N.L.R.B. v. J.D. Indus. Insulation Co., Inc., 78-1254

• Decision Date: 08 February 1980
• Docket Number: No. 78-1254,78-1254
• Citation: 615 F.2d 1289
• Parties: 103 L.R.R.M. (BNA) 2614, 104 L.R.R.M. (BNA) 2662, 88 Lab.Cas. P 11,844 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. J. D. INDUSTRIAL INSULATION COMPANY, INC., Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1289

615 F.2d 1289

103 L.R.R.M. (BNA) 2614, 104 L.R.R.M. (BNA) 2662,

88 Lab.Cas. P 11,844

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. J. D. INDUSTRIAL INSULATION COMPANY, INC., Respondent.

No. 78-1254.

United States Court of Appeals, Tenth Circuit.

Argued Sept. 13, 1979.

Decided Feb. 8, 1980.

W. Christian Schumann, Washington, D. C. (Paul J. Spielberg, Deputy Asst. Gen. Counsel, John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., on brief), for petitioner.

William E. Myrick, Myrick, Newton & Sullivan, P. C., Denver, Colo., for respondent.

Before HOLLOWAY and DOYLE, Circuit Judges, and MATSCH, District Judge. ^*

MATSCH, District Judge.

Pursuant to Section 10(e) of the National Labor Relations Act ("Act"), as amended, 29 U.S.C. § 160(e), the National Labor Relations Board ("NLRB") seeks enforcement of its Decision and Order against J.D. Industrial Insulation Co., Inc. ("Company"), issued on January 10, 1978, and reported at 234 NLRB No. 14. Two questions are presented: (1) Whether substantial evidence on the record as a whole supports the Board's finding that the Company was bound by a collective bargaining agreement with a multi-employer organization, either as an implied contract or under the doctrine of estoppel; and (2) Whether substantial evidence on the record as a whole supports an independent finding and conclusion that the Company violated Sections 8(a)(1) and (3) of the Act by a discriminatory termination of employees because of their union membership.

Western Insulation Contractors Association ("WICA") is a national association of insulation installers which has a Colorado chapter. The by-laws of WICA authorize it to act as the collective bargaining representative for all member contractors with respect to terms and conditions of employment of members of Asbestos Workers Local Union No. 28 ("Union"). WICA also represents non-member contractors who specifically assign their bargaining rights to WICA's labor committee. Any member contractor who withdraws from WICA during the term of a collective-bargaining contract continues to be bound by it for the duration of the contract's term under the by-laws. The Union enters into "short form" agreements with contractors who are not WICA members and who thereby agree to conform to the WICA-Union agreement. At all times relevant herein, WICA and the Union were parties to a collective-bargaining contract which was effective from September 27, 1975 through July 31, 1978.

Dee J. Byrnes did insulation work as a union member for a number of years before he organized the Company in 1963, at which time he signed a union withdrawal card. He was not a union member at any of the times relevant to this dispute. Dee Byrnes has always been the chief executive officer of the Company.

The Union brought the subject charges against the Company on March 1, 1977, in consequence of the termination of the employment of five employees who had been working on a job at the Warren Air Force Base at Cheyenne, Wyoming and a sixth worker who was to be transferred to that site. An Administrative Law Judge ("ALJ") who received the evidence introduced by General Counsel, the Charging Party, and the Respondent, wrote detailed findings of fact, which include the following:

. . . Respondent is not at the present time, was not at the time the relevant WICA-Union contract was negotiated in 1975 and signed effective September 27, 1975, and (except possibly the period January, February and March 1976, discussed infra ) never has been, a formal member of WICA.

The threshold question, therefore, is whether, by paying WICA dues for 3 months, Respondent thereafter was bound by the WICA-Union contract during its full term. An antecedent issue is whether Respondent became a member of WICA for those 3 months.

So far as WICA membership is concerned, it may well be, as argued by Respondent, that General Counsel was unable to prove formal membership. However, much more than that technicality is involved. Clearly Byrnes engaged in a course of conduct over a long period of time, that was inconsistent with nonmembership.

The ALJ then referred to the fact that the Company had membership in a predecessor association; that the Union's hiring hall had been used to obtain employees; that the Company paid at least union wages, made trust fund payments and submitted monthly reports showing compliance with the benefit provisions of the WICA-Union contract for its union employees; that over the years 95% of the Respondent's work has been for contractors who required a union work force; that in October 1974, Byrnes acknowledged a contract violation before the Joint Trade Board, paying a fine; that Byrnes attended WICA meetings and discussed proposed contract terms during the negotiation of the WICA-Union contract in September 1975; that Byrnes attended WICA meetings after September 1975, participating therein; that Byrnes accepted a WICA membership plaque and was introduced to WICA members as "a new member" on March 19, 1976; and that Byrnes attended a special Joint Trade Board meeting on September 2, 1976 to hear charges brought by the Union against another employer.

The ALJ then held as follows:

In view of the foregoing indicia of membership, Respondent's reliance upon the facts that it never filed an application for membership, or paid an initiation fee, or appears on any membership list, is misplaced. Clearly Byrnes led other members of WICA, and the Union, to believe that he was a WICA member when it was to his advantage or to his liking to be considered a member. It would be an injustice now to permit Respondent to avoid the responsibilities of membership upon the basis of a technicality. Respondent is estopped by its actions from engaging in such inconsistent conduct.

The ALJ went on to find that "there is no question but Respondent was a member of WICA for at least three months" and "it is clear that Respondent became a member of WICA in January of 1976 and thereby became bound by the WICA-Union contract."

The NLRB delegated its authority in this matter to a three member panel which accepted the credibility findings made by the ALJ, and then modified his decision as follows:

We agree with the Administrative Law Judge that, due to Respondent's having engaged in a course of conduct consistent with membership in the Western Insulation Contractors Association (WICA), it was estopped from avoiding the responsibilities of association membership. In so doing, however, we disavow the Administrative Law Judge's finding, as reflected in his Conclusions of Law, that Respondent's payment of dues to the Association from January through March 1976 specifically initiated its obligations as an association member as of January 1, 1976. Rather, we rely on Respondent's entire course of conduct as set forth by the Administrative Law Judge, including its payment of dues as a factor, in finding that Respondent held itself out as an association member to other members of the Association and to the Union and was bound by the WICA Union Contract at all times material herein. See, particularly, Vin James Plastering Company, 226 NLRB (1976).

The scope of judicial review of an NLRB record on an enforcement application compels careful consideration of all of the evidence, including whatever fairly detracts from the Board's findings and conclusions. NLRB v. Midwestern Manufacturing Co., 388 F.2d 251, 255 (10th Cir. 1968); NLRB v. Consolidated Diesel Electric Co. Division of Comdec Corp., 469 F.2d 1016, 1021 (4th Cir. 1972); Universal Camera Corp. v. NLRB, 340 U.S. 474, 492-93, 71 S.Ct. 456, 466-67, 95 L.Ed. 456 (1951).

Clearly there is no basis in the evidence or the law for the determination by the ALJ that the mere payment of dues to WICA in January, February, and March, 1976 established the Company's membership in the association. Accordingly, the Board's disavowal of that conclusion was correct.

Here, it is unquestioned that the Company never made an application for membership in WICA; never paid the standard initiation fee for such membership; never signed a power of attorney or other authorization for WICA to bargain for it; and never entered into a short-form agreement with the Union. The record is inadequate to find the...