don Hildreth, a Progressive foreman, told Cousins and one other employee that Neeman had called Randall the "bad apple in the barrel, and [Neeman] didn't want any union crap around here." Hildreth continued: "[I]f the Unions got into Progressive, ... Progressive would lose [certain] contracts, and [Progressive] would go out of business ... because [Progressive] couldn't afford the Union wages and benefits." On April 26, Randall walked off of a job site and announced that he was on strike because he was not being paid union wages.
On May 1, Neeman held a company meeting. Just before it began, Neeman informed Randall that when Randall had walked off the job five days earlier it was not a "strike" but instead a "voluntary quit." Randall, now out of a job, was directed to leave. Shortly thereafter, Neeman addressed the remaining employees, commented on Randall's "recruiting" efforts, and stated that Randall was trying "to cost all you guys your jobs ... and that's why we have to put a stop to it." Later, Neeman spoke to the assembled employees:
Alright ... I've been quiet up 'til now, which is strange for me I know and because I had to get a lot of legal advi[c]e before I could open my mouth. But now that we know what we're talking about[,] we're gonna talk about this dirty word ... UNION . . . okay! Let's talk about unions. Are we for it, Bill and I? NO! Are you guys for it[?] I don't want to know.... I can't ask ya, but I can give ya my opinion on it.
Neeman's presentation was punctuated by phrases such as "Mr. Asshole Union Rep." (describing a hypothetical union member) and "bunch of dummies" (describing union members in general). At some point in the presentation Neeman wrote the word "union" on the board, drew a circle around it, and put a slash through it. Perhaps in an effort to soften the edges, Neeman also made statements to convey ambivalence toward union activities, such as:
Progressive subsequently filled a number of positions, using various means. On May 27, 1996, Steve Baumli became a Progressive employee doing ladder rack work; he had been performing work for Progressive on a temporary basis (via a temp agency) for a couple of months. No job vacancy was advertised for this position. On May 31 and June 13, Progressive placed ads indicating that positions were available for ladder rack installers. As a result of these ads, Progressive hired three ladder rack installers in the month of June. Each of the ads provided a specific mailing address (a P.O. Box) for job-seekers to submit their information and indicated applications would be accepted for a set number of days. These "blind" advertisements, unlike ones Progressive previously used, did not provide any identifying information (such as Progressive's name, physical address, or phone number). In January and March of 1997, Progressive placed three ads for apprentice electricians each of which provided job seekers with Progressive's physical address. As a result, Progressive hired two individuals on January 27, 1997, and one more on March 10, 1997.
At no point from March 1996 to March 1997 was any Union Applicant contacted or offered employment, even though the Union Applicants were qualified for all seven positions described above.2 From April to July of 1996, Jim Pelley (the Union Business Manager, who was one of the Union Applicants) sent three letters on Union letterhead via fax to Progressive in order to follow up on the events of March 29, 1996; the letters expressed the Union Applicants' continuing interest in employment and included the same sheet of contact information as the Union Applicants has previously submitted. Union records show that Progressive received each fax. Pelley also sent these letters via both certified and first class mail, but they were refused and returned. Two of Pelley's letters requested that Neeman "please inform [the Union Applicants] of any efforts [they] must undertake in order to be fully considered for employment." A final letter was sent on March 27, 1997. Progressive's only response, on April 4, 1997, rejected the "renewed" request for consideration. The letter stated that Progressive had not accepted any applications from the Union Applicants, either on or after March 29, 1996. Neeman noted in the letter that "it is not [his] policy to seek out individuals who have indicated a desire to make application in the past whenever an opening comes up in the future."
On August 9, 1996, the Union filed an unfair labor practice charge with the Board and amended it on September 18. On September 30, the Board's General Counsel issued a complaint alleging various violations of Sections 8(a)(1) and 8(a)(3) of the Act. The complaint was amended on May 13, 1997, and the case was tried before an administrative law judge ("ALJ") from June 30 to July 3, 1997. On November 18, 1997, the ALJ found, in relevant part, that Progressive committed unfair labor practices by threatening employees with plant closure (on April 8, 1996) and job loss (on May 1, 1996) and by refusing to consider and hire the Union Applicants. On August 23, 2000, at the Board's direction, the ALJ issued a supplemental decision in light of FES (A Division of Thermo Power) ("FES"), 331 N.L.R.B. 9, 2000 WL 627640 (2000). Over four and a half...
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