United Food and Commercial Workers Intern. Union Local No. 576, AFL-CIO v. N.L.R.B., AFL-CI

• Decision Date: 02 April 1982
• Docket Number: AFL-CI,P,No. 80-2254,80-2254
• Citation: 675 F.2d 346
• Parties: 109 L.R.R.M. (BNA) 3185, 218 U.S.App.D.C. 327, 93 Lab.Cas. P 13,378 UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION LOCAL NO. 576,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 346

675 F.2d 346

109 L.R.R.M. (BNA) 3185, 218 U.S.App.D.C. 327,

93 Lab.Cas. P 13,378

UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION LOCAL NO. 576, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 80-2254.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 21, 1981.

Decided April 2, 1982.

Petition for Review of an Order of the National Labor relations board.

Beth Shulman, Washington, D. C., for petitioner. George R. Murphy, Benson, N. C., Robert E. Funk, Jr., Kansas City, Kan., and Robert L. Kimbrough, Topeka, Kan., were on the brief, for petitioner.

Steven Fetter, Atty., N. L. R. B., of the Bar of the Supreme Court of New York, Pro Hac Vice by special leave of Court, Washington, D. C., with whom Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., was on the brief, for respondent. Paul Spielberg, Atty., N. L. R. B., Washington, D. C., also entered an appearance for respondent.

Before TAMM, Circuit Judge, McGOWAN, Senior Circuit Judge and BRYANT ^*, Senior District Court Judge for the District of Columbia Circuit.

Opinion for the Court filed by Senior Circuit Judge McGOWAN.

McGOWAN, Senior Circuit Judge:

This direct review of a National Labor Relations Board finding of an unfair labor practice by a picketing union presents the question of whether the Board erred in refusing to entertain a defense based upon evidence that the General Counsel had previously considered in refusing, at the union's request, to issue an unfair labor practice complaint against the employer. For the reasons hereinafter appearing, and by reference to the precise circumstances of this case, we hold that the Board's action did not give the union the opportunity to defend itself contemplated by the National Labor Relations Act.

I

United Food and Commercial Workers International Union ("Union") petitions for review, and the National Labor Relations Board ("Board") cross-petitions for enforcement, of a Board order finding that the Union engaged in recognitional picketing in violation of section 8(b)(7)(C) of the National Labor Relations Act ("Act"), 29 U.S.C. § 158(b)(7)(C) (1976), and ordering the Union to cease and desist from that activity. In the unfair labor practice proceeding that led to the challenged order, the Union sought to introduce evidence that the picketed employer was in reality an alter ego of, a joint employer with, or a successor of another employer with whom the Union had a collective bargaining agreement covering the employees in question. This showing, the Union contended, would form a complete defense to the complaint, because recognitional picketing is permissible if the picketing union "is currently certified as the representative" of the picketed employer's employees. Id. § 158(b)(7).

An administrative law judge ("ALJ") refused to hear evidence on, or otherwise consider, this defense because the Union had earlier filed an unfair labor practice charge, dismissed by the General Counsel for insufficient evidence, advancing the same alter ego and joint employer theories. Repeating what he considered to be a firmly settled Board position, the ALJ stated that admitting the evidence would violate the General Counsel's "final authority" under section 3(d) of the Act, 29 U.S.C. § 153(d) (1976), "in respect of the investigation of charges and issuance of complaints." Two members of a three-member Board panel agreed with this reasoning and adopted in full the ALJ's decision and order. Chairman Fanning dissented, however, arguing that under the Act the Union had to be given the chance to present its defense, and that hearing the defense would not encroach on the General Counsel's authority.

The Union's arguments on appeal echo the views of Chairman Fanning, and include also the contention that the exclusion violated the due process guarantees of the Constitution. We need not discuss the latter point because we conclude that the exclusion contravened basic requirements of the Act itself. Accordingly, we set aside the Board's order and remand to allow the Union a chance to make its defense.

II

At the time of the relevant events, the Union was the incumbent collective bargaining representative of the meat department employees of George Muelbach & Sons, Inc. ("Muelbach"). The collective bargaining agreement covered Muelbach employees at three locations, and was due to expire on April 5, 1980. Sometime in early 1979, Muelbach learned that its lease at one store location would not be renewed after the lease's termination on January 31, 1980. Around March 1979, R & F Grocers, Inc., was established and began operating a grocery store, known as "Muelbach West," near the location of the store whose lease was set to expire. R & F was primarily owned and operated by two sons of the principal owner of Muelbach.

