N.L.R.B. v. B.A. Mullican Lumber and Mfg. Co.

• Decision Date: 25 July 2008
• Docket Number: No. 07-2063.,No. 07-2028.,07-2028.,07-2063.
• Citation: 535 F.3d 271
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. B.A. MULLICAN LUMBER AND MANUFACTURING COMPANY, Respondent. B.A. Mullican Lumber and Manufacturing Company, Petitioner, v. National Labor Relations Board, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

535 F.3d 271

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. B.A. MULLICAN LUMBER AND MANUFACTURING COMPANY, Respondent.

B.A. Mullican Lumber and Manufacturing Company, Petitioner, v. National Labor Relations Board, Respondent.

No. 07-2028.

No. 07-2063.

United States Court of Appeals, Fourth Circuit.

Argued: May 14, 2008.

Decided: July 25, 2008.

ARGUED:

Elizabeth Brooks Scherer, Smith & Moore, LLP, Raleigh, North Carolina, for B.A. Mullican Lumber and Manufacturing Company. William M. Bernstein, National Labor Relations Board, Washington, D.C., for the Board.

ON BRIEF:

George J. Oliver, Smith & Moore, LLP, Raleigh, North Carolina, for B.A. Mullican Lumber and Manufacturing Company. Ronald Meisburg, General Counsel, John E. Higgins, Jr., Deputy General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, Jill A. Griffin, Supervisory Attorney, National Labor Relations Board, Washington, D.C., for the Board.

Before WILLIAMS, Chief Judge, NIEMEYER, Circuit Judge, and ALEXANDER WILLIAMS, JR., United States District Judge for the District of Maryland, sitting by designation.

Application for enforcement denied and cross-petition for review granted by published opinion. Judge NIEMEYER wrote the opinion, in which Chief Judge WILLIAMS and District Judge WILLIAMS joined.

OPINION

NIEMEYER, Circuit Judge:

After production employees of B.A. Mullican Lumber and Manufacturing Company ("Mullican Lumber") filed a petition with the National Labor Relations Board ("NLRB" or the "Board") to decertify representation by the United Mine Workers of America (the "Union"), Mullican Lumber received information from the employees that the decertification petition revealed that a majority of the employees no longer supported the Union. Based on this information, Mullican Lumber withdrew recognition of the Union. On the Union's subsequent unfair labor practice charges, the General Counsel of the Board filed a complaint against Mullican Lumber, alleging that the evidence Mullican Lumber relied on to withdraw recognition of the Union was insufficient. Even though neither the Union nor the General Counsel of the Board challenged Mullican Lumber's evidence at the hearing before the administrative law judge, nor ever denied that a majority of the employees signed the petition to decertify the Union, the Board agreed with the General Counsel and held that Mullican Lumber violated § 8(a)(5) of the National Labor Relations Act in withdrawing recognition of the Union. Accordingly, the Board ordered that Mullican Lumber recognize the Union and bargain with it as the exclusive collective bargaining representative of its production employees.

On the Board's application for enforcement and Mullican Lumber's cross-petition for review, we conclude that Mullican Lumber advanced substantial objective evidence, consistent with the standard articulated in Levitz Furniture Co. of the Pacific, 333 N.L.R.B. 717, 725 (2001), and sufficient to demonstrate that, more likely than not, the production employees no longer supported the Union. Because the General Counsel of the Board did not challenge or contradict the evidence, we deny the Board's application for enforcement and grant Mullican Lumber's cross-petition for review.

I

United Mine Workers of America was certified on August 24, 2000, as the exclusive collective bargaining agent for the production employees of Mullican Lumber at its plant in Norton, Virginia. Thereafter, the Union and Mullican Lumber engaged in contract negotiations for almost a year.

In August 2001, however, a number of Mullican Lumber production employees no longer wished to be represented by the Union, and Charles Dixon, the Union's lead negotiator, told Charles Tuck, Mullican Lumber's lead negotiator, that the Company's employees were circulating a petition for decertification. The employees actually filed their decertification petition with the NLRB's Regional Office on September 17, 2001, and the NLRB so notified Mullican Lumber. But Mullican Lumber did not then learn whether the petition was supported by a majority of production employees or only the 30% required by Board rule for a decertification election, and it did not make inquiry of the number signing the petition, as it understood that to do so would have been unlawful. See NLRB v. Air Prods. & Chems., Inc., 717 F.2d 141, 144-45 (4th Cir.1983).

