On Application for Enforcement of an Order of the National Labor Relations Board.
Bauer, Chief Judge, Coffey and Flaum, Circuit Judges.
The National Labor Relations Board (the "NLRB" or "Board") seeks enforcement of its order directing Stor-Rite Metal Products, Inc. ("Stor-Rite") to cease and desist from an alleged unfair labor practice and to make its employees whole for resulting lost earnings. The NLRB found that Stor-Rite impermissibly reduced the hours of its part time painting department, or "powder line" employees in retaliation for the activities of one powder line employee, Paul Martin, when Martin attempted to convince Stor-Rite's management that he either was or should have been covered by the collective bargaining agreement between Stor-Rite and its unionized, full time production workers. The NLRB ruled that Martin's conduct constituted protected "concerted activit[y]," see 29 U.S.C. § 157 (1982), and that Stor-Rite reduced the hours worked by the powder line employees to retaliate against Martin. The Board concluded that Stor-Rite had committed an unfair labor practice by interfering with the rights of its workers to engage in concerted activities, id. at § 158(a)(1), and furthermore committed acts to discourage union membership through discrimination in the terms and conditions of employment. Id. at § 158(a)(3).*fn1 We review the Board's determination pursuant to section 160(e) of the National Labor Relations Act ("the Act"). Id. at § 160(e). Because we hold that Stor-Rite did not act with a retaliatory motive in response to Martin's alleged concerted activity, we deny enforcement.
Stor-Rite manufactures metal display shelving and related products. Prior to 1982, Stor-Rite had its painting, or "powder coating" done by other firms. In 1982, Stor-Rite moved to its current plant in Michigan City, Indiana and established its own painting facility or "powder line." Since then, Stor-Rite has powder coated its own products and also has contracted to do powder coating for other companies' products. However, Stor-Rite's powder coating process is much faster than its manufacturing process and the capacity of Stor-Rite's powder line is also greater than the combined total of Stor-Rite's production and outside contract work. Thus, Stor-Rite has never been required to run its powder line full time.
At all times relevant to the dispute at hand, Stor-Rite's full time production and maintenance workers have been unionized and have been covered by a collective bargaining agreement ("the agreement") as contrasted with the powder line employees who have always been considered part time workers and thus are not covered by the labor agreement. Consequently, these full time production (Stor-Rite) employees receive higher pay than do the powder line employees, including the receipt of holiday pay, insurance, pensions and other benefits not available to powder line employees. Powder line employees are allowed to "bid" on any available full time positions in Stor-Rite's plant and frequently are given preference in hiring decisions.
On July 9, 1983, Stor-Rite entered into a collective bargaining agreement with the General Service Employees Union, Local No. 73 ("the union"). The agreement remained in effect through November 8, 1985, and applied to "all full time production and maintenance employees and plant clerical employees." The agreement did not contain a definition of "full time," but according to the record, the parties to the agreement, both Stor-Rite and the union, understood full time workers to be those who had completed a contractually-required probationary period. The agreement provided that, "The probationary period for a new employee . . . shall be forty-five (45) calendar days from the date of hire." The parties agree that an employee cannot fulfill this requirement until that employee has worked at least forty hours per week during the probationary period. According to the record, Stor-Rite and the union have always understood the agreement to exclude all part time employees.
Stor-Rite's powder coating department work schedule depends on the volume of its own production and outside contract work, each of which is subject to change as demand changes. Therefore, the number of powder line employees and their hours also vary to accommodate the changing work load. In mid-1984, Dwayne Norman, chief steward for the union, learned that some powder line employees often worked forty or more hours per week during busy periods. Norman approached Stor-Rite's management and asked whether those employees might be brought within the bargaining unit and included in the agreement. Stor-Rite replied that it could do all necessary powder coating in two or three days per week, and thus there was not enough powder coating work to justify running the powder line full time. Norman also discussed the matter with the union's business manager, who told Norman that the union had proposed including powder line employees in the agreement during negotiations on the current contract, but that the union had dropped that proposal when Stor-Rite's management contended that full time operation of the powder line was not financially feasible. Thus, according to Norman, both the union and Stor-Rite understood the agreement to exclude powder line employees because they were part time only. The very terms of the labor agreement reinforce this point by omitting the powder coating department in its listing of the departments included within the labor contract. As a result of this information, after Norman's mid-1984 discovery that powder line workers sometimes worked forty-hour weeks, the union did not pursue the inclusion of the powder line workers in the agreement through the contractual grievance procedure.
