U.S. Mosaic Tile Co., Inc. v. N.L.R.B.

• Citation: 935 F.2d 1249
• Decision Date: 17 July 1991
• Docket Number: Nos. 90-8617,90-8757,s. 90-8617
• Parties: 138 L.R.R.M. (BNA) 2007, 119 Lab.Cas. P 10,874 U.S. MOSAIC TILE CO., INC., Williams Tile & Terrazzo Co., Inc., Petitioners, Cross-Respondents, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TILE, TERRAZZO & MARBLE CONTRACTOR ASSOCIATION OF ATLANTA & VICINITY and Williams Tile Company, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1249

935 F.2d 1249

138 L.R.R.M. (BNA) 2007, 119 Lab.Cas. P 10,874

U.S. MOSAIC TILE CO., INC., Williams Tile & Terrazzo Co., Inc., Petitioners, Cross-Respondents, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TILE, TERRAZZO & MARBLE CONTRACTOR ASSOCIATION OF ATLANTA &

VICINITY and Williams Tile Company, Respondents.

Nos. 90-8617, 90-8757.

United States Court of Appeals Eleventh Circuit.

July 17, 1991.

George K. McPherson, Jr. and Robert N. Godfrey, Smith, Currie & Hancock, Atlanta, Ga., for appellant.

McNeill Stokes, Frankel, Hardwick, Tanenbaum & Fink, P.C., Atlanta, Ga., for Williams Tile & Terrazo Co.

Frank B. Shuster, Blackburn, Shuster, King & King, Atlanta, Ga., for Tile, et al.

Aileen A. Armstrong and William M. Bernstein, Washington, D.C., for N.L.R.B.

Petition for Enforcement of an Order of the National Labor Relations Board (Georgia Case).

Petition for Review of an Order of the National Labor Relations Board (Georgia Case).

Before KRAVITCH and CLARK, Circuit Judges, and GODBOLD, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

This case arrives on our bench after the National Labor Relations Board ("Board") determined that certain construction industry employers had violated various fair bargaining provisions of the National Labor Relations Act ("Act"). The employers asked the Board to reconsider its decision, and the Board refused on the ground that the motion to reconsider raised an affirmative defense which properly should have been presented at an earlier stage of the proceedings. The employers petition that we review the Board's decision and the Board seeks enforcement. We hold that the Board acted within its discretion in determining that the employers failed to timely present their defense under section 8(f) of the Act, and that the Board properly determined that the employers violated the Act.

I

Petitioners Williams Tile & Terrazzo Co. and U.S. Mosaic Tile Co. (hereinafter "Williams" and "Mosaic" individually, "Employers" collectively) operate tile, terrazzo, marble and slate installation businesses. In 1983 the two companies formed the Tile Terrazzo & Marble Contractors Association of Atlanta & Vicinity (the "Association") which joins the petitioners in this action. Williams and Mosaic are the exclusive members of the Association. In 1983 the Association entered into a two-year collective bargaining agreement with Tile, Marble & Terrazzo Finishers and Shopmen, Local 167 (the "Union"); the agreement covered the period from October 1983 through September 1985. Prior to this agreement the Union had represented the employees of the companies for approximately seventeen years. The Association considered the Union to be the collective bargaining representative for all the employees involved in the tile construction work within the Union's jurisdiction.

In August 1985 the Union and the Association began bargaining for a new agreement. Although they held several bargaining sessions, the then current agreement expired on September 30 without the parties achieving a succeeding agreement. On November 12 the Association presented its final offer. That offer included a pay rate of $9.00 per hour, which was a reduction from the $10.59 rate under the prior agreement. The Union rejected the offer and negotiations ended. On November 19 the Union employees began a strike; the administrative law judge ("ALJ") later found the action to constitute an economic strike spawned by the wage issue. At some point during the last week of November, the Association terminated its contributions to the employees' fringe benefits fund. These contributions had been required by the expired contract, and the Association had not proposed terminating them during any of the negotiations. At the beginning of that final week in November, on Monday the 24th, approximately fifty-five of the employees returned to work. The various parties sharply contest the total number of employees who were considered within the "unit" of the Union from which the Association members could hire; the ALJ found the number to be over 100.

