Masiongale Elec v. NLRB

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 00-3194, 00-3576, 02-1227 & 02-1591
MASIONGALE ELECTRICAL-MECHANICAL, INC.,
Petitioner, Cross-Respondent,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent, Cross-Petitioner,
and
INDIANA STATE PIPE TRADES ASSOCIATION,
Intervenor.
____________
Petitions for Review and Cross-Applications
for Enforcement of Orders
of the National Labor Relations Board.
____________
ARGUED SEPTEMBER 23, 2002—DECIDED MARCH 21, 2003
____________
Before DIANE P. WOOD, EVANS, and WILLIAMS, Circuit
Judges.
WILLIAMS, Circuit Judge. Because of terminations, work
restrictions, and failures to hire, the National Labor
Relations Board (the Board) determined that Masiongale
Electrical-Mechanical, Inc. (Masiongale) violated various
provisions of the National Labor Relations Act (the Act).
We find that there was substantial evidence supporting
2 Nos. 00-3194, 00-3576, 02-1227 & 02-1591
the Board’s findings and enforce the orders except for
Masiongale’s coercive interrogation of two employees
and its termination of a different employee.
I. BACKGROUND
Masiongale is based in Muncie, Indiana, and performs
electrical, HVAC (heating, ventilation and air-condition-
ing), and plumbing contracting for the construction in-
dustry. From December 1996 through September 1997,
Masiongale placed advertisements in local newspapers
seeking to hire plumbers for two job sites, one in
Mishawaka, Indiana, and the other in Greenwood, Indi-
ana. The ads were for “licensed plumbers and licensed
assistants only.” Locals 172 and 661 of the Indiana State
Pipe Trades Association (the union) were interested in
these notices, and encouraged their unemployed members
to apply. Jack Neal, a business agent for Local 661, went
to Masiongale’s office and picked up an application, which
he photocopied and made available to members of both
locals in January 1997.
A. Refusal to Hire Self-Identified Union Members
In December 1996, three union members delivered
completed applications to Masiongale’s superintendents
at the Mishawaka jobsite. They identified themselves as
union organizers and discussed their work experience
and certifications with the superintendent. Though the
superintendents told these applicants that the jobsite
was in need of plumbers and they submitted completed
applications indicating that they were voluntary union
organizers, they were never contacted by the company.
In August 1997, four different union members went to
Masiongale’s office and requested job applications, which
they completed on the spot. They wore union T-shirts and
Nos. 00-3194, 00-3576, 02-1227 & 02-1591 3
wrote the phrase “Voluntary Union Organizer” at the top
of their applications. They submitted their applications
to Masiongale’s receptionist, but were never contacted by
the company.
On March 28, 1997, Jack Neal submitted 13 completed
applications, along with his own, to Masiongale’s office.
All the applicants held valid plumber’s licenses and had
written the phrase “Voluntary Union Organizer” across
the top of their applications. None of the 13 applicants
were contacted by Masiongale for work on either job site,
though Neal, after a follow-up telephone conversation, was
offered a position in April.
B. Gary Gravit and Jeffrey Jehl
Gary Gravit applied for a job as a plumber at the
Mishawaka jobsite in December 1996. He met a superin-
tendent, Ron Curd, and was offered a position. The morn-
ing of his first day at the jobsite, Gravit met with Jeffrey
Jehl, an organizer for the union, and they both went to
the jobsite. Gravit introduced Jehl to Curd and told Curd
that though Jehl did not have a plumber’s license, he
was experienced and would do good work. Jehl filled out
a job application and was hired on the spot. Neither Gravit
nor Jehl revealed their union affiliation on their job ap-
plications or while talking with Curd.
Their first morning at work, Gravit and Jehl observed
two people with jackets bearing union insignia talking
to Curd. After the two individuals left, Curd approached
Jehl and Gravit and asked whether either of them knew
the two union members. Gravit said that he knew one of
the employees. Curd then turned to walk away, but re-
turned and asked, “Have either of you been a member of
the union before?” Gravit said he “worked permit” a couple
of times in the past, and Jehl said that he was never a
member of Local 172.
