N.L.R.B. v. Koenig Iron Works, Inc.
| Decision Date | 07 June 1982 |
| Docket Number | AFL-CI,D,I,Nos. 794,953,No. 455,455,s. 794 |
| Citation | 681 F.2d 130 |
| Parties | 110 L.R.R.M. (BNA) 2995, 94 Lab.Cas. P 13,629 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. KOENIG IRON WORKS, INC.; Master Iron Craft Corp.; Roman Iron Works, Inc.; Mohawk Steel Fabricators, Inc.; Melto Metal Products Co., Inc.; Greenpoint Ornamental and Structural Iron Works, Inc.; Paxton Metalcraft Corp.; and Long Island Steel Products Co., Respondents. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ZAFFINO & SONS, INC.; Mohawk Steel Fabricators, Inc.; Roman Iron Works, Inc.; Achilles Construction Co., Inc.; Master Iron Craft Corp., and the Peelle Company, Respondents, Shopmen's Local Union, of the International Association of Bridge, Structural and Ornamental Iron Workers,ntervenor. ockets 81-4204, 81-4206. |
| Court | U.S. Court of Appeals — Second Circuit |
Standau E. Weinbrecht, N. L. R. B., Washington, D. C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C.), for petitioner.
Stanley Israel, New York City (Kliegman, Goldstein, Israel & Cooper, New York City), for respondents with the exception of Greenpoint Ornamental and Structural Iron Works, Inc., Paxton Metalcraft Corp., and Long Island Steel Products Co.
Belle Harper, Sipser, Weinstock, Harper, Dorn & Leibowitz, New York City, for intervenor.
Before LUMBARD, FRIENDLY and NEWMAN, Circuit Judges.
These proceedings deal with a 1975 labor dispute concerning a number of small employers in the steel construction and fabricating industry in metropolitan New York. Doubtless to their everlasting regret and certainly to ours, these employers formed a multi-employer bargaining group, the Independent Association of Steel Fabricators, Inc. (the Association), primarily for the purpose of prevailing upon Shopmen's Local Union No. 455, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Local 455), to accept, on behalf of its members, the same terms and conditions of employment that the union granted another multi-employer association, Allied Building Metal Industries, Inc. The employers sought to extricate themselves from the Association when it became evident that its purpose would not be achieved, although Local 455 never advanced any reason why it should not be. In an opinion by the late Judge Gurfein, N.L.R.B. v. Independent Association of Steel Fabricators, Inc., 582 F.2d 135 (2 Cir. 1978), cert. denied, 439 U.S. 1130, 99 S.Ct. 1049, 59 L.Ed.2d 91 (1979), familiarity with which is assumed, dealing with a 1977 decision of the National Labor Relations Board (the Board) relating to this dispute, 231 N.L.R.B. 264, we granted enforcement in part and denied it in part. We said, in a concluding footnote, 582 F.2d at 153 n.37:
We would normally remand in this case for further development of facts based on this opinion. Since so much time has now elapsed, however, we must assume that there may presently be continuing relationships of which we are unaware. We shall, accordingly, not formally remand but leave it to the parties to petition the NLRB for such evidentiary hearings, if any, that they desire under the principles outlined in this opinion.
The invitation was enthusiastically accepted, as hereafter detailed. In 1980 the Board rendered two further decisions, 252 N.L.R.B. 922 and 904, of which it seeks enforcement. Before the case was reached for argument in this court the Supreme Court on January 12, 1982, decided Charles D. Bonanno Linen Service, Inc. v. N.L.R.B., --- U.S. ----, 102 S.Ct. 720, 70 L.Ed.2d 656, in which it expressly disapproved our holding, 582 F.2d at 148, along with similar decisions by two other courts of appeals, that the Association members were entitled to withdraw from the multi-employer bargaining unit because an impasse in negotiations had been reached. --- U.S. at ---- - ----, 102 S.Ct. at 723-724. By motion dated February 4, 1982, Local 455, which had intervened in the Independent Association case as well as in the Board's present proceedings for enforcement, sought to have us reopen and reconsider our previous decision; this was opposed both by the Board and by the respondents. We find it convenient first to consider the case as we would have done apart from Bonanno and then to discuss what modifications, if any, in that result should be made in light of the Court's recent pronouncement.
