NLRB v. DC Mason Builders ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
No. 97-1414
D.C. MASON BUILDERS,
INCORPORATED,
Respondent.
On Application for Enforcement of an Order
of the National Labor Relations Board.
(6-CA-27284)
Argued: October 31, 1997
Decided: December 31, 1997
Before MURNAGHAN, WILKINS, and NIEMEYER,
Circuit Judges.
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Enforced by unpublished per curiam opinion.
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COUNSEL
ARGUED: Melvina Carrie Ford, LAW OFFICE OF MELVINA C.
FORD, Alexandria, Virginia, for Mason Builders. Fred Barry Jacob,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Board. ON BRIEF: Frederick L. Feinstein, General Counsel, Linda
Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Asso-
ciate General Counsel, Peter Winkler, Supervisory Attorney,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Board.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
The National Labor Relations Board (the Board) petitions for
enforcement of an order the Board issued finding that D.C. Mason
Builders, Inc. (Mason) committed various unfair labor practices and
breached a collective bargaining agreement. See 29 U.S.C.A. § 160(e)
(West 1973). We enforce the order.
I.
In 1993, Mason, a masonry contractor, entered into a collective
bargaining agreement (the Agreement) with the International Union
of Bricklayers and Allied Craftsmen, Local Union Number 15, AFL-
CIO (the Union). Initially, Mason paid the wages and fringe benefits
specified therein and otherwise complied with the Agreement. In
November 1994, however, Leroy Hunter, Sr., the acting business
manager for the Union, approached Mason's president, Leslie Cum-
mings, concerning the discharge of two union stewards. Cummings
stated that the stewards were discharged for incompetence. Hunter Sr.
responded that he would send Cummings a steward about whose com-
petence Hunter Sr. had no doubt--his son, Leroy Hunter, Jr. Shortly
thereafter, Hunter Jr. began working for Mason on a courthouse proj-
ect.
Approximately one month later, in December 1994, Hunter Jr. filed
a grievance alleging that Mason had violated the Agreement by
improperly stopping work on the courthouse project and by not pay-
ing the correct hourly wage. In response to Hunter Jr.'s grievance,
Cummings told him "that if [he] didn't want to be on [a Mason] job,
to get the [expletive] off; that he was tired of this [expletive] that [he]
and [his] dad were trying to pull on him." J.A. 149. In January 1995,
Hunter Jr. filed another grievance concerning two other wage-
payment matters. Both the December and January grievances were
2
submitted by Hunter Sr. to Cummings. When Hunter Sr. received no
response, the grievances were submitted to a joint committee
appointed pursuant to the Agreement to resolve grievances.1
Tensions between Cummings and Hunter Jr. can also be traced to
events arising out of a December 1994 inspection of the worksite by
a representative of the Occupational Safety and Health Administration
(OSHA) for safety violations. Hunter Jr., as a union steward, was
present for the inspection and afterward asked the OSHA representa-
tive if Mason was required to hold safety meetings. The representa-
tive replied that such meetings were not required, but that they might
be a mitigating factor if violations were found. The following morn-
ing, Cummings stated that he had been cited for violations and that
he knew Hunter Jr.'s statement to the representative about safety
meetings had resulted in an increase in Mason's fine. One week later,
Mason ceased work on the courthouse and laid off all of its employ-
ees. After a work stoppage of several weeks, Mason resumed work on
the courthouse project and recalled one of its bricklayers. Hunter Jr.
was not recalled, even though the Agreement provided that "[t]he
steward shall be the first bricklayer called back to work in the event
of any work stoppage of any type." J.A. 28.
In June 1995, the Board charged Mason with violations of
§ 8(a)(1), § 8(a)(3), and § 8(a)(5) of the National Labor Relations Act
(NLRA). See 29 U.S.C.A. § 158(a)(1), (3), (5) (West 1973 & Supp.
1997). Approximately one month later, the Pittsburgh Regional Office
of the Board received a handwritten, undated letter from Cummings
stating, "We wish to remind all parties concerned, we have never had
a [b]inding agreement with [the Union.] If the [Board] chooses to use
it[s] time to pursue this matter so be it." J.A. 69.
