Ultrasystems Western Constructors, Inc. v. N.L.R.B.
| Decision Date | 03 March 1994 |
| Docket Number | AFL-CI,I,Nos. 93-1265,93-1453,s. 93-1265 |
| Citation | 18 F.3d 251 |
| Parties | 145 L.R.R.M. (BNA) 2641, 62 USLW 2595, 127 Lab.Cas. P 11,039 ULTRASYSTEMS WESTERN CONSTRUCTORS, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, The International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers,ntervenor. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ULTRASYSTEMS WESTERN CONSTRUCTORS, INCORPORATED, Respondent, The International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers,ntervenor. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Warren Malcolm Davison, Littler, Mendelson, Fastiff & Tichy, Baltimore, Maryland, for Petitioner. David Arthur Fleischer, Senior Attorney, National Labor Relations Board, Washington, D.C., for Respondent. Michael James Stapp, Blake & Uhlig, P.A., Kansas City, Kansas, for Intervenor.
ON BRIEF: Roger D. Meade, Thomas P. Dowd, Littler, Mendelson, Fastiff & Tichy, Baltimore, Maryland, for Petitioner. Jerry M. Hunter, General Counsel, Yvonne T. Dixon, Acting Deputy General Counsel, Nicholas E. Karatinos, Acting Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, National Labor Relations Board, Washington, D.C., for Respondent. Michael T. Manley, Blake & Uhlig, P.A., Kansas City, Kansas, for Intervenor.
Before NIEMEYER and HAMILTON, Circuit Judges, and KAUFMAN, Senior United States District Judge for the District of Maryland, sitting by designation.
In connection with the efforts of the International Brotherhood of Boilermakers, Ironship Builders, Blacksmiths, Forgers & Helpers, and the United States Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry (hereafter collectively, "the Union") to organize the employees of Ultrasystems Western Constructors, Inc. ("Ultrasystems"), the National Labor Relations Board found that Ultrasystems violated sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act, 29 U.S.C. Secs. 158(a)(1) & (3). The Board found that Ultrasystems refused to consider and to hire 66 applicants presented by the Union at two California construction sites because of the company's anti-union animus. One of the applicants was a full-time paid union organizer. The Board's remedies included an order directing Ultrasystems to make the applicants "whole," to "offer all employee-applicants ... employment in the positions for which they applied, or ... substantially equivalent positions," and to post a notice at all of Ultrasystems' construction sites nationwide acknowledging violations of the Act and advising employees of their labor law rights.
Ultrasystems petitioned for review, contending that (1) under our ruling in H.B. Zachry Co. v. NLRB, 886 F.2d 70 (4th Cir.1989), the company should not be required to hire the paid union organizer; and (2) the remedies with respect to the remaining 65 applicant-employees are too broad for the violations found. The Board filed a cross-petition for enforcement of its order. Because the facts of the case fall squarely within our holding in Zachry, we deny enforcement of the order with respect to the paid union organizer. While we affirm the Board's finding that the company violated the NLRA in handling the 65 other applicants, we remand the case with directions to the Board to tailor more closely its order to match the discrimination found.
Ultrasystems is a large, national contractor which constructs power plants, including steam generated electrical power plants. In 1988 it was engaged in two construction projects, one in Rocklin, California, and another in Bakersfield, California. These plants were completed sometime in 1989.
The employees of Ultrasystems were not, during the period, represented by any union, and Ultrasystems regarded itself as a "merit shop" because it hired on merit without regard to union affiliation. Its project managers had "followings," groups of laborers who followed experienced managers from job to job around the country. The sites at both Rocklin and Bakersfield were staffed in large part by members of the project managers' followings.
In 1988, the Union targeted Ultrasystems for unionization, selecting the two California sites for its efforts. The Union assigned William Creeden, a full-time union employee, to be in charge of the organizing effort. In furtherance of the effort to organize the employees of Ultrasystems, the Union sent applications to the project managers at both sites in the summer and fall of 1988 when Ultrasystems was in need of welders. It sent 14 applications of union members, including that of Creeden, to the Rocklin site and 52 applications of union members to the Bakersfield site. The management of Ultrasystems was aware of the organizing effort and took various steps to resist it. Ultimately, none of the 66 union-member applicants were hired.