On December 20 the Union business manager, James Clowers, sent a letter to the chairman of the Association, Kenneth Williams, and a copy to Mosaic's Vice President Thrower. In this letter Clowers stated that the remaining employees were making an unconditional offer to return to work and to accept the $9.00 per hour pay rate. He also noted that the final agreement had to be ratified by the Union. The evidence regarding receipt of and responses to this letter was a source of much debate before the ALJ: Clowers stated that on December 27 Thrower informed him that the offer seemed satisfactory but that he had to consult Williams; Thrower disputed this, testifying that he never said the offer was acceptable and in fact he believed the offer was not unconditional because the Union had to ratify the agreement. Williams testified that he had not read the letter as of January 3 when Clowers reached him by telephone. When Williams spoke with Clowers on January 3, he told Clowers that he doubted that the Union had a majority of the employees under its control. Williams stated that this belief was partially a result of the fact that some employees had signed decertification petitions expressing their rejection of the Union.

After failing to receive an official response from the Association regarding the Union's offer, the Union sent another letter on January 28 informing the Association that the November settlement offer had been accepted as a contract by the Union members. Mosaic and Williams did in fact rehire several of the striking employees during January, February and March, but twelve of the strikers were not reinstated. The ALJ found that both companies hired other employees in lieu of reinstating the twelve strikers.

The Union eventually sought redress through the Board. On February 26 it filed charges against the Association alleging a refusal to bargain in good faith, a violation of section 8(a)(5) of the Act. ¹ On June 5 the Union also alleged that the Employers violated section 8(a)(3) by discriminatorily refusing to rehire and delaying in rehiring certain employee-strikers, and on June 25 it filed charges that the Association improperly stopped contributing to the fringe benefit funds in violation of section 8(a)(5). This latter charge was dropped on July 28; but at that time the former charges were amended to include the fringe benefit fund allegation. The Regional Director of the Board then consolidated these charges into a complaint on July 31. Hearings were held before the ALJ that September, and the ALJ issued his opinion on March 27, 1987. The ALJ concluded that the Association and Employers had violated the various provisions of the Act. The parties filed their exceptions and responses to the ALJ's report with the Board in May, and the Board affirmed the conclusions of the ALJ in December of 1987.

In January 1988 the Employers filed a motion with the Board for reconsideration, arguing, for the first time, that a recent opinion issued by the Board affected the case. The Employers urged the Board to reconsider its position in light of John Deklewa & Sons, 282 N.L.R.B. 1375 (1987), enf'd sub nom. Int'l Assn. of Bridge, Structural and Ornamental Iron Workers Local No. 3 v. NLRB, 843 F.2d 770 (3rd Cir.), cert. denied, 488 U.S. 889, 109 S.Ct. 222, 102 L.Ed.2d 213 (1988), in which the Board changed its interpretation of section 8(f) of the Act. ² The Employers argued that, under Deklewa 's new interpretation of section 8(f), the Union was not entitled to the presumption of majority status after expiration of the 1983-85 agreement. The Board denied the motion, asserting that the Employers were presenting an untimely affirmative defense under section 8(f) of the Act. Because Deklewa had been issued on February 20, 1987, the Board held that the Association should have pled any defenses based on that case prior to the Board's Final Order. The Employers then petitioned that we reverse the Board's Order, and the NLRB asked that we enforce that Order.

II

The parties present a bountiful bag of issues, including the applicability of Deklewa and an analysis of the facts under both pre-Deklewa and post-Deklewa law. Before we consider the full range of these issues we must determine whether the Board properly denied the Employers' attempt to argue Deklewa.

In their motion for reconsideration, petitioners asserted that the actions which were found to constitute a violation of the Act were permissible under the interpretation of the Act espoused in Deklewa. Because neither the Board nor the ALJ considered Deklewa in their decisions, argued the Employers, reconsideration was necessary. After a response by the Board's general counsel and a reply by the Employers, the Board denied the motion with the following statement:

We deny the Motion for Reconsideration because the Respondents [Employers] seek to raise a defense that is now untimely. The Respondents contend in their motion that this proceeding is now governed by the principles of Section 8(f) of the Act as set forth under Deklewa. Such a defense, however, was not raised by the Respondents in their exception to the decision of the administrative law judge. ³ In their exceptions and supporting brief, the Respondents failed to assert the existence of any issue under Section 8(f). Further, the Respondents did not refer to Deklewa, even though Deklewa had issued on February 20, 1987, prior to the administrative law judge's decision of March 25, 1987 in this proceeding. ⁴ Moreover, Deklewa already had issued over two months prior to the Respondent's (sic) filing of its (sic) exceptions and brief on May 4, 1987. Further, during the pendency of this case before the Board, between the filing of the exceptions and the issuance of the Decision and Order on December 17, 1987, the Respondents...