N.L.R.B. v. Hydro Conduit Corp.
| Decision Date | 27 March 1987 |
| Docket Number | I,No. 86-7402,No. 383,383,86-7402 |
| Parties | 125 L.R.R.M. (BNA) 2840, 106 Lab.Cas. P 12,337 NATIONAL LABOR RELATIONS BOARD, Petitioner, Construction, Production & Maintenance Laborers' Local Unionntervenor, v. HYDRO CONDUIT CORPORATION, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Paul J. Spielberg, Washington, D.C., for petitioner.
Gerard Morales and Thomas J. Kennedy, Phoenix, Ariz., for respondent.
On Application for Enforcement of an Order of the National Labor Relations Board.
Before ANDERSON, ALARCON and HALL, Circuit Judges.
The National Labor Relations Board ("the Board") has applied to this court for enforcement of its order requiring respondent Hydro Conduit Corp. ("the Company") to bargain collectively with the Construction, Production & Maintenance Laborers' Local Union No. 383, Laborers' International Union of North America, AFL-CIO ("the Union"). The Board found that the respondent had committed unfair labor practices by withdrawing recognition from the Union without objective considerations sufficient to establish a good faith doubt of the Union's majority status in violation of the National Labor Relations Act ("the Act"), Section 8(a)(5) and (1), 29 U.S.C. Sec. 158(a)(5) and (1).
The respondent argues that the Board improperly reversed the Administrative Law Judge's decision that the unappealed decision of the Regional Director in the representation case precluded the finding of a refusal to bargain in the unfair labor practice case.
We reverse the decision of the Board and deny the application to enforce the order.
Since 1970, the Company and the Union were parties to collective bargaining agreements covering employees at a Company facility in Phoenix, Arizona. The last contract between the Company and the Union was effective from March 1, 1979 to March 1, 1982. On March 2, 1982, the Company filed a petition for an election in Case 28-RM-415. On March 17, 1982, the Regional Director for Region 28 issued a Notice of Representation Hearing setting a hearing date for March 25, 1982. On March 24, 1982, the day before the hearing, the Union filed charges alleging that the Company violated Section 8(a)(1), (3) and (5) of the Act by failing to execute an agreement to which the parties had consented on March 2, 1982, by engaging in direct bargaining with employees, by discriminating against employees because of their union activities, and by otherwise interfering with the Section 7 rights of employees. The hearing was conducted in the representation case on March 25, 1982. On April 16, 1982, the Regional Director dismissed the unfair labor practice charges against the Company. Shortly thereafter, the Union appealed the dismissal to the General Counsel in Washington, D.C. On April 21, 1982, while the appeal to the dismissal of the charge in the unfair labor practice case was pending, the Regional Director issued a Decision and Direction of Election in which he found Section 102.67(b) of those rules provides that a decision by a regional director shall be final unless a request for review is filed with the Board in Washington, D.C. within 10 days after service of the decision. The Union did not file such a request for review and the Regional Director's decision, which in part found that there was a question concerning representation, became final.
that a question affecting commerce existed concerning the representation of the employees in the bargaining unit. In the decision, the Regional Director notified the parties of their right to request review of his decision pursuant to Section 102.67 of the Board's Rules (29 C.F.R. Sec. 102.67 (1981)).
By telegraphic order dated May 14, 1982, the Board granted the Regional Director's request to conduct the election on May 14, 1982, and to impound the ballots pending disposition of the appeal on the dismissal of the unfair labor practice charges. The election was held on that date and the ballots were impounded. They have not yet been opened.
On July 29, 1982, the General Counsel's Office of Appeals reversed the Regional Director and directed him to issue a complaint in the unfair labor practice case. On November 19, 1982, the Regional Director issued the complaint in the instant case which alleges that the Company violated Section 8(a)(5) and (1) of the Act on or about March 3, 1982 by refusing to execute a written contract embodying an agreement the parties had reached and by failing and refusing to recognize and bargain with the Union.
By letter dated December 3, 1982, the Regional Director notified the Company that further processing of the petition in the representation case was being held in abeyance pending disposition of the unfair labor practice charge. On December 10, 1982, the Company sought review of the Regional Director's decision to hold the representation case in abeyance, and on December 22, 1982, the Board denied the Company's appeal.
On February 28, 1983, the Company moved the Board for a summary judgment in the unfair labor practice case. By telegraphic order dated March 11, 1983, the Board denied the Company's motion for summary judgment without prejudice to the Company's right to make the same contention before the Administrative Law Judge (ALJ) at the unfair labor practice hearing.
On May 24, 1983, the Company filed a motion for judgment on the pleadings which was referred for ruling to the ALJ conducting the hearing. The hearing occurred on June 7, 1983, at which time all parties presented their views with regard to the Company's motion for judgment on the pleadings. Though the parties stipulated to some background facts to put the motion in context, no testimony or documentary evidence was adduced on the unfair labor practice complaint at that time. After ruling, in substance, that the final, unappealed decision of the Regional Director, which found that a question concerning representation existed, precluded the finding of a refusal to bargain in the unfair labor practice case, the ALJ granted the Company's motion and dismissed the complaint.
Thereafter, the General Counsel and the Union filed with the Board requests to review the ALJ's dismissal of the complaint. The Company filed an opposition to that request and all parties filed voluminous written arguments with the Board. By telegraphic order dated August 26, 1983, the Board reversed the ALJ's order dismissing the complaint with the following language:
... General Counsel's and Charging Party's requests for review of Administrative Law Judge's order granting Respondent's motion for summary judgment and dismissing the complaint is granted, the Administrative Law Judge is reversed and this matter is remanded to the Administrative Law Judge with instructions to permit the introduction of evidence in connection with Respondent's objective considerations for refusing to bargain with the Union....
Pursuant to the direction of the Board, the ALJ rescheduled the hearing, but again dismissed the unfair labor practice complaint,
adhering to his original determination that the Regional Director's decision in the representation case precluded litigation on the unfair labor practice charges. This decision was reversed by the Board which held that the Company violated the Act by failing and refusing to recognize and bargain with the Union after March 2, 1982. The Company filed a motion for reconsideration in which it requested the Board to clarify the reasons why the Regional Director's April 21, 1982 decision should not be considered final. On May 5, 1986, the Board denied the motion for reconsideration. The Board then applied to this court for enforcement of its findings of unfair labor practices.
The Board is entitled to enforcement of its order "if it correctly applied the law and its findings are supported by substantial evidence in the record viewed as a whole." Eichelberger v. NLRB, 765 F.2d 851, 853 (9th Cir.1985). Although a reviewing court reviews questions of law de novo, it should give...
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