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Frank Briscoe Inc. v. National Labor Relations Board

decided: January 6, 1981.

FRANK BRISCOE INCORPORATED, PETITIONER, CROSS-RESPONDENT
v.
NATIONAL LABOR RELATIONS BOARD, RESPONDENT, CROSS-PETITIONER



PETITION FOR REVIEW AND CROSS-PETITION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD

Before Seitz, Chief Judge, Higginbotham, Circuit Judge and Schwartz, District Judge*fn*

Author: Seitz

Opinion OF THE COURT

Frank Briscoe, Inc. (Briscoe) petitions for review, and the National Labor Relations Board (Board) cross-petitions for enforcement, of an order of the Board. The order of the Board is based on the finding that Briscoe violated section 8(a)(1) of the National Labor Relations Act (NLRA) when it refused to recall certain employees because some of them had engaged in protected, concerted activity by filing charges against Briscoe with the Equal Employment Opportunity Commission (EEOC). See 247 NLRB No. 6 (1980). We have jurisdiction under 29 U.S.C. § 160(e) & (f) (1976).

I.

Briscoe, a New Jersey corporation engaged in general contracting in the construction industry, was the general contractor for the construction of the multi-million dollar convention center in Pittsburgh, Pennsylvania. Briscoe employed between twenty and fifty ironworkers to work on the convention-center project, the number varying according to the working conditions at a given time. Pursuant to Briscoe's national collective bargaining agreement with the International Association of Bridge, Structural and Ornamental Workers (Union), the vast majority of these ironworkers were hired through the Union's hiring hall.*fn1

During January and February of 1979, production problems plagued the convention-center project. The entire project was shut down during the second week of February because of poor weather conditions. On February 13, 1979, Ironworker Superintendent Jack Godwin informed Union Steward George Cook that certain workers would have to be laid off.

Cook, accompanied by the general foreman, then went to a "shanty" where the ironworkers gathered before work. There, he read the names of twelve ironworkers, including Jeffrey, a trainee, who were to be laid off. According to Cook, he was instructed to tell the men that this was a general layoff, and that they would be recalled.

On February 14 and 16, four of the laid-off ironworkers, including Jeffrey, and a fifth ironworker who had been demoted but not laid off, filed charges of racial discrimination with the EEOC. Each of the five complainants is black. Two of these ironworkers filed charges on February 14, and the other three filed charges on February 16. Briscoe received notice of these charges on February 22 and 23.

After the layoff, each of the eight ironworkers involved in this unfair labor practice suit requested, either at the jobsite or at the Union hiring hall, that he be recalled when Briscoe began rehiring. Mr. Hanna, whose testimony the administrative law judge credited, is the Union's business representative in charge of referring workers to jobs from the hiring hall. He testified that temporarily laid-off ironworkers requesting to be recalled normally would be preferentially referred back to the job. However, Mr. Hanna testified that none of the ironworkers laid off on February 13 were referred back to the convention-center jobsite because he had been told by Briscoe's Job Superintendent that Briscoe "didn't intend to hire the men back and ... as long as (the) discrimination charges (were) filed with the EEOC, if (Briscoe) did take some of the people back, then there would be definite grounds for discrimination." Mr. Hanna informed those ironworkers who requested to be recalled that he would not refer them back to the jobsite, because Briscoe would not recall any of the workers who had been laid off on February 13 as long as the EEOC charges were pending. According to Mr. Hanna, had it not been for Briscoe's refusal to recall these workers, he would have referred these workers back to the job.

Briscoe began hiring ironworkers again on March 5, hiring twenty-nine workers between that date and April 2. With the sole exception of Jeffrey,*fn2 none of the ironworkers laid off on February 13 was, or has since been, recalled.

Eight of the workers, including three of the black ironworkers who had filed discrimination charges, brought an unfair labor practice charge against Briscoe for refusing to recall them because some of the workers had filed charges with the EEOC.*fn3 After conducting the hearing, the administrative law judge found that the black workers who had filed the EEOC charges had engaged in concerted activity protected under section 7 of the NLRA. Further, he found that Briscoe had refused to recall any of the ironworkers laid off on February 13 because some of them had filed EEOC charges. He concluded that this failure to recall the workers violated section 8(a)(1) of the NLRA. The Board affirmed the rulings, findings, and conclusions of the administrative law judge, and adopted his order with one minor modification. Briscoe petitions for review, and the Board cross-petitions for enforcement, of this order.

II.

First, Briscoe argues that the record does not support the Board's holding that the ironworkers engaged in protected, concerted activity when they filed discrimination charges with the EEOC. Briscoe also argues that the Board erroneously relied on the "constructive concerted activity" doctrine enunciated in Interboro Contractors, Inc., 157 N.L.R.B. 1295 (1966), enforced 388 F.2d 495 (2d Cir. 1967), which was rejected by this court in NLRB v. Northern Metal Co., 440 F.2d 881 (3d Cir. 1971).

We have consistently held that to qualify as concerted activity, "it must appear at the very least that (the conduct) was engaged in with the object of initiating or inducing or preparing for group action or that it had some relation to group action in the interest of the employees." Mushroom Transportation Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964) (emphasis added). Determining whether particular conduct constitutes "concerted activity" is basically a factual inquiry. See Edward Blankstein, Inc. v. NLRB, 623 F.2d 320, 321 (3d Cir. 1980). We are bound to uphold the Board's determination if it is supported by substantial evidence on the record as a whole. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 456 (1951); 29 U.S.C. § 160(e) & (f) (1976).

The witnesses who testified before the administrative law judge concentrated on the reasons for Briscoe's refusal to recall the workers laid off on February 13, and thus their testimony is not directed to whether filing the EEOC charges was concerted activity. We believe, however, that the following evidence supports the Board's finding: (1) All five of the EEOC complainants filed charges within three days of the layoff (two of them filed on February 14, and the other three filed on February 16); (2) these complaints are similar in nature; (3) the complaints filed by the two trainees who had been laid off referred to discrimination against other trainees, and a third complaint alleged that the complainant had previously complained that Briscoe discriminated against blacks by not hiring enough trainees, thus indicating that the individual complainants intended to benefit workers other than themselves. Compare Wheeling-Pittsburgh Steel Corp. v. NLRB, 618 F.2d 1009 (3d Cir. 1980) (employee refusing ...


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