Van Vlerah Mechanical, Inc. v. N.L.R.B.
| Decision Date | 02 December 1997 |
| Docket Number | Nos. 96-2852,96-2953,s. 96-2852 |
| Citation | 130 F.3d 1258 |
| Parties | 156 L.R.R.M. (BNA) 3073, 134 Lab.Cas. P 10,094 VAN VLERAH MECHANICAL, INCORPORATED, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Larry L. Barnard (argued), Arthur E. Mandelbaum, Miller, Carson, Boxberger & Murphy, Fort Wayne, IN, for Petitioner.
Aileen A. Armstrong, Howard E. Perlstein, Susan M. Pavsner (argued), National Labor Relations Board Appellate Court, Enforcement Litigation, Washington, DC, William T. Little, National Labor Relations Board Region 25, Indianapolis, IN, for Respondent.
Before POSNER, Chief Judge, and RIPPLE and EVANS, Circuit Judges.
Van Vlerah Mechanical, Inc. ("VVM") petitions for review of a decision and order of the National Labor Relations Board. The Board has filed a cross-application for enforcement of its order. For the reasons set forth in this opinion, we deny the petition for review and grant enforcement of the Board's order.
This case centers on a series of events which occurred within a two-week span and
culminated in the discharge of Arden Reust from VVM. Specifically, there are four events that led an Administrative Law Judge ("ALJ") and then the NLRB to find that VVM had engaged in unfair labor practices in violation of §§ 8(a)(1) and (a)(3) of the National Labor Relations Act. We shall summarize each.
In September of 1993, VVM was installing a heating and air-conditioning system in an existing high school and its new addition in Pioneer, Ohio. This jobsite was within the territorial jurisdiction of Plumbers Local 50, 1 an Ohio-based union. However, VVM employed at the Pioneer jobsite not only members of Plumbers Local 50 but also members of Plumbers Local 166, 2 an Indiana-based union. On September 2, 1993, Bill Flowers, the business agent for Plumbers Local 50, visited the site and found that only one of three employees on the job that day was a member of Plumbers Local 50. That employee was Hal DeTray. The other two employees, Arden Reust and Bill Haines, were members of Plumbers Local 166. Flowers questioned Haines' right to work on the site and warned him that he should not come back the next day. He also ordered DeTray to inform him if any member of Local 166 worked on the Pioneer job.
Following Flowers' departure from the site, Reust, the foreman, called James Van Vlerah, the vice-president and 49% shareholder of VVM, to inform him of the incident. According to Reust, Van Vlerah told him to tell DeTray to "keep his mouth shut" or he would be fired. Van Vlerah Mech., Inc., No. 25-CA-22810, 1996 WL 41274, at * 4 (N.L.R.B. Jan. 31, 1996). In addition, Reust claimed that Van Vlerah expressed his intention to "go nonunion" if he continued to have difficulty with the unions. Id. After this conversation with Van Vlerah, Reust informed DeTray and Haines of Van Vlerah's remarks. Van Vlerah, however, denies that he ever threatened DeTray's employment.
This incident involved a problem regarding the apprenticeship status of Pierre Jacquay, one of the first employees of VVM and a close personal friend of Van Vlerah. As part of the apprenticeship program, Jacquay was required to submit to the Joint Apprentice Committee ("JAC") employer evaluations concerning the on-the-job training component of his apprenticeship. Although Jacquay submitted these evaluations in a timely fashion, he violated JAC rules by signing the evaluations himself. When he discovered that Jacquay had been signing his own evaluation forms, Leonard LaBundy, the director of the JAC, called in Jacquay for a meeting and informed him that the absence of proper documentation could affect Jacquay's eligibility to be referred for work to VVM or to any other employer. A few days after this meeting, on September 14, 1993, Van Vlerah called LaBundy and asked why the JAC was trying "to screw over Jacquay." Van Vlerah Mech., Inc., 1996 WL 41274, at * 5. Later in that conversation, Van Vlerah told LaBundy that "if the contractors were going to screw over Pierre, he would have to consider going nonunion." Id.
