Terrace Gardens Plaza, Inc. v. N.L.R.B.
| Decision Date | 09 August 1996 |
| Docket Number | No. 95-1084,95-1084 |
| Citation | 91 F.3d 222 |
| Parties | 153 L.R.R.M. (BNA) 2073, 319 U.S.App.D.C. 418, 65 USLW 2176, 132 Lab.Cas. P 11,633 TERRACE GARDENS PLAZA, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
James S. Frank argued the cause for petitioner, with whom Steven M. Post, New York City, was on the brief.
William A. Baudler, Attorney, National Labor Relations Board, argued the cause for respondent, with whom Linda R. Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Peter D. Winkler, Supervisory Attorney, Washington, DC, were on the brief.
Before: GINSBURG, ROGERS and TATEL, Circuit Judges.
In an election supervised by the National Labor Relations Board, the employees of Terrace Gardens Plaza, Inc. (TGP or the Company), chose Local 32B-32J of the Service Employees International Union (Local 32) as their collective bargaining representative. TGP agreed to meet and confer with Local 32 for the purpose of negotiating a collective bargaining agreement (CBA). The Company insisted, however, that it reserved the right to seek judicial review of the Union's certification by the Board rather than be bound by the outcome of the negotiations. Local 32 charged TGP with refusing to bargain in good faith, in violation of § 8(a)(5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(5). The Board agreed and ordered TGP to bargain. The Company now petitions for review and the Board cross-applies for enforcement of the bargaining order.
TGP argues that: (1) the Board wrongfully adopted a per se rule that an employer's reservation of its right to judicial review of a union's certification constitutes a refusal to bargain; (2) the Board's certification of Local 32 was barred by a contract already negotiated and implemented, albeit unsigned, between TGP and another union; and (3) in certifying Local 32 the NLRB hearing officer should not have considered the incumbent union's disclaimer of interest in continuing to represent TGP's employees.
We agree with the Board that TGP refused to bargain in good faith when it insisted upon reserving its right to challenge the Union's certification during or after engaging in negotiations. We further hold that the Board's rule that an unsigned contract is not a bar to the conduct of a representation election is both rational and consistent with the NLRA. Therefore, we do not consider the Company's objections to the Board's reliance upon the incumbent union's disclaimer of interest.
TGP, a cooperative housing corporation employing approximately 14 maintenance and building service workers, had a CBA with Local 670 of the Stationary Engineers, Firemen, Maintenance and Building Service Union (Local 670) from May 1989 through January 1992. In May 1992 the parties reached full agreement on a new 34-month contract. Both parties implemented the new agreement but Local 670 never signed it.
In June 1992 TGP filed an unfair labor practice charge against Local 670 for refusing to sign the agreement. The Regional Director of the NLRB found that Local 670, in order to comply with a decision of the "umpire" under the "no-raid" provision of the AFL-CIO constitution, had disclaimed any further interest or willingness to represent TGP's employees and hence refused to sign the agreement, in violation of §§ 8(b)(3) and 8(d) of the NLRA, 29 U.S.C. §§ 158(b)(3), 158(d). The Regional Director decided not to seek a remedy for this "technical" violation, however, in view of Local 670's disclaimer and Local 32's having meanwhile petitioned the Board to conduct a representation election. The Regional Director concluded that seeking remedial action, which would delay processing Local 32's petition, "would not effectuate the policies of the Act."
At a hearing on Local 32's representation petition, TGP asserted that its unsigned contract with Local 670 was a bar to an election. The hearing officer, sua sponte, entered into evidence a telefax copy of Local 670's disclaimer of interest. The Company objected that it had never seen the disclaimer, which was dated June 15, 1992 but bore a facsimile transmission date of November 4, 1992; that no one had authenticated the document; and that TGP was not given an opportunity to cross-examine a witness regarding the circumstances of its creation. Despite TGP's objections, the Regional Director ordered that an election be held. In dismissing TGP's contract bar argument, he concluded that even if Local 670 had unlawfully refused to execute an agreement it had reached with the Company, "in view of [the] subsequent disclaimer [Local 670] was directed to submit under the no-raid procedures of the AFL-CIO, I would find such disclaimer to effectively remove the contract as a bar." The Board thereafter denied the Company's request for review, noting that "there is no signed contract that may act as a bar to the [election] petition."
In a January 1994 election TGP employees voted 14-0 in favor of Local 32. Counsel for the Union then wrote the Company asking to set a date for the opening of negotiations. TGP's counsel responded by letter, as follows:
While Terrace Gardens continues to believe that the NLRB erroneously certified Local as the bargaining representative of its employees and will seek judicial review thereof at the appropriate time; if there are matters that you care to discuss with me or if you have a proposal to resolve the outstanding issues between our respective clients, please provide me with a proposal or agenda and I will give your proposal my immediate attention.
In response to a second letter from Local 32, counsel for TGP wrote:
I will be happy to discuss any outstanding issues which may exist between our respective clients at a time and location that we may mutually agree upon.
In regard to any discussions which take place, any conclusions or agreements will have to be made subject to the final judgment of the federal courts as to which labor organization actually is the representative of our client's employees (should that remain unresolved after our discussions) and the other issues that are outstanding in regard to the NLRB proceedings.
Rather than answer TGP's second letter, the Union charged the Company with refusing to bargain in good faith, in violation of § 8(a)(5) of the NLRA. The Board so held, giving rise to the present petition for review and the Board's cross-application for enforcement.
Our review of the Board's unfair labor practice finding is for substantial evidence in the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88, 71 S.Ct. 456, 464-65, 95 L.Ed. 456 (1951). We will uphold the NLRB if its conclusions are based upon reasonable inferences drawn from the facts as it found them. Peoples Gas System, Inc. v. NLRB, 629 F.2d 35, 42 (D.C.Cir.1980). Our review of a Board rule of general application, such as the contract bar rule (although adopted in an adjudication rather than a rulemaking proceeding), is "for consistency with the Act, and for rationality." Beth Israel Hosp. v. NLRB, 437 U.S. 483, 501, 98 S.Ct. 2463, 2473, 57 L.Ed.2d 370 (1978).
We take up first the Board's finding that TGP refused to bargain in good faith with Local 32. Then we examine TGP's attempt to invoke the contract bar rule and the Board's refusal to consider an unsigned contract as a bar to the conduct of an election.
Under § 8(a)(5) of the NLRA, it is an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees." 29 U.S.C. § 158(a)(5). Under § 8(d), the employer and its employees have a mutual obligation "to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment." 29 U.S.C. § 158(d). TGP insists that its willingness to meet and discuss any and all issues with Local 32 was unequivocal. Because counsel for TGP wrote, however, that "any conclusions or agreements will have to be made subject to the final judgment of the federal courts as to which labor organization actually is the representative of our client's employees," the Board concluded that TGP had in effect refused to bargain.
TGP characterizes the Board's position as a per se rule against an employer reserving "its statutory right, pursuant to § 10(f) [of the NLRA, 29 U.S.C. § 160(f),] to seek judicial review of the Board's certification of a union as the exclusive bargaining representative of its employees"; the only way for an employer to avoid violating § 8(a)(5) is to waive its right to review, either expressly or implicitly, by agreeing unconditionally to be bound by the negotiations. The Company protests that it "can't win: if it fails to seek review of the Board's order, the 'refusal to bargain' finding remains unchallenged; and if it seeks review of all the bases for that charge, then the Board will urge that seeking such review itself shows that Terrace Gardens never intended to bargain."
TGP's supposed quandary reflects a fundamental misunderstanding of the statutory scheme. A Board order directing that an election be held, or thereafter certifying the prevailing union as the representative of the employees, is not final agency action subject to judicial review under § 10(f). Boire v. Greyhound Corp., 376 U.S. 473, 476-77, 84 S.Ct. 894, 896-97, 11 L.Ed.2d 849 (1964). Judicial review is available only if the employer refuses to bargain and is found, in a final order of the Board, to have violated § 8(a)(5). See, e.g., American Fed'n of Labor v. NLRB, 308 U.S. 401, 409, 60 S.Ct. 300, 304, 84 L.Ed. 347 (1940). The employer may then petition the court of appeals for review and argue the invalidity of the...
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