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Tualatin Electric Inc. v. National Labor Relations Board

filed: May 29, 1996.

TUALATIN ELECTRIC, INC., PETITIONER, CROSS-RESPONDENT,
v.
NATIONAL LABOR RELATIONS BOARD, RESPONDENT, CROSS-PETITIONER, AND INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION NO. 48, INTERVENOR.



Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board. NLRB No. 36-CA-6874.

Before: Stephen Reinhardt, Alex Kozinski, and Ferdinand F. Fernandez, Circuit Judges.

Per Curiam:

Tualatin Electric, Inc. (Tualatin) seeks review of the National Labor Relations Board's (NLRB) affirmance and adoption of an Administrative Law Judge's finding that the Regional Director for Region 19 of the Board appropriately set aside an informal settlement agreement. The NLRB and intervenor International Brotherhood of Electrical Workers, Local No. 48 (Union) cross-petition for enforcement of the Board's order and decision holding that Tualatin violated sections 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. § 158. We grant the petition for enforcement.

I. Background

Tualatin is an electrical contractor in the state of Oregon, which worked on a retail store construction project in Wilsonville, Oregon named "Project Thunder." Tualatin's employees are not represented by any labor organization.

Edward Campbell, a member of the Union, agreed to "salt" a job with Tualatin.*fn1 Campbell obtained employment with Tualatin at Project Thunder. As an employee of the Union and Tualatin, Campbell attempted to generate interest and enthusiasm for the Union and to provide the Union with names and telephone numbers of workers. In return, the union paid him supplemental wages and benefits to bring his compensation to the amount he would have received had he been working for a union employer.

Campbell began work at Tualatin as a journeyman electrician on July 6, 1992. At Project Thunder, Campbell attempted to organize Tualatin's workers before and after work and during breaks. His organizational efforts were brought to the attention of his supervisor and he was subsequently discharged.

The Union filed an unfair labor practice charge on July 20, 1992 against Tualatin. A month later, the NLRB's Regional Director for Region 19 approved an informal settlement agreement between Tualatin and the Union, requiring, among other remedies, that Tualatin offer Campbell "reinstatement."*fn2

Campbell reported to Project Thunder on August 24, 1992, but was immediately sent to work on Tualatin's Wal-Mart project in Salem, Oregon. Campbell quit working on the Wal-Mart project after two days because the Union objected to his reassignment to the Wal-Mart project on the ground that it did not constitute adequate reinstatement under the terms of the settlement agreement.

On September 29, 1992, the Regional Director vacated and set aside the settlement agreement because Tualatin had failed to comply with the terms of the agreement and issued a complaint against Tualatin. The Administrative Law Judge (ALJ) heard the case shortly thereafter. The complaint alleged 1) that Tualatin's project supervisor threatened employees with discharge if they engaged in union activities, in violation of section 8(a)(1) of the National Labor Relations Act, 2) that Tualatin discharged Campbell because of his union activities, in violation of sections 8(a)(1) and (3) of the Act, and 3) that Tualatin failed to comply with the terms of the then-vacated informal settlement agreement. Tualatin denied the allegations and asserted that the settlement agreement had been improperly set aside and should be reinstated. The ALJ found that Tualatin violated section 8(a)(1) of the National Labor Relations Act by coercively interrogating employees about their union activities and threatening them with discharge. The ALJ also found that Campbell was an "employee" under the Act even though the Union was paying him to organize Tualatin's workers*fn3 and that Tualatin's decision to discharge Campbell was motivated by Campbell's union activities, in violation of sections 8(a)(1) and (3) of the Act. Finally, the ALJ found that the settlement agreement was properly set aside because Campbell's reinstatement to the Wal-Mart project did not constitute sufficient compliance with the agreement given that his job at Project Thunder was still available.

The NLRB adopted the ALJ's decision and order, Tualatin Electric Inc., 312 N.L.R.B. 129 (1993), awarding Campbell back pay, requiring Tualatin to expunge the discharge from Campbell's employment records, prohibiting Tualatin from harassing its employees about their union status, and ordering Tualatin to reinstate Campbell at the Project Thunder site with back pay.*fn4

II. Analysis

We have jurisdiction pursuant to 29 U.S.C. § 160(e) & (f) to review the Regional Director's decision to set aside an informal settlement where, as here, that decision has been affirmed by the Board. See, e.g., City Cab Co. of Orlando v. NLRB, 787 F.2d 1475, 1477 (11th Cir.), cert. denied, 479 U.S. 828, 93 L. Ed. 2d 57, 107 S. Ct. 108 (1986).*fn5

Tualatin challenges the ALJ's and the NLRB's decisions on a single ground: it contends that the Regional Director improperly set aside the settlement agreement, arguing that it did not violate the reinstatement provision. Tualatin contends that Campbell voluntarily accepted "substantially equivalent" employment on another project. Tualatin further contends that it should have the right to select the location where its employees are to be reinstated because the construction industry has "no fixed, immutable location where an employee reports to work to perform services." The NLRB seeks enforcement of its decision and order. Tualatin concedes that substantial evidence supports the NLRB's finding that it violated section 8(a)(1) and (3) of the Act and offers no other ...


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