Heiliger Electric Corp.

National Labor Relations Board - Board Decisions

Jun 29, 1998

325 N.L.R.B. 966 (N.L.R.B. 1998)

966
325 NLRB No. 175
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The motion of the Associated Builders and Contractors, Inc. to
file an amicus brief, received shortly before this decision was ready
for issuance, is denied as moot.
2 The General Counsel has implicitly excepted to some of the
judge’s credibility findings. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us
that they are incorrect. Standard Dry Wall Products, 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully exam-
ined the record and find no basis for reversing the findings.
3 In adopting the judge’s dismissal of the complaint, Members Fox
and Liebman find it unnecessary to pass on whether the videotaping
itself was protected activity. Under the particular circumstances of
this case, they agree with the judge that ‘‘the overall environment
created by the applicants was, at the very least, sufficiently intimi-
dating and disrespectful to privilege a decision by Respondent to not
hire the five applicants.’’
1 Gravitt, who did not go to Respondent’s facility to apply until
January 4, 1997, will be discussed separately.
Heiliger Electric Corp. and International Brother-
hood of Electrical Workers, Local Union No.
1141. Cases 17–CA–18472 and 17–CA–18472–2
June 29, 1998
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On March 23, 1998, Administrative Law Judge D.
Randall Frye issued the attached decision. Counsel for
the General Counsel filed exceptions and a supporting
brief, and counsel for the Respondent filed a brief in
opposition to the exceptions.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.3
ORDER
The complaint is dismissed.
Francis A. Molenda, Esq., for the General Counsel.
Charles W. Ellis, Esq. (Lawrence & Ellis, P.A.), of Okla-
homa City, Oklahoma, for the Respondent.
DECISION
STATEMENT OF THE CASE AND BACKGROUND
D. RANDALL FRYE, Administrative Law Judge. This case
was tried before me on March 3, 1997, in Oklahoma City,
Oklahoma. The underlying complaint issued on May 10,
1996, and essentially alleges violations emanating from
‘‘salting’’ efforts by the International Brotherhood of Elec-
trical Workers, Local Union 1141 (Local 1141 or Local
Union).
During the course of the trial, the parties were afforded a
full opportunity to be heard, to call, to examine and cross-
examine witnesses, and to introduce relevant evidence.
Posthearing briefs were filed by counsel for Respondent and
counsel for the General Counsel. On the entire record, in-
cluding my observation of the demeanor of the witnesses,
and after fully considering the briefs submitted, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Heiliger Electric Corporation (Company or Respondent) is
engaged in the electrical contracting business and annually
purchases and receives at its Oklahoma City, Oklahoma fa-
cility, goods valued in excess of $50,000 from points outside
of Oklahoma. Local Union 1141 is a labor organization with-
in the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
The complaint alleges that Respondent, by the conduct of
its President and owner, Roger Heiliger, interrogated employ-
ees about their union membership, activities, and sympathies.
The complaint further alleges that Respondent unlawfully re-
fused to hire applicants John August Cortier Jr., Michael
Duncan, Charles Ley, Tom Pinion, Kurtis Reel, and Charles
Gravitt. It is further alleged that this conduct by Respondent
is violative of Section 8(a)(1) and (3) of the Act.
A. Facts
On December 10 and 11, 1996, at the direction of Re-
spondent, the following advertisement appeared in the local
newspaper, The Daily Oklahoman:
Electricians & Journeyman. Exp. helpers, commercial
only. Must have 4 years exp. Call 946–2662.
On December 11, 1995, the five alleged discriminatees1
were present at the hiring hall operated by Local 1141. One
of the five, Cortier, had read the advertisement in the local
newspaper. On behalf of the group, Cortier called the listed
number and spoke with Respondent’s supervisor, Mark
Hobbs. Another union member captured this conversation on
videotape with Local 1141’s video camera. Both the video
and audio portion of Cortier’s conversation was recorded. In
addition, the audio portion of Hobb’s side of the conversa-
tion was recorded from a speaker phone used by Cortier. (Tr.
28–30, G.C. Exh. 14.) During the phone conversation,
Cortier inquired about Respondent’s hourly rates of pay and
the number, types, and location of jobs. Hobbs suggested that
Cortier visit Respondent and complete an application. When
informed that he had a buddy who needed work, Hobbs fur-
ther suggested that he also apply.
After the above conversation, the five alleged
discriminatees traveled to Respondent’s office in the local
union’s automobile. The group parked in front of the en-
trance to Respondent’s office. After getting out of the car,
Cortier began operating the video camera and recorded, in its
entirety, the visit and application process at Respondent’s fa-
cility.