On May 30, 1979, the Union filed an unfair labor practice charge against "George F. Muelbach & Sons Super Markets and its alter ego and/or joint employer R & F Grocery, Inc. d/b/a Muelbach West," J.A. 74, alleging violations of sections 8(a)(1), 8(a)(3), and 8(a)(5) of the Act, 29 U.S.C. §§ 158(a)(1), 158(a)(3), 158(a)(5) (1976). The common thread to all the charges was the Union's view that R & F was merely an alter ego of, or joint employer with, Muelbach, and therefore was obligated to abide by the terms of the existing bargaining agreement between the Union and Muelbach.

The acting regional director dismissed the charge on July 6, 1979, J.A. 75, and the Union appealed to the Board's Office of Appeals. By letter dated October 12, 1979 the General Counsel denied the appeal, explaining that "it could not be established that Muelbach West is an alter ego or joint employer with Respondent." J.A. 78. Because the General Counsel's decision is not a judicially reviewable one, the Union's effort to initiate an unfair labor practice proceeding was at an end.

The Union, however, then began to picket R & F on January 7, 1980. In response, R & F filed on February 6, 1980, J.A. 3, an unfair labor practice charge alleging a violation of section 8(b)(7)(C), 29 U.S.C. § 158(b)(7)(C) (1976), ¹ which prohibits a union from engaging in what is commonly known as "recognitional picketing" when the union has not filed an election petition within a reasonable period of time, not to exceed thirty days, from the start of the picketing. The acting regional director issued a complaint on the charge, and noticed a hearing to begin on March 20, 1980. J.A. 4.

At that hearing, the parties did not dispute the presence of several key elements of a section 8(b)(7)(C) violation. The picketing had lasted more than thirty days, no election petition had been filed, and the Union admitted that an object of the picketing was "forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees," 29 U.S.C. § 158(b)(7) (1976). No violation of section 8(b)(7)(C) occurs, however, if the union is picketing for continued recognition, ALJ Decision, J.A. 18, or is "currently certified as the representative of (the picketed employer's) employees," 29 U.S.C. § 158(b)(7) (1976), and upon these conditions the Union based its defense. Arguing that R & F was merely an alter ego of or joint employer with Muelbach, the Union reasoned that its position as the bargaining representative of Muelbach employees also gave it status as the certified representative of R & F employees. ²

Counsel for the General Counsel moved to strike the defense and prevent the Union from introducing any evidence in support of it. The Union, argued the General Counsel, had advanced the same theory in the charge filed against R & F, and the General Counsel had dismissed that charge for insufficient evidence; the Union, so it was said, could not resurrect the contention in the unfair labor practice proceeding brought against itself. Transcript, J.A. 42-43. The ALJ concluded that Board precedent accorded with the General Counsel's position, and therefore barred the Union's defense. Id., J.A. 52-54.

The ALJ's decision discussed how the Union's evidence could have related to proof of a section 8(b)(7)(C) violation. First, he observed that an incumbent union can lawfully picket for continued recognition; the section proscribes only picketing that seeks to force an employer's initial recognition of a union. If R & F were shown to be merely a continuance of Muelbach, thought the ALJ, the Union perhaps could avail itself of this incumbency rationale. ALJ Decision, J.A. 18. Second, the ALJ noted that the Union was trying to disprove an element essential to any section 8(b)(7) violation, namely, the requirement that the picketing union not be "currently certified as the representative of such employees." Id., J.A. 19. Although the ALJ did not rule that the Union would have succeeded ³ on either theory, he apparently thought that both rationales were potential defenses to a section 8(b)(7)(C) charge. ⁴

The ALJ nonetheless refused to consider the Union's evidence or arguments because the General Counsel had earlier dismissed the Union's charges presenting those contentions. Admission of the defense, according to Board precedent, would violate the General Counsel's "final authority," under section 3(d) of the Act, 29 U.S.C. § 153(d) (1976), "in respect of the investigation of charges and issuance of complaints." The ALJ therefore found that the Union had violated section 8(b)(7)(C), and issued a decision and a recommended cease and desist order on June 2, 1980. After considering the Union's exceptions to the ALJ's decision, two members of a three-member Board panel affirmed his findings, rulings, and conclusions, and adopted his recommended order. Board Decision, J.A. 31-32. Chairman Fanning dissented, however, arguing that admission of the defense was "imperative" under the Act and would not impinge on the General Counsel's authority. Id., J.A. 33 (Fanning,...