Bergman v. N.L.R.B.

• Decision Date: 15 June 1978
• Docket Number: No. 77-2183,77-2183
• Citation: 577 F.2d 100
• Parties: 98 L.R.R.M. (BNA) 3131, 84 Lab.Cas. P 10,703 David J. BERGMAN, as Representative of the Employees of Sierra Glass Service, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 100

577 F.2d 100

98 L.R.R.M. (BNA) 3131, 84 Lab.Cas. P 10,703

David J. BERGMAN, as Representative of the Employees of

Sierra Glass Service, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 77-2183.

United States Court of Appeals, Ninth Circuit.

June 15, 1978.

Lawrence V. Brown, Jr. (argued), Belmont, Cal., for petitioner.

Linda Dreeben (argued), San Francisco, Cal., for respondent.

On Petition to Review An Order of the National Labor Relations Board.

Before TUTTLE, ^* DUNIWAY and WRIGHT, Circuit Judges.

TUTTLE, Circuit Judge:

This case presents a petition to review a final order of the National Labor Relations Board. Jurisdiction is based on § 10(f) of the National Labor Relations Act, 29 U.S.C. § 160(f). The only issue before the court is whether the Board properly dismissed a complaint alleging that the Glaziers and Glass Workers Union, Local 767 ("Local 767") committed an unfair labor practice by filing suit in federal district court under § 301 of the Act, 29 U.S.C. § 185. ¹ Based on our conclusion that the Board's order is consistent with long- standing Board precedent and with the policies of the Act, the petition to set aside the order is denied.

On August 1, 1972, Local 767 executed a collective bargaining agreement with a group of Reno, Nevada employers, including Sierra Glass Service. Section 2 of the agreement provided:

The employers shall recognize Glaziers and Glass Workers, Local Union # 767, as the exclusive representative for the purpose of collective bargaining for all of the glaziers and glass workers employed by the Employers within the territorial jurisdiction of the Local Union.

During the negotiations leading to the execution of this agreement, Sierra Glass was represented by its president, Warren Welsh, who signed the agreement under the name "Sierra Glass."

At the time the agreement was signed, Sierra Glass operated two Reno shops, one at 645 Sunshine Lane ("645") and a second at 230 Sunshine Lane ("230"). Before the administrative law judge, Welsh described the scope of the business at 645 as follows: "We do auto glass, replacement work where glass is broken, we replace it, and screens, shower doors." Welsh also testified that prior to the sale of 230 in 1973, the employees in that shop were engaged in storefront and commercial work. The terms of the Sierra Glass-Local 767 contract in no way restrict the agreement's applicability to one group of employees or another. ² Moreover Welsh conceded that during negotiations he never communicated to Local 767's representative, Kendall Bartlett, any intention on Sierra Glass' part to so restrict the agreement. Neither party ever attempted to negotiate modifications of the original agreement.

The causative elements of the present dispute are quite plain following the signing of the 1972 agreement, Welsh did not apply the terms of that agreement to 645 employees. He operated 645 as a nonunion shop and 230 as a union shop. Accordingly, 645 employees never have received the union-scale wages, fringe benefits or overtime pay specified in the agreement, and Sierra Glass has not contributed to Local 767's health and welfare or pension funds. After various efforts to gain full compliance with the agreement had failed, ³ Local 767 filed suit in the United States District Court for the District of Nevada, seeking enforcement of the agreement. ⁴

Prior to answering the union's complaint, the employees of Sierra Glass, though David J. Bergman, filed a charge with the National Labor Relations Board on November 17, 1975. The charge alleged that:

The Glaziers & Glassworkers, Local Union 767, et al., have instituted a suit in the United States District Court for the District of Nevada . . . whereby they falsely assert to be the authorized representative of the undersigned for the purpose of collective bargaining and seek to enforce the wages, benefits and working conditions of a labor agreement covering former employees of employer engaged in the building trades.

The undersigned have not, in the past, authorized the Union to represent them for bargaining purposes and do not and have not authorized them as their present bargaining agent, and Union's suit is clearly a sub-rosa attempt to gain de facto recognition as the undersigned's bargaining agent against their will and in violation of their right to refrain from such Union representation.

A timely complaint, alleging an unfair labor practice under § 8(b)(3) of the Act, was issued by the appropriate Regional Director on May 18, 1976.

A full hearing on the matters raised in the complaint was conducted before an administrative law judge on August 24-25, 1976. In a Decision and Order dated October 12, 1976, the ALJ, after making extensive findings of fact, ⁵ concluded as a matter of law that Local 767 had not violated § 8(b)(3) "as alleged in the complaint" and recommended dismissal. A three-member panel of the Board adopted the ALJ's recommended order and dismissed the complaint. Glaziers & Glass Workers, Local Union 767, 228 N.L.R.B. No. 10 (1977).