A review of the videotape, (G.C. Exh. 14) shows the five
individuals entering through the front door of Respondent’s
facility from the parking lot. The entire office area is very
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00966 Fmt 0610 Sfmt 0610 D:\NLRB\325.140 APPS10 PsN: APPS10
967HEILIGER ELECTRIC CORP.
small and consists of an outer area and a private inner office
located at the back of the outer area. The outer area appears
to be approximately 200 square feet. The inner office, ap-
pears to be no larger than 80 square feet. When the five en-
tered, Heiliger was on the phone in the outer office. Hobbs
was in the small inner office. The group walked past Heiliger
and partially into the smaller office. Heiliger promptly ended
his telephone conversation and asked the group to go outside.
He also asked Cortier several times to turn off the video
camera. These requests were not honored. The five individ-
uals informed Hobbs that they were members of the local
union and wanted to apply for jobs. For the most part, Tom
Pinion was spokesperson for the group.
Heiliger testified at trial, that he and Hobbs were intimi-
dated by the conduct of the group of applicants as he consid-
ered them to have taken control of his office since they
would neither leave nor discontinue the videotaping. Accord-
ing to Heiliger he did not ‘‘know if they were there to cause
me physical harm or what.’’ When asked by counsel at trial
if he was afraid, Heiliger responded, ‘‘Absolutely, I was
afraid. I mean . . . physically intimidated. I mean, there
were guys there and I don’t know whether they’re there to
kick my ass or what.’’ (Tr. 91.) Heiliger also testified that
both he and Hobbs were disturbed by the conduct of the ap-
plicants while in the facility. According to Heiliger they were
‘‘pretty well just running me around. They did whatever they
wanted to do, acted however they wanted to act. . .’’ During
this encounter, Heiliger tried to contact his lawyer to seek
advice but could not reach him. Since the group would nei-
ther leave nor discontinue using the video camera, Heiliger,
testified that he had no alternative but to permit the group
to stay. Ultimately the five individuals completed their em-
ployment applications. Before leaving they inquired of
Heiliger as to how many journeymen and helpers he em-
ployed and the location of his jobsites. Based on the above
events, Heiliger concluded that he would not employ any of
the applicants.
On January 4, 1997, Charles Gravitt visited Local 1141’s
office and inquired of Pinion about potential jobs. Pinion in-
formed Gravitt of the December 11, 1995 visit to Respond-
ent’s office and Respondent’s refusal to hire any of the five
who had applied. Nonetheless, he suggested to Gravitt that
he might be hired if he would apply at one of Respondent’s
large jobsites. Accordingly, Gravitt went to one of these sites
and asked for the ‘‘man in charge.’’ He spoke with an indi-
vidual whose name he could not recall. (Tr. 65.) In response
to Gravitt’s question about the availability of jobs, this
unnamed individual stated, ‘‘[Y]eah; that they were just cov-
ered up and there was no way that they could finish this job
in time.’’ After obtaining directions, Gravitt went to Re-
spondent’s facility and spoke with Heiliger who provided
him with an employment application. After the application
was completed, Heiliger met with Gravitt during which the
latter inquired, inter alia, about the location of Respondent’s
jobsites and the number of employees employed. Heiliger
testified that he was particularly troubled by the evasiveness
of Gravitt in responding to his questions about prior employ-
ment. On his application Gravitt listed only one prior em-
ployer, Anderson Electric. Heiliger stated that he inquired
further about prior employment to determine Gravitt’s level
of experience as an electrician. After several questions,
Gravitt finally stated that he had also worked for Dandy
Electric. Although asked to do so by Heiliger, he refused to
include this information on his application. Accordingly,
Heiliger wrote the name, Dandy Electric, on Gravitt’s appli-
cation.
In his complaint, the General Counsel alleges that it was
during this particular conversation, that Heiliger unlawfully
interrogated Gravitt concerning his union and or protected
activities. Gravitt’s testimony that Heiliger had asked him if
Dandy Electric was or had been union was offered to support
this complaint allegation. For reasons more fully explicated
below, I do not credit this aspect of Gravitt’s testimony.
B. Decision
Section 7 of the Act vests in employees the ‘‘right . . .
to form, join, or assist labor organizations . . . and to engage
in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection . . .’’ Section
8(a)(1) of the Act makes it an unfair labor practice for an
employer to ‘‘interfere with, restrain, or coerce employees’’
in the exercise of their Section 7 rights. Section 8(a)(3) of
the Act proscribes employer ‘‘discrimination in regard to hire
or tenure of employment . . . to encourage or discourage
membership in any labor organization . . .’’
In NLRB v. Transportation Management Corp., 462 U.S.
393, 402–403 (1983), the Supreme Court approved the
Board’s test for determining unlawful motivation, first ap-
plied by the Board in Wright Line, 251 NLRB 1083 (1980),
enfd. on other grounds, 662 F.2d 899 (1st Cir. 1981), cert.
denied, 455 U.S. 989 (1982). Under that test, the General
Counsel must show that the employee’s protected union ac-
tivity was a ‘‘motivating factor in’’ the employer’s decision
with respect to an employee’s hire or tenure of employment.