The Board's original decision issued bargaining orders against 16 members of the Association. In light of our holding that all these employers were entitled to withdraw from multi-employer bargaining because an impasse had been reached, we divided the employers into three classes as follows, 582 F.2d at 149-50:
Class I-6 employers who signed collective bargaining agreements with a rival union, Sheet Metal, Alloys and Hardware Fabricators and Warehousemen, Local 810, International Brotherhood of Teamsters (Local 810), before giving Local 455 notice of their intention to withdraw from the Association. 1
Class II-3 employers who signed with Local 810 after giving Local 455 notice of withdrawal from the Association. 2
Class III-7 employers who gave notice of withdrawal from the Association, but signed with neither Local 455 nor Local 810. 3
We adopted a different analysis for each of these classes. As to Class I, we held, 582 F.2d at 149, that the employers violated § 8(a)(5) by failing to give notice of their withdrawal from the Association prior to signing with Local 810. 4 As to Class II, we refused to affirm the Board's findings of § 8(a) (5) violations, 582 F.2d at 151. We held that the Class II employers had not violated § 8(a)(5) by withdrawing from the Association and that the employers had given timely notice of their withdrawal. We also held, however, that these employers "were under a duty to seek bargaining with Local 455 on an individual basis before negotiating with Local 810", 582 F.2d at 151. We held further that if an employer could show either that it entertained a rational, good faith doubt as to Local 455's majority status or that the union actually had lost its majority status, then no § 8(a)(5) violation could be found. Since the Board had refused to consider evidence of the employers' rational, good faith doubts as to Local 455's majority status, no § 8(a)(5) violation could be found on the record before us. After indicating that further evidence might be taken on the question, 582 F.2d at 153 n.37, we said that "(i)n the absence of evidence as to good faith doubt or actual loss of majority status, the Board may find respondents in class two guilty of a refusal to bargain." 582 F.2d at 151.
As to Class III, we held, 582 F.2d at 151, that there had been no § 8(a)(5) violations. We reasoned that Local 455's failure to have requested bargaining with the Class III employers on an individual basis following their notices of withdrawal from the multi-employer unit prevented a finding that the individual employers had refused to bargain. Noting that the unfair labor practices of the respondents did not taint election machinery and the "lapse of time and our lack of information concerning current labor relations in the industry", we left it to the Board to consider whether an election or a bargaining order would be a more appropriate sanction against the respondents in Class I and against any respondents in Class II who might be found guilty of § 8(a)(5) violations, 582 F.2d at 152.
We later turned to portions of the Board's order which had required the reinstatement of striking employees as unfair labor practice strikers. Stating that in view of our holdings with respect to Classes II and III, "not all respondents' employees became unfair labor practice strikers", 582 F.2d at 152, we said that we would nevertheless "have enforced the Board's reinstatement order against those employers guilty of §§ 8(a)(1), (2) and (5) violations, ... if the record had reflected an unconditional offer to return to work." We found, however, 582 F.2d at 152, that there was no such offer since the letters requesting reinstatement by Local 445 sent in February and March 1976, were accompanied by letters demanding that the employers implement a stipulation negotiated by five members who had remained in the Association, which we held to be not binding on those who had withdrawn, whether lawfully or not, 582 F.2d at 149.
On August 18, 1978, Local 455 filed with the Board a motion to reopen the hearing in the proceeding that had been the subject of our Independent Association decision for the purpose of taking evidence with respect to the imposition of bargaining orders upon the employers in Classes I and II. Four months later the General Counsel moved for the issuance of bargaining orders with respect to those in Class II. Orders for a hearing before an administrative law judge (ALJ) were issued on February 1, and April 9, 1979. On February 22, 1980, the ALJ recommended that bargaining orders issue against all Class I employers. Turning to the three Class II employers, he concluded that, at the time when they entered into contracts with Local 810, Koenig did not have, but Cervenka and Master did have good faith doubts that Local 455 represented a majority of their employees; he recommended a bargaining order solely as to Koenig. The Board disagreed with the ALJ's ruling with respect to Master and entered a bargaining order against it, 252 N.L.R.B. 922; it left his conclusion as to Cervenka standing. The Board now seeks enforcement of the bargaining orders against the Class I employers, as well as Koenig and Master.
The Separate Proceeding arises largely out of actions taken by Local 455 after our 1978 decision. In an effort to meet our...
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