Narricot Industries, L.P. v. N.L.R.B.

Citation587 F.3d 654
Decision Date20 November 2009
Docket NumberNo. 09-1164.,No. 09-1280.,09-1164.,09-1280.
PartiesNARRICOT INDUSTRIES, L.P., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Shirley Mae Lewis; Henry Vaughan, Intervenors. National Labor Relations Board, Petitioner, v. Narricot Industries, L.P., Respondent. Shirley Mae Lewis; Henry Vaughan, Intervenors.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

ARGUED: James Marion Powell, Womble, Carlyle, Sandridge & Rice, PLLC, Greensboro, North Carolina, for Narricot Industries, L.P. William L. Messenger, National Right to Work Legal Foundation, Springfield, Virginia, for Intervenors. Kellie Isbell, National Labor Relations Board, Washington, D.C., for the National Labor Relations Board. ON BRIEF: J. Mark Sampson, Womble, Carlyle, Sandridge & Rice, PLLC, Greensboro, North Carolina, for Narricot Industries, L.P. Ronald Meisburg, General Counsel, John E. Higgins, Jr., Deputy General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, Meredith L. Jason, Supervisory Attorney, National Labor Relations Board, Washington, D.C., for the National Labor Relations Board.

Before KING and AGEE, Circuit Judges, and JAMES P. JONES, Chief United States District Judge for the Western District of Virginia, sitting by designation.

Petition for review denied and cross-application for enforcement granted by published opinion. Judge KING wrote the opinion, in which Judge Agee and Judge Jones joined.

OPINION

KING, Circuit Judge:

Narricot Industries, L.P. ("Narricot"), petitions this Court for review of a Decision and Order entered against it by the National Labor Relations Board (the "Board"). See Narricot Indus., L.P., 353 N.L.R.B. No. 82 (Jan. 30, 2009) (the "Board Decision"). The Board Decision affirmed, with modification, the rulings made by an administrative law judge (the "ALJ") in a decision (the "ALJ Decision") that is attached to the Board Decision. The Board has cross-applied in this Court for enforcement of the Board Decision. This matter presents two issues for our consideration: (1) whether the Board Decision was properly issued by a two-member quorum and, if so, (2) whether the Board Decision deserves enforcement on the merits. Because, as explained below, we answer both of those questions in the affirmative, we deny Narricot's petition for review and grant the Board's cross-application for enforcement.

I.
A.

Narricot, a Georgia corporation, is engaged in the business of manufacturing and dyeing narrow textile fabrics used to construct vehicle seatbelts.1 Narricot has maintained a manufacturing facility in Boykins, Virginia, since the early 1960s, and the United Brotherhood of Carpenters and Joiners of America, Carpenters Industrial Council, Local No. 2316 (the "Union"), has represented the production and maintenance employees at the Boykins facility since 1976. The most recent collective bargaining agreement ("CBA") covering the Boykins bargaining unit employees was executed in February 2005 and remained in effect until October 2, 2007. By agreement of the Union and Narricot, the Union's representation of the production and maintenance employees was extended to also cover employees who work at Narricot's satellite facility in Murfreesboro, North Carolina. Although the most recent CBA did not provide for a wage increase, it provided for a "double-time" overtime premium for working in excess of forty-eight hours in a week.

The International Textile Group ("ITG"), a textile group that owns various (mostly nonunion) textile plants throughout the world, acquired the Boykins and Murfreesboro facilities in early 2007. After learning of the acquisition, the Union met with ITG representatives. By letter dated July 20, 2007, the Union notified Narricot that it desired to negotiate a new or modified CBA and proposed dates for the parties' negotiations. Bargaining sessions were conducted on July 30, August 28, September 19 and 20, and September 26, 2007. Union representative Jason Weitzel believed, based on the progress of the negotiations, that the parties could have reached an agreement during the next scheduled bargaining session on October 1, 2007. That session never occurred, however, due to Narricot's withdrawal of recognition from the Union on September 29, 2007, effective October 2, 2007 (the termination date of the parties' last CBA).

Narricot predicated the withdrawal of recognition on its receipt of a decertification petition signed by a majority of bargaining unit employees. As of October 1, 2007, there were approximately 329 bargaining unit employees — about 15 at the Murfreesboro facility, and the rest at the Boykins facility. The decertification petition was signed by 212, or 64%, of the bargaining unit employees. Following its withdrawal of recognition of the Union, Narricot made a number of "unilateral" changes, that is, it did not negotiate or bargain with the Union prior to making them. On November 11, 2007, Narricot eliminated the "double-time" overtime premium provided for in the last CBA and implemented the first employee wage increase in four years. In addition, effective January 1, 2008, Narricot made changes to the fringe benefit programs for bargaining unit employees.

B.

