Allied Mech. Servs., Inc. v. Nat'l Labor Relations Bd., s. 10–1328

• Citation: 668 F.3d 758,162 Lab.Cas. P 10450,192 L.R.R.M. (BNA) 2933
• Decision Date: 17 February 2012
• Docket Number: 10–1385.,Nos. 10–1328,s. 10–1328
• Parties: ALLIED MECHANICAL SERVICES, INC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent.United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL–CIO, Union Local 357, Intervenor.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

162 Lab.Cas. P 10,450

192 L.R.R.M. (BNA) 2933

668 F.3d 758

ALLIED MECHANICAL SERVICES, INC., Petitioner

v.NATIONAL LABOR RELATIONS BOARD, Respondent.United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL–CIO, Union Local 357, Intervenor.

Nos. 10–1328

10–1385.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 23, 2011.Decided Feb. 17, 2012.

On Petition for Review and Cross–Application for Enforcement of Orders of the National Labor Relations Board.David M. Buday argued the cause for petitioner. With him on the briefs was Keith E. Eastland.

Steven B. Goldstein, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Robert J. Englehart, Supervisory Attorney.

Tinamarie Pappas was on the brief for intervenor.

Before: KAVANAUGH, Circuit Judge, and EDWARDS and SILBERMAN, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge EDWARDS.

EDWARDS, Senior Circuit Judge:

This appeal focuses on two Decisions and Orders issued by the National Labor Relations Board (“the Board” or “the NLRB”): Allied Mechanical Services, Inc., 341 NLRB 1084 (2004) (“ Allied ”), and Allied Mechanical Services, Inc., 351 NLRB 79 (2007) (“ Allied Supp.”). Allied Mechanical Services, Inc. (“Allied” or “the Company”) has petitioned for review to challenge certain aspects of the Board's actions, and the Board has cross-petitioned for enforcement.

In Allied, the Board determined that the Company had violated sections 8(a)(3) and 8(a)(1) of the National Labor Relations Act (“the Act”), see 29 U.S.C. § 158(a)(3), (a)(1) (2006), by refusing to consider and hire four job applicants because of their union membership and by refusing to reinstate ten strikers upon their unconditional offers to return to work. The Company does not contest these determinations on appeal.

In Allied Supp., the Board found that Allied and Local Union 357 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL–CIO (“the Union” or “Local 357”) had a section 9(a) bargaining relationship, see 29 U.S.C. § 159(a) (2006), and that Allied therefore violated sections 8(a)(5) and (1) of the Act, 29 U.S.C. § 158(a)(5), (a)(1), by unilaterally changing its job-application procedures, by refusing to furnish information to the Union, and by withdrawing recognition from the Union. The Board ordered Allied to cease and desist from its unlawful activities and to recognize and, upon request, bargain with the Union. Allied Supp., 351 NLRB at 82–87.

The principal question before the court is whether the relationship between the Company and the Union—which has extended over two decades—is governed by section 8(f), 29 U.S.C. § 158(f), or section 9(a) of the Act. Under sections 9(a) and 8(a)(5), employers are obligated to bargain with unions that have been “designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes.” 29 U.S.C. § 159(a); see also id. § 158(a)(5) (making it an unfair labor practice to refuse to bargain with a union selected in accordance with section 9(a)). “[S]ection 8(f) creates a limited exception to this majority support requirement for the construction industry. Under this exception, a contractor may sign a ‘pre-hire’ agreement with a union regardless of how many employees authorized the union's representation.” Nova Plumbing, Inc. v. NLRB, 330 F.3d 531, 534 (D.C.Cir.2003) (citation omitted). An employer is not obliged to enter an 8(f) bargaining relationship. And if an employer purports to enter an 8(f) relationship, but never executes an agreement with the union, the employer is free to withdraw from the relationship. In addition, “an employer may refuse to bargain after a section 8(f) agreement expires because the union enjoys no presumption that it ever had majority support.” Id. (citation omitted). Allied contends that the Company and the Union never entered into anything more than an 8(f) relationship, from which the Company was free to withdraw. We disagree.

We hold that substantial evidence in the record, reasoned decisionmaking, and established case law support the Board's finding that Allied and the Union were parties to a 9(a) bargaining relationship. In April 1990, the Union requested recognition as the majority representative of Allied's employees and offered to give proof of its majority status. Allied declined to recognize the Union. The Union then filed unfair labor practice charges. In December 1990, the Board's General Counsel issued a Complaint against the Company. The Complaint stated that the Union represented a majority of Allied's employees, and it sought a “ Gissel bargaining order.” See NLRB v. Gissel Packing Co., 395 U.S. 575, 614–15, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). Rather than contest the Complaint, Allied signed an agreement settling the matter. The settlement agreement provided that Allied would recognize and bargain in good faith with the Union as the exclusive collective bargaining representative of the unit employees. The Board's decision—that the circumstances surrounding the execution of the settlement agreement, as well as the agreement itself, established a 9(a) bargaining relationship—is eminently reasonable. Finding no merit in Allied's petition for review, we hereby grant the Board's cross-petition for enforcement.

I. Background

A. The Facts

Allied employs plumbers and pipefitters in southwestern Michigan. The instant dispute arose in 1990, when Local 337 engaged in a campaign to organize Allied's plumbing and pipefitting employees. On April 24, 1990, Local 337 asserted to Allied that the Union represented a majority of the Company's employees. The Union demanded that Allied recognize the Union as the employees' collective bargaining representative and offered to give proof of its majority status to a third party. The Company, however, declined to recognize the Union.

On December 13, 1990, in response to unfair labor practice charges filed by the Union, the Board's General Counsel issued a Complaint against the Company. The Complaint stated that a majority of Allied's employees had designated the Union as its collective bargaining representative through authorization cards, and that Allied had committed serious violations of the Act effectively undermining the Union's status. See I Joint App. (“J.A.”) 407–09. The Complaint sought a Gissel bargaining order on the grounds that the Company's unlawful conduct was

so serious and substantial in character that the possibility of erasing the effects of these unfair labor practices and of conducting a fair election after the use of traditional remedies is slight and the employees' sentiments regarding representation, having been expressed through authorization cards, would, on balance, be better protected by the entry of a remedial order requiring [Allied] as of April 24, 1990, to recognize and bargain with the [Union] as the exclusive collective bargaining representative of its [unit] employees ... than by traditional remedies.

Id. at 409. The Complaint further demanded that Allied

[r]ecognize and, upon request, bargain in good faith with the [Union] as the exclusive collective bargaining representative of the [unit] employees ... respecting rates of pay, wages, hours, and other terms and conditions of employment; and if an understanding is reached, embody it in a signed agreement.

Id. at 410.

In its answer to the Complaint, Allied stated that it had “no factual basis upon which to admit or deny” that the Union represented a majority of the employees in an appropriate bargaining unit. The answer additionally demanded proof of the Union's majority status, and there is nothing to indicate that the Company did not receive the proof. Instead, on July 30, 1991, the Company signed a settlement agreement which was approved by the Board's Regional Director. The Complaint was then withdrawn.

The agreement included a non-admission clause stating that “[t]he Charged Party does not, by the execution of this Agreement, admit that it has, in fact, violated the Act.” Id. at 417. More particularly, however, the settlement agreement provided that Allied would

recognize and, upon request, bargain in good faith with [the Union] as the exclusive collective bargaining representative of the [unit] employees ... with respect to rates of pay, wages, hours, and other terms and conditions of employee [sic], and if an understanding is reached, embody it in a signed collective bargaining agreement.

Id. at 419. There is nothing in the Board's Complaint, Allied's responses to the Complaint, or the settlement agreement to suggest that the Board, the Company, or the Union assumed that the relationship between Allied and the Union was governed by section 8(f).

During 1992 and 1993, ten Allied employees engaged in an economic strike. See Allied Mech. Servs., Inc., 320 NLRB 32, 32 (1995), enforced 113 F.3d 623 (6th Cir.1997) (“ Allied 1995 ”). Nine of the strikers eventually made unconditional offers to return to work, but Allied refused to reinstate them. Charges were filed with the Board, and a Complaint was issued against the Company. The Board found violations of sections 8(a)(3) and (1) of the Act, and ordered the Company to reinstate and make whole the nine strikers. See id. at 33–34. On May 16, 1997, the Sixth Circuit enforced the Board's order. Allied 1995, 113 F.3d at 624.

During the course of the Allied 1995 litigation, more problems arose between the Company and the Union, giving rise to further litigation. See Allied Mech. Servs., Inc., 332 NLRB 1600 (2001) (“ Allied 2001 ”). The Union again filed unfair labor practice charges, and a Complaint was issued, alleging that Local 337 had been the ...