Advanced v. NLRB ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
__________________
Nos. 00-1069, 00-1393
__________________
Advanced Construction Services, Inc., *
*
Petitioner/Cross-Respondent, *
* On Petition for Review and
v. * Cross-Petition for Enforcement
* of an Order of the National
* Labor Relations Board.
National Labor Relations Board, *
*
Respondent/Cross-Petitioner. *
___________
Submitted: January 10, 2001
Filed: April 20, 2001
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Before RICHARD S. ARNOLD and BOWMAN, Circuit Judges, and KYLE,1 District
Judge.
___________
RICHARD S. ARNOLD, Circuit Judge.
Advanced Construction Services, Inc. (ACS), appeals from a decision of the
National Labor Relations Board. The Board held that ACS violated its duty to bargain
under 29 U.S.C. §§ 158(a)(1) and (5) by refusing to provide information to Local
No. 444 of the United Brotherhood of Carpenters and Joiners of America ("the Local").
1
The Hon. Richard H. Kyle, United States District Judge for the District of
Minnesota, sitting by designation.
It ordered ACS to provide the information and to post a standard notice informing its
employees of their collective-bargaining rights. ACS admits that it would have been
required to provide the information in question if it had been requested by the United
Brotherhood of Carpenters and Joiners of America ("the International"), with which it
had at least two collective-bargaining agreements (CBAs). Because we agree with the
Board that the CBAs support a right of inquiry in the Local, we enforce the order.
I.
The following findings of the Administrative Law Judge were adopted by the
Board. In mid-1995, the Local's business representative, R.L. Peterson, began trying
to persuade a company called Advanced Office Interiors ("Interiors") to recognize the
Local for construction jobs within the Local's jurisdiction. Interiors' management
declined to do so. In May of 1996, Mr. Peterson received information that Interiors
already had a collective-bargaining agreement with the International. When he
approached the company again, Interiors manager Richard Jensen told him that the
agreement was between the International and AOI, Inc., a different company. Mr.
Peterson began to investigate the two companies. He discovered that they had many
things in common, including not only the type of service they performed, but also
officers, shareholders, board members, and an address of record in Omaha, Nebraska.
He further discovered that on June 3, 1996, only a few weeks after his communications
with Jensen, AOI, Inc., had changed its name to Advanced Construction Services, Inc.2
(It is undisputed that Jensen was President of ACS at all times material to this litigation
and had also been President of AOI, Inc.) Mr. Peterson took photographs showing that
vehicles with vanity license plates bearing the letters "AOI" were parked at the offices
2
In September of that year, ACS entered into the collective-bargaining
agreements with the International under which the Local claims its right of inquiry
arises. The ALJ did not make any finding as to when Mr. Peterson learned of this.
Before the name change, AOI, Inc., had been party to CBAs with the International.
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of both ACS and Interiors, and that the logo of AOI, Inc., ACS's predecessor, was
displayed at Interiors' Omaha headquarters. He also obtained Interiors' employee
telephone book, which contained numbers for both ACS and Interiors employees.
Mr. Peterson inferred from these discoveries that ACS might be running what
is called an "open shop/closed shop" operation, in which an employer uses two
corporate identities to get the benefit of both union and non-union labor markets.3 On
the suspicion that Interiors was substantially the same employer as ACS (and therefore
subject to the same collective-bargaining obligations), he got in touch with Richard
Jensen again, this time by letter. The letter was delivered to Jensen, as President of
ACS, at Interiors' Omaha headquarters. Enclosed was a questionnaire seeking
information about the relationship between Interiors and ACS. Although Mr. Jensen
received the questionnaire, ACS never responded to it.
II.
"There can be no question of the general obligation of an employer to provide
information that is needed by [its employees'] bargaining representative for the proper
performance of its duties." N.L.R.B. v. Acme Industrial Co., 385 U.S. 432, 435-36
(1967); see also Brown Shoe Company v. N.L.R.B., 33 F.3d 1019, 1022 (8th Cir.
1994). In applying this general rule to the case at hand, two questions arise: whether
the Local was the bargaining representative for ACS's employees, and, if so, whether
the requested information was needed for collective-bargaining purposes. We will
enforce the Board's order if it correctly applied the law and if its findings are supported
3
The "open shop" refers to an employer that hires without regard to an
employee's union status, while the "closed shop" hires in accordance with a union
agreement, often through a union-operated hiring facility. The existence or legality of
such an operation is not before us.
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by substantial evidence in the record. See New World Communications v. N.L.R.B.,
232 F.3d 943, 945 (8th Cir. 2000).
ACS first argues that the Local is not the employees' bargaining representative
because it is not a signatory to the CBAs. The Board replies that, even so, the CBAs
contemplate that local affiliates will act as bargaining representatives. We agree with
the Board. The main CBA provides in relevant part as follows:
The Company [i.e., ACS] agrees to recognize the jurisdictional
claims of the UBCJA and to comply with the contractual wages, fringe
benefits, hours and other working conditions established between the
UBCJA affiliates and the employers or recognized employer agencies in
the localities in which the company does any work within the jurisdiction
of the UBCJA.
