Advanced Construction Serv., Inc. v. Nat'l Labor Relations Bd., CROSS-RESPONDENT
| Decision Date | 10 January 2001 |
| Docket Number | CROSS-PETITIONER,Nos. 00-1069,00-1393,CROSS-RESPONDENT,s. 00-1069 |
| Citation | 247 F.3d 807 |
| Parties | (8th Cir. 2001) ADVANCED CONSTRUCTION SERVICES, INC., PETITIONER/, v. NATIONAL LABOR RELATIONS BOARD, RESPONDENT/ Submitted: |
| Court | U.S. Court of Appeals — Eighth Circuit |
On Petition for Review and Cross-Petition for Enforcement of an Order of the National Labor Relations Board. [Copyrighted Material Omitted] Before Richard S. Arnold and Bowman, Circuit Judges, and Kyle, 1 District Judge.
Advanced Construction Services, Inc. (ACS), appeals from a decision of the National Labor Relations Board. The Board held that ACS violated its duty to bargain under 29 U.S.C. 158(a)(1) and (5) by refusing to provide information to Local No. 444 of the United Brotherhood of Carpenters and Joiners of America ("the Local"). It ordered ACS to provide the information and to post a standard notice informing its employees of their collective-bargaining rights. ACS admits that it would have been required to provide the information in question if it had been requested by the United Brotherhood of Carpenters and Joiners of America ("the International"), with which it had at least two collective-bargaining agreements (CBAs). Because we agree with the Board that the CBAs support a right of inquiry in the Local, we enforce the order.
The following findings of the Administrative Law Judge were adopted by the Board. In mid-1995, the Local's business representative, R.L. Peterson, began trying to persuade a company called Advanced Office Interiors ("Interiors") to recognize the Local for construction jobs within the Local's jurisdiction. Interiors' management declined to do so. In May of 1996, Mr. Peterson received information that Interiors already had a collective-bargaining agreement with the International. When he approached the company again, Interiors manager Richard Jensen told him that the agreement was between the International and AOI, Inc., a different company. Mr. Peterson began to investigate the two companies. He discovered that they had many things in common, including not only the type of service they performed, but also officers, shareholders, board members, and an address of record in Omaha, Nebraska. He further discovered that on June 3, 1996, only a few weeks after his communications with Jensen, AOI, Inc., had changed its name to Advanced Construction Services, Inc. 2 (It is undisputed that Jensen was President of ACS at all times material to this litigation and had also been President of AOI, Inc.) Mr. Peterson took photographs showing that vehicles with vanity license plates bearing the letters "AOI" were parked at the offices of both ACS and Interiors, and that the logo of AOI, Inc., ACS's predecessor, was displayed at Interiors' Omaha headquarters. He also obtained Interiors' employee telephone book, which contained numbers for both ACS and Interiors employees.
Mr. Peterson inferred from these discoveries that ACS might be running what is called an "open shop/closed shop" operation, in which an employer uses two corporate identities to get the benefit of both union and non-union labor markets. 3 On the suspicion that Interiors was substantially the same employer as ACS (and therefore subject to the same collective-bargaining obligations), he got in touch with Richard Jensen again, this time by letter. The letter was delivered to Jensen, as President of ACS, at Interiors' Omaha headquarters. Enclosed was a questionnaire seeking information about the relationship between Interiors and ACS. Although Mr. Jensen received the questionnaire, ACS never responded to it.
"There can be no question of the general obligation of an employer to provide information that is needed by [its employees'] bargaining representative for the proper performance of its duties." N.L.R.B. v. Acme Industrial Co., 385 U.S. 432, 435-36 (1967); see also Brown Shoe Company v. N.L.R.B., 33 F.3d 1019, 1022 (8th Cir. 1994). In applying this general rule to the case at hand, two questions arise: whether the Local was the bargaining representative for ACS's employees, and, if so, whether the requested information was needed for collective-bargaining purposes. We will enforce the Board's order if it correctly applied the law and if its findings are supported by substantial evidence in the record. See New World Communications v. N.L.R.B., 232 F.3d 943, 945 (8th Cir. 2000).
ACS first argues that the Local is not the employees' bargaining representative because it is not a signatory to the CBAs. The Board replies that, even so, the CBAs contemplate that local affiliates will act as bargaining representatives. We agree with the Board. The main CBA provides in relevant part as follows:
The Company [i.e., ACS] agrees to recognize the jurisdictional claims of the UBCJA and to comply with the contractual wages, fringe benefits, hours and other working conditions established between the UBCJA affiliates and the employers or recognized employer agencies in the localities in which the company does any work within the jurisdiction of the UBCJA.
* * * * * *
The UBCJA agrees to refer personnel to jobs upon a nondiscriminatory basis, such referral to be made upon the request of the Company who retains the right to reject or accept the applicants for employment. The UBCJA affiliates having jurisdiction in the respective areas of the performance of work will maintain appropriate nondiscriminatory facilities for the registration and referral of personnel possessing the skills required for the performance of work by the Company. The Company agrees to use said facilities in filling job vacancies on all projects.
JA II 177-78. The Local is something more than a third-party beneficiary of this agreement. The agreement imposes upon the Local the duty to maintain a hiring hall for the employer's use. Moreover, it contemplates that local affiliates will bargain with employers to set the actual terms on which represented employees shall be employed. The Local has both powers and duties under the contract, and its powers include at least limited representation of employees.
A second agreement, signed the same day, gives even stronger evidence of the Local's capacity to bargain on behalf of ACS's employees. It provides that
Should any dispute or grievance arise under any of the terms of this Agreement, the Employer [i.e., ACS] or his representative and the area (Local Union, District or Provincial Council) union representative shall meet or otherwise be in contact promptly to settle the dispute.
JA II 46. Only if the Local cannot resolve the dispute on behalf of the employees will the International become involved. Id. at 46-47. We agree with the Board that, in...
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