In Clyde Taylor, d/b/a Clyde Taylor Co., 127 NLRB 103 (1960), the Board held that "while the making of a threat . . . to resort to the civil courts as a tactic calculated to restrain employees in the exercise of rights guaranteed by the Act" was a violation of § 8(a)(1) of the Act, an actual suit was not similarly unlawful. Id. at 108-109. The stated rationale for the holding was that

the Board should accommodate its enforcement of the Act to the right of all persons to litigate their claims in court, rather than condemn the exercise of such right as an unfair labor practice.

Id. at 109. Since Clyde Taylor, the Board consistently has held that, despite the coercive effect upon employees' statutory rights, the filing of a civil suit by an employer or by a union cannot be found to be an unfair labor practice. E. g., Sullivan & Associates, 230 NLRB No. 55 at 4 (1977); Los Angeles Building & Construction Trades Council, AFL-CIO, 217 NLRB 946, 948 (1975); Local 259, UAW, 221 NLRB 656, 661 (1975); Fashion Fair, Inc., 159 NLRB 1435, 1449 (1966); Smith Steel Workers, 174 NLRB 235, 241, enf'd in rel. part sub nom., Smith Steel Workers v. A. O. Smith Co., 420 F.2d 1, 9 (7th Cir. 1969). At least two other courts of appeals have followed the clear expression of Board policy found in Clyde Taylor. See Lodges 743 & 1746, IAMAW v. United Aircraft Corp., 534 F.2d 422, 464-65 (2d Cir. 1975), cert. denied, 429 U.S. 825, 97 S.Ct. 79, 50 L.Ed.2d 87 (1976) (applying Clyde Taylor in absence of any showing of malicious prosecution or abuse of process); Smith Steel Workers v. A. O. Smith Co., 420 F.2d 1, 9 (7th Cir. 1969).

The Board in the present case, consistent with its long-standing position, relied on Clyde Taylor to conclude that Local 767's institution of the § 301 suit was not an unfair practice. Petitioner argues that, under the circumstances, the rationale of Clyde Taylor and its progeny is not applicable.

First, petitioner suggests that cases following Clyde Taylor generally involve underlying suits seeking monetary damages rather than resolution of union representation issues. It is true that several of the Board's decisions have involved suits for actual and/or punitive damages. E. g., Lodges 743 & 1746, IAMAW v. NLRB, supra. However, the Board, and the courts, have applied Clyde Taylor in a variety of other contexts as well. E. g., Fashion Fair, Inc., supra (suit to enjoin picketing); Airport Limousine Serv., Inc., 231 NLRB No. 149 at 9-10 (1977) (attempt by receiver of bankrupt employer to disavow collective bargaining agreement in bankruptcy court); Local 259, UAW, supra (suit to confirm arbitrator's award); Retail Clerks Union, Local 770, 218 NLRB 680, 683 (1975) (same); Smith Steel Workers, supra (suit to compel arbitration); DC International Inc., 162 NLRB 1383, 1394, enforcement denied in part on other grounds, 385 F.2d 215 (8th Cir. 1967) (prosecution of discharged employee during pendency of charge). Indeed, the underlying civil litigation in Clyde Taylor itself involved an employer's suit for an injunction. 127 NLRB at 109. Moreover, Clyde Taylor has been deemed controlling in instances where, as here, the litigation was premised upon alleged contractual violations, Sullivan & Associates, supra; Los Angeles Building & Construction Trades Council, AFL-CIO, supra; Operating Engineers, Local 12, 220 NLRB 530 (1975), regardless of the merits of the claims. Id. at 538-39.

Petitioner also points out that the Board itself has deviated from the general rule announced in Clyde Taylor. Our research confirms that the Board, in some instances, has departed from Clyde Taylor to hold that filing suit is an unfair labor practice. E. g., United Stanford Employees, Local 680, 223 NLRB No. 49 (1977); International Organization of Masters, Mates & Pilots, 224 NLRB 1626 (1976); Wisconsin River Valley Dist. Council of Carpenters, 218 NLRB 1063 (1975); Booster Lodge No. 405, IAM, 185 NLRB 380 (1970), enf'd as modified, 148 U.S.App.D.C. 119, 459 F.2d 1143 (1972), rev'd, 412 U.S. 67, 93 S.Ct. 1952, 36 L.Ed.2d 752 (1973). However, the facts of this case do not bring the union's suit within any of the recognized exceptions.

We conclude that petitioner has failed to advance any persuasive justification for a departure from Clyde Taylor in this instance. The union filed suit only after its efforts to negotiate the contractual disputes had failed. There is no suggestion that the union failed to take all requisite preliminary steps before filing suit or that the union's action approaches malicious prosecution or abuse of process. Suit was filed to enforce the terms of a contract which, on its face, regulates wage and fringe benefits with respect to 645 employees. There is no indication the union did anything other than attempt, in good faith, to enforce a facially valid and binding labor agreement. On these particular facts, we hold that the...