Computer Associates Intern., Inc. v. N.L.R.B., 00-1544.

• Decision Date: 15 March 2002
• Docket Number: No. 00-1544.,00-1544.
• Citation: 282 F.3d 849
• Parties: COMPUTER ASSOCIATES INTERNATIONAL, INC., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
• Court: U.S. Court of Appeals — District of Columbia Circuit

282 F.3d 849

COMPUTER ASSOCIATES INTERNATIONAL, INC., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.

No. 00-1544.

United States Court of Appeals, District of Columbia Circuit.

Argued January 17, 2002.

Decided March 15, 2002.

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

David Bennet Ross argued the cause for the petitioner. Lori M. Meyers and Ronald A. Lindsay were on brief.

Jill A. Griffin, Attorney, National Labor Relations Board, argued the cause for the respondent. Arthur F. Rosenfeld, General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Frederick C. Havard, Attorney, National Labor Relations Board, were on brief. Jeffrey L. Horowitz, Attorney, National Labor Relations Board, entered an appearance.

Before: EDWARDS, HENDERSON and GARLAND, Circuit Judges.

Opinion for the court by Circuit Judge HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

Computer Associates International, Inc. (CA) seeks review of a National Labor Relations Board (NLRB or Board) determination that CA violated section 8(a)(1) and (3) of the National Labor Relations Act (Act), 29 U.S.C. § 158(a)(1), (a)(3), by terminating a subcontract with Cushman & Wakefield of Long Island (Cushman) to provide engineers at CA's Islandia, New York facility and thereby discharging the engineers in retaliation for their union activities. See Computer Assocs. Int'l, Inc., 332 N.L.R.B. No. 108, 2000 WL 1699038 (Oct. 31, 2000). Crucial to the Board's holding was its finding that CA was a "joint employer" of the engineers. Because the engineers' union, Local 30 of the International Union of Operating Engineers (Union), had stipulated that Cushman was its sole employer and the Board cited no changed circumstances after the stipulation to support its finding that CA was a joint employer, we conclude the Board's joint employer finding is not supported by substantial evidence and we therefore grant CA's petition for review. We also grant the Board's cross-application insofar as it seeks to enforce the Board's separate unchallenged finding that CA violated section 8(a)(1) of the Act by using interrogations, threats and promises to discourage the engineers' union activities.¹

I.

In September 1991 CA, which designs, develops and markets computer software, entered into a management contract with Cushman, a real estate management company, to provide operating engineers to work at the soon-to-be-completed Islandia facility. The contract was for an initial 18-month term and month to month thereafter. Cushman staffed the facility with engineers either from other Cushman sites or referred by the Union's hiring hall.

The Union filed a petition to represent the engineers on May 11, 1992 identifying CA as the employer. An amended petition was filed in late May identifying CA and Cushman as "Co-employers." Shortly thereafter, however, the Union entered a stipulated election agreement identifying a single employer: "Cushman & Wakefield of Long Island." JA 364; see also Computer Assocs. Int'l, 324 N.L.R.B. 285, 288, 1997 WL 475904 (1997) (ALJ finding that "the Union ... entered into a stipulated election with Cushman as a single employer"); JA 297 (testimony of Cushman's manager that "[t]he parties agreed to a stipulation that listed Cushman & Wakefield as the sole employer and allowed them to have an election"). The Union won the election on a 5-0 vote and on July 1, 1992 the Board issued a Certification of Representative certifying Cushman as the employer.

On January 14, 1993 the Union filed a petition to represent a group of workers directly employed by CA at the Islandia facility. CA opposed the Union's organization efforts and on March 25, 1993 the CA employees voted unanimously against the Union. On April 2, 1993 CA's on-site manager assembled the engineers, who had supported the unsuccessful effort to unionize the CA employees, and informed them the Cushman contract was terminated.

On May 3, 1993 the Union filed an unfair labor practice charge with the NLRB and on June 30, 1993 the Board's General Counsel issued a complaint charging CA with violating the Act by (1) using interrogations, threats and promises to discourage the engineers' union activities and (2) discharging the engineers in retaliation for their union activities, on the theory that CA was, with Cushman, the engineers' joint employer.

On March 16, 1996, after a hearing, the Administrative Law Judge (ALJ) issued a decision finding that CA (1) violated section 8(a)(1) by its interrogations, threats and promises and (2) violated section 8(a)(1) and (3) by discharging the engineers. See Computer Assocs. Int'l, Inc., 324 N.L.R.B. at 287-95. As to the second violation, however, the ALJ did not rely on the General Counsel's theory that CA was a joint employer that unlawfully discharged the engineers. To the contrary, the ALJ stated that the fact that the Union entered into a stipulated election agreement with Cushman as a single employer meant that "the General Counsel's contention that such joint-employer relationship exists is questionable." Computer Assocs. Int'l, Inc., 324 N.L.R.B. at 288. Instead, relying on the NLRB's decision in Esmark, Inc., 315 N.L.R.B. 763, 1994 WL 706184 (1994) (finding unfair labor practice by contracting company that coerced subcontractor into discharging employees for union activity), the ALJ based the violation on the fact that CA as contractor terminated the subcontract based on anti-union animus and thereby caused the engineers to lose their jobs at CA's Islandia facility.

In a decision issued August 19, 1997 the Board upheld the first violation but rejected the second, concluding the ALJ misapplied Esmark, and remanded for a determination whether CA was, as the General Counsel contended, a "joint employer." Computer Assocs. Int'l, Inc., 324 N.L.R.B. at 285-87.

On remand, in a supplemental decision dated June 4, 1998, the ALJ determined CA was a joint employer and therefore liable for retaliatory discharge. See Computer Assocs. Int'l, Inc., 332 N.L.R.B. No. 108, slip op. at 2-6. His recommended order required CA to offer to reinstate its subcontract with Cushman and to make the engineers whole. The decision did not explain why the ALJ changed his view that the Union's stipulation cast doubt on the existence of a joint-employer relationship.

In its Supplemental Decision and Order of October 31, 2000 the Board "decided to affirm the judge's rulings, findings, and conclusions and to adopt the judge's recommended Order, as modified." 332 N.L.R.B. No. 108, slip op. at 1 (footnotes omitted). The Board modified the ALJ's order to require CA, in the event Cushman declined to reinstate the subcontract, to hire the engineers itself.

CA petitioned for review of the Board's finding in the Supplemental Decision that CA, in its capacity as joint employer, violated section 8(a)(1) and (3) by terminating the subcontract. CA also sought review of the ordered remedy. The NLRB cross-applied for enforcement.

II.

CA first, and foremost, challenges the Board's conclusion that CA was a joint employer of the engineers, arguing inter alia that the Union's May 1992 stipulation that Cushman was the sole employer decides the issue. We agree.

The Board's regulations require that "[a] petition for certification, when filed by an employee or group of employees or an individual or labor organization acting in their behalf, shall contain the following:... The name of the employer." 29 C.F.R. § 102.61(a)(1). When, as here, the parties stipulate to...