Nat'l Labor Relations Bd. v. Newark Elec. Corp.

• Citation: 14 F.4th 152
• Decision Date: 17 September 2021
• Docket Number: August Term, 2019,Docket No. 18-2784
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NEWARK ELECTRIC CORPORATION, Newark Electric 2.0, Inc., Colacino Industries, Inc., Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

14 F.4th 152

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.NEWARK ELECTRIC CORPORATION, Newark Electric 2.0, Inc., Colacino Industries, Inc., Respondents.

Docket No. 18-2784

August Term, 2019

United States Court of Appeals, Second Circuit.

Argued: February 11, 2020

Decided: September 17, 2021

Milakshmi V. Rajapakse (Peter B. Robb, Julie B. Broido, Alice B. Stock, David Habenstreit, on the brief), National Labor Relations Board, Washington, DC, for Petitioner.

Edward A. Trevvett, Harris Beach PLLC, Pittsford, NY, for Respondents.

Before: Walker, Carney, Circuit Judges, and Koeltl, District Judge.¹

Carney, Circuit Judge:

This case arises from a long-pending labor dispute between the International Brotherhood of Electrical Workers Local 840 ("the Union") and three closely related corporations doing business in Newark, New York: Newark Electric Corporation, Newark Electric 2.0, Inc. ("Newark 2.0"), and Colacino Industries, Inc. (the three collectively, "the Companies"). The Board seeks enforcement of its Order to the Companies, premised on a finding that, for purposes of the National Labor Relations Act ("NLRA" or the "Act"), the Companies are alter egos and a single employer.² The Companies contest that finding as to Newark Electric and Colacino Industries.

Resolution of the dispute has been protracted in part because of concerns raised under the Federal Vacancies Reform Act ("FVRA"), 5 U.S.C. § 3345 - 3349d, about the lawfulness of the original complaint, which was issued in 2013 by the Board's then-Acting General Counsel, Lafe Solomon. See NLRB v. Sw. Gen., Inc. , ––– U.S. ––––, 137 S. Ct. 929, 943-44, 197 L.Ed.2d 263 (2017) (" Southwest General ") (holding Acting General Counsel Lafe Solomon was prohibited from serving in that position following his nomination to serve as the NLRB's General Counsel on a permanent basis). And so, relatedly, this case requires us to address the effect of the later ratification of the original complaint by a fully confirmed General Counsel. The Companies assail the ratification's effectiveness.

For the reasons set forth below, we reject the Companies’ challenges and GRANT the Board's petition for enforcement.

BACKGROUND³

I. The Companies and the Letters of Assent

During the 1980s and 1990s, Newark Electric was an electrical contractor solely owned by Richard Colacino ("Richard"). In 2000, some substantial changes to Newark Electric's structure began: Richard's son James Colacino ("James") purchased Newark Electric's assets, goodwill, equipment, customer database, and website from his father, leaving the liabilities behind. James formed a new corporation, Colacino Industries, and placed in it the assets that he had purchased.

A little over a decade later, in March 2011, James formed a third company, "Newark Electric 2.0." The record suggests that at least Colacino Industries and Newark 2.0 provided some form of technical electrical contracting services during this time; the parties dispute whether Newark Electric was entirely dormant, but the record is clear that it was not dissolved. James ran the three entities from two office spaces that he owned on Harrison Street in Newark, NY. J.A. 15.

In the early 2000s, Michael Davis worked as an organizer for the Union in the same part of New York State, and in those years, he devoted time to persuading employers to sign a Letter of Assent ("LOA") with the Union as a first step toward their anticipated full participation in the Union's multi-employer collective bargaining agreement ("MCBA") with the Finger Lakes NY Chapter of the National Electrical Contractors Association (the "NECA") (an employer organization). The form of LOA then in use bound the assenting employer for 180 days to the MCBA. After the end of the 180-day trial period—and at any time in the five-month period between the 181st day and the day that is 30 days before the LOA's first anniversary—the employer may cancel the LOA by simply providing a "written 30-day notice" to the Union. J.A. 16. If that five-month period expires without delivery of such a notice, however, the employer becomes generally bound by the MCBA and may not terminate until the MCBA itself expires.

In 2005, Davis began an effort to persuade James to enroll Newark Electric and Colacino Industries in the LOA process. About six years later, the effort paid off: on February 24, 2011, James signed a Letter of Assent with the Union. (As we describe later, on exactly which company's behalf he signed the first LOA became subject to dispute.) And not long after, in July 2011, James approached Davis, asking for a second LOA. On July 20, Davis and James executed the second LOA, with Davis again signing for the Union and James signing for Colacino Industries.

Both LOAs adopted the timeline that we have described: a 180-day trial period followed by a five-month cancellation period, after which the MCBA's terms governed until the MCBA's expiration. The first LOA thus set up a trial period that ran from February 24 until August 24, 2011, after which the company had until January 24, 2012, to terminate. The second LOA created a trial period running from July 20, 2011, until January 19, 2012, after which the company had until June 20, 2012, to terminate.

The relationships did not last long. By letter dated April 12, 2012, James wrote to Davis that Colacino Industries intended to terminate the second LOA effective as of May 26. Thus, under the second LOA the termination notice was timely: the deadline for terminating it was in June and the notice was delivered in April, months before.

Not long after receiving James's April letter, Davis met with various employees of the Companies to discuss their Union membership. On June 29, during one such meeting, two Colacino Industries employees handed Davis a letter written on Newark Electric letterhead advising Davis that James thereby terminated Newark 2.0's agreement with the Union, effective immediately. (Davis later testified that this was the first time he became aware of an entity called Newark Electric 2.0.)

Davis and James met a few days later, on July 2. In the meeting, James took the position that the second LOA superseded the first and governed the Union's relationship with both Newark 2.0 and Colacino Industries. The April termination notice was therefore effective for both companies, in his view. Davis countered that the Union's first LOA was with Newark Electric (not Newark 2.0) and that it was still in effect; that Newark Electric had missed its January 24, 2012 deadline for terminating the first LOA; and that, accordingly, Newark Electric was still bound by the MCBA.

Thereafter, both Newark Electric and Colacino Industries refused to comply with the MCBA. A few months later, in September 2012, James dissolved Newark 2.0, and in 2013, Richard dissolved Newark Electric. After 2013, only Colacino Industries survived in corporate form.

After the Union filed a complaint with the Board in 2012, on May 30, 2013, the Board filed a complaint against all three Companies. Two years later, in May 2015, the applicable MCBA expired, opening a window for the surviving Colacino Industries to terminate its relationship with the Union by giving written notice no less than 100 days before the expiration date, no matter the ultimate effect of their earlier termination efforts.

II. Anthony Blondell's Discharge from Newark Electric

Anthony Blondell was an electrician and longstanding Union member who began working for Newark Electric in March 2011, after James signed the first LOA. In July 2012, when James and Davis were sparring over the status of the LOAs, James discharged Blondell. The circumstances of the discharge are disputed. But, the record is clear that as the July 20 end date for the second LOA approached, James told Blondell that he planned to cease being a union employer. J.A. 23. On July 20, James gave Blondell a termination letter advising that Colacino Industries was "lay[ing] [Blondell] off" for "lack of work." J.A. 333.

III. Procedural History

On May 30, 2013, Lafe E. Solomon, then the Board's Acting General Counsel, issued a complaint charging the Companies with various unfair labor practices. Following a lengthy hearing, an ALJ found that the Companies violated sections 8(a)(5) and (1) of the Act by repudiating and failing to comply with the two LOAs and the MCBA. The ALJ also ruled that the Companies violated sections 8(a)(3) and (1) of the Act when they unlawfully terminated Blondell's employment based on anti-union animus.

Almost two years later, in March 2015, the Board affirmed the ALJ's judgment, with minor revisions, 362 N.L.R.B. 44 (2015), and the Companies appealed the decision to the U.S. Court of Appeals for the District of Columbia Circuit. In July 2017, that court vacated the Board's decision and remanded for further proceedings in light of the Supreme Court's then-recent decision in Southwest General . See Order, Newark Elec. Corp. v. NLRB , No. 15-1111, 2017 WL 5662145 (D.C. Cir. July 14, 2017). As described above, the Supreme Court ruled in that case that the Board's Acting General Counsel was prohibited from issuing complaints because his continued service as Acting General Counsel after January 5, 2011, violated the FVRA. Southwest General. , 137 S. Ct. at 937, 943-44.

One month later, in August 2017, Board General Counsel Richard F. Griffin, Jr., who was duly appointed by the President and confirmed by the Senate, formally ratified the 2013 complaint. J.A. 30, 34-41. The Board then affirmed its earlier rulings, stating that it had given de novo consideration to the prior proceedings and the parties’ updated submissions. 366 N.L.R.B. 145 (2018). It then petitioned this Court for enforcement of its Order.⁴ See 29 U.S.C. § 160(e). It is that petition that is before us now.

DISCUSSION

We examine the Board's findings of fact to determine whether they are supported by substantial evidence. 29 U.S.C. § 160(e) ; Universal Camera Corp. v. NLRB , 340 U.S. 474, 488-89, 71 S.Ct....