Wilson and Sons Heating and Plumbing, Inc. v. N.L.R.B.

Decision Date07 August 1992
Docket NumberNo. 91-1308,91-1308
Citation971 F.2d 758
Parties140 L.R.R.M. (BNA) 3042, 297 U.S.App.D.C. 295, 122 Lab.Cas. P 10,293 WILSON AND SONS HEATING AND PLUMBING, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtU.S. Court of Appeals — District of Columbia Circuit

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

Anna K. Holmberg, Ithaca, N.Y., for petitioner.

David A. Seid, Attorney, N.L.R.B., with whom Jerry M. Hunter, General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Linda Dreeben, Supervisory Attorney, Washington, D.C., were on the brief, for respondent.

Before: SILBERMAN, BUCKLEY and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILLIAMS.

STEPHEN F. WILLIAMS, Circuit Judge:

The principal claim here arises out of a special provision of the National Labor Relations Act relating to the construction industry. Section 8(f), 29 U.S.C. § 158(f) (1988), permits construction employers and unions to enter into collective bargaining agreements before the union has established its majority status. Under the Board's decision in John Deklewa & Sons, Inc., 282 NLRB 1375 (1987), aff'd sub nom. International Ass'n of Bridge, Structural and Ornamental Iron Workers, Local 3 v. NLRB, 843 F.2d 770 (3d Cir.1988), an employer violates §§ 8(a)(1) and 8(a)(5), 29 U.S.C. §§ 158(a)(1) and 158(a)(5), which bar anti-union coercion and refusals to bargain, if it repudiates a § 8(f) agreement before it expires. Once it does expire, however, the union enjoys no presumption of majority status, so either party may freely repudiate the § 8(f) relationship at any time. Deklewa, 282 NLRB at 1386-87. At that point the employer is no longer subject to a duty to bargain. See Bentson Contracting Co. v. NLRB, 941 F.2d 1262, 1269 (D.C.Cir.1991).

Here the Board found that petitioner Wilson and Sons, a family-run residential and commercial heating and plumbing business, violated the Act by refusing to bargain with the union and by negotiating directly with its single employee at the time, John Gould. That decision rested on a finding that Wilson, which was bound by a letter of assent to a one-year master agreement between the union and an employers' association, was also bound for another year by an automatic renewal clause in the master agreement, even though the association had prevented automatic renewal as to itself by giving suitable notice and negotiating a new agreement. As we find that the master agreement's renewal clause was not enough to bind Wilson for another year under the circumstances, we grant Wilson's petition for review and deny the Board's cross-application for enforcement. 1 We also find for Wilson on the case's narrower issues.

* * * * * *

Between 1976 and 1984 Wilson signed successive letters of assent binding it to each of a series of area-wide collective bargaining agreements (typically for a one-year term) between the union, United Association of Plumbers, Pipefitters and Apprentices, Local 109, and an employers' association, the Mechanical Contractors of South Central New York. Wilson has never been a member of the association. The 1983-84 agreement, for which Wilson signed a letter of assent on October 28, 1983, by its terms ran until May 31, 1984. Article IV provided for automatic renewal:

Section 2: It is understood and agreed that articles and or sections of these working rules will not be changed before the termination of this Agreement and that if either of the parties hereto desire to make changes in this Agreement, the party desiring such changes, shall make a request therefore in writing, of the other party, three (3) months before the termination of this Agreement, and all Conferences and negotiations shall be settled, and Agreement signed by Employer and Union thirty (30) days before termination of the Agreement.

Section 3: This Agreement shall automatically be renewed from year to year after its expiration date, unless either of the parties hereto request a change therein before the termination hereof, as above provided.

On June 1, 1984 Louis Haller, the union's business manager, asked Charles Wilson whether the company was planning to sign a letter of assent to the new association contract, which was to be in effect from June 1, 1984 to May 31, 1985. Haller said that if Wilson did not sign the parties would have no contract, so he would probably withhold the services of Wilson's one employee at the time, John Gould. On June 4 Haller brought over the letter and asked Charles Wilson to sign, but he refused. That day Gould did not report to work because Haller had told him he couldn't unless Wilson signed a new contract. Gould was offered a job with another union contractor, but he turned it down and approached the Wilsons to negotiate employment directly with them; he and the Wilsons reached agreement on June 7 and he resumed work.

On June 12 Haller called Charles Wilson and said that because of the automatic renewal clause he now thought that the company did have a contract with the union. He also sent a letter along the same lines, but the company did not respond.

After a decision by an administrative law judge that was mooted by the Board's decision in Deklewa, and a remand by the Board for reconsideration in light of Deklewa, the ALJ found that Wilson's repudiation of the contract, and its bargaining with Gould, were unfair labor practices. The Board affirmed. Wilson & Sons Heating & Plumbing, Inc., 302 NLRB No. 126 (1991) ("NLRB Decision "). It assumed that the company was bound by the automatic renewal provision in the master agreement, noted that the company had not given the required three-months notice of intent to modify, and concluded that the contract had renewed for an additional one-year term on May 31, 1984. Id., slip op. at 2-3. Chairman Stephens dissented on this aspect of the case, reasoning that

an employer who does nothing more than sign a letter of assent to be bound by a master agreement negotiated by an employer association should not be found to have agreed to automatic renewal of the original agreement when (1) the signatory parties to the master agreement have themselves forestalled renewal by giving notice to terminate and negotiating new terms for a successor agreement, and (2) the letter of assent itself contains no terms concerning duration of the agreement.

Id., dissent at 1 (emphasis in original).

In contrast to the substantial deference accorded the Board's fact findings, policy decisions, and choice of remedies, we give its interpretation of a contract "no particular deference", Retail Clerks International Ass'n Local No. 455 v. NLRB, 510 F.2d 802, 805 (D.C.Cir.1975), but determine the meaning of the contract independently. See Litton Financial Printing Division v. NLRB, --- U.S. ----, ---- - ----, 111 S.Ct. 2215, 2223-24, 115 L.Ed.2d 177 (1991); Local Union 1395, International Brotherhood of Electrical Workers v. NLRB, 797 F.2d 1027, 1030-31 (D.C.Cir.1986).

The language of the master agreement is inconclusive. Article IV refers to possible requests to amend by "either of the parties hereto", seeming to allude specifically to the association and the union--technically the parties to the agreement. But as a matter of pure language this could encompass all parties who either signed the contract itself or letters of assent adopting its terms. (The letter of assent refers to the association contract by date and says that the company "agrees to adhere to and be bound by all the terms thereof, as well as revisions and amendments adopted pursant [sic] thereto".) But not only was Wilson not a member, but the association itself negotiated a new contract for 1984-85, so the 1983-84 one did not renew as to the association or its members. It would surely be anomalous to bind the company to the terms of an agreement that no longer existed, see NLRB Decision, Stephens dissent at 1, especially as Wilson's past letters of assent presumably reflected a notion that its labor costs would likely remain competitive if its labor relations were no more onerous than its competitors'. That premise would obviously be undone if the association members secured a new agreement more favorable than the old while Wilson remained tied to the old. 2

Although this structural anomaly may well be enough for us to conclude that the documents compel the company's reading, in light of the linguistic ambiguity we press on to examine the extrinsic evidence. Compare Local Union 1395, 797 F.2d at 1036 (considering extrinsic evidence even where contract's language seemed plain); Cities of Bethany v. FERC, 727 F.2d 1131, 1144 (D.C.Cir.1984) ("parties' course of performance under a contract may give meaning to otherwise unclear contract terms"), with American Postal Workers Union v. United States Postal Service, 940 F.2d 704, 707-08 (D.C.Cir.1991) ("In the absence of ambiguity in the collective bargaining agreement ... we have no cause to examine extrinsic evidence of the parties' intent.").

The company and the union appear to have construed both the 1982-83 and 1983-84 contracts as terminating on their expiration dates, even though both contained identical automatic renewal clauses. In June 1983, at the end of the 1982-83 agreement, the company refused for months to sign a letter of assent binding it to the newly completed 1983-84 master agreement, but nonetheless began to comply with the wage rates and benefit terms of the new contract--rather than continuing to observe the terms of the old one as if it had automatically renewed. Further, when the company finally signed a letter of assent in October 1983, it was acting in response to the threat by the union agent, Haller, to "pull our men" unless he signed--a threat in turn based on Haller's view that no contract existed between the parties.

The parties' conduct at the end of the 1983-84 agreement...

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