* * *
The UBCJA agrees to refer personnel to jobs upon a
nondiscriminatory basis, such referral to be made upon the request of the
Company who retains the right to reject or accept the applicants for
employment. The UBCJA affiliates having jurisdiction in the respective
areas of the performance of work will maintain appropriate
nondiscriminatory facilities for the registration and referral of personnel
possessing the skills required for the performance of work by the
Company. The Company agrees to use said facilities in filling job
vacancies on all projects.
JA II 177-78. The Local is something more than a third-party beneficiary of this
agreement. The agreement imposes upon the Local the duty to maintain a hiring hall
for the employer's use. Moreover, it contemplates that local affiliates will bargain with
employers to set the actual terms on which represented employees shall be employed.
The Local has both powers and duties under the contract, and its powers include at
least limited representation of employees.
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A second agreement, signed the same day, gives even stronger evidence of the
Local's capacity to bargain on behalf of ACS's employees. It provides that
Should any dispute or grievance arise under any of the terms of this
Agreement, the Employer [i.e., ACS] or his representative and the area
(Local Union, District or Provincial Council) union representative shall
meet or otherwise be in contact promptly to settle the dispute.
JA II 46. Only if the Local cannot resolve the dispute on behalf of the employees will
the International become involved. Id. at 46-47. We agree with the Board that, in
signing these agreements with the International, ACS agreed to treat local affiliates as
bargaining representatives for at least some purposes.
Howell Insulation Co., Inc., 311 N.L.R.B. 1355 (1993), is not to the contrary.
In that case, an employer entered into a CBA with an Alabama local affiliate of an
international union. The CBA included an extraterritoriality clause, which provided
that the employer would abide by other locals' area agreements when it undertook
projects in their jurisdictions. When a non-union company closely associated with the
employer took a job in Tennessee, the Tennessee local filed a grievance, claiming that
the non-union company operating in its jurisdiction was substantially the same
employer as the signatory to the Alabama local's CBA and was therefore bound by the
extraterritoriality clause. The Board held that, although the Tennessee local was a
third-party beneficiary of the Alabama local's CBA, it was not empowered to bargain
on behalf of the signatory company's employees and therefore lacked standing to file
a grievance. Here, as we have noted, the Local is more than a third-party beneficiary.
The International's agreement not only imposes duties upon the Local but also
specifically authorizes local union representatives such as Mr. Peterson to settle
disputes arising under the agreement.
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The present case also differs from Whisper Soft Mills, Inc. v. N.L.R.B., 754
F.2d 1381 (9th Cir. 1985). There, the Board had certified the International Ladies
Garment Workers Union (ILGWU) as the exclusive statutory bargaining representative
of Whisper Soft's production employees. The Pacific-Northwest Council of the
ILGWU conducted negotiations with Whisper Soft to resolve disputes that resulted in
a strike. Whisper Soft repeatedly made clear its concern that the Council did not
represent the ILGWU and stated that it would sign an agreement only with the statutory
bargaining representative. The Council, for its part, made clear that the ILGWU did
not want to sign an agreement for fear of incurring liability. When Whisper Soft
withdrew its recognition of the ILGWU, the Board claimed that Whisper Soft had
violated its duty to bargain with the Council. The Ninth Circuit disagreed, stating that
the company owed such a duty only to the ILGWU and not to its local affiliate, the
Council. Id. at 1385. The Whisper Soft court expressly recognized, however, that
even a certified bargaining representative may delegate bargaining authority to
"whomever it wants . . .." Id. at 1386. Although there is no issue of statutory
certification here, we think that the CBAs in this case would establish such a delegation
even if the International were otherwise the exclusive representative of ACS's
employees.
III.
The remaining question is whether the information requested was relevant to the
performance of the Local's bargaining duties. Under Board precedent, where a
bargaining representative seeks information concerning single-employer or alter-ego
status, the burden of establishing relevance is on the representative. Shoppers Food
Warehouse Corp., 315 N.L.R.B. 258, 259 (1994). The burden is carried if the union
"demonstrates a reasonable belief supported by objective evidence for requesting the
information." Id. The standard of relevance is liberal, like the standard used in
discovery under the Federal Rules of Civil Procedure. Brown Shoe Co., 33 F.3d 1019,
1022.
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The ALJ concluded, and the Board agreed, that the Local had a reasonable
belief, supported by objective evidence, that ACS and Interiors were alter egos. ACS
raises no doubts about that conclusion substantial enough to affect the result. It is true
that the ALJ's order could have been worded more accurately. The term "alter egos,"
in the jargon of labor law, names the relation between an employer and a substantially
identical corporate predecessor, where the change in corporate form is attributable to
anti-union animus. In contrast, if the companies are operated simultaneously rather
than successively, the term "single employer" would generally be used. No anti-union
animus need be shown in order to establish that two companies constitute a single
employer. See generally Iowa Express Distribution, Inc. v. N.L.R.B., 739 F.2d 1305,
1310 (8th Cir.), cert. denied, 469 U.S. 1088 (1984) (explaining distinction). Here,
however, this makes no difference, for the Local does not have the burden of proving
either theory in full. All it has to show is that it had good, fact-based reasons for
believing that the information requested would help it make "an intelligent appraisal,"
Acme Industrial Co., 385 U.S. at 438 n.8, of its right to hold Interiors to the terms of
ACS's collective-bargaining agreement. The facts Mr. Peterson discovered reasonably
support such a belief.
III.
For the reasons stated, the order of the National Labor Relations Board is
enforced.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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