N.L.R.B. v. District Council of Iron Workers of the State of Cal. and Vicinity
| Decision Date | 04 September 1997 |
| Docket Number | AFL-CI,R,I,No. 95-70772,No. 155,155,95-70772 |
| Parties | 156 L.R.R.M. (BNA) 2216, 97 Cal. Daily Op. Serv. 7134, 97 Daily Journal D.A.R. 11,505 NATIONAL LABOR RELATIONS BOARD, Petitioner, and J.W. Reinforcing Steel, Inc., Petitioner-Intervenor, v. DISTRICT COUNCIL OF IRON WORKERS OF THE STATE OF CALIFORNIA AND VICINITY; Iron Workers Local Unionnternational Union of Bridge, Structural and Ornamental Iron Workers,espondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Margaret Gaines Neigus, Deborah E. Shrager, National Labor Relations Board, Washington, DC, for petitioner.
Victor J. Van Bourg, Van Bourg, Weinberg, Roger & Rosenfeld, Oakland, CA, for respondents.
Carla M. da Luz, Littler, Mendelson, Fastiff, Tichy & Mathiason, San Diego, CA, for intervenor.
On Application for Enforcement of an Order of the National Labor Relations Board. NLRB No. 32-CB-4365.
Before: FLETCHER, FARRIS, and TASHIMA, Circuit Judges.
The National Labor Relations Board (the "Board") petitions for enforcement of an order issued against the District Council of Iron Workers of the State of California and Vicinity (the "District Council") and Iron Workers Local Union No. 155 of the International Union of Bridge, Structural and Ornamental Iron Workers, AFL-CIO ("Local 155").
The order of the Board finds that the District Council and Local 155 (collectively "the Unions") engaged in unfair labor practices in violation of Section 8(b)(3) and (d) of the National Labor Relations Act, as amended, 29 U.S.C. 151-160(a), ("the NLRA"), by repudiating and attempting to compel J.W. Reinforcing Steel, Inc. ("the Company") to agree to midterm modifications of the collective bargaining agreement. The order directs the Unions to cease and desist from failing or refusing to bargain collectively and in good faith with the Company and to honor the terms and conditions of the collective bargaining agreement. The Unions assert that they were not bound by the collective bargaining agreement at issue because it was negotiated by another local and they did not authorize or ratify it. They further argue that the Board violated due process by concluding that the absence of testimony by the Unions' employees and agents proved that their testimony, had they testified, would have been identical to that of the Company.
This case requires us to decide whether a standard form collective bargaining agreement ("the Standard Agreement") modified by a union representative for Iron Workers Local Union No. 118, Sven Sorensen, and signed by the Company's President, James Coker, binds a non-signing local, Iron Worker's Local 155, to its terms. The Board concluded that Local 155 was bound because both Locals 118 and 155 were members of the District Council of Ironworkers and the Standard Agreement incorporated by reference the terms of the District Council's Master Agreement. 2 We disagree.
The Company initially operated as a nonunion subcontractor in Southern California installing reinforcing steel on various concrete construction sites. Prior to forming the Company in 1987, James Coker, the President, spent 27 years as an iron worker and was a long-term member of the Iron Worker's Union. In May 1992, the Company successfully bid on a subcontract for a State of California prison to be built in Blythe, California. This construction project was governed by the Davis-Bacon Act, 40 U.S.C. § 276a-7, which requires that prevailing wages be paid to the iron workers on covered jobs. None of the Company's prior work had been covered by a prevailing wage requirement.
On May 18, 1992, Coker signed a Standard Agreement with Iron Workers Local 416 for the Blythe Project. The agreement contained one typewritten modification, stating that the agreement was for "1 Job Agreement Blyth[sic] Prison." Without this modification, the Standard Agreement would have encompassed statewide coverage. On June 3, 1992, Richard Zampa, president of the District Council, wrote to Coker, enclosed a file-stamped copy of the Blythe agreement and a standard benefits packet, and thanked him for signing the agreement.
On January 7, 1993, Coker signed another modified Standard Agreement, again for "One Job Only," with Local 155 for a sub-contract to install reinforcing steel at the Coalinga, California prison. On February 8, 1993, Coker received another letter from Zampa stating his thanks for the Coalinga agreement, enclosing a file-stamped copy and a benefits payment packet. Joe Roth, the union representative for Local 155, told Coker while the Coalinga project was underway that he would not be allowed another one-job agreement.
