Plumbers and Steamfitters Local 342, United Ass'n of Journeymen and Apprentices of Plumbing and Pipe Fitting Industry of U.S. and Canada, AFL-CIO v. N.L.R.B.
| Decision Date | 23 January 1979 |
| Docket Number | No. 76-1968,AFL-CI,P,76-1968 |
| Citation | 598 F.2d 216,194 U.S.App.D.C. 297 |
| Parties | 100 L.R.R.M. (BNA) 2583, 194 U.S.App.D.C. 297, 85 Lab.Cas. P 11,049 PLUMBERS AND STEAMFITTERS LOCAL 342, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPE FITTING INDUSTRY OF the UNITED STATES AND CANADA,etitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
John L. Anderson, San Francisco, Cal., with whom Peter D. Nussbaum, San Francisco, Cal., Patrick C. O'Donoghue, Washington, D. C., were on the brief, for appellants.
Alan Banov, Atty., N. L. R. B., John S. Irving, Gen. Counsel, John D. Burgoyne, Carl L. Taylor, Associate Gen. Counsel and Elliott Moore, Deputy Associate Gen. Counsel Washington, D. C., were on the brief, for respondent.
Before BAZELON, LEVENTHAL and ROBINSON, Circuit Judges.
Opinion for the Court filed by BAZELON, Circuit Judge.
Petitioners, Steamfitters Local 342 (Steamfitters), challenge a decision by the NLRB, holding that Steamfitters' refusal to install a pipe system fabricated by a subcontractor violated § 8(b)(4)(B) and § 8(e) of the National Labor Relations Act, 29 U.S.C. §§ 158(b)(4)(B) and 158(e) (1976). The Board has cross-petitioned for enforcement of its Order. Because we are unable to determine from the Board's decision precisely what work Steamfitters was claiming for its members, we cannot determine whether the refusal to handle was unlawful, and accordingly, we remand to the NLRB to clarify its decision.
C. Overaa (Overaa) is a general contractor primarily engaged in building water and sewage facilities. Overaa is a signatory to a multi-employer collective bargaining agreement (the Agreement) with Steamfitters Local 342 which represents Overaa's plumbers and pipefitters. 1
The Agreement contains several provisions which regulate the fabrication of pipe on projects covered by the Agreement. 2 The provisions are in essence "union standards" clauses, limiting the subcontracting of certain fabrication work to sub-contractors whose employees enjoy terms and conditions of employment that compare favorably with those guaranteed to workers covered by the Agreement.
In 1973, the East Bay Municipal Utilities District (East Bay MUD) chose Overaa as the general contractor for the Moraga pumping station. The specifications for the plant called for pipes ranging in diameter from 17 to 72 , most to be cement lined and coated with lead paint. Overaa subcontracted the fabrication of the pipe to Conduit Fabricators, Inc. (Conduit), whose pipefitters were represented by Teamsters Local 490, and received wages below those received by members of Steamfitters under the Agreement. Conduit prepared plans and drawings that were approved by East Bay MUD, and work began. The process of fabricating the pipe to the required specifications comprised seven stages. Employees of Conduit performed some of this work; other specialized companies completed the remainder, both on and off Conduit's premises. 3
By February 1974 Conduit had built and delivered the pipe for the Moraga plant. On June 4, 1974, while the pipe was awaiting installation, Dennis Gifford, a business agent for Steamfitters' predecessor, Plumbers Local 159, 4 informed Charles Burgin, Overaa's pipefitting foreman and a member of Steamfitters, not to handle the pipe fabricated under the subcontract to Conduit. At the same time, Gifford informed Overaa's job superintendent that the pipe was "unsuitable" for installation by Steamfitters. 5 For a period of time after Steamfitters' initial refusal to install the pipe fabricated by Conduit, Overaa managed to work around the disputed pipe, but by July 15 no further work could go forward. On July 18, after negotiations between Overaa and the union, Steamfitters agreed to permit Overaa's pipefitters to install the pipe, while the union sought redress through the contract's grievance procedures. Work then resumed on the pumping station, and was completed early the following year.
On July 19 and 24, Conduit filed unfair labor practice charges against Steamfitters, based on the union's refusal to install the pipe. After a hearing, the Administrative Law Judge (ALJ) found that Steamfitters' refusal to handle the pipe fabricated by Conduit violated § 8(b)(4)(B) and § 8(e) of the National Labor Relations Act. The ALJ concluded that the refusal to install the pipe violated § 8(b)(4)(B) because Overaa had no "right of control" over the work subcontracted to Conduit. Therefore, in the ALJ's view, Steamfitters' action was not directed at Overaa, but rather was unlawful "secondary" pressure directed at Conduit. J.A. 403-04. The ALJ also held that the union's attempt to enforce the union standards clause in this case violated § 8(e) because the work in question was not "fairly claimable" by Steamfitters. J.A. 404.
