Jacee Electric, Inc. v. National Labor Relations Board , 56 F. App'x 102 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
1-29-2003
Jacee Elec Inc v. NLRB
Precedential or Non-Precedential: Non-Precedential
Docket 01-4109
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
NO. 01-4109
JACEE ELECTRIC, INC.,
Petitioner
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent
On Petition for Review of
National Labor Relations Board Order
(4-CA-28979)
NO. 01-4490
NATIONAL LABOR RELATIONS BOARD,
Petitioner
v.
JACEE ELECTRIC, INC.,
Respondent
On Cross-Application for Enforcement
of an Order of the National Labor Relations Board
(4-CA-28979)
NO. 02-2164
NATIONAL LABOR RELATIONS BOARD,
Petitioner
v.
JACEE ELECTRIC, INC.,
Respondent
On Application for Enforcement
of an Order of the National Labor Relations Board
(4-CA-30879)
Submitted Under Third Circuit LAR 34.1(a)
January 27, 2003
Before: SLOVITER and RENDELL, Circuit Judges,
and DEBEVOISE, District Judge*
(Filed: January 29, 2003)
OPINION OF THE COURT
SLOVITER, Circuit Judge.
In these consolidated labor cases, Jacee Electric, Inc. petitions for review of a
decision of the National Labor Relations Board (“Board”) that it engaged in unfair labor
*
Hon. Dickinson R. Debevoise, Senior Judge, United States District Court for the
District of New Jersey, sitting by designation.
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practices. The Board cross-applies for enforcement of its order, and applies for
enforcement of a related order directing Jacee to bargain with the union. For the reasons
that follow, we will deny review of the Board’s decision and grant its enforcement
applications.
I.
BACKGROUND
The Administrative Law Judge (“ALJ”) made the following findings of fact. Jacee is
an electric service contractor located in Pennsylvania whose president, John Corelli,
manages the company from his home in Florida. Jacee employs two electricians, Bill
Cowan and Justin Waid, who have worked for the company since 1996. It also employs a
part-time billing clerk as well as Cowan’s wife, who, among other tasks, maintains the
office. Jacee regularly employs others to do electrical work, either as electricians or
helpers. At times, Jacee operates without additional help and at other times, one or more
electricians or helpers have worked for it for an extended period of time.
On January 25, 2000, Jacee hired Robert Hearon as a helper. It also hired Charles
Vandenberg as a helper shortly thereafter. On February 15, 2000, a union organizer
approached Hearon and Waid while they ate lunch. Both employees went to the union hall
the next evening and signed authorization cards. On February 17, IBEW Local 269 (the
“Union”), filed a representation petition. Corelli received a copy of the petition by fax at
about 12:41 p.m.
On the same day at 11:15 a.m., Hearon and Waid completed electrical work they had
3
been assigned. They spoke to Corelli on the telephone who told them that there was no
electrical work for them to do. He offered them the option of doing non-electrical work
which they did. On February 18, Waid did non-electrical work and Jacee discharged
Vandenberg. Corelli told Hearon that he had no work for him. Hearon called Corelli about
the availability of work from Monday, February 21 through Thursday, February 24. The
first three days, Corelli told Hearon that no work was available but that he should call back
the next day. On February 24, Corelli told Hearon to stop calling him, to file for
unemployment insurance and to look for another job.
Waid did electrical work the week of February 21, 2000. On February 22, he asked
Corelli if he would have a helper to assist him and Corelli told him that he would not.
Corelli asked Waid if any union representatives had been to any of the jobs he had worked
on and Waid said no. Corelli told Waid that unions were no good for employees like him
because they would make him start from the bottom again. On February 23, the Union sent
Corelli a fax identifying Waid as a volunteer organizer. Corelli asked Waid if the letter was
accurate. When Waid said that it was, Corelli asked him if he knew what would happen to
his business if it went union. Corelli also asked Waid what it would take to get him to stop
supporting the Union, offered him a raise and other benefits and told him to write down
anything else that he wanted.
On February 25, 2000, Waid went on strike. Hearon joined him on the picket line.
Jacee obtained an employee from a temporary labor agency to replace Waid. It hired no
other employees.
4
The Board’s General Counsel issued a complaint alleging that Jacee violated the
National Labor Relations Act, 29 U.S.C. §§ 158(a)(1),(3) (the “Act”), by laying off Hearon,
and by interrogating Waid about his union activities, promising him benefits if he withdrew
his support for the Union, and threatening that it would close its business if employees
chose the Union as their bargaining representative.
The Board also conducted a secret ballot election among Jacee’s five employees,
which resulted in one vote in favor and one vote against union representation. There were
three challenged ballots and Jacee does not dispute that two of them should not be counted.
The last ballot is Hearon’s vote which Jacee argues should not be counted. Hearon’s vote is
determinative as to union representation.
Based upon his findings of fact, the ALJ concluded that union activity was a
substantial factor in Jacee’s decision to layoff Hearon. The ALJ explained that although
there was no direct evidence that Jacee knew that Hearon supported the Union until
February 25, the day of the strike, he could infer such knowledge from the totality of the
circumstances, which included the timing of his layoff, Jacee’s general knowledge of its
employees’ union activities gained from the representation petition and the letter
identifying Waid as an organizer, Jacee’s union animus and the pretextual nature of Jacee’s
explanation for the layoff.
In finding that Jacee’s explanation for the layoff – insufficient work – was
pretextual, the ALJ explained that he did not credit Corelli’s testimony that he had laid off
employees in the past. Rather, Jacee’s practice was to employ helpers for an extended
5
period of time even when sales temporarily declined. In addition, Jacee generally needed
more help in the winter. The ALJ also inferred discriminatory motive from Jacee’s
vacillating explanation for laying off Hearon. Jacee initially stated that it laid him off
because of frequent absences but abandoned that explanation at the hearing.
Having concluded that Jacee laid off Hearon in violation of the Act, the ALJ found
that Hearon was eligible to vote in the election. He issued a recommended order that Jacee
cease and desist from engaging in the unfair labor practices, that it reinstate Hearon and
make him whole for any loss of earnings and benefits and that the Regional Director
prepare a revised tally of ballots related to the election. 1
In a divided decision, the Board affirmed the ALJ’s findings and conclusions and
adopted the recommend order in a slightly modified form. The majority of the Board
agreed that Jacee’s explanation for Hearon’s layoff was pretextual based upon the factors
cited by the ALJ. The dissenting Board member concluded that Jacee established that it
would have laid off Hearon even if he had not engaged in union activity based upon the facts
that Corelli told Hearon that there was no work after February 17, that Jacee did not hire
another employee after Hearon’s departure and that Jacee sometimes operated without
helpers.
The Board also directed the Regional Director to count Hearon’s ballot in the
1
The ALJ also concluded that Corelli’s efforts to convince Waid not to support the
Union constituted unfair labor practices. Jacee does not challenge this ruling on appeal and
the court will grant enforcement of the Board’s order with respect to these charges without
further discussion.
6
election and serve a revised tally of ballots on the parties. Although the Union was
certified as the exclusive collective bargaining representative of the employees, Jacee
refused to bargain with the Union. The Board’s General Counsel issued a complaint and the
Board found that Jacee violated the Act and ordered it to bargain. The Board has filed an
application to enforce this order to bargain which is before the court along with Jacee’s
petition for review of the Board’s decision that it committed unfair labor practices with
respect to Hearon, and the Board’s cross-application for enforcement of that order.
II.
JURISDICTION AND STANDARD OF REVIEW
The Board had jurisdiction pursuant to 29 U.S.C. §160(a). This court has
jurisdiction pursuant to 29 U.S.C. §§ 160(e),(f). This court must sustain the Board’s
findings of unfair labor practices if they are supported by substantial evidence on the record
considered as a whole. Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 812 (3d Cir. 1986).
Similar deference is granted to the Board’s inferences from facts which, if supported by
substantial evidence, may not be displaced even though the court acting de novo might have
reached a different conclusion. Id. Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. Hedstrom Co. v. NLRB,
629 F.2d 305, 313 (1980) (en banc).
III.