On September 21, 1993, Reust returned to VVM's shop after work and was approached by Van Vlerah. According to Reust, Van Vlerah told him that the union was picking on Jacquay again and also remarked that VVM had just given the union another $60,000 in benefit payments. Reust contends that Van Vlerah then asked him if he would work without a union affiliation if VVM paid him $80,000. Reust, who was earning $45,000 at that time, shrugged off Van Vlerah's proposal. Van Vlerah persisted, however, and asked Reust whether the union had ever done anything for him. Reust replied that the union had gotten him a job when he needed one and that, without the union's help, he would not be getting his present
compensation or benefits. Undeterred, Van Vlerah persisted in his offer to Reust by noting that, if VVM did not have to make benefit payments to the union, it could pay Reust and a few other good men more money and then hire the bulk of its work force "off the street." Van Vlerah Mech., Inc., 1996 WL 41274, at * 5. Reust expressed skepticism about this proposed arrangement and started to leave. Van Vlerah called after him: Id. Van Vlerah, however, denies ever offering Reust an $80,000 salary to abandon his union membership.
As part of the Pioneer job, VVM was required to complete a tie-in of an existing underground gas line to the newly constructed addition to the Pioneer school. In order to complete this tie-in, the incoming gas supply had to be shut off. The gas was turned off on September 29, 1993 at 12:30 p.m. and was scheduled to be turned on the following morning at 9:30 a.m. in order to ensure the proper heating of the classrooms for the day's session. Reust, as the working foreman on the job, was responsible for accomplishing this tie-in within the allotted time frame. After the tie-in was accomplished, Reust installed a chart recorder to ascertain whether the connection could withstand the required pressure over an allotted period of time. When the test seemed to be working, he left for home and, on the way, reported to Van Vlerah that the project seemed to be satisfactory and that definitive results would be known in the morning.
Reust returned to the jobsite the following morning at 7 a.m. and found that the test pressure in the new lines had dropped significantly. That drop in pressure indicated a leak somewhere in the pipeline. A leak in the line was repaired and further work on the gas company's meter was ordered. The pressure appeared to be holding in the line at the usual quitting time; Reust therefore left the jobsite. On the way home, he stopped at VVM's facility to report the situation. At that time, he reported the problems at the Pioneer job to Karen Van Vlerah, also a VVM officer.
On the following morning, the pressure again had dropped in the line and further work was performed. At approximately 11 a.m., Tom Kirkwood, one of Reust's designated superiors, arrived at the jobsite. Kirkwood had designed the Pioneer heating and air-conditioning system and supervised its installation. Together, Reust and Kirkwood made preparations to reroute the gas line in order to fix the problem. They also determined that the remainder of the work should be completed the next day. That evening, Reust again discussed the situation with Karen Van Vlerah. Later that evening, James Van Vlerah, who had visited the jobsite and claimed that he had not been informed of the problem, called Reust at home and fired him.
Van Vlerah testified that he fired Reust because of the Pioneer job delay and his belief that Reust, as the foreman on the job, was responsible for that delay. He also testified that, over the course of the years, there had been other problems, although none of sufficient gravity to justify a written record. He mentioned "piping practices that were wrong" and "poor judgment calls at times." Van Vlerah Mech., Inc., 1996 WL 41274, at * 6. Van Vlerah also cited the fact that the engine of the company truck Reust was driving "blew up" in September 1993. Id. Van Vlerah held Reust responsible for the damage to the truck because the repair shop mechanics had told him that the person driving the truck should have heard the engine pounding. Notably, however, Van Vlerah, in an affidavit submitted to the Board prior to the hearing, stated that Reust had a severe hearing problem and thus might not have been able to hear the engine pounding. Moreover, Reust received no discipline regarding this incident.
As a result of the events described above, Plumbers Local 166 filed a charge against VVM with the NLRB. On October 11 and 12, 1994, a hearing was held before an ALJ. Based on the evidence presented at that hearing, the ALJ found that VVM, by virtue of the conduct of Van Vlerah, violated § 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), which prohibits an employer from interfering with, restraining, or coercing employees in the exercise of their The ALJ also found that VVM violated both § 8(a)(1) and (a)(3) of the Act by discharging Reust on account of his pro-union sympathies. Section 8(a)(3) makes it an unfair labor practice for an employer to discriminate "in regard to hire or tenure of employment or any term or condition of employment to ... discourage membership in any labor organization." 29 U.S.C. § 158(a)(3). In reaching this conclusion, the ALJ gave significant weight to the timing of the firing and concluded that Reust's pro-union sympathies were a motivating factor in Van Vlerah's decision to terminate...
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