4 Nos. 00-3194, 00-3576, 02-1227 & 02-1591
The next morning, Gravit and Jehl began distributing
union literature and discussing the union with the em-
ployees on the jobsite. Jehl wore a white jacket with a
union organizer logo on it and Gravit wore a Local 172
baseball hat. Curd arrived at the job site a little while
after Gravit and Jehl began talking with other employ-
ees, and was told by Jehl that he was a organizer for
the union. Curd replied that he was not surprised, and
said “If Masiongale had to pay union wages, they might
as well pull off the job, they would go broke.”
Gravit told Jehl while they were working on the job-
site that Masiongale was not completing some of the
plumbing up to code. Instead of telling Curd, Gravit de-
cided he would send a letter to the plumbing inspector.
They then met with Curd and told him that they felt that
they were underpaid compared to other plumbers on the
jobsite. Curd replied by telling them that he could not
grant wage increases. Jehl said that until he was given
a raise, he was going on strike. Curd asked, “Are you both
union members?” and they replied “Yes.” Curd then
asked, “Are you both going out on strike?” Gravit re-
plied “Yes.” Both left the jobsite and did not return to
work. Gravit then sent his letter to the plumbing inspec-
tor describing the code violations he noticed on the jobsite.
Jehl and other union organizers had several meetings
with Curd over the next two months discussing the union’s
picketing of the jobsite and other matters. In March 1997,
after learning from his last conversation with Curd that
the jobsite was in dire need of help, Jehl went to the job-
site and told Curd that he would unconditionally return
to work. Curd began to laugh, saying that Jehl was not
allowed on the project, and that “around here you are
considered a marked man, everyone on the job has a
hunting license and shotguns.” Jehl left the jobsite and
wrote a letter to Masiongale reiterating his offer to uncon-
Nos. 00-3194, 00-3576, 02-1227 & 02-1591 5
ditionally work on the jobsite, but never received a re-
sponse.
C. Jack Neal and Anthony Bane
As mentioned above, Jack Neal was the business agent
for Local 661, and distributed copies of Masiongale’s job
application to unemployed union members in January
1997. Shortly thereafter, Neal saw a different Masiongale
advertisement and called the company. He was asked
whether he had a plumber’s license and was encouraged
to pick up an application. In March, 1997, Neal delivered
his completed application to Masiongale’s office, along
with 13 other applications. He called Masiongale’s office
two weeks later regarding his application and was put
in contact with the supervisor at the Greenwood job-
site, Michael Woods. Woods asked about his plumber’s
license and prior experience, asked for his driver’s license
number to do a background check, and offered him a
position beginning that next Monday. Neal told Woods
about a friend, Anthony Bane, who also had a plumber’s
license and was looking for work. Woods asked Bane to
call him, and after Woods asked about Bane’s plumber’s
license, experience, and driver’s license number for a
background check, Woods also offered Bane a position
beginning that next Monday. Neither Neal nor Bane
told Woods that they were union members.
The next Monday morning, Woods asked Neal and Bane
to fill out job applications and other paperwork, telling
them that plumbers were needed for the 18-month job.
Bane listed the union’s apprenticeship program on his
job application, but Woods did not look over the applica-
tions before telling Neal and Bane to report to their
foreperson on the jobsite.
Before Neal and Bane left Wood’s office to report to
their foreperson, Bane told Woods that he and Neal were
6 Nos. 00-3194, 00-3576, 02-1227 & 02-1591
union organizers. Woods’s demeanor apparently changed
dramatically, as he slammed both hands down on his desk
and told Neal and Bane to “sit in your truck until Mike
Masiongale comes to the jobsite.” As they were leaving
the office, Neal and Bane saw Woods make a telephone call.
