Nat'l Labor Bd. v. Somerville Constr Co.
| Citation | 206 F.3d 752 |
| Decision Date | 08 March 2000 |
| Docket Number | No. 99-1838,99-1838 |
| Parties | (7th Cir. 2000) National Labor Relations Board, Petitioner, v. Somerville <A HREF="#fr1-1" name="fn1-1">1 Construction Company, Respondent |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Petition for Summary Enforcement of an Order of the National Labor Relations Board 25-CA-25276
Before Bauer, Cudahy, and Evans, Circuit Judges.
An administrative law judge determined that Somerville Construction Company ("Somerville") violated section 8(a)(5) of the National Labor Relations Act, 29 U.S.C. sec. 158(a)(5), by refusing to abide by a collective bargaining agreement. Hearing no objections from Somerville, the National Labor Relations Board entered an order adopting the ALJ's decision with slight modifications. Although it never filed any exceptions to the ALJ's ruling, Somerville refused to comply with the order. The NLRB now petitions this court for summary enforcement of its order and Somerville has filed an opposition to the petition. Somerville's arguments are too late; we grant the petition and summarily enforce the NLRB's order.
Somerville is a sole proprietorship owned by Homer Somerville2 that operates as a masonry contractor. Somerville employs approximately twenty workers and has its offices in Indianapolis, Indiana. During mid-summer 1995, the Trademark Construction Company solicited Somerville to bid for masonry work at a construction site in Portage, Indiana. After collecting bids, Trademark awarded the work to Somerville and the company began the project late that summer. Somerville had been on the job 30 to 45 days when two representatives of the International Union of Bricklayers & Allied Craftsmen Local No. 4 of Indiana and Kentucky, Merrillville Chapter visited the Portage construction site and realized that the people performing the masonry work were not Union members. The Union's representatives then requested a meeting with officials of Trademark and Somerville.
On October 31, 1995, Homer Somerville met with Union representatives and an officer from Trademark. During the meeting, the Union's representatives said that they wanted Somerville to sign a collective bargaining agreement ("CBA") that the Union had with the Indiana Mason Contractors Statewide Association. Although he appears to have done so begrudgingly, Homer Somerville eventually signed a Memorandum of Agreement on behalf of his company in which the company "recognize[d] the Union as the sole and exclusive collective bargaining representative for and on behalf of the employees of [Somerville] now or hereinafter employed within the territorial or occupational jurisdictions of the Union." The Memorandum further stated:
The parties do hereby adopt the latest Agreement, and all approved amendments thereto, between the Union and the Indiana Statewide Association, and agree to be bound by all of the terms and conditions thereof for the duration of such Agreement and for the period of any subsequent extensions including any amendments which may be subsequently made and any subsequent Agreements.
The Union's Field Representative, Dale Johnsen, signed the Memorandum on the Union's behalf. Additionally, Homer Somerville and Johnsen also executed a document which memorialized Somerville's assent to participate in the Association's fringe benefits and apprenticeship training program.
Even though Homer Somerville signed the Memorandum, Somerville later refused to recognize the Union or honor the CBA between the Union and the Association. In response, the Union complained to the NLRB and the Regional Director in Indianapolis issued a Complaint and Notice of Hearing charging Somerville with unfair labor practices in violation of the National Labor Relations Act. Specifically, the Regional Director alleged that Somerville violated section 8(a)(5) of the NLRA, 29 U.S.C. sec. 158(a)(5), by refusing to abide by the CBA to which it became bound when Homer Somerville executed the Memorandum of Agreement. Somerville filed an Answer to the Complaint and a hearing was held before an NLRB administrative law judge. Following the hearing, the ALJ issued a decision finding that Somerville had violated the NLRA as charged and recommended that the NLRB enter an appropriate remedial order.
The NLRB's General Counsel filed limited exceptions to the ALJ's finding and recommendation, but Somerville did not file any exceptions to the adverse ruling. After considering the General Counsel's exceptions, the NLRB issued an order adopting the ALJ's findings and recommendations with minor modifications. Since Somerville still refused to bargain with the Union or honor the CBA, the NLRB applied for summary enforcement of its order with this court. Somerville then filed an opposition to the NLRB's petition.
Somerville first challenges the NLRB's order on the basis that the NLRB never had subject matter jurisdiction over this case. The ALJ found subject matter jurisdiction because Somerville "annually performs services in excess of $50,0003 in States other than Indiana." Somerville Constr. Co., 327 NLRB No. 99, slip op. at 2, 1999 WL 64716 at *2 (Jan. 29, 1999). Based on this finding, the ALJ concluded that Somerville was "an employer engaged in interstate commerce within the meaning of Section 2(2), (6), and (7) of the Act." Id.
Although Somerville never presented this argument to the NLRB, it now insists that the ALJ's jurisdictional conclusion is flawed because there were no facts in evidence to demonstrate that it annually engages in more than $50,000 in business outside the state of Indiana. To support this contention, Somerville points us to Homer Somerville's following testimony:
While Somerville is correct that this testimony alone might not form an adequate basis for subject matter jurisdiction, these are not the only facts in the record that relate to the NLRB's jurisdiction. Specifically, paragraph 2(b) of the NLRB's Complaint and Notice of Hearing made the factual allegation that "[d]uring the twelve-month period ending March 31, 1997, [Somerville], in conducting its business operations . . . performed services valued in excess of $50,000.00 in states other than the State of Indiana." In its Answer to this allegation, Somerville stated, "Respondent admits the allegations contained in paragraph 2(b) of the Board's Complaint." And, most importantly, the ALJ expressly noted and relied on Somerville's admission in finding that subject matter jurisdiction was proper. See Somerville Constr. Co., 327 NLRB No. 99, slip op. at 2, 1999 WL 64716 at *2 ().
Section 10(e) of the NLRA provides in pertinent part:
No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless failure to urge such objection shall be excused because of extraordinary circumstances.
29 U.S.C. sec. 160(e). Based on this provision, we have consistently held that "a party which fails to raise an exception before the Board is jurisdictionally barred from...
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