N.L.R.B. v. Triple A Fire Protection, Inc., AFL-CI

• Decision Date: 03 March 1998
• Docket Number: AFL-CI,No. 96-6944,I,96-6944
• Citation: 136 F.3d 727
• Parties: 157 L.R.R.M. (BNA) 2577, 135 Lab.Cas. P 10,128, 11 Fla. L. Weekly Fed. C 1130 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TRIPLE A FIRE PROTECTION, INC., Respondent, Road Sprinkler Fitters Local Union 669,ntervenor.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 727

136 F.3d 727

157 L.R.R.M. (BNA) 2577, 135 Lab.Cas. P 10,128,

11 Fla. L. Weekly Fed. C 1130

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TRIPLE A FIRE PROTECTION, INC., Respondent Road Sprinkler Fitters Local Union 669, AFL-CIO, Intervenor.

No. 96-6944.

United States Court of Appeals Eleventh Circuit.

March 3, 1998.

Aileen A. Armstrong, Deputy Associate General Counsel, NLRB, Charles P. Donnelly, Vincent J. Falvo, Jr., Washington, DC, for Petitioner.

William W. Osborne, Marguerite L. Graf, Osborne Law Offices, Washington, DC, for Intervenor.

Willis C. Darby, Jr., Elizabeth D. Rehm, Mobile, AL, for Respondent.

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

Before ANDERSON and COX, Circuit Judges, and ALARCON ^*, Senior Circuit Judge.

ANDERSON, Circuit Judge:

The National Labor Relations Board seeks enforcement of its October 31, 1994 order finding Triple A Fire Protection, Inc. in violation of sections 8(a)(1) and (5) of the National Labor Relations Act for unilaterally ceasing to make payments to fringe benefit plans, unilaterally reducing wage rates of bargaining unit employees, and directly dealing with employees outside the formal bargaining process. 29 U.S.C. §§ 158(a)(1) and (5). The employer argues in its defense that the union never represented an uncoerced majority, that an impasse existed, that the union bargained in bad faith, and that an economic emergency justified their departure from the formal system of labor negotiations. We find substantial evidence to support the Board's findings and enforce its order.

I. BACKGROUND

Triple A Fire Protection, Inc. ("Triple A") was formed in 1983 by Alton Turner ("Turner") and engages in the business of installing and maintaining sprinkler and fire protection systems in Mobile, Alabama. Turner holds a controlling interest in the company's stock and his wife Lovina owns the remainder of the stock. Turner's son Steve also works for the company as a supervisor.

Since its founding, Triple A's employees have been represented by Road Sprinkler Fitters Union No. 669 ("Local 669"). Local 669 is headquartered in Landover, Maryland. Ronnie L. Phillips ("Phillips") is Local 669's regional representative and business agent in the southern district, which comprises Alabama, Mississippi, and Puerto Rico. Since 1983, Phillips has represented Local 669 in all dealings with Turner and Triple A.

In October 1983, Turner (who had himself been a long-time member of Local 669) signed an agreement to be bound by the 1982-85 national agreement between the union and the National Fire Sprinkler Association, a multi-employer collective bargaining unit. Similarly, on February 8, 1984, Turner signed an "assent and interim agreement" binding Triple A to the 1985-88 section 8(f) prehire national agreement between the union and the national bargaining unit. 29 U.S.C. § 158(f). ¹

In February, 1987, the National Labor Relations Board decided John Deklewa & Sons, 282 NLRB 1375, enf'd sub nom, Int'l Ass'n of Bridge, Structural and Ornamental Iron Workers, Local No. 3 v. NLRB, 843 F.2d 770 (3rd Cir.1988), cert. denied, 488 U.S. 889, 109 S.Ct. 222, 102 L.Ed.2d 213 (1988). The Board's decision in Deklewa substantially altered the relationship between construction industry employers and unions. The Board decided that section 8(f) prehire agreements were no longer terminable at will, but were valid and binding for the entire term of the contract. Also, the Board held that unions would not enjoy a presumption of majority status upon expiration of a section 8(f) agreement. See U.S. Mosaic Tile Co. v. NLRB, 935 F.2d 1249, 1252 n. 2 (11th Cir.1991)(detailing the history of section 8(f) prehire agreements and the changes brought about by Deklewa). Of significance for this case, Deklewa abandoned the former "conversion doctrine" under which unions could very easily convert their status from that of a section 8(f) prehire to a full section 9(a) status. ² 29 U.S.C. § 159(a). Deklewa adopted a new and much stricter "conversion doctrine," under which the party asserting conversion has the burden of proving section 9(a) status, for example, either by election and Board certification or by voluntary recognition based upon a clear showing of majority support. Deklewa, 282 NLRB at 1385 n. 41, 1387 n. 53. ³ Upon conversion to full section 9(a) status, a union would enjoy all the rights of a majority representative under section 9(a), including a presumption of majority support upon expiration of a collective bargaining agreement and the correlative duty to bargain with respect to a new contract. Thus, after Deklewa the question of whether a union for a construction industry employer had satisfied the new and stricter "conversion doctrine" and achieved section 9(a) status became very important for both unions and employers. ⁴

In light of the uncertainty raised by Deklewa, Local 669's business manager in Maryland mailed a letter with enclosures to Triple A. The letter stated that "[Deklewa] may throw into question the nature of the relationship between your organization and Local 669. The purpose of this letter is to solicit your cooperation in minimizing any possible disruption in our relationship that might otherwise be caused by the Deklewa decision." The letter requested that Triple A sign and return a recognition form confirming the union's status as the exclusive bargaining representative designated by a majority of Triple A's employees pursuant to section 9(a) of the Act. The recognition form provided:

ACKNOWLEDGMENT OF THE REPRESENTATIVE STATUS OF ROAD SPRINKLER FITTERS LOCAL UNION NO. 669, U.A., AFL-CIO

The employer executing this document below has, on the basis of objective and reliable information, confirmed that a clear majority of the sprinkler fitters in its employ have designated, are members of, and are represented by, Road Sprinkler Fitters Union No. 669, U.S., AFL-CIO, for purposes of collective bargaining.

The employer therefore unconditionally acknowledges and confirms that Local 669 is the exclusive bargaining representative of its sprinkler fitter employees pursuant to Section 9(a) of the National Labor Relations Act.

Accompanying the letter, Local 669 included a copy of a recent fringe benefit report filed by Triple A with the National Automatic Sprinkler Industry Fringe Benefit Funds listing eight names, including Turner and his son Steve. Turner testified before the administrative law judge ("ALJ") that the greatest number of workers employed in any given month was seven to eight. Alton Turner signed the recognition form on October 17, 1987.

Thereafter, Turner signed an agreement to be bound by a third successive bargaining agreement running from April 1, 1988, to March 31, 1991. ⁵ Toward the end of this agreement, on December 14, 1990, Local 669's business manager sent a letter to Triple A indicating the union's desire to negotiate another collective bargaining agreement effective April 1, 1991. The letter warned that if a renewal contract were not reached before March 31, 1991, then "lawful economic action" could ensue on or after April 1, 1991. The letter enclosed two copies of an "Assent and Interim Agreement" which would prohibit the signatories from negotiating a separate agreement with the Union and mandating that they observe the terms of the expired agreement until the effective date of a successor agreement. Turner never signed this assent form.

During the early spring of 1991, Turner approached employees on a number of occasions to discuss both their employment with Triple A and general status with the union. In early March, Turner approached employee Jack Moiren and told him that he would receive certain benefits if the company "went nonunion." ⁶ Later that month, Danny Carpenter, Cecil P. "Shorty" Davidson, and Moiren had a long conversation with Turner and his son Steve on the front porch of Triple A. ⁷ During the course of this discussion, Turner told Shorty that "no matter what happens you've got a job here for the same pay and you can pay half of your insurance." Also that month, while visiting Carpenter's home, Turner stated that he would not sign the union agreement, but would in any event raise Carpenter's wage rate to the foreman level. ⁸

On March 18, 1991, Phillips telephoned Turner to ask him if they could get together to discuss the negotiation of a renewal contract. ⁹ Turner responded that he had business to attend to the following day in Atlanta and they set no date for a meeting. The following day, Phillips made a surprise visit to Triple A where he found Turner. Turner testified that the business trip to Atlanta had been canceled. Phillips asked Turner if he would sign the interim agreement and told him that he had a copy of it ready in his briefcase. Turner responded that he would not sign a "blank check" and informed Phillips that he was preparing a proposed contract to submit to the union. On March 21, Turner mailed Triple A's proposal for a complete contract to the union.

Also on March 21, Phillips wrote Turner expressing a need to "avert a work stoppage on April 1, 1991." In reference to their contacts on March 18 and 19, Phillips accused Turner of refusing to negotiate with the union. Although the union's March 1991 newsletter indicated that some employers would be struck, Phillips instructed Triple A employees to report to work on April 1. On March 26, Turner wrote to Phillips that strike replacements would be hired according to the terms of Triple A's proposed contract. On April 1, no strike occurred and union employees reported to work at Triple A.

On April 3, Phillips and Turner agreed to begin negotiations on April 9. ¹⁰ On April 9, the parties met to begin formal bargaining sessions at the Bradbury Inn in Mobile, Alabama. The union was represented by Clarence Radecker and Phillips. Triple A was represented by Turner and attorney Deborah H. Kehoe. At the meeting, Turner submitted a...