Woods then came to Neal and Bane’s truck and told
them that Masiongale’s standard hiring procedure was
to have a private detective conduct a background check
before people were hired. Neither Bane nor Neal had
previously been informed of a background check that
required more than their driver’s license numbers. Bane
and Neal reminded Woods of their conversations with
him earlier, but Woods said, “Well, that is just part of it.”
Bane told Woods as they were leaving the jobsite that
they were there to do a good job, to which Woods replied,
“no you didn’t, you are here to screw up my operation.”
Bane telephoned Masiongale’s office when he returned
home that day and scheduled an appointment to meet
with the private detective, which he had to cancel due to
a prior commitment. A second appointment was canceled
by the company, and Bane never heard anything else
about the background check or resuming work on the
jobsite.
Neal met with the private detective for about 30 minutes
and was asked about his union background and affilia-
tion. He did not hear anything from Masiongale for three
weeks, so he called Masiongale’s office, and was told that
they did not think he was still interested in a job. He
said that he was still interested, and he was contacted
the next day by a superintendent, John Blevins, who
asked that he come to Masiongale’s office. Neal showed
up at the office wearing a union T-shirt, and was asked to
fill out additional paperwork and watch a safety film. He
was offered $13 an hour instead of the earlier $14 offer.
Neal then met with Mike Masiongale, who told Neal that
he did not like Neal wearing the union T-shirt. Blevins
Nos. 00-3194, 00-3576, 02-1227 & 02-1591 7
then told Neal that he would not be going to a jobsite,
but would be working out of the office’s shop putting
together shower faucet heads. Neal was shown the office’s
storage garage and was told that it would be his work-
space. After space was cleared out of the garage for him
and a workbench improvised out of sawhorses and ply-
wood, Neal told Blevins that he could not find any shower
faucets. Blevins said that he would order some and asked
Neal to cut some copper pipe.
After Neal had begun cutting the pipe, Blevins and Mike
Masiongale approached Neal, with Masiongale saying “that
he did not want [Neal] talking about the union to his
employees, handing out literature, and did not want him
to talk to his employees about the Union on the job, in
his office, or on his property.” Mike Masiongale also said
that “he did not want the union, they messed with me
before.” Neal told Blevins that Mike Masiongale did not
have the right to talk to him that way, and that he was
going on strike, packing his tools, and leaving the ga-
rage. The next day, Neal returned to the garage to find
that it was being used for storage and no one was work-
ing there. Neal called Blevin and Woods, but none of
his calls were returned.
D. Procedural History
The General Counsel of The Board issued a complaint
against Masiongale, alleging violations of §§ 8(a)(3) and
(1) of the Act, 29 U.S.C. §§ 158(a)(3) and (1), based on the
coercion of Gravit and Jehl, the termination of Bane, the
sequestration of Neal, and its failure to hire the 20 self-
identified union organizers. The complaint alleged that
Masiongale acted against these individuals because of
their membership in the union. An administrative law
judge conducted a hearing and recommended that the
Board find the claims meritorious. The Board agreed
8 Nos. 00-3194, 00-3576, 02-1227 & 02-1591
with the ALJ’s findings regarding coercion and work
restrictions, making only minor alterations to the ALJ’s
proposed order. See Masiongale Elec.-Mech., Inc., 331
N.L.R.B. 67 (2000). However, it remanded the refusal-
to-hire claim back to the ALJ to incorporate the Board’s
newly-issued framework described in FES, (A Division of
Thermo Power), 331 N.L.R.B. 20 (2000), enforced by
NLRB v. FES, (A Division of Thermo Power), 301 F.3d 83(3d Cir. 2002). On remand, the ALJ issued a supplemen-
tal decision finding that Masiongale violated §§ 8(a)(3)
and (1) of the Act when it refused to hire or consider
for hire the 20 job applicants. The Board adopted the
ALJ’s findings and the proposed order. See Masiongale
Elec.-Mech., Inc., 337 N.L.R.B. 4.
Masiongale petitions for review of both the original order
and the supplementary order, and the Board cross-appeals
for enforcement of both orders. On our own motion, we
consolidated these cases.
II. ANALYSIS
We enforce orders of the Board if its factual findings
are supported by substantial evidence and its legal con-
clusions have a reasonable basis in law. See 29 U.S.C.
§ 160(e); Multi-Ad Servs., Inc. v. NLRB, 255 F.3d 363,
370 (7th Cir. 2001). There is substantial evidence if there
is relevant evidence that a reasonable mind might accept
as adequate to support the Board’s conclusion. See NLRB
v. Clinton Elecs. Corp., 284 F.3d 731, 737 (7th Cir. 2002);
Nat’l By-Prods., Inc. v. NLRB, 931 F.2d 445, 451, 137
L.R.R.M. (BNA) 2275 (7th Cir. 1991). When reviewing the
record, we defer to the Board’s inferences and conclusions
drawn from facts, Clinton Elecs., 284 F.3d at 737; U.S.
Marine Corp. v. NLRB, 944 F.2d 1305, 1314 (7th Cir. 1991)
(en banc), but must make sure that the Board’s findings
fairly and accurately represent the record. See NLRB
Nos. 00-3194, 00-3576, 02-1227 & 02-1591 9
v. Harvstone Mfg. Corp., 785 F.2d 570, 575 (7th Cir. 1986).
We particularly defer to the Board’s findings regarding
witness credibility, disturbing them only in extraordinary
circumstances, e.g., clear bias by the ALJ, disregard of
sworn testimony, or acceptance of testimony that is fa-
cially not credible. Multi-Ad, 255 F.3d at 370 (citing
NLRB v. Gerig’s Dump Trucking, Inc., 137 F.3d 936, 941
(7th Cir. 1998)). If we are faced with two conflicting ver-
sions of an incident, the ALJ’s determinations are en-
titled to deference. Multi-Ad, 255 F.3d at 370; Van Vlerah
Mech., Inc v. NLRB, 130 F.3d 1258, 1263 (7th Cir. 1997).
A. Failure to Hire Twenty Self-Identified Voluntary Union
Organizers
Masiongale argues that the Board’s finding that it re-
fused to hire 20 union members due to anti-union animus
is erroneous because Masiongale had valid reasons for not
hiring the applicants, satisfying its burden according to
the Board’s new standards described in NLRB v. FES, (A
Division of Thermo Power), 301 F.3d 83 (3d Cir. 2002)
(enforcing FES, (A Division of Thermo Power), 333 N.L.R.B.
20 (2000)). In addition, it argues that the Board’s remedial
order overreaches since there was no showing that there
were enough openings to accommodate the rejected appli-
cants to have filled, a requirement we established in
Starcon, Inc. v. NLRB, 176 F.3d 948 (7th Cir. 1999).
However, given our deference to the Board, especially when
judging witnesses’ credibility, we find that there is sub-
stantial evidence to support the Board’s findings and en-
force its order with regards to these un-hired applicants.
