Crane Sheet Metal, Inc. v. N.L.R.B., 80-1344
| Decision Date | 12 April 1982 |
| Docket Number | No. 80-1344,80-1344 |
| Citation | 675 F.2d 256 |
| Parties | 110 L.R.R.M. (BNA) 2235, 93 Lab.Cas. P 13,400 CRANE SHEET METAL, INC. and Hartley Sheet Metal Company, Incorporated, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Stephen P. Dees, Kansas City, Mo. (Alvin D. Shapiro, Kansas City, Mo., with him on the brief) of Stinson, Mag & Fizzell, Kansas City, Mo., for petitioners.
Joseph A. Schwachter, N. L. R. B., Washington, D. C. (John G. Elligers and W. Christian Schumann, Attys., William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., on the brief), for respondent.
Before HOLLOWAY, McKAY and LOGAN, Circuit Judges.
This case arises upon cross-petitions for review and enforcement of a decision and order of the National Labor Relations Board (the Board) which reversed the recommended order of an administrative law judge and held that Crane Sheet Metal, Inc. (Crane) and Hartley Sheet Metal Company, Inc. (Hartley) had violated sections 8(a)(1) and (5) of the National Labor Relations Act (the Act) 1 by failing and refusing to abide by the provisions of a labor contract. The contract had been negotiated in 1977 for Crane and Hartley with the Sheet Metal Workers International Union (the Union) by the Sheet Metal and Air Conditioning Contractors Association, Inc., Kansas City Chapter (the Association). Crane and Hartley deny that the Association was authorized to negotiate a binding agreement for them. The Board held that the contract was binding upon Crane and Hartley because they had clothed the Association with "apparent authority" to bargain in their behalf with the Union. The Board's order is reported at 248 NLRB No. 15. Record, vol. 3, at 480-91.
We have jurisdiction to review and enforce, modify, or set aside the Board's order under sections 10(e) and (f) of the Act. 2 These sections further provide that, as to questions of fact, the Board's findings are conclusive and binding if supported by substantial evidence on the record considered as a whole. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); NLRB v. First National Bank of Pueblo, 623 F.2d 686, 691 (10th Cir. 1980). While the statute does not expressly limit our scope of review with respect to questions of law, the experienced judgment of the Board is entitled to great weight. Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 681-82 n.1, 64 S.Ct. 830, 831-32 n.1, 88 L.Ed. 1007 (1944).
Crane and Hartley are sheet metal contractors located in southeastern Kansas. For some years prior to 1975, they had regularly bargained with Union Local 475 as part of an informal group of southeastern Kansas contractors. However, each contractor retained final authority to approve for itself any contract negotiated. The resulting contract was a single document signed by each contractor individually.
In the spring of 1975, Local 475 merged into Local 2, the Kansas City area local, and Crane and Hartley were notified that they would be required to negotiate with Local 2 in the future. A Union official introduced them to an official of the Association, which at that time represented sheet metal contractors in the Kansas City area, but which wished to extend its coverage to include southeastern Kansas contractors so that it would remain generally coextensive with that of Local 2. When Crane and Hartley expressed concern that a Kansas City area employer association might not adequately protect the interests of southeastern Kansas contractors, the Union official assured them that there would continue to be separate negotiations and contracts for the southeastern area, just as there always had been. 3 Based on this assurance from the Union, Crane and Hartley consented to let the Association represent them in negotiations for the 1975 renewal of their collective bargaining agreement, on the condition that each contractor retained final authority to approve for itself the negotiated contract. The Union knew of this condition and consented to it. Moreover, it was entirely consistent with past practice. 4
The Association subsequently negotiated the 1975 contract, and it was approved by Crane and Hartley on the strength of an oral report from an Association official. Sometime later in 1975, Crane and Hartley each paid a $250 Association membership fee. Crane and Hartley did not receive a copy of the 1975 contract until sometime in 1976, and, upon receipt, they discovered in it items to which they had not agreed. These included an increase in industry fund payments, which Crane and Hartley refused to pay. Nevertheless, neither Crane nor Hartley disavowed the contract or withdrew from the Association. Their failure to withdraw from the Association was perhaps attributable to the fact that the Association had not provided them with a copy of its bylaws which, contrary to their understanding, authorized the Association to negotiate and execute labor contracts binding on its employer members without their approval. 5
In early 1977, Hartley notified the Union that it intended to operate an open shop upon expiration of the current contract later that year. In reply, the Union sent Crane and Hartley a letter stating that it wished to open negotiations for the 1977 contract. Hartley wrote back to the Union that it required one week's notice of any proposed negotiating meetings. However, without further notice to Crane or Hartley, negotiations were begun. While these negotiations were in progress, an Association official asked Crane and Hartley whether they wished the Association to represent them in negotiating the 1977 contract. He apparently had some doubt as to his authority. Crane and Hartley consented to representation by the Association based on assurances that, even though the 1977 contract would be one document covering both the Kansas City and the southeastern areas, the two areas would be treated separately in the contract and, in any event, each contractor would retain final authority to approve the contract for itself. No Union official was present at this meeting and apparently the Union was never informed of the limitation placed by Crane and Hartley on the Association's authority. The Association informed the Union that it had authority to bargain for Crane and Hartley. 6 Subsequently, the 1977 contract was negotiated and ratified. Crane and Hartley were not notified of the ratification meeting and did not participate in it. They did not approve the contract, and, in a...
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