955 F.2d 744 (D.C. Cir. 1992), 91-1098, Plumbers and Pipefitters Local Union No. 520 v. N.L.R.B.

Docket Nº:91-1098.
Citation:955 F.2d 744
Party Name:PLUMBERS AND PIPEFITTERS LOCAL UNION NO. 520, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, UE & C-Catalytic, Inc., Intervenor.
Case Date:February 11, 1992
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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955 F.2d 744 (D.C. Cir. 1992)




UE & C-Catalytic, Inc., Intervenor.

No. 91-1098.

United States Court of Appeals, District of Columbia Circuit.

February 11, 1992

Argued Dec. 10, 1991.

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Petition for Review of an Order of the National Labor relations board.

James L. Cowden, with whom P. David Lopez was on the brief, for petitioner. David R. Straus also entered an appearance for petitioner.

William M. Bernstein, Attorney, National Labor Relations Board, with whom Jerry M. Hunter, General Counsel, D. Randall Frye, Acting Deputy General Counsel and Aileen A. Armstrong, Deputy Associate General Counsel, were on the brief, for respondent. Charles P. Donnelly, Attorney, N.L.R.B., also entered an appearance for respondent.

Francis M. Milone and Valerie I. Harrison were on the brief, for intervenor. Stanley F. Lechner also entered an appearance for intervenor.

Before MIKVA, Chief Judge, EDWARDS and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

The simple question in this case is whether the National Labor Relations Board ("NLRB" or "Board") may give deference to a pre-arbitration settlement reached by an employer and a union disposing of an employee's contract grievance with respect to a matter covered by the parties' collective bargaining agreement. The simple answer is yes.

In this case, the applicable collective bargaining agreement between UE & C-Catalytic, Inc. ("Catalytic") and fourteen International building trades unions--the General Presidents' Project Maintenance Agreement ("GPPMA")--prohibits work stoppages and provides that an employer may discharge or discipline employees for "proper cause." In 1985, Catalytic fired Garland Berry, a union steward with the petitioner,

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Plumbers and Pipefitters Local Union No. 520 ("Local 520"), for insubordination in connection with a threatened work stoppage. In protest against Berry's dismissal, Local 520 filed a grievance under the collective bargaining agreement and an unfair labor practice ("ulp") charge with the NLRB; the factual circumstances underlying the grievance and the ulp were exactly the same. The contract grievance dispute was thereafter settled in lieu of arbitration, with an agreement between representatives from Catalytic and the International Union providing for Berry's reinstatement without backpay. Subsequently, during proceedings at the NLRB, an Administrative Law Judge ("ALJ") refused to grant deference to the settlement agreement and found for Berry on the merits, ordering his reinstatement with backpay. The Board reversed the ALJ and held that deference was appropriate. Catalytic, Inc.,301 N.L.R.B. No. 44 (Jan. 28, 1991), reprinted in Deferred Appendix ("App.") 11.

We uphold the Board's decision and deny the petition for review. We find that the Board's policy of granting deference to pre-arbitration settlement agreements is consistent with the National Labor Relations Act ("NLRA"), 29 U.S.C. §§ 151-169 (1988), and that the Board did not abuse its discretion by applying the policy in this case. In denying the petition for review in this case, however, we do not mean to suggest that the Board's opinion is without flaws. Indeed, as indicated during the oral argument before this panel, the Board's present policy on "deference" 1 is vacuous in significant respects, because it lacks any coherent theoretical basis. Although remand is unnecessary in this case because deference to the settlement agreement was clearly permissible on the record before us, the Board will be well-advised to reconsider the basis for its deference policy in order to avoid the need for remand in future cases.


    1. The Underlying Incident

      Catalytic is an engineering contractor which performs various maintenance services for industrial plants and utilities. Catalytic's craft employees are covered by a collective bargaining agreement known as the General Presidents' Project Maintenance Agreement. 2 The GPPMA is negotiated on a nationwide basis; its signatories are fourteen International building trade unions and several engineering contractors, including Catalytic. With the exception of wage rates, certain benefit packages and hiring hall practices (all of which are negotiated by the Local unions), the national agreement covers most conditions of employment for craft employees in the designated bargaining units. The Local unions are not signatories to the GPPMA; however, each Local is affiliated with one of the signatory International unions. Thus, although the Locals monitor compliance with the terms of the GPPMA, the affiliated International is the recognized bargaining

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      representative for the employees in the designated local bargaining units. In this case, Local 520 is affiliated with the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada ("United Association"), which is a signatory to the GPPMA.

