N.L.R.B. v. Goodless Elec. Co., Inc.
| Decision Date | 09 May 1997 |
| Docket Number | No. 96-2068,96-2068 |
| Citation | 124 F.3d 322 |
| Parties | 156 L.R.R.M. (BNA) 2244, 134 Lab.Cas. P 10,061 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GOODLESS ELECTRIC CO., INC., Respondent. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Jay M. Presser, Springfield, MA, with whom Skoler, Abbott & Presser, P.C., was on brief, for respondent.
Susan M. Pavsner, Attorney, Washington, DC, with whom Frederick L. Feinstein, General Counsel, Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Howard E. Perlstein, Deputy Assistant General Counsel, National Labor Relations Board, were on brief, for petitioner.
Before TORRUELLA, Chief Judge, BOWNES, Senior Circuit Judge, and LYNCH, Circuit Judge.
In February 1994, Local Union No. 7 of the International Brotherhood of Electrical Workers, AFL-CIO ("Union") filed charges of unfair labor practices with the National Labor Relations Board ("NLRB" or "Board") against Defendant-Cross-Petitioner Goodless Electric Co. ("Goodless"). On March 2, 1995, an administrative law judge ("ALJ") issued a decision finding no labor violations and recommending dismissal of the charges. The NLRB General Counsel appealed to a panel of the NLRB, which, on April 30, 1996, reversed certain of the ALJ's findings as they relate to the issues relevant to this appeal and determined that Goodless had violated provisions of the National Labor Relations Act ("NLRA" or "Act"). See Goodless Elec. Co., 321 N.L.R.B. 64 (1996). Before us are the Board's petition for enforcement of its order and Goodless' petition for reversal of the Board's conclusions of law. For the reasons stated herein, we reverse and deny the Board's petition for enforcement of its order.
The background facts are essentially undisputed. Goodless is a construction industry employer engaged in electrical contracting. In June 1988, Goodless agreed to be bound by an existing collective bargaining agreement between the multi-employer National Electrical Contractors Association ("NECA") and the Union. In July 1990, Goodless became a signatory to a new three-year On June 18, 1992, Goodless notified NECA and the Union that NECA was no longer authorized to negotiate on Goodless' behalf and that Goodless did not intend to be bound by any further contractual modifications or obligations beyond the then-current agreement's expiration date of June 30, 1993. Thus, Goodless indicated that any relationship between Goodless and the Union would expire as of June 30, 1993.
collective bargaining agreement between the NECA and the Union. The agreement authorized the NECA to bargain with the Union on Goodless' behalf unless that authority was withdrawn with 150 days' notice of cancellation. The relationship entered into by Goodless and the Union at this point constituted a Section 8(f) 1 relationship under the NLRA. Under Section 8(f), a construction industry employer may enter into a relationship with a union whereby the union bargains on behalf of the employer's employees prior to a showing that the union has garnered the support of a majority of the employees. The question on which the issues in this appeal hinge relates to the circumstances under which a Section 8(f) relationship may become a Section 9(a) 2 relationship. Under Section 9(a), once a union has become the representative of a majority of the employees in an appropriate bargaining unit, the employer is required to bargain with the union as the employees' bargaining representative. The NLRB has held that Section 8(f) status may change to Section 9(a) status by virtue of either a Board-certified election or as the result of the employer's voluntary recognition of the union as the majority collective bargaining agent. Voluntary recognition requires the union's unequivocal demand for, and the employer's unequivocal grant of, voluntary recognition as the employees' collective bargaining representative based on the union's contemporaneous showing of majority employee support. See James Julian, Inc., 310 N.L.R.B. 1247, 1252 (1993).
In July 1992, a Union representative contacted Goodless' president and indicated that Goodless would need to sign a letter of assent. 3 Goodless was told that the letter of assent was needed in order for Goodless to continue receiving "target money." 4 Goodless' president reviewed the letter of assent and deleted some language contained in the The Employer agrees that if a majority of its employees authorize the Local Union to represent them in collective bargaining, the Employer will recognize the Local Union as the NLRA Section 9(a) collective bargaining agent for all employees performing electrical construction work within the jurisdiction of the Local Union on all present and future jobsites.
letter. He did not, however, alter the following language:
Goodless signed the letter of assent on July 15, 1992.