In FES, the Board described a new burden-shifting
framework to determine whether an employer violated
§ 8(a)(3) of the Act by refusing to hire an applicant because
of anti-union animus. This modified the previous test
10 Nos. 00-3194, 00-3576, 02-1227 & 02-1591
outlined in NLRB v. Transp. Mgmt. Corp., 462 U.S. 393(1983) (established by Wright Line, a Div. of Wright Line,
Inc., 251 N.L.R.B. 1083 (1980), enforced by 662 F.2d 899(1st Cir. 1981)). This change responded to numerous
criticisms of the Wright Line test, see FES, 333 N.L.R.B. 20,
at *2-3 (summarizing cases), including our own concern
that a prima facie refusal-to-hire case could be shown
under the Wright Line framework in a mixed-motive
case even though the applicants were not otherwise quali-
fied for the sought-after position. See Starcon, 176 F.3d
at 950-52.1 As described in FES, a prima facie refusal-to-
hire case consists of showing:
(1) that the respondent was hiring, or had concrete
plans to hire, at the time of the alleged unlawful
conduct;
(2) that the applicants had experience or training
relevant to the announced or generally known
requirements of the positions for hire, or in the
alternative, that the employer has not adhered
uniformly to such requirements, or that the re-
quirements were themselves pretextual or were
applied as a pretext for discrimination; and
1
We used the following example:
Suppose that one of the [applicants] for a job as a welder
on one of Starcon’s turnaround projects was in fact a
penguin wearing a [union] button. If Starcon turned
down the penguin’s application, and there was proof that
Starcon would never hire anyone wearing a [union]
button, . . . it would be open to Starcon to prove that, in
any event, it would never hire a penguin, because
penguins can’t weld. But the burden of proving this
would be on Starcon. We don’t see why the Board would
have the burden of proving (if it could) that Starcon
would hire nonunion penguins.
Starcon, 176 F.3d at 951.
Nos. 00-3194, 00-3576, 02-1227 & 02-1591 11
(3) that antiunion animus contributed to the de-
cision not to hire the applicants.
FES, 301 F.3d at 87. Once a prima facie case is estab-
lished, it is the respondent’s burden to show that it would
not have hired the applicants even absent their union
activity or affiliation. See id. We think that this frame-
work addresses the concerns we described in Starcon,
and concur with the Third Circuit’s approval of this test.
See id.2
To apply this framework, Masiongale’s anti-union animus
must be demonstrated in connection with the decision to
not hire all 20 applicants to present a prima facie refusal-
to-hire case. See FES, 301 F.3d at 87. We agree with the
Board that there is substantial evidence of animus, given
the statement of Ken Masiongale, president of the com-
pany, who told Neal that “he did not want the union,
they messed with me before” when Neal was being se-
questered in the company’s storage garage, and Woods’s
telling Bane that “You came to screw up my operation.”
Masiongale does not contest these and other statements
displaying anti-union animus, nor does it dispute that
the 13 plumbers who applied as a group by submit-
ting their forms were licensed and therefore qualified to
do the job advertised by Masiongale. Therefore, we find
that a prima facie case of refusing to hire based on anti-
union animus was presented to the Board under the FES
framework.
2
Because the Board’s decision in FES was released after the
ALJ issued his opinion in this case, the Board remanded the
case back to the ALJ regarding these refusal-to-hire claims
in order to take into account FES. Finding that he was able to
apply the FES standard without taking additional evidence, the
ALJ issued a supplementary order, which was adopted by the
Board. See Masiongale Elec.-Mech., 337 N.L.R.B. 4 (2001).
12 Nos. 00-3194, 00-3576, 02-1227 & 02-1591
Masiongale argues that the 13 applicants whose forms
were submitted en masse by Thomas Neal were sum-
marily rejected because the applications were stale,
not because of anti-union animus. Masiongale’s applica-
tion form states above the signature line that “this ap-
plication will be considered active for a period of 30 days
only,” and Masiongale argues that since the forms were
completed and dated January 1997, but not submitted
to Masiongale until March 1997, the forms were stale
when they were submitted and therefore not eligible for
consideration. The rationale for not using old applications
is straightforward—in an industry like construction, where
work schedules are transitory, an applicant who submit-
ted an application in April may have found work by June
or July, making reliance on such applications an ineffi-
cient use of time.
