Computer Sciences Corp. v. N.L.R.B., 76-1966

• Decision Date: 04 June 1982
• Docket Number: No. 76-1966,76-1966
• Parties: 110 L.R.R.M. (BNA) 2642, 94 Lab.Cas. P 13,606 COMPUTER SCIENCES CORPORATION, as successor to Federal Electric Corporation, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 804

677 F.2d 804

110 L.R.R.M. (BNA) 2642, 94 Lab.Cas. P 13,606

COMPUTER SCIENCES CORPORATION, as successor to Federal

Electric Corporation, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.

No. 76-1966.

United States Court of Appeals, Eleventh Circuit.

June 4, 1982.

Stanley E. Craven, Kansas City, Mo., J. Nicholas Counter, III, Los Angeles, Cal., for petitioner-cross-respondent.

Elliott Moore, Deputy Assoc. Gen. Counsel, Bernard Jeweler, N. L. R. B., Washington, D. C., for respondent-cross-petitioner.

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

Before MORGAN, HILL and KRAVITCH, Circuit Judges.

HILL, Circuit Judge:

This case is before us on a petition by the National Labor Relations Board (NLRB or the Board) for an adjudication that respondent Computer Sciences Corporation (CSC) is in civil contempt of a prior judgment of the former Fifth Circuit granting enforcement of a Board order. That order was issued against CSC's competitor, Federal Electric Corporation (FEC). The current dispute between the Board and CSC centers on whether CSC may properly be bound by the prior judgment since it was neither a party to the unfair labor practice proceeding which gave rise to the Board order nor to the subsequent enforcement proceedings before the Fifth Circuit.

I

FEC provided space shuttle computer support services under a contract with the National Aeronautics and Space Administration (NASA) at Kennedy Space Center. In 1975 the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators (IATSE) won a representation election conducted among FEC employees. On September 29, 1976, a panel of the former Fifth Circuit enforced a Board order which overruled objections made by FEC to the conduct of the election and which found FEC guilty of an unfair labor practice in its refusal to bargain. Federal Electric Corp. v. NLRB, 539 F.2d 1043 (5th Cir. 1976). The Board's order, as enforced by the court, directed FEC's "officers, agents, successors, and assigns" to commence good faith bargaining with the union certified to represent employees in the Commercial Programming Section of FEC's Computations Department. Federal Electric Corp., 223 N.L.R.B. 161 (1976).

Following the court's decision, CSC successfully underbid FEC for a contract to provide NASA with shuttle support services. FEC's contract expired on September 30, 1977. On October 1, 1977, CSC, having employed many former FEC commercial programmers, began performing support services. Because FEC and the union had not completed negotiations on a collective bargaining agreement before CSC's takeover, the union requested that CSC bargain with the union. Based on its belief that the union no longer represented a majority of the commercial programmers it employed, CSC refused, and the union filed an unfair labor practice charge with the Board.

Rather than proceeding to adjudicate this charge, the Board instead instituted this civil contempt action against CSC as successor to FEC. Upon CSC's motion to dismiss the contempt petition, ¹ a panel of the former Fifth Circuit ordered CSC to file an answer to the petition and referred the cause to an administrative law judge as special master for an evidentiary hearing. The special master's report found that CSC is a successor to FEC within the scope of the court's prior enforcement decree and recommended that CSC be adjudged in contempt. The purgation order suggested by the special master proposed that CSC fully comply with the decree, set an initial meeting date for bargaining, publicize the contempt adjudication to its bargaining unit employees, file periodic reports with the clerk of this court showing steps toward compliance, and pay the Board's costs, including attorney's fees.