After conducting a hearing, an administrative law judge (ALJ)
found that Cummings' statement to Hunter Jr. following the filing of
the December grievance constituted coercion in violation of § 8(a)(1).
Additionally, the ALJ found that Mason's refusal to rehire Hunter Jr.
was motivated in part by Hunter Jr.'s union activity, that Mason failed
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1 The Board credited evidence that although Cummings was notified of
two hearings--one for each grievance--he failed to attend or send a rep-
resentative to either hearing.
3
to demonstrate that it would not have rehired Hunter Jr. were it not
for his union activity, and consequently that the failure to recall
Hunter Jr. constituted a violation of § 8(a)(3). Finally, the ALJ found
that Mason breached the Agreement by sending the letter to the Board
expressly repudiating the Agreement, refusing to respond to the griev-
ances, failing to make appropriate fringe benefit contributions on
behalf of its employees, and refusing to recall Hunter Jr., and that
these breaches constituted a refusal to bargain collectively in violation
of § 8(a)(5). The Board adopted all of these findings.
In deciding whether the order of the Board should be enforced, we
review questions of law de novo; however, we are bound by the fac-
tual findings of the Board if they are supported by substantial evi-
dence on the record as a whole. See 29 U.S.C.A. § 160(e); Industrial
Turnaround Corp. v. NLRB, 115 F.3d 248, 251 (4th Cir. 1997). "Sub-
stantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion" and consists of "more
than a scintilla but less than a preponderance." Vance v. NLRB, 71
F.3d 486, 489-90 (4th Cir. 1995) (per curiam) (internal quotation
marks omitted). Additionally, we must defer to a choice made by the
Board between two reasonable views of the evidence regardless of
whether we would reach the same conclusion on de novo review. See
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).
II.
In opposing the petition for enforcement, Mason first argues that
the finding of the Board that Cummings threatened Hunter Jr. in vio-
lation of § 8(a)(3) is not supported by substantial evidence. We dis-
agree.
Section 7 of the NLRA grants employees "the right to self-
organization, to form, join, or assist labor organizations ... and to
engage in other concerted activities for the purpose of collective bar-
gaining." 29 U.S.C.A. § 157 (West 1973). That guarantee is imple-
mented by § 8 of the NLRA, which provides that it is an unfair labor
practice for an employer "to interfere with, restrain, or coerce
employees in the exercise of [their § 7] rights." 29 U.S.C.A.
§ 158(a)(1). An employer violates § 8(a)(1) when it threatens to dis-
charge employees in retaliation for union activity. See, e.g., NLRB v.
Nueva Eng'g, Inc., 761 F.2d 961, 966 (4th Cir. 1985).
4
When making a determination concerning the coercive effect of an
employer's statement, we must view the statement"in the context of
its labor relations setting." J.P. Stevens & Co. v. NLRB, 638 F.2d 676,
687 (4th Cir. 1980) (internal quotation marks omitted). "The test of
coerciveness is not whether the language or acts were coercive in
actual fact, but whether the conduct in question had a reasonable ten-
dency in the totality of the circumstances to intimidate." Standard-
Coosa-Thatcher Carpet Yarn Div., Inc. v. NLRB, 691 F.2d 1133, 1137
(4th Cir. 1982) (internal quotation marks omitted). And, "[t]he coer-
cive effect of an employer's speech ... is a question essentially for the
specialized experience of the" Board. J.P. Stevens & Co., 638 F.2d at
687 (internal quotation marks omitted).
We conclude that substantial evidence supports the finding of the
Board that Cummings' expletive-laden suggestion to Hunter Jr. that
he quit his job, made in direct response to Hunter Jr.'s filing of the
December grievance, had a reasonable tendency to intimidate.2 See
NLRB v. Intertherm, Inc., 596 F.2d 267, 275-76 (8th Cir. 1979) (hold-
ing that employer's statement to employee "that if [he] were unhappy
with the company, he should look for another job" was "essentially
a thinly-veiled threat to fire [the employee] for his union activities").
III.
Mason next contends that the finding of the Board that Mason dis-
criminated against Hunter Jr. in violation of § 8(a)(1) and § 8(a)(3)3
by failing to recall him to work was not supported by substantial evi-
dence. This argument has no merit.