      The GPPMA contains a no-strike provision which prohibits work stoppages and slowdowns by the unions and employees covered by the agreement. See GPPMA at 21-22, reprinted in App. 42. The Agreement also contains a management rights clause which provides, inter alia, that an employer may discharge or discipline employees "for proper cause." Id. at 5.

      The events giving rise to the dispute in this case occurred at the Peach Bottom nuclear power plant in Delta, Pennsylvania, a facility owned by one of Catalytic's clients, the Philadelphia Electric Company ("PECO"). In the late summer of 1985, PECO decided to remove and repair the "snubbers" (large shock absorbers) at the Peach Bottom facility; Catalytic was awarded a contract to remove the snubbers, but the associated repair work was given to another contractor because of PECO's dissatisfaction with certain work previously done by Catalytic's pipefitters. Local 520 objected to this division of labor because it believed that the repair job should have been assigned to its pipefitters.

      Catalytic decided that the most efficient way to remove the snubbers was to "split the shifts" of the eight pipefitters who were assigned to the job, with four working the usual day shift and the other four working the second shift. On Thursday, August 29, 1985, the foreman of the crew informed Garland Berry, the union steward, about the shift assignment, and told him that the work hours would go into effect on Tuesday of the following week. Berry relayed this information to August Hartinger, the Business Manager of Local 520. Citing safety concerns (but apparently motivated by his displeasure over the jurisdictional dispute), Hartinger advised Berry to tell the affected workers that the union would not go along with the splitting of the shifts. On Friday, August 30, Berry told the eight workers that they should continue to report for the day shift as usual. One of the workmen asked Berry if he should ignore the foreman's instructions regarding working hours, to which Berry responded that the union's instructions should be obeyed. See Catalytic, Inc., slip op. at 3.

      When Catalytic's Labor Relations Manager, Neal Greeley, learned of Berry's actions, he contacted Frank DeLuca, the Pennsylvania representative of the United Association. The matter was resolved when DeLuca agreed that the union would man the shifts according to management's wishes in exchange for Greeley's promise to hold a meeting to discuss the jurisdictional dispute over the snubber work. The affected employees then reported to work as directed on Tuesday, September 3, and no work stoppage occurred.

      On September 12, 1985, a meeting was held to discuss the work assignment dispute at PECO. The meeting focused more on Berry than on the snubber controversy, however. Greeley, representing Catalytic, stated that Berry would be terminated because management believed that, some days prior, he had threatened a welding inspector. The union disputed this allegation, which was disproved to Catalytic's satisfaction later the same day. Nonetheless, employer representatives continued to express their dissatisfaction with Berry, saying "he was too much of a trouble maker." Transcript of ALJ Hearing ("Tr.") at 25 (testimony of Mr. Hartinger). Berry's status was not resolved at the meeting. The next day, though, Catalytic's Site Manager, Lou McCauley, informed Berry that he was being terminated for gross insubordination, based upon his instruction to the snubber workers to ignore management's directions as to the shift split.

    2. The Grievance Procedure

      Subsequent to Berry's discharge, Local 520 filed a grievance, claiming that the employer had acted without cause; the Local

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      also filed an unfair labor practice charge against Catalytic, alleging that Berry had been terminated for engaging in protected union activity, in violation of sections 8(a)(1) and 8(a)(3) of the NLRA. 3 The NLRB did not act on the unfair labor practice charge until January 30, 1987, at which time the General Counsel issued a complaint; however, the grievance proceeded more promptly through the GPPMA grievance procedure.

      The GPPMA establishes a four-step grievance and arbitration procedure for disputes arising under the contract. See GPPMA at 9-10. Step One of the process consists of a meeting between the aggrieved employee and/or a representative from the Local union and the employee's immediate supervisor. If the grievance is not resolved it proceeds to Step Two, at which a representative of the Local and a representative of the affiliated International Union consult with the employer's labor relations manager. If Step Two is unsuccessful, the grievance is...

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