N.L.R.B. v. Catalytic Indus. Maintenance Co. (CIMCO)

• Citation: 964 F.2d 513
• Decision Date: 06 July 1992
• Docket Number: 91-4249 and 91-4268,Nos. 91-4106,s. 91-4106
• Parties: 140 L.R.R.M. (BNA) 2817, 122 Lab.Cas. P 10,271 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CATALYTIC INDUSTRIAL MAINTENANCE CO. (CIMCO), Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 513

964 F.2d 513

140 L.R.R.M. (BNA) 2817, 122 Lab.Cas. P 10,271

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CATALYTIC INDUSTRIAL MAINTENANCE CO. (CIMCO), Respondent.

Nos. 91-4106, 91-4249 and 91-4268.

United States Court of Appeals,

Fifth Circuit.

July 6, 1992.

Richard A. Cohen, Aileen A. Armstrong, Deputy Associate Gen. Counsel, Charles P. Donnelly, Washington, D.C., for petitioner.

Francis M. Milone, Jeffrey E. Fleming, Morgan, Lewis & Bockius, Philadelphia, Pa., for respondent.

Michael Dunn, Regional Director, NLRB Region 16, Fort Worth, Tex.

Application for Enforcement of Orders of the National Labor Relations Board.

Before WISDOM, REYNALDO G. GARZA, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

In the first two cases in this consolidated appeal, the National Labor Relations Board (the Board) seeks to enforce its orders requiring Catalytic Industrial Maintenance Co. (CIMCO) to bargain collectively with the Board-certified representative of skilled electricians at two facilities--one owned by Sterling Chemical (Case No. 91-4106), the other by Union Carbide (No. 91-4268)--where CIMCO had contracted to perform industrial maintenance and refurbishing services. In the third case (No. 91-4249), the Board asks us to enforce its finding that CIMCO committed unfair labor practices when, following the election at the Sterling Chemical plant, it terminated electricians referred by the newly certified bargaining unit.

We hold that the Board's decisions in all three cases are supported by law and by substantial evidence. Accordingly, we enforce the Board's orders requiring CIMCO to bargain collectively at the Union Carbide and Sterling Chemical facilities, as well as its order directing CIMCO to remedy violations of the protected rights of electricians at the Sterling Chemical site.

I. BACKGROUND

CIMCO, a corporation with its principal place of business in Pennsylvania, supplies contract maintenance and refurbishing services to nuclear, chemical and industrial facilities throughout the United States. Sterling Chemical and Union Carbide retained CIMCO to perform maintenance services at their plants in Texas City, Texas. CIMCO employs an all-union workforce at these two facilities, including workers from a number of trade crafts. In 1956, CIMCO and other owners of continuous maintenance businesses negotiated a nationwide collective bargaining agreement with more than a dozen international building trades unions. That agreement is known as the General Presidents' Project Maintenance Agreement (GPA) and is administered by the General Presidents' Council (GPC), a standing committee of representatives from the international unions. When an individual contractor wants to employ skilled workers under a GPA at a particular site, it applies to the GPA administrator, who is employed and supervised by the GPC. Once executed, the GPA governs the terms and conditions of employment for the various crafts at that site. The parties to the GPA are the individual contractor, in this case CIMCO, and the individual international unions that comprise the building construction trades department of the AFL-CIO, including the International Brotherhood of Electrical Workers (IBEW). Local union affiliates are not parties to the GPA. Notably, the parties in this case have stipulated that the GPA is a "pre-hire" agreement governed by § 8(f) of the National Labor Relations Act (the Act), 29 U.S.C. § 158(f). ¹

In January, 1987, CIMCO applied for and was granted a GPA to cover union employment for supplemental maintenance services at the Sterling Chemical facility. In 1989, CIMCO also applied for a GPA at the Union Carbide plant, but the parties disagree as to whether this GPA was approved. CIMCO contends that it was notified on August 29, 1989 that the GPC had granted its request for a GPA at Union Carbide. The Board, however, concluded that the IBEW never participated in the GPA at that facility. In either event, on August 30, 1989, the IBEW notified CIMCO by letter that it was withdrawing from participation in the GPA at both the Sterling Chemical and Union Carbide plants. ² After the IBEW notified CIMCO that it was withdrawing from participation in the GPA at the Sterling Chemical site, Local 527 filed a petition for a certification election pursuant to § 9(c) of the Act. Local 527 sought to be certified as the representative unit of all "journeymen electricians, instrument technicians, and apprentices working for CIMCO at its job site at Sterling Chemicals, Texas City, Texas." On June 8, 1990, the NLRB regional director found that the proposed electricians' unit was entitled to severance from the multi-craft unit. Accordingly, he directed an election. The majority of electricians at the Sterling Chemical site voted for representation by Local 527, which was then certified as their bargaining representative. CIMCO refused to bargain with Local 527, and the Board's finding that CIMCO had violated §§ 8(a)(1) and (5) of the Act led to the enforcement action in No. 91-4106. ³

More than six months after Local 527 filed its petition for an election at the Sterling Chemical site, Local 527 also sought certification of a similar unit at the Union Carbide facility. The NLRB regional director issued a substantially identical ruling and a certification election was held at that site on November 7. Once again, a majority voted in favor of representation by Local 527, and it was certified as the bargaining representative. CIMCO's refusal to bargain with Local 527 in its pursuit of a collective-bargaining agreement at Union Carbide, and the Board's finding that CIMCO had engaged in unfair labor practices, triggered the enforcement action in 91-4268. The terms of the GPA mandate that all skilled craft positions at the GPA-covered facility be filled by union members. In the course of negotiations with Local 527, CIMCO stated that it would be forced to hire electricians from a source other than the Union's hiring hall should the IBEW conclusively withdraw from the GPA. Local 527 responded that it would As the deadline approached for the IBEW's withdrawal from participation at the Sterling Chemical GPA, CIMCO and Local 527, along with national union officials, tried unsuccessfully to negotiate a compromise. ⁴ CIMCO strenuously disagrees with the Board's finding that CIMCO was aware at the time of these negotiations of Local 527's plans to continue to refer electricians to the Sterling Chemical site even after the IBEW had withdrawn from the GPA. CIMCO officials testified that they believed Local 527 would no longer refer any electricians to the Sterling Chemical site, prompting CIMCO to advertise in local newspapers and to make gate hires. CIMCO took the position at the time that hiring "non-union electricians"--even if they belonged to Local 527--would violate the provision of the GPA requiring that all trade positions be held by union members. Accordingly, on December 29, 1990, the last day before the IBEW-scheduled withdrawal from the GPA, CIMCO notified all electricians at the Sterling site that they had "voluntarily quit" their employment with CIMCO by virtue of the IBEW's withdrawal from the GPA. Several electricians protested that they were not voluntarily resigning and wished to remain on the workforce. Nonetheless, all 34 electricians at the Sterling Chemical site were terminated on that date. CIMCO had earlier invited these same electricians to submit resumes to work at the Sterling Chemical facility for CIMCO on a non-union basis once the IBEW had withdrawn from the GPA, and by the end of January, eight Local 527 members had been rehired as non-union employees.

                picket the Union Carbide facility and, despite CIMCO's request, it refused to refer electricians from its hiring hall to staff that site.   CIMCO then hired electricians responding to newspaper advertisements, and Local 527 engaged in the threatened picket, which disrupted operations at the Union Carbide plant
                

In its complaint to the NLRB, Local 527 asserted that the electricians were terminated because they had been referred by its hiring hall and accused CIMCO of trying to pressure the IBEW to remain in the GPA at the Sterling site. The NLRB regional director then issued a complaint that CIMCO had violated §§ 8(a)(1) and (3) of the Act by terminating the Sterling Chemical site electricians. After a hearing, an administrative law judge agreed. The Board affirmed, adopted the ALJ's decision, and filed an application for enforcement with this court which, together with the Board's petitions to enforce its bargaining orders stemming from the elections at the Union Carbide and Sterling Chemical facilities, form the basis of this appeal.

II.

PROCEDURAL BAR

Before proceeding to the merits of the Board's decisions, it is necessary to address a procedural question that is limited to No. 91-4268, the Board's decision ordering CIMCO to bargain with Local 527 at the Union Carbide facility. Because CIMCO did not file a separate request for review of the order in the Union Carbide decision, the Board insists that CIMCO has waived its right to appeal that order in this court. So confident is the Board of its correctness that its brief fails to address any of CIMCO's legal arguments in No. 91-4268, despite a previous order by a panel of this court to do so.

We emphatically reject the Board's claim that CIMCO is procedurally barred from appealing the Union Carbide case. As CIMCO rightly observes, both election decisions involve the same employer, the same petitioner, and virtually identical factual issues; indeed, the parties stipulated that the factual record in the Sterling Chemical election case (No. 91-4106) applies here. The stipulated record includes all record entries, including CIMCO's request Although the Board's arguments would likely be identical to those advanced in No. 91-4106, that does not excuse its failure to comply with the court's request that...