Because Mullican Lumber did not know whether the petition was signed by a majority of the employees, it continued its efforts to reach agreement on a collective bargaining agreement with the Union. The Union and the Company had last met in a bargaining session on September 12, 2001, at which time agreement had been reached on all terms except five Addendums. The Union had apparently signed Addendums A, B, and C but had refused to sign Addendums D and E.

On the day after the employees filed their decertification petition, the Union called a meeting of the production employees during which the employees ratified a purported collective bargaining agreement. The employees were presented all the terms that had been agreed to on September 12, 2001, but not Addendums D and E. On the following day, September 19, 2001, the Union sent a letter to Mullican Lumber stating that the collective bargaining agreement had been ratified and that it was the Union's understanding that the parties had actually reached agreement on September 12, 2001, so that the ratification was retroactive to that date. The September 12 date was significant because it came before the employees had filed their decertification petition, and under the "contract-bar rule," no challenges to the Union's majority status could be entertained for the life of a valid collective bargaining agreement. See NLRB v. Burns Int'l Sec. Servs., Inc., 406 U.S. 272, 290 n. 12, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972); Gen'l Cable Corp., 139 N.L.R.B. 1123 (1962). Thus, if agreement had been reached on September 12, the decertification petition filed on September 17 would have been nullified.

In response to the Union's letter, Mullican Lumber denied that the parties had reached agreement on September 12 and sought to continue bargaining with the Union. The Company later wrote the Union, stating that during the negotiations on September 12, 2001, "the parties reached a proposed tentative agreement on all issues, except five Addendums which were presented to the Union as a complete package to reach a final settlement on the contract. Although you executed Addendums A, B and C on behalf of the Union, you refused to sign Addendums D and E." The Company's letter also pointed out that Addendums D and E had "never been submitted to the [C]ompany's employees for a ratification vote and, until such time as the [C]ompany approves them and there is a ratification vote on all agreed upon items, in accordance with the Ground Rules, we have no agreement." The Company concluded by saying that it was requesting the Union to "meet and bargain over these issues."

The Union refused to bargain. Instead, it filed unfair labor practice charges against Mullican Lumber, claiming among other things that Mullican Lumber and the Union had reached an agreement on September 12, 2001. In the months that followed, the Union continued to file additional unfair labor practice charges, which were recognized as "blocking charges" because they blocked the Board's processing of the employees' decertification petition under the Board's policy of holding in abeyance such petitions when there are pending unfair labor practice charges that would have a tendency to interfere with the free choice of employees in an election. Between September 18, 2001, and June 21, 2002, the Union filed approximately 10 blocking charges against Mullican Lumber, alleging more than 20 separate unfair labor practices. Ultimately all of the charges, including the Union's assertion that the parties had reached a final agreement on contract terms on September 12, 2001, were withdrawn by the Union or dismissed by the Board.

During the period after the employees filed their decertification petition, various employees began to inform the Company on an unsolicited basis that the Union had lost majority support. Among those employees were James Doug Carroll, David Long, Shayne Stapleton, and Jeff Mathison, all of whom specifically told Mullican Lumber Plant Manager Ricky Allen Burchfield that the Union did not have majority support. Burchfield also heard "feedback" from unnamed employees that only four or five employees were attending Union meetings and that after the Union's president ceased to be an employee in November 2001, there had been no election for a new president, even though several months had passed. On May 21, 2002, James Carroll, the employee who prepared and filed the decertification petition with the NLRB, sent the Company a letter, reiterating the facts of the petition, as follows:

This is to inform you that a majority of the employees of B.A. Mullican Lumber & Mfg. Co., Inc. no longer want to be represented by the United Mine Workers of America.

114 out of 220 employees have signed decertification slips noting they no longer want to be represented by the United Mine Workers of America. These 114 signatures have been filed with the National Labor Relations Board. Therefore we request that Management deal directly with the employees of B.A. Mullican Lumber & Mfg. Co., Inc. instead of the United Mine Workers of America.

Carroll sent a copy of the letter to the NLRB.

Following receipt of this letter, Mullican Lumber formally wrote the Union on June 28, 2002, stating that it was withdrawing recognition of the Union as the exclusive collective bargaining representative of the employees. The letter explained that Mullican Lumber had received "written notification ... that 114 out of 220 of our employees have signed for decertification and ... based upon this objective evidence ... we...