Temp-Masters, Inc. v. N.L.R.B.

Decision Date17 July 2006
Docket NumberNo. 05-2272.,No. 05-2079.,05-2079.,05-2272.
Citation460 F.3d 684
PartiesTEMP-MASTERS, INC. Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: David W. Miller, Baker & Daniels, Fort Wayne, IN, for Petitioner. Jason Walta, National Labor Relations Board, Washington, DC, for Respondent. ON BRIEF: Thomas R. Biehl, Jr., Baker & Daniels, Fort Wayne, IN, Todd M. Nierman, Baker & Daniels, Indianapolis, IN, for Petitioner. Jason Walta, Aileen A. Armstrong, Julie B. Broido, National Labor Relations Board, Washington, DC, for Respondent.

Before BATCHELDER, GIBBONS, and COOK, Circuit Judges.

GIBBONS, Circuit Judge.

Petitioner Temp-Masters, Inc. ("Temp-Masters") seeks review of an order of the National Labor Relations Board ("NLRB" or "Board"), and the Board cross-petitions for enforcement of that order. In the order, the Board found that Temp-Masters violated Sections 8(a)(3) and (1) of the National Labor Relations Act ("NLRA" or "Act"), by transferring four of its employees from jobsites in the vicinity of Georgetown, Ohio, to a jobsite approximately 250 miles away, in retaliation for union activity that ultimately culminated in a petition for a union election. For the following reasons, we affirm the Board's order.

I.

Temp-Masters, a construction business headquartered in Uniondale, Indiana, installs and services commercial refrigeration systems and heating, ventilation, and air conditioning ("HVAC") systems. Temp-Masters works on projects in six states: Illinois, Michigan, Kentucky, Iowa, Indiana, and Ohio. Temp-Masters typically has between twenty and thirty active installation projects, with each project usually lasting between three and twelve months. Between 2002 and 2004, Temp-Masters had two installation projects in the vicinity of Georgetown, Ohio. Temp-Masters contracted to install HVAC systems for the Brown County Engineer's maintenance and salt storage facilities (the "Brown County project") and an Ohio Highway Patrol post (the "OHP project") (collectively, the "Georgetown projects"). Both of the Georgetown projects were prevailing wage projects, which paid general laborers more than $34 per hour.

Beginning in March 2003, Steven Mitchell was the original supervisor of the Brown County project. In September 2003, Mitchell was moved to the OHP project, and Michael Fahy took over as supervisor for the Brown County project. Mark Pack, a project manager at Temp-Masters, managed the Georgetown projects. Pack reported to Gil Bardige, general manager, who in turn reported to company president Kenneth Powell. In addition to Mitchell and Fahy, Temp-Masters hired six other employees to work on the Georgetown projects: Michael Powell (the son of company president Kenneth Powell), Joseph Stapleton, Curtis Treaux, Matthew Wandstrat, Samuel Lunsford, and Paul DeVaux. As of December 1, 2003, these eight Temp-Masters's employees regularly worked on the Georgetown projects.

In November or early December 2003, Mitchell contacted Troy Wagner, a representative of the Sheet Metal Workers International Union, No. 24 (the "Union"), regarding the possibility of an organizing campaign for employees working on the Georgetown projects. Wagner gave union authorization cards to Mitchell and Wandstrat, who distributed them to Fahy, DeVaux, and Lunsford. Authorization cards were not given to Stapleton because of the perception that he was a friend of Pack (the project manager) or to Treaux because of his vocal opposition to the Union. Ultimately, Mitchell, Wandstrat, Fahy, DeVaux, and Lunsford all signed authorization cards.

On December 3, 2003, based on these employees' support, the Union filed a petition with the Board, seeking to represent a seven-person unit covering the Temp-Masters's sheet metal installation and fabrication workers in Ohio. On December 8, a management labor consultant informed Temp-Masters's president Kenneth Powell that the Union had filed this election petition with the Board. Between December 8 and December 12, Kenneth Powell called Pack and instructed him to tell Stapleton, DeVaux, and Lunsford to report to a jobsite in Danville, Illinois on the following Monday morning, December 15. Pack instructed these employees to do so on Friday afternoon. About one week later, on Sunday, December 21, Pack also instructed Wandstrat to report to the Danville jobsite the following day.

The Danville jobsite was approximately 250 miles from Georgetown, Ohio. Moreover, unlike the prevailing wage projects in Georgetown, the Danville job paid general laborers between $11 and $13 per hour. Temp-Masters had been installing refrigeration systems at the Danville site—a Shop Rite store—since August 2003. By mid-November, the lack of progress on the Danville site had become a source of frustration for the store's owner, Al Abbed, who was trying to open the store by Christmas. In mid-November, Abbed began complaining to Temp-Masters on an almost daily basis. Beginning in mid-November, Temp-Masters began to increase the hours spent on the Danville job. By the time Stapleton, DeVaux, Lunsford, and Wandstrat were ordered to transfer, however, work at the Danville site had begun to taper off.

Three of the four transferred employees were unable to travel to Danville. DeVaux informed Temp-Masters that he could not relocate because he was a single father and had no one to watch his son. Stapleton told Temp-Masters that he could not relocate immediately to Danville because, as he had previously told the company, he needed to care for the estate of his recently deceased father. When Stapleton later told Powell that he would be unable to transfer to Danville, he was informed that there was no work for him in Georgetown. Wandstrat explained that he could not get to Danville because of the expenses entailed in relocation. Temp-Masters deemed DeVaux, Stapleton, and Wandstrat as having terminated their employment by refusing to accept assignment in Danville. Only Lunsford traveled to Danville, arriving on December 17. On December 18, Temp-Masters transferred several employees from the Brown County site to the OHP site. Those employees worked long days, including the day after Christmas, which was typically a holiday. Moreover, to make up for the shortages caused by the discharges of DeVaux, Stapleton, and Wandstrat, Temp-Masters added two new employees to work at the OHP site.

On April 30, 2004, the Board's general counsel issued a complaint against Temp-Masters, pursuant to an amended charge filed by the Union. The complaint alleged that Temp-Masters violated Sections 8(a)(3) and (1) of the Act by transferring the four employees and by terminating the three employees who refused to accept the transfers, in retaliation for union activity. The complaint further alleged that Temp-Masters violated Section 8(a)(1) of the Act by coercively interrogating an employee as to whether a union representative had met with employees. An administrative law judge ("ALJ") conducted a two-day hearing. The ALJ issued a recommended decision, finding all violations alleged in the complaint. Temp-Masters filed exceptions to the ALJ's decision. The Board adopted the ALJ's finding of a violation with respect to Temp-Masters's unlawful transfer and termination of its employees; however, the Board reversed the ALJ's finding of a violation based on unlawful interrogation and dismissed that portion of the complaint.

II.

We will uphold the Board's findings if supported by substantial evidence on the record as a whole. 29 U.S.C. § 160(e), (f). Substantial evidence is relevant evidence that "a reasonable mind might accept as adequate to support a conclusion." Fluor Daniel, Inc. v. NLRB, 332 F.3d 961, 967 (6th Cir.2003). This court defers to the Board's reasonable interpretations of the NLRA but reviews any conclusions of law unrelated to the NLRA de novo. Lee v. NLRB, 325 F.3d 749, 754 (6th Cir.2003).

Section 8(a)(3) of the Act makes it an unfair labor practice for an employer "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization." 29 U.S.C. § 158(a)(3). Section 8(a)(1) of the Act makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section [7]." 29 U.S.C. § 158(a)(1). Section 7, in turn, guarantees employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining." 29 U.S.C. § 157. A violation of Section 8(a)(3) of the Act produces a derivative violation of Section 8(a)(1). Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 698 n. 4, 103 S.Ct. 1467, 75 L.Ed.2d 387 (1983).

An employer generally commits an unfair labor practice under Sections 8(a)(1) and (3) "by making an employment decision that discourages union membership or interferes with an employee's right to organize." Kamtech, Inc. v. NLRB, 314 F.3d 800, 806 (6th Cir.2002). "The threshold test for determining whether the employment decision constitutes an unfair labor practice is whether the decision was motivated by anti-union animus." Id. The Board bears the initial burden of showing, by a preponderance of the evidence, that the employer's decision was motivated by the employee's union activity. Id. at 807. The Board must show "that the employee's protected conduct was a motivating factor in the adverse action." ITT Automotive v. NLRB, 188 F.3d 375, 387 (6th Cir.1999) (quoting NLRB v. Transportation Management Corp., 462 U.S. 393, 401, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983)). "Specifically, the general counsel must establish that (i) an individual was engaged in a protected activity, (ii) the employer was aware of...

To continue reading

Request your trial
13 cases
  • Int'l Union v. Nat'l Labor Relations Bd., s. 15-2305/2478
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 21, 2016
    ...or neglect to urge such objection shall be excused because of extraordinary circumstances." 29 U.S.C. § 160(e) ; Temp – Masters, Inc. v. NLRB , 460 F.3d 684, 690 (6th Cir. 2006) ; NLRB v. U.S. Postal Serv. , 833 F.2d 1195, 1201–02 (6th Cir. 1987) ("Our jurisdiction is conferred by ... 29 U.......
  • Pace Suburban Bus Div. of The Reg'l Transp. Auth. v. Ill. Labor Relations Bd.
    • United States
    • United States Appellate Court of Illinois
    • December 8, 2010
    ...hidden and therefore probably was discriminatory.”). For support, respondent cites Temp–Masters, Inc. v. National Labor Relations Board, 460 F.3d 684 (6th Cir.2006), which stated that “[i]n determining whether discriminatory motivation exists, * * * the Board may rely on a subset of the rel......
  • Charter Commc'ns, Inc. v. Nat'l Labor Relations Bd.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 25, 2019
    ..."It is well settled that an employer may not transfer employees for the purpose of discouraging union activity." Temp-Masters, Inc. v. NLRB , 460 F.3d 684, 690 (6th Cir. 2006). For example, employers may not transfer pro-union employees to "limit[ ] their contact with other employees." Am. ......
  • Center Const. Co., Inc. v. N.L.R.B
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 3, 2007
    ...knew of the protected activity; and (3) the employee's protected activity motivated the adverse treatment. Temp-Masters, Inc. v. NLRB, 460 F.3d 684, 689 (6th Cir.2006). Anti-union motivation can be proved by circumstantial evidence. Id. If the Board establishes that anti-union animus was a ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT