Road Sprinkler Fitters Local Union No. 669, United Ass'n of Journeymen and Apprentices of Plumbing and Pipefitting Industry of U.S. and Canada, AFL-CIO v. N.L.R.B., AFL-CI

• Decision Date: 27 April 1982
• Docket Number: No. 80-1840,A-1,P,AFL-CI,80-1840
• Citation: 219 U.S.App.D.C. 228,676 F.2d 826
• Parties: 110 L.R.R.M. (BNA) 2125, 219 U.S.App.D.C. 228, 94 Lab.Cas. P 13,491 ROAD SPRINKLER FITTERS LOCAL UNION NO. 669, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent,Fire Protection, Inc. and Corcoran Automatic Sprinklers, Inc., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 826

676 F.2d 826

110 L.R.R.M. (BNA) 2125, 219 U.S.App.D.C. 228,

94 Lab.Cas. P 13,491

ROAD SPRINKLER FITTERS LOCAL UNION NO. 669, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent A-1 Fire Protection, Inc. and Corcoran Automatic Sprinklers Inc., Intervenors.

No. 80-1840.

United States Court of Appeals District of Columbia Circuit.

Argued May 27, 1981.

Decided April 27, 1982.

Woody N. Peterson, with whom Angelo V. Arcadipane, Washington, D. C., was on the brief, for petitioner.

David A. Fleischer, Atty., N. L. R. B., with whom Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., was on the brief, for respondent.

Hiram S. Grossman for intervenors.

Before BAZELON, Senior Circuit Judge, and MacKINNON and GINSBURG, Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge BAZELON.

Dissenting opinion filed by Circuit Judge MacKINNON.

BAZELON, Senior Circuit Judge:

This case is before us for the second time on a petition for review of a decision of the National Labor Relations Board (Board). In our earlier opinion, ¹ we remanded to the Board because of its apparent failure, without explanation, to apply the longstanding "clear and unmistakable" waiver standard to determine whether a union had forfeited its rights under section 8(a)(5) of the National Labor Relations Act. ² Upon review of the Board's supplemental decision on remand, we find that the Board has satisfactorily resolved one aspect of the case, but has thrown the core of the case into even deeper confusion. We are therefore compelled to remand once again for explanation and application of the proper legal standard.

I. BACKGROUND

The factual background of this dispute, and its history prior to remand, are set out in our previous opinion. ³ We recapitulate them briefly to put our own discussion into perspective.

In 1973, George Corcoran formed two corporations, Corcoran Automatic Sprinklers, Inc. (CAS) and A-1 Fire Protection, Inc. (A-1), to install fire sprinklers. Corcoran intended to carry on a "double breasted" operation, operating CAS as a union company capable of bidding on jobs that required union contractors, and operating A-1 as a nonunion company. Shortly thereafter, Corcoran entered into a contract on behalf of CAS with the Road Sprinkler Fitters Local 669, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (Local 669). The union was not aware of the existence of A-1 when it signed the CAS contract. When the union did find out, it warned Corcoran that A-1 could not do any maintenance and installation work covered by the CAS contract.

There is some evidence in the record that, prior to 1975, the scope of A-1's work and solicitation of work was limited to "small" installation jobs and to noninstallation services such as sales of equipment and shop fabrication. ⁴ A-1 did not hire any nonsupervisory employees until 1975. In early 1975, Corcoran, with grudging union assent, laid off a number of CAS employees and then hired some of them to work for A-1 at union wages, but without union benefits. Nevertheless, on May 1, 1975, Local 669 entered into a second contract covering CAS employees and did not request that the contract also cover A-1 or its employees. ⁵ Subsequent to the signing of the second CAS contract, the relative fortunes of CAS and A-1 began to shift. ⁶ By August 1976, CAS, which had once employed 10 sprinkler fitters, employed only two. It received only one new job in 1976. Meanwhile, the work of A-1, by now definitely extending to "large" jobs, increased and by August 1976, it employed seven sprinkler fitters. Some of the work picked up by A-1 was for former customers of CAS. There is also evidence in the record that Corcoran stated his intention to "phase out" CAS and to have A-1 "tak(e) over the sprinkler work." ⁷

In late 1975, the union demanded that the 1975 collective bargaining agreement be applied to A-1. When Corcoran refused to comply with the demand, the union filed unfair labor charges against CAS and A-1. The union alleged that CAS and A-1 violated the duty to bargain embodied in § 8(a)(5) by withdrawing work from CAS and by refusing to apply the 1975 agreement to A-1 employees.

An Administrative Law Judge held that CAS and A-1 were a "single employer" for collective-bargaining purposes, that their employees jointly constituted an appropriate bargaining unit, and that the collective bargaining agreement should have been applied to both sets of employees. The ALJ also found that Corcoran "changed work arrangements so as to reduce the amount of work for the employees of (CAS)" and "operated A-1 with the apparent purpose of ultimately dissolving (CAS)," and that "but for George Corcoran's attempts to rid himself of (CAS) and the Union," CAS would have performed certain of the work picked up by A-1. The ALJ held that Corcoran, by his diversion of work from CAS to A-1, withdrew and withheld recognition from the union in violation of § 8(a)(5). ⁸

The Board accepted the ALJ's finding that CAS and A-1 were a "single employer," but held that they nevertheless constituted separate bargaining units. It found that the 1975 agreement between the union and CAS indicated that the parties "at least inferentially, stipulated as to the appropriateness" of a unit limited to CAS employees. The Board refused to hold that the CAS agreement applied to A-1 employees, stating that it could not "impose a contract to which the parties have not agreed."

The Board also held that because CAS and A-1 were organized to do union and nonunion work, respectively, and because the union was aware of this arrangement, any increase in A-1's work and decrease in CAS's could not "be attributed to any sinister purpose or unlawful motive on the part of the Respondents, but (had to) be considered the result of changes in the demand for contracts to be performed under union conditions." ⁹ The Board found the ALJ's conclusion that Corcoran transferred work from CAS to A-1 to be "untenable." ¹⁰

Upon review in this court, we found that the Board had, in effect, determined that the union had, by its acquiescence, foregone its statutory rights under § 8(a)(5). We were therefore disturbed by the Board's failure either (1) to apply the traditional rule that a union will not be held to have foregone a statutory right absent a "clear and unmistakable" waiver, or (2) to explain why it was not applying the traditional standard. We remanded to the Board for explanation and application of the proper legal standard.

II. THE BOARD'S SUPPLEMENTAL DECISION

In response to our remand, the Board issued a supplemental decision and order that essentially reaffirmed its previous opinion. The supplemental decision states that the "clear and unmistakable" waiver standard is inapplicable in this case because the crucial question is not whether the union waived its statutory rights, but whether it had any statutory rights in the first place. With regard to the extension of the bargaining agreement to the employees of A-1, the Board argues that the scope of bargaining units is subject to voluntary agreements between employers and union, and that Local 669's acquiescence in a bargaining unit limited to CAS employees was just such a voluntary agreement. A-1 Fire Protection, Inc., 250 N.L.R.B. 217, 220-21 (1980). The Board makes a similar argument with regard to the transfer of work. It suggests that a finding that an employer improperly transferred work from bargaining unit employees to employees of related companies requires a showing that the employer acted surreptitiously and unilaterally. The Board then states that

As indicated in the Board's original Decision, there is evidence that since 1975 the work of CAS decreased and that of A-1 increased. However, we will not assume from that alone, particularly in light of the Union's knowledge of Respondent's (sic) double-breasted operation, that Respondents transferred jobs from CAS employees represented by the Union to A-1 employees.

Id. at 219 (emphasis added). ¹¹

III. EXTENSION OF THE CAS CONTRACT TO A-1

Upon review of the Board's supplemental decision, we now believe that it has offered satisfactory grounds for finding that Local 669 did not have an independent statutory right to have its contract with CAS extended to the employees of A-1. There is no a priori way to determine whether A-1 and CAS constitute a single bargaining unit. Moreover, the fact that the two companies constitute a "single employer" does not in itself define them as a single bargaining unit. See South Prairie Construction Co. v. Local 627, International Union of Operating Engineers, 425 U.S. 800, 803-05, 96 S.Ct. 1842, 1843-44, 48 L.Ed.2d 382 (1976); NLRB v. Don Burgess Construction Corp., 596 F.2d 378, 386 (9th Cir.), cert. denied, 444 U.S. 940, 100 S.Ct. 293, 62 L.Ed.2d 306 (1979). In the past, both courts and the Board have recognized the bargaining history of an employer and a union as one of a number of factors that may be considered in determining the appropriate scope of a bargaining unit. See Local 627, International Union of Operating Engineers v. NLRB, 595 F.2d 844, 849 n.12 (D.C.Cir.1979); Sambo's Restaurants, Inc., 212 N.L.R.B. 788 (1974). Although it may be a close question, and although the Board's discussion of the issue is not ideal, the Board could reasonably have concluded in this case that the 1975 agreement between Local 669 and CAS weighed substantially in favor of the appropriateness of a bargaining unit limited to CAS employees. If the union had no independent statutory right to represent A-1 employees, the Board is correct that it need not inquire into whether the union has "waived" such a right.

Our affirmance of the Board on this one issue must, however, be read...