N.L.R.B. v. Southwest Sec. Equipment Corp., AFL-CI

• Citation: 736 F.2d 1332
• Decision Date: 03 July 1984
• Docket Number: No. 83-7286,L,AFL-CI,83-7286
• Parties: 116 L.R.R.M. (BNA) 3201, 101 Lab.Cas. P 11,099 NATIONAL LABOR RELATIONS BOARD, Petitioner, and International Association of Bridge, Structural, Reinforcing, and Ornamental Iron Workers,ocal 75, Intervenor, v. SOUTHWEST SECURITY EQUIPMENT CORPORATION, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1332

736 F.2d 1332

116 L.R.R.M. (BNA) 3201, 101 Lab.Cas. P 11,099

NATIONAL LABOR RELATIONS BOARD, Petitioner and International Association of Bridge, Structural Reinforcing, and Ornamental Iron Workers, AFL-CIO Local 75, Intervenor, v. SOUTHWEST SECURITY EQUIPMENT CORPORATION, Respondent.

No. 83-7286.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 13, 1983.

Decided July 3, 1984.

Marjorie Gofreed, NLRB, Washington, D.C., for petitioner.

Robert J. Deeny, Snell & Wilmer, Phoenix, Ariz., for respondent.

Paul B. Supton, Van Bourg, Allen, Weinberg & Roger, San Francisco, Cal., for intervenor.

On Petition for Enforcement of an Order of the National Labor Relations Board.

Before HUG, PREGERSON, and NORRIS, Circuit Judges.

PREGERSON, Circuit Judge:

The National Labor Relations Board (the Board) petitions for enforcement of an order finding Southwest Security Equipment Corp. (Southwest) guilty of violating National Labor Relations Act (NLRA) Sec. 8(a)(5), 29 U.S.C. Sec. 158(a)(5) (1982). ¹ The Board found that Southwest failed to honor the fringe benefit, hiring hall, ² and grievance arbitration provisions of its collective bargaining agreement with Local 75 of the Bridge Workers Union (the union).

In a pro forma opinion, 262 N.L.R.B. 665 (1982), the Board adopted the finding of the administrative law judge (ALJ) that Southwest violated its duty to bargain in good faith when it unilaterally abrogated the hiring hall provision of an expired collective bargaining contract. ³

On petition for enforcement, the Board argues that Southwest may not properly Although we think that Southwest filed timely exceptions, we agree with the Board's finding that the hiring hall provision survived the contract's expiration. Therefore, we enforce the Board's order.

attack the merits of the Board's hiring hall decision because the company failed to comply with NLRA Sec. 10(e), 29 U.S.C. Sec. 160(e) (1982), and Board rules requiring a dissatisfied party to file timely and specific exceptions to an unfavorable ALJ report. In the alternative, the Board contends that the hiring hall provision, as a term or condition of employment within the meaning of NLRA Sec. 8(d), 29 U.S.C. Sec. 158(d) (1982), survives the expiration of the collective bargaining agreement until employer and union bargain to impasse over the fate of the provision in the next contract.

FACTS

Southwest sells, services, and installs bank security equipment. In 1979, the Board certified the Bridge Workers Union as the exclusive bargaining agent for employees working out of the company's Phoenix, Arizona premises.

After several fits and starts, Southwest President Rick Iglesias signed the union's master agreement with the Arizona Steel Field Erectors Association, a multi-employer group. ⁴ The contract, effective from August 1, 1977, through July 31, 1980, covered employees who fabricated, erected, and maintained steel used in safes, vaults, vault doors, safe deposit boxes, and other bank security devices. The contract required employers to hire workers through the union's hiring hall, and to make payments on their behalf to various union benefit funds.

Between April 22, 1980, and May 16, 1980, Southwest requested, and the union referred, eight employees. Sometime in May, Southwest stopped requesting referrals. Then on May 14, Iglesias informed the union that Southwest would subcontract out for all bargaining unit work. The next day, the union sent a letter to both Iglesias and the multi-employer association stating that the Bridge Workers intended to file a grievance pursuant to the master agreement. Iglesias failed to respond to either the letter or the multi-employer group's attempts to schedule a grievance hearing.

On June 20, the multi-employer group notified Iglesias that it had scheduled a grievance hearing for July 1. Southwest failed to appear at the hearing, and on July 2, the arbitration committee issued a decision finding the employer guilty of violating, among other things, the master agreement's hiring hall clause. The union followed up by filing unfair labor practice charges on July 22. Meanwhile, the master agreement expired on July 31.

A year later, on July 29, 1981, the ALJ issued a report concluding that Southwest had violated Sec. 8(a)(5) in failing to honor the fringe benefit, hiring hall, and grievance arbitration provisions. On August 20, acting within the Board's 20-day procedural framework for filing objections, Southwest submitted general exceptions to the ALJ's findings. Exception 5 objected to the ALJ's conclusion of law that

[b]y failing and refusing to abide by the fringe benefit, referral, and grievance and arbitration provisions of the 1977-1980 Arizona Master Labor Agreement ... thereby unilaterally changing the terms and conditions of employment of its employees, Respondent has engaged in unfair labor practices violating section 8(a)(5) and (1) of the Act.