Whether the employer’s motive is unlawful in taking em-
ployment related action is a fact based issue to be determined
by the Board. NLRB v. Montgomery Ward & Co., 554 F.2d
996, 1002 (10th Cir. 1977). In making this determination, the
Board relies upon both direct and circumstantial evidence,
and considers, such factors as the employer’s knowledge of
the employees union activity, the timing and abruptness of
the employment related action, and the employer’s reliance
on pretextual reasons to justify its employment related deci-
sion. The Board has also held that the protection of Section
8(a)(3) is fully applicable to applicants for employment even
when the applicant is seeking employment to organize the
employer’s employees. Finally, where an employee’s union
activity is shown to be a motivating factor in the employer’s
decision, the employer will be found to have violated Section
8(a)(3) and (1) of the Act unless the employer demonstrates,
as an affirmative defense, that it would have taken the same
action even in the absence of the protected conduct. NLRB
v. Transportation Management Corp., supra, affirming
Wright Line, supra.
In the instant case, the December 11, 1995 group activity
of visiting Respondent’s small office began with the stated
intention of applying for positions of employment previously
advertised by Respondent. Such group activity normally en-
joys the full protection of the Act. Moreover, in addition to
seeking employment, an announced purpose of the group was
to organize Respondent’s employee-protected activity at the
very heart of the Act. However, as discussed below, under
the unique circumstances here present, the applicants en-
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00967 Fmt 0610 Sfmt 0610 D:\NLRB\325.140 APPS10 PsN: APPS10
968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The General Counsel also cites Concord Metal, 295 NLRB 912
(1989), however this case does not support such an argument.
gaged in conduct which privileged Respondent’s refusal to
employ them.
The conditions and circumstances under which an employ-
ment application process may be conducted is, in large part,
within the control of an employer. However, an employer
must conform its employment application process to numer-
ous Federal and State laws including the National Labor Re-
lations Act. In its brief, counsel for the General Counsel ar-
gues, inter alia that the videotaping of an employment appli-
cation process is activity protected by the Act, when done for
preservation of proof. As support for this position, the Gen-
eral Counsel cites Delta Mechanical, Inc., 323 NLRB No. 5
(Feb. 26, 1997). However, in Delta, the issue of whether
videotaping an application-interview process by an applicant
for the purpose of preserving proof is protected by the Act,
is simply not present. Rather, the procedural issue there
present was whether the videotape of an application-inter-
view process was producible pursuant to the Board’s Jencks
rule (29 CFR § 102.118 (b)(1) and (d)) or subject to the sub-
poena process and admissible as direct evidence. The Board
adopted, pro forma, Judge Linton’s decision in which he con-
cluded that the videotape was producible pursuant to a law-
fully issued subpoena and admissible into evidence as direct
evidence of the events and contemporaneous statements there
at issue. This result obtains as the Jencks rule is applicable
to statements of witnesses that contain current descriptions of
past events. A video recordation of a substantive event is di-
rect evidence of that event, not a current description of the
past event.
In the instant case, the videotape was also admitted into
evidence during trial as direct evidence. However, neither the
Board’s decision in Delta, nor evidentiary rulings in the in-
stant case create, as a matter of law, a right by a job appli-
cant to videotape an employer’s application-interview proc-
ess. Moreover, there does not appear to exist any Board
precedent which would provide the underpinnings for such
an argument.2
Similarly, there is no provision in the Act or in the law
developed by the Board that would require an employer to
permit its employment application process to be recorded by
an applicant or anyone else with a video camera or subjected
to rude or intimidating conduct. In the absence of such a
right, the failure of an applicant to adhere to lawful condi-
tions imposed by an employer on it’s employment applica-
tion process could lawfully result in the (1) termination by
the employer of the employment application process; or, (2)
refusal by the employer to hire the applicant[s] involved.
In the instant case, Heiliger, upon observing the use of a
video camera, immediately asked the group to leave. In fact,
as clearly revealed on the videotape, he retreated to the front
door of the outer office and invited the group outside. As
they refused to honor this request, he thereafter asked, sev-
eral times, that the video camera be turned off, a request also
refused.
As revealed by his testimony, Heiliger was not only con-
cerned by the videotaping of the employment application
process but also the conduct of the applicants. Thus, as
credibly testified to by Heiliger, and as revealed on the vid-
eotape, the group of applicant’s entered the small outer office
and immediately proceeded to the much smaller inner office.
Because of its size, all of the applicants could not enter the
inner office. However, the video camera operator was given
full access by the other applicants, which permitted close up
views of personal papers on Heiliger’s desk. According to
Heiliger, this conduct was disrespectful and intimidating and
conveyed the impression that the group intended to take over
his office, an impression he believed was confirmed by the
group’s refusal to leave.