DISCUSSION
A. Unfair Labor Practices
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Under Section 8(a)(3) of the National Labor Relations Act, it is 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). The General Counsel has the burden of proving that
an employee’s protected conduct was a substantial or motivating factor for an employer’s
adverse action. NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 401 (1983). The Board may
rely on circumstantial evidence to prove anti-union motivation. NLRB v. Scott Printing
Corp., 612 F.2d 783, 787 (3d Cir. 1979). The employer may then establish as an
affirmative defense that it would have taken the same action even if the employee had not
been involved in union activity. See Transp. Mgmt. Corp., 462 U.S. at 401-02.2
Jacee argues that the Board’s decision that Hearon’s union activity was a substantial
or motivating factor leading to his layoff is not supported by substantial evidence. It relies
on the facts that Corelli was located in Florida and did not know about the union activity;
Hearon worked only two days the week before he was laid off due to a lack of work; Corelli
was unsophisticated regarding union-organized activity; and before February 23, 2000, the
only employee Corelli could have suspected of such activity was Vandenberg, who wore a
union cap insignia and had a sticker on his car.
The Board responds that it reasonably inferred that Jacee knew about Hearon’s union
2
The Supreme Court has rejected a footnote in Transp. Mgmt. Corp. unrelated to the
issue before the court in this case. See Dir., Office of Workers’ Comp. Programs v.
Greenwich Collieries, 512 U.S. 267, 277 (1994).
8
activity and was unlawfully motivated based upon its general knowledge of its employees’
union activities, Corelli’s union animus evidenced by his comments to Waid, the small size
of the workforce and the timing of Hearon’s layoff. Corelli stopped assigning work to
Hearon on February 18, the day after he received the representation petition, and
terminated him on February 24, the day after he learned that Waid was a volunteer
organizer. The Board submits that it is reasonable to infer that Corelli would suspect his
newer employees were behind the new unionizing campaign given that he had a positive
relationship with his long-term employees, Cowan and Waid.
The Board further contends that the fact that Corelli was based in Florida does not
dictate a contrary result since he spoke to his employees daily and was aware of the union
activity. It also argues that a sophisticated understanding of union activities was not
necessary to suspect that Jacee’s newest hires were more likely responsible for union
organizing actions. We agree with the Board that Jacee’s arguments do not undermine the
Board’s conclusion that Hearon’s termination was motivated by his union activity.
Jacee also argues that even if the General Counsel sustained its burden of proof, the
Board erred in deciding that Jacee did not show that Hearon’s layoff resulted from a
permissible motive – insufficient work. It contends that it introduced business records
showing that helpers never worked long enough to qualify for benefits, and that the week
before Hearon was discharged, he only worked two days. Jacee also disputes the Board’s
determination that the fact that Jacee advanced more than one reason for its decision to
layoff Hearon supports that it had an improper motive.
9
The Board argues that insufficient work is a pretext and points to evidence that sales
were up in February of 2000, and to Waid’s testimony that he asked Corelli if a helper
would assist him the week that Hearon was laid off. It also states that even if there was an
economic slowdown, the size of Jacee’s workforce remained steady in the past when sales
figures fluctuated. The Board contends that Jacee’s change in its stated reason for laying
off Hearon supports a finding of pretext because the Board could infer that the real reason
for the layoff was not among those asserted.
Jacee has not advanced persuasive arguments to the contrary. We hold that Jacee
has not established that the Board’s conclusion that Jacee did not show that it would have
discharged Hearon in the absence of his union activity is not supported by substantial
evidence.
B. Ballot Challenge
Jacee and the Board agree that the decision regarding the validity of Hearon’s ballot
rests on the validity of his layoff. If Hearon was laid off for an improper reason, he is an
employee for union organization purposes and his ballot should be counted. If he was laid
off for a valid reason, his ballot should not be counted. Because Jacee has not shown that
the Board erred in finding that it committed unfair labor practices, we further hold that the
Board properly directed that Hearon’s ballot be counted in the election.
C. Refusal to Bargain
Jacee concedes that whether the court should enforce the Board’s order that it
bargain with the Union depends upon the resolution of the above issues. Based upon our
10
conclusions set forth above, we will grant the Board’s application for enforcement of the
order to bargain.
IV.
CONCLUSION
For the reasons set forth above, we will deny Jacee’s petition for review and we will
grant the Board’s applications for enforcement of its orders.
TO THE CLERK:
Please file the foregoing opinion.
/s/ Dolores K. Sloviter
Circuit Judge