National Labor Relations Board v. Nelson Electrical Corp.

Citation: 51 F. App'x 33Docket: Docket No. 01-4175

Court: Court of Appeals for the Second Circuit; November 14, 2002; Federal Appellate Court

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The application for enforcement of the NLRB's decision dated September 21, 2000, regarding Nelson Electrical Corp. (Nelcorp) is granted. The NLRB's findings, largely based on the administrative law judge’s (ALJ) decision, reveal that Nelcorp refused to employ union members due to their union affiliation, violating 29 U.S.C. § 158(a)(1). Additionally, Nelcorp unlawfully did not recall a former striker, David Harageones, constituting a violation of 29 U.S.C. § 158(a)(1)(3). The NLRB did not address whether foreman Winters qualified as a supervisor, operating under the assumption he was merely an agent. 

The NLRB’s factual conclusions will not be overturned if supported by substantial evidence, defined as evidence a reasonable mind might accept to support a conclusion. Nelcorp contended that the NLRB disregarded evidence of hiring union members; however, the NLRB found that those hired had minimal, outdated, or inactive union involvement, which did not counter the evidence of discrimination against actively involved union members.

Nelcorp also claimed that the complaints from three union members—Herbert Spicer, Anthony Salvatore, and Daniel Harageones—were barred by the six-month limitations period under 29 U.S.C. § 160(b). The NLRB upheld the ALJ's finding that there was no formal rejection of the applicants' employment, as they were informed their applications were still active. The determination of whether the applicants received clear notice of rejection is a factual question, and the ALJ established that each applicant was told their applications were on file and that Nelcorp would contact them as needed.

A rational trier of fact could conclude that Nelcorp's rejection of applicants was ambiguous, with the NLRB's findings supported by substantial evidence. Nelcorp disputed the ALJ's classification of foremen Alan Winters and William Tyler as supervisors; however, Tyler's status was irrelevant to the case, as the NLRB and ALJ did not base any inferences on it. Winters' supervisory status was significant only regarding whether his knowledge of applicants' union affiliations could be attributed to Nelcorp, which the NLRB determined he was an agent for the company. The NLRB rejected the ALJ's finding that Winters was a supervisor but instead concluded that his insights about union members could be linked to Nelcorp. 

Nelcorp also contended that the NLRB incorrectly found it failed to rehire David Harageones, a former striker who had rejected an unconditional job offer. Under established precedents, a striker who offers to return must be offered a job substantially equivalent to what they left. The NLRB upheld the ALJ's decision that the position offered to Harageones was not substantially equivalent, as it was located three and a half hours farther from his home than his previous role. Consequently, the application for enforcement is granted, as the ALJ and NLRB established that the failure to hire was based on union membership, that job openings existed, and that the rejected applicants were qualified. The court did not address whether the NLRB needed to demonstrate open positions for qualified applicants to prove refusal to consider for hire.