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2 Mason argues that the Board erred in finding that Cummings did not
deny making the statement. The record reflects, however, that although
Cummings generally denied threatening his employees, he did not specif-
ically deny making the statement in question, which he may not have
considered to be a threat. In any event, because the Board credited
Hunter Jr.'s allegation that Cummings made the statement, the record
supports the finding by the Board that the statement was made.
3 Subsection 8(a)(3) provides, in pertinent part, that "[i]t shall be 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.A. § 158(a)(3).
5
An employer commits an unfair labor practice when it discharges
or fails to recall an employee because of the employee's union activi-
ties. See NLRB v. Low Kit Mining Co., 3 F.3d 720, 727 (4th Cir.
1993). If the Board finds that the failure to recall the employee was
"motivated by anti-union considerations," the failure to recall is
unlawful unless the employer proves that it would not have recalled
the employee even absent the anti-union considerations. Id. at 728(internal quotation marks omitted). Motive is a question of fact, and
the Board may rely on circumstantial as well as direct evidence to
find that discriminatory motive has been established. See id.Here, the record establishes that Mason previously discharged two
union stewards, threatened Hunter Jr., and refused to attempt to
resolve Hunter Jr.'s union grievances. This evidence alone is more
than sufficient to support the inference by the Board that Mason's
failure to recall Hunter Jr. "was based in part on ... [his] union activ-
ity." J.A. 211. Because Mason did not offer credible evidence that
Hunter Jr. would not have been recalled even absent the discrimina-
tory motivation,4 substantial evidence in the record supports the rejec-
tion by the Board of this contention, and the finding of discrimination
must be affirmed.
IV.
Mason also argues that the finding of the Board that Mason
breached the Agreement in violation of § 8(a)(1) and § 8(a)(5) was
not supported by substantial evidence. We disagree.
All four grounds offered by the Board for the conclusion that
Mason breached the Agreement are supported by substantial evidence
in the record. First, the Board reasonably found that the letter that
Cummings sent to the Board denying the existence of a binding
agreement constituted a repudiation of the Agreement.5 Second, the
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4 Cummings testified that he recalled the other employee because he
believed he had a right to do so under the Agreement. The Board cor-
rectly found, however, that Cummings' interpretation of the Agreement
was unreasonable. Although it is not explicitly stated in the order, we
assume the Board further reasoned that Cummings would have given the
Agreement its correct interpretation were it not for his anti-union animus.
5 Mason did not argue before the Board, nor does it now contend, that
it possessed a right to repudiate the Agreement. Rather, it claimed only
that as a factual matter, it did not repudiate the Agreement.
6
finding of the Board that Mason violated the Agreement by failing to
make fringe benefit contributions in 1995 was supported by Hunter
Sr.'s credited testimony to that effect. Third, the finding of the Board
that Mason violated the Agreement by failing to participate in the
grievance process6 is supported by undisputed evidence that Mason
failed to send a representative to either of two hearings of which it
had notice regarding employee grievances. Finally, the finding of the
Board that Mason breached the Agreement by failing to recall Hunter
Jr. is supported by the explicit language of the contract and by undis-
puted testimony that Cummings recalled another employee to the
courthouse project instead of recalling Hunter Jr.
V.
Mason finally contends that the remedies assessed by the Board are
too broad. Because Mason failed to raise this issue before the Board,
however, we lack jurisdiction to consider it absent"extraordinary cir-
cumstances." 29 U.S.C.A. § 160(e); Woelke & Romero Framing, Inc.
v. NLRB, 456 U.S. 645, 665-66 (1982). Because Mason does not
argue that any such circumstances exist, we do not address this argu-
ment.
VI.
For the foregoing reasons, the order of the Board is enforced.
ENFORCED
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6 Section 8(d) provides that collective bargaining includes meeting in
good faith at reasonable times to resolve questions that arise under the
labor agreement. See 29 U.S.C.A. § 158(d) (West Supp. 1997); see also
United Steelworkers v. Warrior & Gulf Navigation Co. , 363 U.S. 574,
581 (1960) (explaining that "[t]he grievance procedure is ... a part of the
continuous collective bargaining process").
7