Road Sprinkler Fitters Local Union No. 669, United Ass'n of Journeymen and Apprentices of Plumbing and Pipefitting Industry of U.S. and Canada, AFL-CIO v. N.L.R.B.
| Citation | 195 U.S.App.D.C. 104,600 F.2d 918 |
| Decision Date | 11 April 1979 |
| Docket Number | AFL-CI,P,Nos. 77-1948,77-1977,A-1,s. 77-1948 |
| Parties | 101 L.R.R.M. (BNA) 2014, 195 U.S.App.D.C. 104, 86 Lab.Cas. P 11,252 ROAD SPRINKLER FITTERS LOCAL UNION NO. 669, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPEFITTING INDUSTRY OF the UNITED STATES AND CANADA,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent,Fire Protection, Inc., et al., Intervenors.FIRE PROTECTION, INC. and Corcoran Automatic Sprinklers, Inc., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Angelo V. Arcadipane, Washington, D. C., with whom William W. Osborne, Jr., Washington, D. C., was on brief, for petitioner in No. 77-1948.
Hiram S. Grossman, Flint, Mich., for petitioners in No. 77-1977 and intervenors in No. 77-1948.
David F. Zorensky, Atty., N. L. R. B., Washington, D. C., with whom John S. Irving, Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and William R. Stewart, Deputy Asst. Gen. Counsel, N. L. R. B., Washington, D. C., were on brief, for respondent.
Before TAMM and WILKEY, Circuit Judges, and BARRINGTON D. PARKER, * United States District Judge for the District of Columbia.
Opinion for the court filed by TAMM, Circuit Judge.
We face cross-petitions for review of a decision of the National Labor Relations Board (Board). We remand the Board's decision that Corcoran Automatic Sprinklers, Inc. (CAS) and A-1 Fire Protection, Inc. (A-1) did not violate section 8(a)(5) of the National Labor Relations Act (Act) by refusing to bargain with the Road Sprinkler Fitters Local 669, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (AFL-CIO), (Local 669). We do so because the Board, without explanation, failed to apply the "clear and unmistakable" waiver standard to discern whether a union had forfeited its rights under section 8(a) (5). We affirm the Board's decision that CAS and A-1 did, however, violate sections 8(a)(3) and 8(a)(4) of the Act by retaliating against a union member.
In 1973, George Corcoran formed two corporations, CAS and A-1, to install fire sprinklers. Corcoran intended to carry on a "double breasted" operation, 1 which would allow the non-union company, A-1, to bid on installation jobs that did not require union contractors, and allow CAS to bid on jobs that required union contractors. Soon after the corporations were formed, Corcoran, the owner and president of both corporations, entered into a contract with Local 669 covering CAS's employees who install and maintain fire protection systems. The union was not aware of the existence of A-1 when it signed the CAS contract. Later that year, however, Roy Pantall, Local 669's business agent, learned of A-1 and advised Corcoran that A-1 could not bid on non-union work because such work belonged to the union.
A-1 began hiring employees to install and maintain fire protection systems in 1975. In January 1975, Corcoran told Pantall that he was forced to lay off CAS employees, but could hire them to work for A-1. After Pantall grudgingly assented to the arrangement, Corcoran employed a few men to work for A-1. Although Corcoran paid them union scale wages, he did not compensate them for union benefits. Later in the same month, Pantall left his position as business agent for a new job with the union.
In late April 1975, Michael Johnson became the new union business agent, and, on May 1, 1975, Corcoran entered into a second contract with Local 669 covering CAS employees. Before signing the agreement, the union did not request that the contract cover A-1 or its employees. Johnson later testified that Pantall had not told him that A-1 was engaged in installation work.
By late fall, the union undoubtedly knew that A-1 was operating as a non-union company installing fire protection systems. In November, the union demanded that CAS and A-1 employees be treated as a single bargaining unit, and that the 1975 collective bargaining agreement be applied to A-1. See Joint Appendix (J.A.) at 349. When Corcoran refused to comply with the demand, Local 669 filed unfair labor charges against CAS and A-1. Id. at 284. The union alleged that CAS and A-1 violated the duty to bargain by withdrawing work from CAS and by refusing to recognize that A-1 employees were covered by the 1975 contract.
Before learning of the union's charges, Corcoran suggested to Johnson that their differences could be resolved if an A-1 job was subcontracted to CAS and if Michael Nunn, a union member, was employed on the job. After receiving notice of the union's charges, Corcoran decided to retain the job with A-1 and refused to employ Nunn. The union then filed new charges against CAS and A-1.
