N.L.R.B. v. Blake Const. Co., Inc., No. 80-1922

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore McGOWAN, WILKEY and WALD; WALD
Citation663 F.2d 272
Docket NumberNo. 80-1922
Decision Date17 August 1981
Parties108 L.R.R.M. (BNA) 2136, 214 U.S.App.D.C. 95, 92 Lab.Cas. P 12,941 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BLAKE CONSTRUCTION CO., INC., and its Alter Ego, M & S Building Supplies, Inc., Respondent.

Page 272

663 F.2d 272
108 L.R.R.M. (BNA) 2136, 214 U.S.App.D.C. 95,
92 Lab.Cas. P 12,941
NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
BLAKE CONSTRUCTION CO., INC., and its Alter Ego, M & S
Building Supplies, Inc., Respondent.
No. 80-1922.
United States Court of Appeals,
District of Columbia Circuit.
Argued June 12, 1981.
Decided Aug. 17, 1981.

Lawrence E. Blatnik, Atty., N. L. R. B., Washington, D. C., with whom Elliott Moore, Deputy Associate Gen. Counsel, Paul J. Spielberg, Deputy Asst. Gen. Counsel, Washington, D. C., were on the brief for petitioner. Shelly S. Korch, also entered an appearance for petitioner.

Willis J. Goldsmith, Washington, D. C., with whom Deborah Crandall and Marc A. Silverstein, Washington, D. C., were on the brief for respondents.

Before McGOWAN, WILKEY and WALD, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

The National Labor Relations Board (the Board) seeks enforcement of its Order 1 against Blake Construction Co., Inc., and M & S Building Supplies, Inc. (referred to individually as Blake and M & S, and collectively as the Company). We grant the application except for paragraphs 1(c), 2(b) and 2(d) of the order insofar as they are premised on the Company's violation of sections 8(a)(1) and (5) of the National Labor Relations Act, as amended, 29 U.S.C. § 151 et seq. (the Act) through failure to extend to its non-union employees the benefits of an existing collective bargaining agreement and through refusal to deal with the Union as the representative of these non-union employees. As explained more fully below we decline to enforce these portions of the order because we find that these violations were neither alleged in the complaint issued by the Board General Counsel nor fully and fairly litigated in the ensuing proceedings.

I. BACKGROUND

The record depicts grave violations of the Act which, with the exception discussed below, the Company concedes on this appeal. The following facts are undisputed.

Blake, a District of Columbia corporation, is a general contractor engaged in the construction of buildings. Blake owned and operated a yard and warehouse located at 5700 Columbia Park Road, Landover, Maryland until February 1978.

M & S is also a District of Columbia corporation established in 1974 to purchase and resell construction materials, equipment and supplies. M & S and Blake have the same corporate headquarters at 1120 Connecticut Avenue, N.W., the same principal stockholders and the same corporate officers. Prior to February 1978 M & S sold building materials and provided a tire fill service at a warehouse located at 5710 Columbia Park Road, Landover, Maryland immediately adjacent to the Blake yard and warehouse described above.

Blake was a member of the Construction Contractor's Council, Inc. (3-C's), a multi-employer bargaining unit. As such Blake was subject to a collective bargaining agreement (the contract) entered into by the 3-C's and Local 639 of the International Brotherhood of Teamsters (the Union) which was in effect from August 1, 1975 to April 30, 1978.

Page 275

In July 1977 a Blake employee called the Union and complained that although not a Union member, as an employee of Blake he should be covered by the contract and receive the prevailing wages provided therein. 2 At this time only seven out of a fluctuating work force of 40-70 Blake employees belonged to the Union. 3 In response to this call a Union representative 4 visited Blake's Columbia Park yard and warehouse. There he spoke to between eight and ten employees who were not members of the Union. Since these non-union employees performed work that fell within the job classifications covered by the contract, and in light of the fact that the contract contained a Union security clause, 5 the Union representative attempted unsuccessfully to ascertain from a supervisor at Blake why the Union security provision had not been enforced. 6

On August 31, 1977 the Union official met again with the Blake supervisor at the Columbia Park site in the presence of two employees who had applied for Union membership and had paid the Union initiation fee. At this meeting the Union requested that the two employees be paid the wage specified in the contract. The Company refused but indicated it would be willing to negotiate a separate contract for these two men.

Subsequently the Union shop steward actively solicited for Union memberships among Blake employees and obtained approximately thirty-two signed Union authorization cards. The Union then sought to have the Company pay these recruits the prevailing contract rate. The Company refused.

On February 17, 1978, Blake and M & S entered into a contract providing that, as of February 18, 1978, M & S-which previously had only one part-time employee-would thereafter furnish all personnel for the operation of Blake's Columbia Park Road business and for the operation of all Blake

Page 276

trucks transporting materials and supplies. 7 Pursuant to this contract Company representatives informed Blake's Columbia Park Road employees that Blake was no longer in the trucking and warehousing business, but that instead M & S would now engage in these activities. The employees were also informed that Blake was laying them off, but that M & S was simultaneously offering them jobs, beginning on February 20, 1978, the following Monday. Each Blake employee would be required to sign a new employment application and a new W-4 form.

At a meeting on February 17, 1980, work applications for M & S were distributed to and signed by Blake's non-union employees. At M & S these employees received the same rates of pay they had been paid by Blake.

At a separate meeting that day the six Union employees then working at Blake 8 were told that their wages at M & S would be lower than their current rate of pay under the contract. The shop steward promptly reported the layoff and new terms of employment offered by M & S to the Union. On the following work day, a Union representative visited Company representatives at the Columbia Park Road site. The Company confirmed at that time that it would no longer honor the contract. When the Union representative tried to learn the new rate of pay for Union employees he was told that it was none of his business and that the Company would henceforth be dealing with the Union employees on an individual basis.