On the complaint of the Union, the National Labor Relations Board ("the Board") charged Ultrasystems with violations of sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act ("NLRA"), 29 U.S.C. Secs. 158(a)(1) & (3). Following a 13-day trial, the Administrative Law Judge ("ALJ") found that "the evidence is clear that [Ultrasystems] has in place an unlawful policy designed to screen from employment individuals whom it deems, rightly or wrongly, to be likely to engage in union activity." It found anti-union animus in connection with the handling of the 66 applications and, in particular, in connection with its refusal to hire Creeden, the paid union organizer. It also found a number of other NLRA violations involving current employees, which are not at issue on this appeal. The ALJ required Ultrasystems "to pay backpay to those individuals, determined at a compliance proceeding, to have been denied employment at either Rocklin or Bakersfield because of their union background." In addition, the ALJ ordered the company to post at the Rocklin and Bakersfield sites a "Notice to Employees" acknowledging the past violations by Ultrasystems and detailing specific employee rights to organize and engage in collective action. In the event that the two projects were completed, it required Ultrasystems to mail the notice to the employees who had worked at the two projects and to post copies at Ultrasystems' current project sites.
The Board adopted the rulings, findings, and conclusions of the ALJ, with a modification in the remedial order. Rejecting any suggestion that the reinstatement remedy was not practicable for violations by companies in the construction industry, the Board required Ultrasystems to offer employment as well as backpay to all 66 union applicants whom Ultrasystems refused to consider or to hire. In particular, it required the company to:
Make whole all employee-applicants at Rocklin and Bakersfield for any losses they may have suffered by reason of the discriminatory refusal to consider them for employment.... Offer all employee-applicants at Rocklin and Bakersfield employment in the positions for which they applied, or if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges to which they would have been entitled if they had not been discriminated against by the Respondent.
Ultrasystems filed this petition for a review of the Board's order, and the Board cross-petitioned for enforcement of its order.
Ultrasystems first contends that our decision in H.B. Zachry Co. v. NLRB, 886 F.2d 70 (4th Cir.1989), requires that we deny enforcement of the Board's order with respect to William Creeden, because he was not a bona fide applicant for employment and therefore was not protected as an employee under the Act. The Board found that Ultrasystems refused employment of Creeden solely because he was a union organizer and therefore violated sections 8(a)(3) and (1) of the Act. It directed that Ultrasystems offer Creeden employment with backpay.
In Zachry, we held that an applicant for employment who, if hired, had intended to remain on the union payroll as a union organizer during the period of employment was not a bona fide applicant for employment within the meaning of the NLRA. The record there showed that the union intended to make up any shortfall in the organizer's salary, to continue payments for his insurance and pension, and to pay daily transportation and living expenses related to the employment. The organizer conceded that he sought employment for the purpose of entering the plant and organizing its employees. The Board in Zachry found that the company violated the Act by refusing to hire the union organizer, but we refused enforcement of the Board's order. While we recognized that a bona fide applicant for employment is in fact a prospective employee and therefore should be treated as an "employee" as that term is defined in the Act, see Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271 (1941), we concluded that the union organizer cannot be considered a bona fide applicant for employment with the company.
Our decision was based, at bottom, on the conclusion that an application from a union organizer, applying for work at the direction of the union employer, was "qualitatively different from that of a bona fide applicant." 886 F.2d at 74. Because the union organizer would work for the employer only to carry out his duties as a union organizer and would be paid by the union at the same time, he was not "in search of a job" with the usual expectations of employment. Rather than having the nature of his employment relationship determined by his performance and the needs of his employment, the union organizer's application was submitted only for temporary employment, the nature and duration of which would be dictated by the organizing effort. Policy considerations also guided the...
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