The Board sustained the ALJ's conclusion that Steamfitters' action violated both § 8(b)(4)(B) and § 8(e). Plumbers and Steamfitters Local 342, 225 N.L.R.B. 1364 (1976). The Board rejected the ALJ's "right to control" analysis of the § 8(b)(4)(B) violation, since under its contract with East Bay MUD, Overaa had full control in its choice of subcontractors. Instead, the Board found that because the work was not "fairly claimable" by Steamfitters the Union had violated both § 8(b)(4)(B) and § 8(e). The Board adopted as its own the recommended order proposed by the ALJ. Steamfitters petitions this court to review the Board's Order and the NLRB cross-petitions for enforcement.
In reviewing decisions of the NLRB, our function is to determine whether the decision of the Board is supported by substantial evidence on the record considered as a whole. 6 The problem posed by the Board's decision in this case is to determine just what, in fact, the Board has decided. The Supreme Court has made clear 7 and the Board acknowledges, 8 that not all so-called "work preservation" agreements such as the union standards clause in the Agreement violate the National Labor Relations Act. "The touchstone (in determining whether a refusal to handle violates the Act) is whether the agreement or its maintenance is addressed to the labor relations of the contracting employer Vis-a-vis his own employees." National Woodwork Manufacturers' Ass'n v. NLRB, 386 U.S. 612, 645, 87 S.Ct. 1250, 1269, 18 L.Ed.2d 357 (1967). Where the objective of a union standards clause is directed to the employer, it is primary activity, prohibited by neither § 8(b) (4) nor § 8(e). 9 As then Circuit Judge Wright observed in an opinion which foreshadowed the Supreme Court's decision in National Woodwork:
Resolution of the difficult issue of primary Versus secondary activity . . . involves consideration of two factors: (1) jobs fairly claimable by the bargaining unit, and (2) preservation of those jobs for the bargaining unit. If the jobs are fairly claimable by the unit, they may, without violating either § 8(e) or § 8(b)(4)(A) or (B), be protected by provision for, and implementation of, no-subcontracting or union standards clauses in the bargaining agreements. 10
Thus, the liminal question in assessing the legality of the attempt to enforce a work preservation agreement is to determine what work the union in fact has claimed. On this critical question, however, the Board's decision is fatally ambiguous.
The Board adopted the recommended Order of the ALJ, who had directed Steamfitters to cease from "giving effect to the work preservation provisions of its agreement with C. Overaa & Co. in the manner herein found unlawful." J.A. 405. Neither the ALJ's opinion nor the Board's decision explicitly determines the precise scope of Steamfitters' claim, and therefore it is unclear what conduct the Board has proscribed.
The interpretation that flows most readily from the opinions of both the Board and ALJ is that Steamfitters conduct was prohibited because it had claimed the cutting and welding work on the lined and coated pipes, work that the ALJ viewed as an integral part of the larger process of cutting, welding, hydrostatically testing, stress relieving and lining the pipe. 11 However, counsel for the Board, in its brief to this court and in oral argument, suggested a different interpretation: that Steamfitters committed an unfair labor practice because it had claimed the "entire fabrication of an integrated unit of stress-relieved, lined, tested and coated pipe." 12 Counsel had recognized that had Steamfitters limited its claim to cutting and welding, such work might well be "fairly claimable" by Steamfitters. 13 At first blush, accepting counsel's interpretation seems attractive, especially since Steamfitters has intimated that it might not oppose the order so interpreted. Nevertheless, when we are called on to review the Board's decision, we cannot simply adopt counsel's suggested interpretation as an expedient to eliminate the ambiguity left unresolved by the Board. Whatever merit there may be in an interpretation offered by counsel, "(t)he integrity of the administrative process demands no less than that the Board, not its legal representative" perform the functions entrusted to the Board. NLRB v. Food Store Employees, 417 U.S. 1, 9, 94 S.Ct. 2074, 2079, 40 L.Ed.2d 612 (1974).
For reviewing courts to substitute counsel's rationale or their discretion for that of the Board is incompatible with the orderly function of the process of judicial review. Such action would not vindicate, but would deprecate the administrative process for it would "propel the court into the domain which Congress has set aside exclusively for the administrative agency." Securities & Exchange Commission v. Chenery Corp. (332 U.S. 194, 196, 67 S.Ct. 1575, 1760, 91 L.Ed. 7995 (1947)).
NLRB v. Metropolitan Ins. Co., 380 U.S. 438, 444, 85 S.Ct. 1061, 1064, 13 L.Ed.2d 951 (1965). What is true for...
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