Brief for Respondent Southwest Security Equipment Corp. at 8 (quoting from ALJ report) (emphasis in brief).

Similarly, exception 6 identified a particular ALJ finding regarding "referral," but But on August 26, 1981, the union filed its own limited exceptions to the ALJ's decision. On September 4, Southwest filed a brief responding to the union's exceptions and clarifying Southwest's reasons for objecting to the ALJ's findings on "referral." The September 4 brief reasoned that Southwest had not committed an unfair labor practice because the hiring hall provision did not survive the master agreement's expiration.

did not provide specific reasons why the employer objected to the finding.

Finally, nearly 10 months later, the Board adopted pro forma the ALJ's report. 262 N.L.R.B. 665 (June 30, 1982). Later, on November 12, 1982, the Board rejected Southwest's motion for reconsideration. The Board now petitions for enforcement.

STANDARD OF REVIEW

Two standards of review govern our inquiry. As to the timeliness of the employer's exceptions, we must uphold the Board's decision unless the Board acted arbitrarily or capriciously. NLRB v. United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry, 704 F.2d 1164, 1166 (9th Cir.1983); see also K. Davis, Administrative Law Treatise Sec. 30.10 (1958) (reviewing court may overturn agency's application of properly-adopted regulation only if application is arbitrary or capricious). But in doubtful situations, we merely give "weight" to the Board's application of the Act. Joint Council of Teamsters No. 42 v. NLRB, 702 F.2d 168, 170 (9th Cir.1981) (citing NLRB v. Denver Building & Construction Trades Council, 341 U.S. 675, 692, 71 S.Ct. 943, 953, 95 L.Ed. 1284 (1951)), cert. denied, --- U.S. ----, 104 S.Ct. 100, 78 L.Ed.2d 105 (1983).

As to the merits of the hiring hall decision, we must defer to the Board's interpretation of the scope of the bargaining obligation under Sec. 8(d) if that interpretation is "reasonably defensible." Ford Motor Co. v. NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 1849, 60 L.Ed.2d 420 (1979).

ANALYSIS

A. The Procedures: Specificity of Exceptions

1. The NLRA and the Board's rules. The NLRA forbids us from considering a matter not presented to the Board or to the ALJ. Section 10(e) provides:

No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court [of appeals], unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.

29 U.S.C. Sec. 160(e) (1982).

To implement Sec. 10(e), the Board has promulgated several regulations. Rule 102.46(b), for instance, sets out four requirements that every exception to an ALJ's findings must meet. ⁵ One requirement commands the party to "state the grounds for the exception[ ]." 29 C.F.R. Sec. 102.46(b)(4) (1983). The rule adds that the Board may disregard or consider waived any exceptions failing to conform to these requirements. Id. Moreover, Rule 102.48(a) provides for pro forma Board adoption of the ALJ's findings when the party fails to meet the requirements of Rule 102.46(b). ⁶ Finally, Rule 102.46(a) requires the excepting party to file its objections with the Board within 20 days of the date the 2. Applying the requirements. Relying principally on Marshall Field & Co. v. NLRB, 318 U.S. 253, 255, 63 S.Ct. 585, 586, 87 L.Ed. 744 (1943), the Board argues that Southwest's exceptions were so unspecific that they could not effectively apprise the Board of an alleged error in the ALJ's findings. The Board reasons that its rules plainly call for more than Southwest's short demurrer in exceptions 5 and 6, filed August 20, 1981. In fact, the Board says, Southwest did not really identify its quarrel with the ALJ's proposed disposition of the hiring hall clause until September 4, 1981, when it filed a brief opposing the union's limited exceptions to other parts of the ALJ's report. But the Board contends that this clarification came too late to preserve the hiring hall question for the Board or this court. By then, the 20-day filing deadline had passed.

ALJ transfers the case to the Board. Id. Sec. 102.46(a).

For three reasons, we think the Board arbitrarily applied Sec. 10(e) and its rules to the facts of this case.

First, Southwest meets this Circuit's test for determining sufficiency of notice. In NLRB v. Giustina Bros. Lumber Co., 253 F.2d 371 (9th Cir.1958), we held that Rule 102.46(b) prohibited the respondent from raising an issue before the Ninth Circuit where respondent's objection had been "so ambiguous as to be totally ineffective " in "adequately appris[ing]" the Board of the excepting party's intentions. Id. at 374 (emphasis added). This is a stringent test. But Southwest's exception to the ALJ's referral, whether considered alone or together with its brief of September 4, constituted a much better effort than "totally ineffective" notice.

Second, although the NLRA vests the Board with great...