N.L.R.B. v. Don Burgess Const. Corp.

• Decision Date: 04 May 1979
• Docket Number: No. 77-3437,77-3437
• Citation: 596 F.2d 378
• Parties: 101 L.R.R.M. (BNA) 2315, 86 Lab.Cas. P 11,305 NATIONAL LABOR RELATIONS BOARD, Petitioner, and Sequoia District Council of Carpenters, Intervenor, v. DON BURGESS CONSTRUCTION CORPORATION, d/b/a Burgess Construction, and Donald Burgess and Verlon Hendrix, d/b/a V & B Builders, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 378

596 F.2d 378

101 L.R.R.M. (BNA) 2315, 86 Lab.Cas. P 11,305

NATIONAL LABOR RELATIONS BOARD, Petitioner, and Sequoia District Council of Carpenters, Intervenor, v. DON BURGESS CONSTRUCTION CORPORATION, d/b/a Burgess Construction, and Donald Burgess and Verlon Hendrix, d/b/a V & B Builders, Respondents.

No. 77-3437.

United States Court of Appeals, Ninth Circuit.

May 4, 1979.

Elliott Moore, Deputy Assoc. Gen. Counsel, Christopher Katzenbach, Washington, D. C., for petitioner.

David A. Rosenfeld, San Francisco, Cal., for intervenor.

John M. Shelton, Chinello, Chinello, Maddy, Williams & Shelton, Fresno, Cal., George J. Tichy, II, James J. Meyers, San Francisco, Cal., for respondents.

Application for Enforcement of an Order of The National Labor Relations Board.

Before CHOY and SNEED, Circuit Judges, and BONSAL, ^* District Judge.

SNEED, Circuit Judge:

This case is before us on the application of the National Labor Relations Board for enforcement of its order entered against Don Burgess Construction Corporation d/b/a Burgess Construction (BC) and Donald Burgess and Verlon Hendrix d/b/a V & B Builders (VB). The Board's decision and order is reported at 227 N.L.R.B. 765 (1977). On November 14, 1977, this Court granted the motion of the Sequoia District Council of Carpenters (Union) to intervene. This Court has jurisdiction of this proceeding under Section 10(e) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519, 88 Stat. 395, 29 U.S.C. § 151 et seq.), as the unfair labor practices found by the Board occurred at Fresno, California.

We find substantial evidence in the record as a whole to support the Board's findings and conclude that its order should be enforced.

I.

FACTS.

BC is a California corporation with its principal place of business in Fresno, California, engaged in business as a general contractor for light commercial construction. BC was formed in August 1973 with Donald Burgess as president, general manager and principal stockholder holding a 70 percent interest in the company.

In May 1974, BC decided to employ its own carpentry crew of several union carpenters including Verlon Hendrix as foreman. On June 6, 1974, Burgess signed a memorandum agreement with the Sequoia District Council of Carpenters binding BC to the terms of the 1971-1974 master area agreement. By its own terms this agreement expired on June 15, 1974.

In August 1974, Burgess and Hendrix made an oral agreement forming VB, a 50/50 partnership, which was to operate as a general contractor and carpentry subcontractor. Each partner contributed $250. The agreement was reduced to writing and signed nine months later. Upon formation of the partnership all the carpenters employed by BC were transferred to VB.

On August 6, 1974, Union business agent John Horn approached Burgess at the jobsite and requested Burgess to sign the Union's 1974-1977 master agreement. Burgess replied that BC was not interested in signing the agreement as it no longer employed carpenters. Burgess indicated that the carpenters working on the project were now employed by VB. When Horn asked whether VB would sign the agreement, Burgess said that he would discuss the matter with Hendrix. That same day Burgess signed a memorandum agreement binding VB to the terms of the 1974-1977 master agreement, with which VB has remained in full compliance.

In October 1974, Burgess wrote the Union stating that BC "is not a signatory to your agreement. If you feel you have recognition, please contact me." The Union's executive secretary, Lawrence Null, immediately called Burgess to determine whether Burgess denied signing the current Union contract. Burgess replied that all his carpenters were on VB's payroll and that BC would not be employing carpenters. Null was satisfied that the VB carpenters were protected under the signed agreement, their wages were correct, and contributions were being made on their behalf to the Trust Fund.

BC employed no carpentry employees of its own from August 1, 1974 until January 1975 at which time it began employing nonunion carpenters. BC did not apply the terms of the VB union contract to these new employees. In late March 1975, during a routine check of construction projects, Business Agent Horn discovered nonunion carpenters working at one of BC's projects. In a followup investigation a few days later, the project was back in compliance using only union workers. The union took no action.