A majority of the Board, however, found that the applica-
tion of the 30-day rule was ambiguous. Masiongale main-
tains that the time period begins running from the day
the form is competed, since it believes that applicants
only fill out forms when they are immediately available
for work. The Board noted that this is not apparent from
the language of the form and does not consider the pos-
sibility that applicants may plan ahead in their job search,
i.e., that applicants may complete the form in advance
and have it ready and waiting when they begin looking
for a new job. Whatever the interpretation of the 30-day
rule, the Board found that Masiongale did not rely on the
application process to hire new employees, and that it
was a pretextual reason for rejecting those applicants
that it did not want.3 The Board agreed with the ALJ’s
3
Masiongale claims that because these applications were
untimely, the applicants could not show that they met the
positions’ requirements, thereby failing to meet the second re-
(continued...)
Nos. 00-3194, 00-3576, 02-1227 & 02-1591 13
finding that Ken Masiongale’s testimony regarding the
company’s interpretation of the 30-day policy was not
credible and cited numerous instances of hiring that
took place without the benefit of an application. Several
times, union representatives called Masiongale supervi-
sors to recommend plumbers they knew were unem-
ployed at the time. Every time, the recommended plumber
was hired after arriving on the jobsite or at Masiongale’s
offices without prior review of a written application.
While Masiongale emphasizes its belief that the 30 days
should start from the date of the application’s completion,
not its submission to Masiongale, it offers no counter to
the Board’s finding that the requirement was a pretextual
one disguising anti-union animus.
Masiongale also argues on appeal that there was no
showing that there were enough vacancies at the time for
the applicants to fill, making modification of the Board’s
order warranted insofar as it orders instatement of the
3
(...continued)
quirement of a prima facie case under FES. This misreads the
requirement, which only asks whether “the applicants had ex-
perience or training relevant to the announced or generally
known requirements of the positions,” or that these requirements
were pretextual. FES, 301 F.3d at 87. These requirements
must be “based on nondiscriminatory, objective, and quantifiable
employment criteria.” Id. at 91. Since the advertisements only
asked for licensed plumbers and assistants, these were the only
objective criteria needed to evaluate the applicants for pur-
poses of testing the Board’s prima facie case. Given the ambigu-
ous interpretation of the timely application requirement, it
was Masiongale’s burden to show that the applicants failed to
satisfy that requirement, id. at 91-92, and we defer to the Board’s
determination that Masiongale failed to adequately show that
this was in fact a requirement, and that it was not met by these
applicants.
14 Nos. 00-3194, 00-3576, 02-1227 & 02-1591
13 applicants. As we said in Starcon, the Board must
demonstrate that at least one such applicant would have
been hired, but only one, in order to establish a violation
of the Act. See Starcon, 176 F.3d at 951. Since the Board
is bringing the claim, not the spurned applicant, a one-for-
one correlation is not necessary to establish a violation.
See id. However, Starcon also requires the Board to show
that positions were available for every rejected applicant
if the cease and desist order includes, as here, relief
directed at individuals. See id. While this argument may
have merit, Masiongale never included this in its state-
ment of objections to the ALJ’s original or supplemental
decisions. Because Masiongale failed to present this ob-
jection to the Board, it is waived for purposes of appeal,
and we need not consider it. See NLRB v. Howard Immel,
Inc., 102 F.3d 948, 951 (7th Cir. 1996); NLRB v. Augusta
Bakery Corp., 957 F.2d 1467, 1478 (7th Cir. 1992); 29 C.F.R.
§§ 46(b), (h).
In addition to the 13 applicants who submitted their
forms as a group, the Board found that Masiongale vio-
lated § 8(a)(3) by refusing to hire the seven union mem-
bers who contacted the company individually and submit-
ted application forms in person. Masiongale claims that
it did not hire these applicants because of its “wage his-
tory” rule, i.e., it believed that it is undesirable to hire
workers accustomed to receiving a higher hourly wage
than Masiongale would offer, since these workers would
leave for a better-paying job as soon as one was avail-
able, the employee would not do a good a job, and additional
time would be spent negotiating wage rates. The Board
found the wage history rule a pretextual qualification used
to justify not hiring union-affiliated applicants, pointing
out instances when Masiongale hired non-union appli-
cants whose prior wage history included jobs paying higher
rates than Masiongale’s rates.