An administrative law judge (ALJ) held that the refusal to recognize the union as the collective bargaining representative of all employees and the transfer of work from CAS to A-1 violated section 8(a)(5) of the Act. 2 The ALJ found that CAS and A-1 formed a single employer for collective bargaining purposes, that Corcoran had changed work assignments to reduce the amount of work for CAS, and that the sprinkler fitters of CAS and A-1 together formed a single appropriate bargaining unit. Id. at 415-17. The ALJ confronted the issue that has become the focus of this petition for review when he held that the union had not engaged in any actions that would, by estoppel or waiver theories, forestall a finding that the employer violated section 8(a)(5). Finally, the ALJ found that the employer had violated sections 8(a)(3) 3 and 8(a)(4) 4 by refusing to hire Michael Nunn in retaliation for the union's filing of an unfair labor practice charge. Id. at 419-20.
The Board accepted the ALJ's findings of fact and affirmed his holding that the refusal to hire Michael Nunn violated sections 8(a)(3) and 8(a)(4) of the Act. A-1 Fire Protection, Inc., 233 N.L.R.B. No. 9, at 1-2 n.2 (1977). The Board held, however, that the employer did not violate section 8(a)(5) either by refusing to extend the terms of the CAS collective bargaining agreement to A-1 or by transferring work from CAS to A-1. Id. at 2.
The Board held that the union had, by its prior actions, given up the right to demand that the CAS agreement apply to A-1 workers. Specifically, the Board decided that the parties had not intended the 1975 agreement to cover A-1 employees and that the union, "at least inferentially, stipulated as to the appropriateness of the unit." Id. at 5. With respect to the ALJ's conclusion that Corcoran violated section 8(a)(5) by transferring work from CAS to A-1, the Board stated that Corcoran was free to use CAS or A-1 in any fashion he saw fit, and that the union had accepted the "double breasted" situation. Id. at 6.
In this court, the union petitions for review of the Board's holding that the employer did not violate section 8(a)(5), and the employer petitions for review of the ruling that it did violate sections 8(a)(3) and 8(a)(4). We must uphold the Board's decision if its findings are supported by substantial evidence on the record as a whole. See Oil, Chemical & Atomic Workers International Union, Local 4-243 v. NLRB, 124 U.S.App.D.C. 113, 115, 362 F.2d 943, 945-46 (1966); See also Midwest Regional Joint Board v. NLRB, 183 U.S.App.D.C. 413, 417, 564 F.2d 434, 438 (1977).
The central point in dispute in this case is the proper legal standard for determining whether the union relinquished its right to claim that the 1975 agreement applied to A-1 employees when it signed a collective bargaining agreement with CAS in May 1975. The union argues that the collective bargaining agreement could act as a bar only if it constitutes a " clear and unmistakable waiver" of its statutory rights under section 8(a)(5) of the Act. The Board contends that the question is merely one of contract interpretation. The Board states, the "Union should not now be permitted to avoid the terms of the contract or the scope of the unit to which it voluntarily agreed by claiming an unfair labor practice in (Corcoran's) refusal to extend the CAS contract to A-1." A-1 Fire Protection, Inc., 233 N.L.R.B. No. 9 at 5.
The dispute over legal theory may affect the outcome. This court has stated that a union will not be held to have foregone a statutory right absent a "clear and unmistakable" waiver. Office & Professional Employees International Union, Local 425 v. NLRB, 136 U.S.App.D.C. 12, 19, 419 F.2d 314, 321 (1969); International Union, UAW v. NLRB, 127 U.S.App.D.C. 97, 99, 381 F.2d 265, 267, Cert. denied, 389 U.S. 857, 88 S.Ct. 82, 19 L.Ed.2d 122 (1967); See also Retail Clerks International Association, Local 455 v. NLRB, 166 U.S.App.D.C. 422, 426 n.15, 510 F.2d 802, 806 n.15 (1975); NLRB v. Die Supply Corp., 393 F.2d 462, 467 (1st Cir. 1968). The Board's present approach, on the other hand, abolishes any presumption against the loss of section 8(a)(5) rights, and reduces the question to a simple matter of contract interpretation. See Temple-Eastex, Inc., 228 N.L.R.B. 203, 209 & n.1 (1977), Reversed on other grounds, sub nom. NLRB v. Temple-Eastex, Inc., 579 F.2d 932 (5th Cir. 1978); B&B Industries, Inc., 162 N.L.R.B. 832, 835 (1967).
The Board, however, contends that it did not apply a waiver standard but simply held that the union cannot use the contract with CAS to support its contention that the employer has an obligation to bargain with it as the representative of A-1 employees. Brief for Respondents at 27. We have difficulty understanding how the factual situation facing the Board differs from the traditional waiver situation. No distinction exists between the effect of the Board's theory and use of the waiver standard in this court's earlier cases.
In International Union, UAW v. NLRB, 127 U.S.App.D.C. at 99, 381 F.2d at 267, this court...
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