A Company representative then met individually with the six Union employees and negotiated their rate of pay at M & S. 9 These rates varied with the individual but in all cases the wages were substantially less than those received at Blake under the contract. 10 One of the six employees, the Union shop steward, refused to work at a reduced rate of pay and left the Company. 11

Following the transfer of Blake's operations to M & S, employees performed the same functions at the same work site as they always had. They punched the same time clock, worked the same hours, and received their work instructions from the same supervisory staff. For example, the

Page 277

former yard superintendent at Blake became the warehouse manager of M & S. He testified that in his new capacity he did essentially what he had always done, namely supervise "the organization of the warehouse, and the distribution of the material, equipment, and supplies kept at the Landover yard location." Tr. 78. The employees continued to drive trucks with "Blake" insignia on them to the same building sites. The telephone and mail service at M & S remained the same as at Blake. The operations of both M & S and Blake continued to be supervised from the joint headquarters of both companies at 1120 Connecticut Avenue. In sum, as the Company states,

from the viewpoint of M & S's employees, the ownership, management, business purpose, operation, equipment, customers, and supervision of M & S after February 20, 1978 was substantially identical to Blake's prior to that date ... except for the absence of (the) shop steward ... and the lower wages of the other five union employees, there was little if any, change between the employment conditions existing prior to February 17 and those prevailing February 20 and thereafter. 12

The Union filed charges against the Company 13 and the Board General Counsel issued a complaint. 14 The complaint alleged that the Company discriminated against seven named Union members and that the events of February 17 and 20, 1978 were in violation of sections 8(a)(1), (3), and (5) of the Act. 15 However, the parties agree that the complaint, unlike the Union's original charge, did not include a specific allegation that the Company violated sections 8(a)(1) and (5) of the Act by failing to apply its contract with the Union to all employees in the contractual unit or by failing to recognize and bargain with the Union as the representative of all of the employees in the unit, other than the seven named Union employees. 16

Page 278

Following a hearing, an Administrative Law Judge ("ALJ") ruled that Blake and M & S were alter egos and that both comprised a single employer. 17 The ALJ also determined that the Union "has been and is now the exclusive bargaining representative of all employees of Blake and/or M & S whose jobs are enumerated in the contract...." 18 The ALJ concluded: that the Company violated section 8(a)(1) of the Act by imposing conditions upon all employees, i. e., a requirement to complete new employment applications, because of the Union's demand that Respondent honor the terms of the contract with respect to all employees; 19 that the Company violated sections 8(a)(3) and (1) of the Act by constructively discharging the Union shop steward and by laying off and rehiring at reduced pay the five other employees who were Union members; and that the Company violated sections 8(a)(5) and (1) of the Act by failing and refusing to honor the terms of the contract, by transferring unit work from Blake to M & S,...

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45 practice notes
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    ...that Respondent had ``a meaningful opportunity to litigate the * * * issue in the hearing itself.'' NLRB v. Blake Construction Co., Inc., 663 F.2d 272, 279 (D.C. Cir. 1981). The Government's refusal to turn over FedEx documents that would have shown that the two controlled substances had be......
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    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
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    ...jurisdiction over objections where the Board has “patently travelled outside the orbit of its authority.” NLRB v. Blake Constr. Co., 663 F.2d 272, 284 n. 34 (D.C.Cir.1981) (citing, e.g., NLRB v. Cheney Cal. Lumber Co., 327 U.S. 385, 388, 66 S.Ct. 553, 90 L.Ed. 739 (1946)). Here, however, th......
  • Facet Enterprises, Inc. v. N.L.R.B., No. 88-2268
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    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
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    ...due process, even though such claim had not previously been raised before the Board. Id. at 962. Finally, in NLRB v. Blake Constr., 663 F.2d 272 (D.C.Cir.1981), an employer challenged on due process grounds the Board's issuance of a citation based on a different legal theory from that alleg......
  • Federated Logistics and Operations v. N.L.R.B., No. 03-1323.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 25, 2005
    ...widespread misconduct as to demonstrate a general disregard for the employees' fundamental statutory rights." NLRB v. Blake Construction, 663 F.2d 272, 285 In applying that precedent to this record, it bears repeating that, in addition to the three Board findings that Federated unsuccessful......
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44 cases
  • Indep. Elec. Contractors of Houston, Inc. v. Nat'l Labor Relations Bd., No. 10–60822.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 17, 2013
    ...jurisdiction over objections where the Board has “patently travelled outside the orbit of its authority.” NLRB v. Blake Constr. Co., 663 F.2d 272, 284 n. 34 (D.C.Cir.1981) (citing, e.g., NLRB v. Cheney Cal. Lumber Co., 327 U.S. 385, 388, 66 S.Ct. 553, 90 L.Ed. 739 (1946)). Here, however, th......
  • Facet Enterprises, Inc. v. N.L.R.B., No. 88-2268
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • July 3, 1990
    ...due process, even though such claim had not previously been raised before the Board. Id. at 962. Finally, in NLRB v. Blake Constr., 663 F.2d 272 (D.C.Cir.1981), an employer challenged on due process grounds the Board's issuance of a citation based on a different legal theory from that alleg......
  • Federated Logistics and Operations v. N.L.R.B., No. 03-1323.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 25, 2005
    ...widespread misconduct as to demonstrate a general disregard for the employees' fundamental statutory rights." NLRB v. Blake Construction, 663 F.2d 272, 285 In applying that precedent to this record, it bears repeating that, in addition to the three Board findings that Federated unsuccessful......
  • United Parcel Service, Inc. v. N.L.R.B., No. 82-3318
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