At a meeting with Union representatives on June 22, 1993, Goodless' president again indicated that Goodless did not intend to continue its relationship with the Union after June 30, 1993. The Union representatives encouraged Goodless to consider changes regarding service work that NECA had accepted earlier that month. The meeting ended with the participants agreeing to meet on June 25.
On June 24, the Union's business agent, Douglas Bodman ("Bodman"), held a meeting of all Goodless employees. At this meeting, he indicated the progress of negotiations with Goodless. After informing the employees of Goodless' claim that the Union lacked employee support, he asked the employees to sign authorization cards as evidence of their desire for continued representation. All employees signed the cards, which stated:
I authorize Local Union No. 7 of the International Brotherhood of Electrical Workers to represent me in collective bargaining with my present and future employers on all present and future jobsites within the jurisdiction of the Union. This authorization is non-expiring, binding and valid until such time as I submit a written revocation.
At the second meeting, on June 25, between Goodless and the Union, Goodless maintained that the company's relationship with the Union would end with the expiration of the agreement. In response, Bodman presented the authorization cards signed by all Goodless employees. Goodless' president tossed the cards back at Bodman, telling him that he could "shove them up [his] ass." Another Union representative calmed tensions and secured from Goodless a six-month extension of the 1990-1993 contract by promising certain terms for Goodless.
On December 13, Goodless informed the Union that it intended to withdraw recognition of the Union upon the approaching December 31 expiration date. On December 17, Goodless sent a letter to all employees indicating these intentions and inviting the employees to discuss the matter with Goodless management prior to December 23.
On December 21, the Union responded with two letters reminding Goodless of the language contained in the letter of assent that bound Goodless to recognize the Union as the Section 9(a) collective-bargaining representative on a showing of majority support and indicating that, the Union having made such a showing at the June 25 meeting, the Union was now the Section 9(a) bargaining representative and Goodless could not repudiate the relationship or negotiate directly with its employees.
Union Business Manager Bodman composed a form letter for the employees to send to Goodless in response to Goodless' December 17 letter. All but one Goodless employee signed and submitted this form letter, which stated in relevant part:
I intend to continue my employment with Goodless Electric and maintain my membership with [the Union]. I expect you to continue to comply with my union contract and maintain the current wages and terms and conditions of employment.
If you need to discuss any matter concerning wages or terms and conditions of employment, contact my Union Representative Douglas Bodman.
On December 30, Goodless announced new terms of employment to take effect January 1, 1994. On January 1, Goodless also ceased to recognize the Union as the employees' collective bargaining agent.
Because Goodless was no longer a signatory to the NECA agreement, the apprentices working for Goodless were informed by the Joint Apprentice Training Committee As a result of these unilateral modifications, the Union filed charges of unfair labor practices with the NLRB, alleging that the relationship between the Union and Goodless had been transformed from a Section 8(f) relationship into a Section 9(a) relationship upon the Union's showing of majority support in June 1993. Because the relationship was allegedly one under Section 9(a), the Union argues that Goodless was obligated to bargain with it as the employees' representative. The Union contends that by withdrawing recognition of the Union as the employees' collective bargaining agent and unilaterally changing the terms and conditions of employment, Goodless violated Section 8(a)(5) 6 of the National Labor Relations Act. The Union also insists that Goodless constructively discharged the apprentices in violation of Section 8(a)(3). 7
(JATC) 5 on January 6, 1994, that they would be subject to termination from the apprenticeship program if they continued to work for Goodless. As a result, the apprentices terminated their employment with Goodless en masse.
The case was first heard before an ALJ, who determined that the relationship between Goodless and the Union did not change to a Section 9(a) relationship. Because the relationship remained a Section 8(f) relationship, Goodless remained free to repudiate the relationship at the end of the contractual term and thus its unilateral changes to the terms and conditions of employment did not violate either Section 8(a)(3) or Section 8(a)(5).
The NLRB reversed the ALJ's opinion in ruling that,...
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