Nos. 00-3194, 00-3576, 02-1227 & 02-1591 15
Masiongale contests the accuracy of these comparisons,
but we need not resolve this factual debate. Here, the
Board’s findings are not an inaccurate distortion of the
record. See Multi-Ad, 255 F.3d at 370. While we note the
contested versions of the wage history for non-union-
affiliated applicants and defer to the Board’s view, we
also note that one of the two application forms submitted
to the ALJ does not ask for an applicant’s wage history.
Because the four August 1997 applicants used the form
with no space for wage history, we find it difficult to see
how they could be rejected because of their prior wage
history, and see this as further evidence of the require-
ment’s pretextual nature. Therefore, we agree with the
Board that there was sufficient evidence to conclude that
Masiongale’s wage-history rule was pretextual and that
the seven applicants were not considered because of
Masiongale’s anti-Union animus. We accordingly enforce
the portion of the order regarding these 20 applicants.
B. Gary Gravit and Jeff Jehl’s Coercion
The ALJ and the Board found that Curd’s interrogation
of Gravit and Jehl violated Section 8(a)(1) of the Act, 29
U.S.C. §158(a)(1), which forbids an employer from interfer-
ing with, restraining, or coercing employees who exercise
their right to self-organization. 29 U.S.C. § 157. This right
includes freedom from employers coercively interrogat-
ing employees to discourage union activities. See Multi-
Ad, 255 F.3d at 371 (citing Van Vlerah, 130 F.3d at
1262). The Board found that there was substantial evi-
dence that Curd interrogated Gravit and Jehl when, after
Curd had talked with two individuals wearing union
jackets, he asked Gravit and Jehl if either of them knew
the individuals, and then inquired if Gravit and Jehl
belonged to the union. Curd also was found to have coer-
cively interrogated Gravit and Jehl when he asked them,
16 Nos. 00-3194, 00-3576, 02-1227 & 02-1591
after they announced that they were striking for better
wages, “are you both union members and are you both go-
ing out on strike?”
In Multi-Ad, we described our concerns regarding
whether an interrogation is coercive, noting that:
The test is not whether coercion actually occurred,
but only whether the employee perceived the em-
ployer’s actions to be coercive. Factors that ought
to be considered in deciding whether a particular
inquiry is coercive include the tone, duration, and
purpose of the questioning, whether it is repeated,
how many workers are involved, the setting, the
authority of the person asking the question, and
whether the company otherwise had shown hos-
tility to the union. We also consider whether ques-
tions about protected activity are accompanied
by assurances against reprisal and whether the
interrogated worker feels constrained to lie or give
noncommittal answers rather than answering
truthfully.
Multi-Ad, 255 F.3d at 372 (internal citations omitted).
We do not find that Curd’s questioning of Gravit and
Jehl was coercive in a manner that violated the Act. Curd’s
questions do not suggest an intent to force Gravit and
Jehl to compromise the union or any plans they may
have had as union representatives. His first questions
were simple and direct, and after Gravit and Jehl an-
swered him, he left them to work, making no comments
about how he felt about the union or his reaction to the
two union representatives that he had talked to earlier.
Similarly, Curd’s questions to Gravit and Jehl, after they
told him they were going on strike, reflect an attempt
to clarify the situation, since he did not know until then
that the two were union members. Gravit and Jehl gave
no indication that they were members during the applica-
Nos. 00-3194, 00-3576, 02-1227 & 02-1591 17
tion process, and it was not evident that they were union
members until their second day of work, when they wore
their union jackets and passed out literature. Also, Curd
never gave any hint of reprisal in his questioning. Even
though Masiongale’s position regarding the union was
apparent, and there was an informational picket set up
next to the jobsite by one of the union’s locals, such fac-
tors do not automatically make any questioning regard-
ing union matters coercive. Section 8(c) of the Act al-
lows employers to express “any views, argument, or opinion,
or the dissemination thereof” so long as “such expression
contains no threat of reprisal or force or promise of bene-
fit.” 29 U.S.C. § 158(c). Because these views can include
organized anti-union campaigns, see Beverly Cal. Corp. v.