II

CSC raises several arguments against an adjudication of contempt. First, citing Regal Knitwear Co. v. NLRB, 324 U.S. 9, 65 S.Ct. 478, 89 L.Ed. 661 (1945), it contends that Federal Rule of Civil Procedure 65(d) ² precludes contempt sanctions because there is no privity between itself and FEC. CSC also objects that this court is without authority, prior to a Board hearing on the question, to determine whether it is a successor to FEC. Relying on South Prairie Construction Co. v. Local No. 627, International Union of Operating Engineers, 425 U.S. 800, 96 S.Ct. 1842, 48 L.Ed.2d 382 (1976), CSC maintains that a court of appeals may not decide in the first instance whether a bargaining unit remains appropriate-one of the prerequisites to imposition of successorship obligations under the labor laws- ³ because unit determinations lie within the Board's primary jurisdiction. In a related argument CSC further contends that it is a denial of due process to impose contempt sanctions upon it in the same proceeding in which it is first determined that the court's prior judgment is binding upon it, citing Golden State Bottling Co. v. NLRB, 414 U.S. 168, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973). Finally, CSC maintains that it is not a "successor" to FEC under the labor law meaning of that term as defined in NLRB v. Burns International Security Services, Inc., 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972).

We need not address each of the issues CSC raises. Notwithstanding any power this court might have to determine the successorship question as ancillary to enforcement of the prior decree, we deem it unwise for policy reasons to do so in this case. We hold that when a dispute over successorship is bona fide, it is inappropriate for this court to decide it on a contempt application. When the dispute over successorship liability is but a sham, this court may proceed via contempt proceedings.

III

In the context, like that here, of a competitive bidder relationship between the first employer and the alleged successor, NLRB v. Burns International Security Services, Inc., 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972), established the test for determining when the subsequent employer is a successor bound by the predecessor's obligation to bargain with the union. "(W)here the bargaining unit remains unchanged and the majority of the employees hired by the new employer are represented by a recently certified bargaining agent," the new employer has a duty "to bargain with the incumbent union." Id. at 281, 92 S.Ct. at 1579. The first element of the Burns test-whether the bargaining unit remains appropriate under the new employer-is an intensely factual inquiry, which may be decisively affected by changes in operational structure or practices under the new employer. Id. at 280, 92 S.Ct. at 1578; see NLRB v. Zayre Corp., 424 F.2d 1159 (5th Cir. 1970) (engaging in extensive examination and comparison of the two employers' organizational structures and operations). In this case, CSC argues that organizational and operational changes implemented among its employees preclude a finding of successorship. It points specifically to the fact that under FEC's operations, commercial programmers and scientific programmers were completely segregated both physically and functionally such that a bargaining unit composed only of commercial programmers was appropriate. Under its policies for providing services, however, CSC cross-trains these two groups, placing them in a single department; maintains the same education and experience requirements, the same salary structure and benefits, and the same career path for both; and provides interaction among these employees. Hence it argues that a unit composed only of commercial programmers is no longer appropriate. Further alleged to be relevant to the unit determination issue is a presumption under Board precedent against a unit of less than all of a company's technical employees who share a community of interest. ⁴

As with the first element of the Burns inquiry, the second is also fact-laden, and, again as with the first, it is also the subject of considerable dispute between the Board and CSC. The parties present different figures for assessing whether former FEC bargaining unit employees constitute a majority of the relevant CSC work force.

Reasons akin to those underlying the doctrine of exhaustion of administrative remedies persuade us that it is ill-advised to resolve these highly factual and close issues before the agency possessing expertise in these matters has passed upon the question of continued appropriateness. The policies advanced by requiring exhaustion of administrative remedies prior to judicial review of agency action include more complete development of the factual record by the agency and the observance of administrative autonomy, particularly as to decisions involving the exercise of discretionary powers granted the agency by Congress or requiring the application of special expertise possessed by the agency. McKart v. United States, 395 U.S. 185, 194, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969). From what we have set out above regarding the Burns test, it clearly appears that further development of the factual record in this case would indeed be beneficial. Moreover, we are mindful of the large measure of discretion granted the agency under its statutory authority to make unit determinations, 29 U.S.C. § 159(b), and of the limited role...