The Union filed various unfair labor practice charges against Narricot in October 2007 and January 2008, and the Board issued a consolidated complaint and notice of hearing in February 2008. The consolidated complaint alleged the following: that Narricot violated § 8(a)(1) of the National Labor Relations Act (the "Act"), 29 U.S.C. § 158(a)(1), by promising employees increased benefits if they removed the Union as their bargaining representative; that Narricot further contravened § 8(a)(1) by soliciting employees to sign the decertification petition, by providing unlawful assistance to employees in the circulation of the petition, and by soliciting employees to separately withdraw from Union membership and revoke dues checkoff authorizations; and that Narricot violated § 8(a)(5) of the Act, 29 U.S.C. § 158(a)(5), by withdrawing recognition from the Union and by thereafter unilaterally implementing changes in wages, benefits, and other conditions of employment for the bargaining unit employees.

In late February 2008, the ALJ conducted a three-day trial on the consolidated complaint. By the ALJ Decision of May 6, 2008, the ALJ concluded that Narricot had engaged in multiple unfair labor practices, and recommended an Order requiring Narricot to, inter alia, cease and desist from such practices (including its refusal to recognize and bargain with the Union) and to rescind all unilateral changes to unit employees' wages and other conditions of employment. Narricot filed exceptions to the ALJ Decision, and the parties submitted briefs to the Board.

By the Board Decision of January 30, 2009, the Board, acting through a two-member quorum, affirmed, with modification, the ALJ Decision, and it adopted, also with modification, the recommended Order. The Board explained that it

has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions, as modified herein, and to adopt the recommended Order as modified. As discussed below, we agree with the judge that [Narricot] violated Section 8(a)(5) of the Act by withdrawing recognition from the Union and that an affirmative bargaining order is the appropriate remedy for this violation.

Board Decision 1 (footnotes omitted). The Board also specifically affirmed the ALJ's ruling that Narricot contravened § 8(a)(1) "by soliciting employees to resign their union membership and to revoke their dues checkoff authorizations." Id. at 1 n. 4. Narricot subsequently petitioned this Court for review of the Board Decision, and the Board cross-applied for enforcement thereof. We then granted a motion to intervene made by Shirley Mae Lewis and Henry Vaughan (the "Interveners"), bargaining unit employees who had supported the decertification petition effort. We possess jurisdiction pursuant to § 10(e) and (f) of the Act, 29 U.S.C. § 160(e)-(f).

II.
A.

The first question before us is whether the Board Decision was properly issued by a two-member quorum. As explained in the Board Decision,

[e]ffective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board's powers in anticipation of the expiration of the terms of Members Kirsanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Liebman and Member Schaumber constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act.

Board Decision 1 n. 2.2 The quorum question is one of statutory interpretation of § 3(b) of the Act, 29 U.S.C. § 153(b). In reviewing an agency's interpretation of a statute, we first determine whether the statute is ambiguous or, instead, whether "Congress has directly spoken to the precise question at issue." Snell Island SNF LLC v. NLRB, 568 F.3d 410, 415 (2d Cir. 2009) (citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). Accordingly, we begin our analysis with the text of the statute.

Under § 3(a) of the Act, the Board consists of five members, who serve staggered, five-year terms. See 29 U.S.C. § 153(a). Section 3(b) provides that

[t]he Board is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise. . . . A vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board, and three members of the Board shall, at all times, constitute a quorum of the Board, except that two members shall constitute a quorum of any...

To continue reading

Request your trial
32 cases
  • Paulsen v. Renaissance Equity Holdings, LLC
    • United States
    • U.S. District Court — Eastern District of New York
    • March 27, 2012
    ...Steel, LP v. NLRB, 564 F.3d 840 (7th Cir.2009); Northeastern Land Servs., Ltd. v. NLRB, 560 F.3d 36 (1st Cir.2009); Narricot Indus., LP v. NLRB, 587 F.3d 654 (4th Cir.2009); Teamsters Local Union No. 523 v. NLRB, 590 F.3d 849 (10th Cir.2009). Every Circuit except the D.C. Circuit sided with......
  • Monongalia Cnty. Coal Co. v. United Mine Workers of Am., CIVIL ACTION NO. 1:16CV04
    • United States
    • U.S. District Court — Northern District of West Virginia
    • February 16, 2017
  • Cornele A. OVERSt. v. DISPOSAL
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • November 4, 2010
    ...849 (10th Cir.2009), abrogated in part by New Process Steel, --- U.S. ----, 130 S.Ct. 2635, 177 L.Ed.2d 162; Narricot Indus., L.P. v. NLRB, 587 F.3d 654, 658-60 (4th Cir.2009), cert. dism'd, 79 U.S.L.W. 3015, and cert. dism'd, 79 U.S.L.W. 3016 (U.S. Sept. 16, 2010); New Process Steel, L.P. ......
  • Laborers' Intern. Union, Local 578 v. N.L.R.B., 08-9564.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • February 2, 2010
    ...have raised the question in other cases and obtained competing rulings from our sister circuits. Compare Narricot Indus., L.P. v. NLRB, 587 F.3d 654, 659 (4th Cir.2009) (holding that two-member NLRB can issue decisions), Snell Island SNF LLC v. NLRB, 568 F.3d 410, 423-24 (2d Cir. 2009) (sam......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT