Irvin H. Whitehouse & Sons Co., Inc. v. Local Union No. 118 of Intern. Broth. of Painters and Allied Trades, AFL-CIO
| Decision Date | 05 February 1992 |
| Docket Number | Nos. 91-5307,D,AFL-CI,91-5867,No. 89,89,s. 91-5307 |
| Citation | 953 F.2d 1384 |
| Parties | 142 L.R.R.M. (BNA) 2312 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. IRVIN H. WHITEHOUSE & SONS COMPANY, INC., Plaintiff-Appellant, v. LOCAL UNION NO. 118 OF the INTERNATIONAL BROTHERHOOD OF PAINTERS AND ALLIED TRADES,efendant-Appellee, and General Drivers, Warehousemen and Helpers, Local Union; National Labor Relations Board, Intervening Defendants-Appellees. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. IRVIN H. WHITEHOUSE & SONS COMPANY, INC., Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
On Appeal from the United States District Court for the Western District of Kentucky, No. 90-00143; Johnstone, D.J.
On Application for Enforcement of an Order of the National Labor Relations Board, No. 9-CA-27701.
W.D.Ky.
AFFIRMED, ORDER ENFORCED.
Before RYAN and BOGGS, Circuit Judges, and HOOD, District Judge. *
This case involves nine employees of Irvin H. Whitehouse & Sons Company. Whitehouse and the International Brotherhood of Painters contend that the employees in question are part of a bargaining unit represented by the Painters. The Teamsters and the National Labor Relations Board argue that they constitute a separate bargaining unit represented by the Teamsters. Because the NLRB has legitimately used its power to determine appropriate bargaining units, we grant its application and enforce its order against Whitehouse. Because the NLRB has exclusive jurisdiction over disputes of this kind, we also affirm the district court's decision to dismiss a suit brought by Whitehouse involving these same facts.
Whitehouse applies commercial and industrial paint and performs related services at various locations throughout the United States. It maintains a central paint shop in Louisville, Kentucky, consisting of three buildings located on a three-acre site, where various equipment is stored, cleaned, and repaired. When Whitehouse employees begin a new job, necessary equipment is transported to the jobsite in a trailer; the trailer then becomes a jobsite shop for storing, cleaning, and repairing equipment. After the job is finished, the trailer is returned to the Louisville facility.
As a member of the Louisville Chapter of the Painting and Decorating Contractors of America, Whitehouse has recognized Local Union 118 of the International Brotherhood of Painters and Allied Trades, AFL-CIO, as the official bargaining agent of its non-management employees for almost fifty years. A series of collective bargaining agreements between the Contractors and the Painters union has governed this relationship, and requires that disputes arising under the agreement be presented to a Joint Trade Board, composed of representatives from the Painters and the Contractors, for resolution. When the series of agreements began, Whitehouse had only one employee in its Louisville paint shop; as he was too old to enter the apprentice program, he was not represented by the Painters. However, Whitehouse began hiring additional paint shop employees in the 1970's, and by January 1990 it employed nine shop workers. None of these employees paid union dues, voted for a union representative, or had official ties to the Painters.
The particular agreement between the Contractors and the Painters at issue in this case covered the period between July 23, 1987 and July 22, 1990. It created a new job classification, that of "utility worker," and thereafter Whitehouse began hiring utility workers for its field jobs. However, prior to January 1990, neither Whitehouse nor the Painters recognized the paint shop employees as utility workers, or treated them as being covered by the bargaining agreement. On January 8, 1990, General Drivers, Warehousemen and Helpers Local Union No. 89, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, filed a representation petition with the National Labor Relations Board seeking to represent the nine paint shop employees. On January 25, Whitehouse responded by filing a unit clarification petition with the NLRB in which it sought to have the shop employees added directly to the Painters as an "accretion." On January 26, the NLRB's Regional Director ordered the cases consolidated and directed a hearing; the Painters intervened in this proceeding.
While the NLRB proceedings were pending, the Painters filed a grievance with the Joint Trade Board, accusing Whitehouse of breaching its agreement by assigning to non-union employees work that should have been done by the Painters. Specifically, the Painters claimed the paint shop employees as union members. On February 6, 1990, the Joint Trade Board found that the paint shop employees were covered by the "utility worker" classification of the agreement. On February 28, Whitehouse filed an action in federal district court seeking enforcement of the Joint Trade Board's decision under the Federal Arbitration Act. The Painters admitted all allegations in their answer, and the district court entered a judgment confirming the decision on April 9. However, neither the NLRB nor the Teamsters were aware of the district court proceedings. Furthermore, when the judgment was entered, the district court did not know that other parties were interested in the action.
Meanwhile, on January 29, 1990, the NLRB held a hearing in the representation cases. On April 9--the same day that the district court entered judgment for Whitehouse--the Regional Director found that Whitehouse's employees were not covered by the agreement's "utility worker" provision, and that the agreement did not bar an election. He also concluded that the paint shop employees constituted a separate bargaining unit from Whitehouse's other employees, and directed an election to permit the shop employees to vote on whether they wanted to join the Teamsters. Whitehouse sought a review of this decision, but on May 9, the NLRB denied the request for review. On May 22, the Teamsters won a secret ballot election among the paint shop employees; the Regional Director subsequently certified the Teamsters as the exclusive representative of the shop employees.
On April 27, 1990, the Teamsters filed a motion to intervene in the district court proceeding. The district court granted this motion on May 10 and stayed its April 9 judgment. On June 26, the NLRB filed motions to intervene, set aside the judgment, and dismiss the complaint. On January 29, 1991, the district court concluded that the dispute turned on the appropriate unit for representation, and held that it lacked the jurisdiction to determine such an issue. The district court also determined that the NLRB's ruling took precedence over the decision of the Joint Trade Board, and dismissed the action with prejudice. Whitehouse brought this timely appeal.
Shortly thereafter, on July 5, 1990, the Teamsters attempted to bargain with Whitehouse, but were refused. The Teamsters then filed a charge of unfair labor practice and, on August 17, the NLRB's General Counsel alleged that Whitehouse's refusal to bargain violated the National Labor Relations Act, 29 U.S.C. §§ 158(a)(5) and (1). Whitehouse responded that the NLRB's certification of the Teamsters was invalid. On October 19, the NLRB issued a decision and order granting the General Counsel's motion for summary judgment. It concluded that Whitehouse had given no good reason for it to reexamine its representation decision. Consequently, it determined that Whitehouse had violated the law by refusing to bargain with the Teamsters, the legally recognized union. The NLRB ordered Whitehouse to cease and desist from refusing to bargain with the Teamsters and from denying its employees any of their legal rights; it also required Whitehouse to bargain with the Teamsters upon request. The NLRB then applied to this court to enforce its order, under 29 U.S.C. 160(e), and on August 9, 1991, its petition was consolidated with Whitehouse's appeal from the district court.
We shall first address the NLRB's application for enforcement of its order. Section 9(b) of the National Labor Relations Act allows the NLRB to determine "the unit appropriate for the purposes of collective bargaining." 29 U.S.C. § 159(b). To determine whether two groups of employees belong in the same bargaining unit, the NLRB applies a "community of interest test," which includes the following factors:
(1) similarity in skills, interests, duties, and working conditions; (2) functional integration of the plant, including interchange and contact among the employees; (3) the employer's organizational and supervisory structure; (4) the bargaining history; and, (5) the extent of union organization among the employees.
Armco. Inc. v. NLRB, 832 F.2d 357, 362 (6th Cir.1987), cert. denied, 486 U.S. 1042 (1988). "The Board's unit determination is conclusive if it is not 'so unreasonable and arbitrary as to exceed the Board's power.' " L.M. Berry and Co. v. NLRB, 668 F.2d 249, 251 (6th Cir.1982) (quoting Meijer, Inc. v. NLRB, 564 F.2d 737, 743 (6th Cir.1977)). See also South Prairie Constr. Co. v. Local 627. Int'l Union of Operating Eng'rs, 425 U.S. 800, 805 (1976).
One option for the NLRB in making unit decisions is to clarify an existing unit by adding employees as an "accretion," meaning that they would be added to the unit directly, without voting in a representation election. Penn Traffic Co. v. NLRB, 546 F.2d 677 (6th Cir.1976). Because accretions limit employees' ability to choose their own representatives, " 'the accretion doctrine should be applied restrictively.' " International Ass'n of Machinists v. NLRB, 759 F.2d 1477, 1480 (9th Cir.1985) (quoting NLRB v. Sunset House, 415 F.2d 545, 547 (9th...
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...Circuit addressed the issue of NLRB intervention in Irvin H. Whitehouse & Sons Co., Inc. v. Local Union No. 118 of Intern. Broth. of Painters and Allied Trades, AFL-CIO, 953 F.2d 1384 (table), 1992 WL 19472 (6th Cir. Feb. 5, 1992), a similar case involving arbitration to resolve which of tw......