I fully credit the testimony of Heiliger in all respects based
on demeanor. His testimony was forthright and wholly con-
sistent with the evidentiary picture presented by the video-
tape of the events in question. On the other hand, the factual
picture presented by some of the Charging Party witnesses
was not as forthright. In this regard, Cortier stated in his tele-
phone conversation with Hobbs that he wanted to apply for
a job and be hired by Respondent. However, as observed
from the videotape, Pinion had to encourage Cortier to actu-
ally complete an application. In fact, toward the end of the
application process, Pinion asked Cortier if he wanted to
complete an application. His response was ‘‘it doesn’t matter
to me.’’ (G.C. Exh. 14.) Similarly, several applicants failed
to provide complete and/or accurate information on their em-
ployment applications. This evidence tends to discredit the
stated intentions by the applicants that they were there seek-
ing work.
In summary, based on the above credited testimony and
my review of the videotape, the overall environment created
by the applicants was, at the very least, sufficiently intimidat-
ing and disrespectful to privilege a decision by Respondent
to not hire the five applicants. In so concluding, I particularly
note the following significant factors: the applicant’s refusal
to leave after being requested, the refusal to discontinue
videotaping, the intrusive nature of the videotaping, and the
close scrutiny and videotaping of personal and private papers
on Heiliger’s desk. The fact that the issue of knowledge of
union activity was clearly provided in this case by Pinion’s
statement to Heiliger that the Local Union wanted to orga-
nize Respondent’s employees does not change the result.
From this record, it is clear that the employees’ protected
union activity was not the basis for Respondent’s refusal to
employ them and thus was not a ‘‘motivating factor’’ in Re-
spondent’s decision.
Respondent’s refusal to employ Charles Gravitt, the sixth
applicant, was also lawful. The credited testimony of
Heiliger reveals that Gravitt was not hired because Heiliger
believed that he had been evasive during the employment ap-
plication process. In this regard, Heiliger observed during the
interview that Gravitt had not provided sufficient prior em-
ployment information on his application. He therefore asked
Gravitt if he had any additional prior employment. In re-
sponse, Gravitt said, ‘‘[W]ell, you know, I kind of help . . .
my cousin . . . on the side; or every once in a while, I’ll
go work for him.’’ (Tr. 94.) Ultimately, Gravitt revealed that
this employment had been with Dandy Electric. Heiliger then
asked if Gravitt would include Dandy Electric on his applica-
tion. When he declined to do so, Heiliger wrote the name of
that employer on the application. Gravitt’s version of this
conversation is quite different. He testified that, even though
he had not revealed his prior employment with Dandy Elec-
tric on his application or during the interview, Heiliger
‘‘asked me if he [Dandy] [w]as ever union or if he was in
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00968 Fmt 0610 Sfmt 0610 D:\NLRB\325.140 APPS10 PsN: APPS10
969HEILIGER ELECTRIC CORP.
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
the Union, and I said, he was at one time but he isn’t any-
more.’’ Gravitt’s recollection of this conversation is not cred-
ible. Any suggestions that Heiliger would randomly select
Dandy Electric, an employer with whom Gravitt had been as-
sociated since high school, as the subject of his alleged un-
lawful inquiry is implausible. In this regard, no factual con-
text was presented within which such an inquiry might logi-
cally be placed. On the other hand, Heiliger’s version of the
conversation, particularly as it relates to the inclusion of
Dandy Electric on Gravitt’s application, is far more plau-
sible. This version is in perfect symmetry with the events un-
folding, i.e., the interview by Heiliger and his attempts to as-
certain the experience level of applicant Gravitt. As above
noted, I have credited the testimony of Heiliger in all re-
spects. In addition, I specifically discredit the testimony of
Gravitt with respect to the alleged unlawful inquiry as to
whether Dandy Electric was a union employer. Therefore, I
need not address the issue of whether such an inquiry, if
made, would be violative of Section 8(a)(1) of the Act.
As I have found each allegation of the complaint without
merit, I shall recommend that it be dismissed in its entirety.
CONCLUSION OF LAW
Based on the record, I find that the Board has statutory
and discretionary jurisdiction; that Respondent Heiliger Elec-
tric Corporation is an employer engaged in commerce within
the meaning of Section 2 (2), (1), and (7) of the Act; that
International Brotherhood of Electrical Workers Local Union
1141 is a statutory labor organization; that Respondent
Heiliger has not unlawfully interrogated employees in viola-
tion of Section 8(a)(1) of the Act and that Respondent
Heiliger has not unlawful refused to hire applicants in viola-
tion of Section 8(a)(3) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The complaint is dismissed in its entirety.
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00969 Fmt 0610 Sfmt 0610 D:\NLRB\325.140 APPS10 PsN: APPS10