Stor-Rite hired Paul Martin, the charging party in this case, on September 25, 1984. When Stor-Rite hired Martin, Stor-Rite's powder coating department supervisor, Gregory Jaques, advised Martin that he was being hired as a part time worker. Jaques informed Martin he would not always work forty hours per week, nor would he receive those benefits available to those workers classified as full time employees. It is interesting to note that between September 1984 and February 1985, Jaques sometimes provided powder line employees with extra work (make-work projects), including maintenance tasks and production work in other departments. Moreover, although Stor-Rite's management intended that the powder coating work should be shared by six to eight regular part time employees, Jaques limited his hiring selections to three or four. Jaques assigned the extra work and minimized hiring as a favor to the part time workers, to give them an opportunity to make more money than they would if the department were operated according to company policy. As a result, the three or four powder line employees often worked forty or more hours per week between September 1984 and February 1985. For example, a synopsis of Stor-Rite's employment records reflects that during September, October and November 1984, Martin and another powder line employee, Rick East, worked seven consecutive weeks of forty or more hours (thus technically satisfying the minimum-hours requirement of the contractual probationary period) and a third powder line employee, Tim Slayden, worked six consecutive weeks of forty or more hours (thus conceivably satisfying the minimum-hours requirement).*fn2 Jaques allowed the extra work despite Stor-Rite's management's directive that powder line workers retain their status as part time employees only.
Soon after Martin started work, he began to complain to union steward Norman that he should be considered as a full time employee and should receive the full panoply of union benefits under the agreement. After relaying Martin's concerns to Stor-Rite's controller and treasurer, Frank O'Brien, Norman told Martin that powder line employees were specifically excluded from the labor agreement because of the inherently sporadic, part time nature of that department's work. Despite Norman's explanation, Martin continued to complain and, in late October 1984, Martin approached fellow powder line workers East and Slayden and discussed the problem with them. Martin suggested that he, East and Slayden approach Norman to ask about being included in the present labor agreement. However, neither East nor Slayden agreed to join Martin, nor did they suggest that he approach Norman on their behalf. East declined because he intended to apply for a full time position. Slayden told Martin that he currently was working forty to forty-five hours per week and was satisfied. Martin on his own once again complained to Norman in November 1984, but was told that the status of powder line workers was settled under the current agreement and that the matter would have to wait until a new agreement was negotiated.
In January 1985, two months later, Martin once more approached Norman, complaining that the union was discriminating against the powder line workers by failing to press for their inclusion in the agreement. Norman reiterated his position that both the union and Stor-Rite management had always considered the powder line employees as part time only and he suggested to Martin that he take his complaint to the Indiana Department of Human Rights. Martin followed Norman's suggestion, but before going to the Department of Human Rights he again approached East and Slayden to enlist them to join in his complaint. East and Slayden remained uninterested and refused to join in the filing of the complaint. Martin also advised supervisor Jaques that he was filing a complaint against Stor-Rite and the union. Jaques replied that he wished the powder line were unionized, if only to end further bickering, but that the department's sporadic work schedule made full time status impractical. He then told Martin to "do what you have to do." After Jaques spoke to Martin, he discussed Martin's possible filing of the complaint with East and Slayden. Jaques told Slayden that he (Jaques) had been doing powder line employees a favor by allowing the extra hours and that he would have to reduce their hours if Martin filed the complaint.
On February 26, 1985, Martin went to the Indiana Department of Human Rights to file his complaint. A worker there told Martin that his problem fell outside the authority of that department, but she offered him help in filling out an NLRB complaint and made an appointment with Martin for that purpose. The next morning, Jaques met Martin, East and Slayden when they reported for work. Jaques told Martin, "You fucked up by going to Human Rights," and told all three that he had gotten a call (apparently from O'Brien) and now would have to reduce the hours of the powder line employees. On March 7, 1985, Martin returned to the Indiana Department of Human Rights and filed and signed the complaint alleging a violation of certain NLRB regulations and rules against the union and Stor-Rite.*fn3
When O'Brien received a copy of Martin's complaint, he called supervisor Jaques into his office and told Jaques to hire more workers for the powder line and to reduce assignments of unnecessary make-work maintenance projects to powder line employees. O'Brien reminded Jaques that powder line workers were meant to remain part time and instructed Jaques, "Let's try to keep it that way." Jaques complied. By reducing the assignment of maintenance work and hiring more workers, he reduced powder line employees' hours to an average of approximately thirty hours per week by March 1985. Improvements in the efficiency of the powder line also contributed to the reduction in powder line labor throughout the early months of 1985. In April 1985, Martin complained about the reduced hours. Jaques, in reply, suggested that the reduction in work would not have been necessary had Martin not brought the matter to the attention of Stor-Rite's management. ...