N.L.R.B., 227 F.3d 817, 832 (7th Cir. 2000), to consider
Curd’s questioning of Gravit and Jehl coercive under
§ 8(a)(1) of the Act would gut the First Amendment free-
doms protected by § 8(c).
We take a different view regarding Curd’s comments to
Jehl when Jehl attempted to return to the jobsite after
going on strike. Upon learning that the jobsite was in
need of help, Jehl returned to the site and offered his
unconditional services to Curd, who laughed and said,
“around here you are considered a marked man, everyone
on the job has a hunting license and shotguns.” Masiongale
argues that employers have greater latitude when ques-
tioning organizers like Jehl and Gravit, as compared to
ordinary employees, since they are less likely to submit
to coercion, citing Rossmore House, 269 NLRB 1176 (1984),
enforced 760 F.2d 1006 (9th Cir. 1985). That union organiz-
ers have a thicker skin when it comes to treatment by
employers does not mean that we can tolerate threats of
violence directed against them. While the threat may
have been in jest or not taken seriously by Jehl, when
statements can have multiple interpretations, we defer
to the ALJ’s interpretation, and therefore enforce this
portion of the order. See Multi-Ad, 255 F.3d at 370.
18 Nos. 00-3194, 00-3576, 02-1227 & 02-1591
C. Jack Neal and Anthony Bane’s Application Process
Masiongale argues that Bane was not discharged as a
result of anti-union animus because Bane was never
hired in the first place. The ALJ found that Bane was
discharged when Masiongale failed to schedule a follow-up
appointment with its private detective after the detective
canceled the appointment. Masiongale argues that since
the interview with the detective was a part of the appli-
cation process, and Bane never completed that process, he
was never employed. Indeed, Masiongale claims that
Bane had an obligation to contact the company and sched-
ule another appointment, and failure to do so was evi-
dence of his disinterest in the position.
We need not mull over whether or not Bane was hired
by Masiongale, given the Board’s findings regarding the
interview requirement itself. The Board adopted the
ALJ’s finding that Masiongale violated § 8(a)(1) of the Act
when it suddenly required the interview with a private
detective, describing it as part of the job application proc-
ess. Given the Board’s view of the interview as a necessary
pre-requisite to employment, Bane could not have been
hired by Masiongale because he did not complete the
(suddenly changed) application process. This is a pyrrhic
victory for Masiongale, however, because we only come
to our quick conclusion due to Masiongale’s failure to ob-
ject to the Board’s finding that the interview requirement
itself was imposed due to anti-union animus. Because
Masiongale has waived any appeal regarding the inter-
view requirement, we summarily enforce this portion of
the Board’s order. See Beverly Cal., 227 F.3d at 831.
Masiongale has likewise waived any appeal of the
Board’s finding that Neal was sequestered from other
employees to prevent him from engaging in union activ-
ities, a violation of § 8(a)(1) of the Act. Neal revealed that
he was a union organizer, and having met with the detec-
Nos. 00-3194, 00-3576, 02-1227 & 02-1591 19
tive, reported for work. Instead of reporting to the jobsite,
he was ordered to do what can only be described as busy-
work tasks, told not to wear clothing bearing union insig-
nia and not to discuss union activities with anyone on
company property or company job sites. Since Masiongale
does not contest these findings, the Board is entitled to
summary enforcement of its order regarding Neal’s se-
questration and restrictions of discussing union activities
as well. See id.
III. CONCLUSION
For the reasons stated above, the Board’s orders are
ENFORCED in part, VACATED in part, and remanded for
further proceedings consistent with this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-21-03