On May 1, 1975, through another routine check, the Union again found nonunion carpenters working at the same BC jobsite. The Union picketed the jobsite from May 6 to May 9 to protest the use of the nonunion carpenters.

II.

BOARD PROCEEDINGS.

On October 15, 1975, the Union filed an unfair labor practice charge against BC that alleged violations of section 8(a)(1), (3) and (5) of the Act. In its Decision and Order, the Board found, in agreement with the Administrative Law Judge, that the complaint was timely filed, that BC and VB were a single employer, that the carpenters employed by them constituted a single appropriate unit, and that the respondents, BC and VB, had violated section 8(a)(5) and (1) of the Act by refusing to bargain with the Union as the bargaining representative for BC's carpentry employees, by failing to apply the terms and conditions of the Union contract to those employees, and by unilaterally changing those employees' terms and conditions of employment. The Board also found that the respondents discriminated in violation of section 8(a)(3) and (1) of the Act by laying off union carpenters at VB while at the same time BC was hiring nonunion carpenters.

The Board's order requires BC and VB to cease and desist from the unfair labor practices so found, and in any other manner interfering with employees in the exercise of their rights under the Act. Affirmatively, the Board's order requires BC and VB to reinstate and make whole the employees unlawfully laid off; to recognize and bargain with the Union upon request; to give retroactive effect to the terms and conditions of the 1974-1977 collective bargaining agreement; to apply the terms of the agreement to the carpenters employed by BC; to make the BC carpenters whole for any wage losses they may have suffered from January 1975; to pay to the Union's trust fund any contributions required by the agreement; and to post appropriate notices.

Respondents attack the Board's order on numerous grounds. They invoke the protection of section 10(b) of the Act initially. Next they insist that the single employer finding has no basis in law or fact, that the carpenters employed by BC and VB do not constitute a single appropriate bargaining unit, that there existed no intent on the part of VB and the Union to extend the collective bargaining agreement to the employees of BC, that in any event there were no unfair labor practices, and that the Board's order violates federal antitrust law. Finally, respondents insist that the Board abused its discretion in denying their motion to reopen the record. None of these attacks strike home. We shall discuss each in the order of their recital above.

III.

THE SECTION 10(b) ISSUE.

Section 10(b) of the Act on which the respondents rely provides that "no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board . . . ." 29 U.S.C. § 160(b) (1976). Respondents point out that under Local 1424, International Association of Machinists v. NLRB (Bryan Manufacturing Co.), 362 U.S. 411, 80 S.Ct. 822, 4 L.Ed.2d 832 (1960) there must exist substantial evidence of unfair labor practices after April 15, 1975, ¹ the date which is six months "prior to the filing of the charge with the Board," Viz. October 15, 1975. They correctly assert that the unfair labor practice charge based on BC's hiring of a separate nonunion carpentry crew beginning in late January 1975 involved events well before April 15, 1975. The Board, of course, does not disagree. Rather it invokes an exception to the statute of limitations of section 10(b). It concluded that knowledge of these events was acquired by the Union no earlier than May 1975, a time well within the prescribed six months. It also found that BC fraudulently concealed the unfair labor practice and thereby prevented the discovery and timely filing of the charge by the Union.

The general rule applicable to federal statutes of limitations is that "a limitation period begins to run 'when the claimant discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged (violation).' " NLRB v. Allied Products Corp., 548 F.2d 644, 650 (6th Cir. 1977) (quoting Hungerford v. United States, 307 F.2d 99, 102 (9th Cir. 1962)); Accord, International Ladies Garment Workers Union v. NLRB, 150 U.S.App.D.C. 71, 86, 463 F.2d 907, 922 (1972). It is clear that fraudulent concealment tolls a statute of limitations. The Supreme Court stated:

Where a plaintiff has been injured by fraud and "remains in ignorance of it without any fault or want of diligence or care on his part, the bar of the statute does not begin to run until the fraud is discovered, though there be no special circumstances or efforts on the part of the party committing the fraud to conceal it from the knowledge of the other party."

Holmberg v. Armbrecht, 327 U.S. 392, 397, 66 S.Ct. 582, 585, 90 L.Ed. 743 (1946) (quoting Bailey v. Glover, 88 U.S. (21 Wall.) 342, 348, 22 L.Ed. 636 (1874)). "This equitable doctrine is read into every federal statute of limitation," 327 U.S. at 397, 66 S.Ct. at 585, including section 10(b). International Ladies Garment Workers Union v. NLRB, 150 U.S.App.D.C. 71, 86, 463 F.2d 907, 922 (1972). ²

Here the Board found that BC "fraudulently concealed" its unlawful employment of nonunion carpenters from the Union by assuring the Union on two occasions that it would no longer employ carpenters. The first was...