600 F.2d 918 (D.C. Cir. 1979), 77-1948, Road Sprinkler Fitters Local Union No. 669, United Ass'n of Journeymen and Apprentices of Plumbing and Pipefitting Industry of United States and Canada, AFL-CIO v. N.L.R.B.

Docket Nº:77-1948, 77-1977.
Citation:600 F.2d 918
Party Name: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, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, A-1 Fire Protection, Inc., et al., Intervenors. A-1 FIRE PROTECTION, INC. and Corcoran Automatic Sprinklers, Inc.,
Case Date:April 11, 1979
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 918

600 F.2d 918 (D.C. Cir. 1979)

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,

AFL-CIO, Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent,

A-1 Fire Protection, Inc., et al., Intervenors.

A-1 FIRE PROTECTION, INC. and Corcoran Automatic Sprinklers,

Inc., Petitioners,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 77-1948, 77-1977.

United States Court of Appeals, District of Columbia Circuit

April 11, 1979

Argued Jan. 8, 1979.

Page 919

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.

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.

I

In 1973, George Corcoran formed two corporations, CAS and A-1, to install fire sprinklers. Corcoran intended to carry on a

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"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...

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