In February 1994, the Company was awarded work on the Susanville, California prison. Coker met with Sven Sorensen, the union representative of Local 118, to discuss a union contract. Coker refused to sign a statewide agreement but acknowledged that he had been told by Roth, Local 155's representative, and by the Iron Worker's business agent in San Diego, that he would no longer be awarded a one-job agreement. Coker signed a modified Standard Agreement with Sorensen. It contained the following typewritten notations:
This agreement is for the Susanville Prison project and/or any work bid north of the L.A. county line.
The employer shall be allowed to bring in 4 key employees.
The fringe benefits for this project shall be joint checked with McCarthy.
Coker did not receive a letter from the District Council enclosing a file stamped copy of the agreement, as he had for the Blythe and Coalinga modified Standard Agreements. He did receive the typical benefits payment packet and made all payments as required during the project.
In March 1994, he received a phone call from District President Zampa, who stated that he was aware of the Susanville Agreement and "he wasn't happy with it." Coker asked Zampa if he would accept the past due amounts for the Company's latest fringe benefit payment and waive the delinquent fees. Zampa responded that he would not waive the fees unless Coker signed "a full statewide agreement and [did] away with the Susanville Independent Agreement." Coker did not agree, and paid the past due amount and the delinquent fees.
In August 1994, the Company was awarded a second-tier subcontract for work at Soledad State Prison, which is north of the Los Angeles County line and within the jurisdiction of Local 155. Because the primary subcontractor, J.L. Davidson, was a party to the Master Agreement, it could only subcontract to other Master Agreement signatories. Local 155 refused to recognize the Susanville Agreement and refused to supply ironworkers to the Company's Soledad job site unless Coker signed a statewide agreement. As a result of this impasse, J.L. Davidson sent the Company a letter on October 20, 1994 stating that it was unable to award it the subcontract because this would violate the terms of its Master Agreement. J.L. Davidson had iron workers dispatched directly to it, and hired Coker to supervise their work. The Company then filed a charge of unfair labor practices.
After a hearing before an administrative law judge ("ALJ"), the Unions were found to have acted in violation of Section 8(b)(3) and (d) of the NLRA by repudiating the Susanville Agreement and attempting to compel the Company to agree to midterm modifications of the collective bargaining agreement by agreeing to a statewide agreement. Specifically the ALJ found that Sorensen acted as an agent of the District Council and therefore had bound it, and its members, to the terms of the Susanville Agreement. The Board adopted the findings of the ALJ and ordered the Unions to cease and desist from failing or refusing to bargain collectively and in good faith with the Company.
We have jurisdiction over the unfair labor practice proceeding below under Section 10(e) of the NLRA, as amended (29 U.S.C. 160(e)). The order of the Board will be enforced if its findings of fact are supported by substantial evidence and if it correctly applied the law. California Pac. Medical Ctr. v. NLRB, 87 F.3d 304, 307 (9th Cir.1996). The substantial evidence test is essentially a case-by-case analysis requiring review of the whole record. Id. We defer to the Board's reasonable interpretation and application of the NLRA. NLRB v. Unbelievable, Inc., 71 F.3d 1434, 1438 (9th Cir.1995). However, questions of the interpretation of collective bargaining agreements, here the terms of the Standard Agreement and Master Agreement, are reviewed de novo. Litton Financial Printing Div. v. NLRB, 501 U.S. 190, 202, 111 S.Ct. 2215, 2223, 115 L.Ed.2d 177 (1991).
We must determine whether Sorensen, as union representative for Local 118, was an agent of the District Council and its member locals with the authority to bind the member locals, including Local 155, to Standard Agreements modified without their consent. If Sorensen was an agent of the Unions, no ratification by the District Council of the Susanville Agreement was necessary for it to be binding upon Local 155.
Under the NLRA, common law agency principles govern the Union's responsibility for the actions of its officers and members. NLRB v. Advanced Systems, Inc., 681 F.2d 570, 576 (9th Cir.1982). Accordingly, implied or apparent authority is sufficient to establish agency under the NLRA. Id. (citing Hasbrouck v. Sheet Metal Workers Local 232, 586 F.2d 691, 693 (9th Cir.1978)). The Board found that Sorensen was the agent of the Unions under three theories: express actual, implied actual, and apparent authority. Upon review, we find each basis unsupported by substantial evidence in the record.
Express actual authority derives from an act specifically mentioned to be done in a written or oral communication. Hawaiian Paradise Park Corp. v. Friendly Broadcasting Co.,...
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