Allied Mechanical Services, Inc. v. National Labor Relations Board , 668 F.3d 758 ( 2012 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 23, 2011 Decided February 17, 2012
No. 10-1328
ALLIED MECHANICAL SERVICES, INC.,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF
THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED
STATES AND CANADA, AFL-CIO, UNION LOCAL 357,
INTERVENOR
Consolidated with 10-1385
On Petition for Review and Cross-Application for
Enforcement of
Orders of the National Labor Relations Board
David M. Buday argued the cause for petitioner. With him
on the briefs was Keith E. Eastland.
2
Steven B. Goldstein, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the brief
were John H. Ferguson, Associate General Counsel, Linda
Dreeben, Deputy Associate General Counsel, and Robert J.
Englehart, Supervisory Attorney.
Tinamarie Pappas was on the brief for intervenor.
Before: KAVANAUGH, Circuit Judge, and EDWARDS and
SILBERMAN, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: This appeal focuses on
two Decisions and Orders issued by the National Labor
Relations Board (“the Board” or “the NLRB”): Allied
Mechanical Services, Inc., 341 N.L.R.B. 1084 (2004) (“Allied”),
and Allied Mechanical Services, Inc., 351 N.L.R.B. 79 (2007)
(“Allied Supp.”). Allied Mechanical Services, Inc. (“Allied” or
“the Company”) has petitioned for review to challenge certain
aspects of the Board’s actions, and the Board has cross-
petitioned for enforcement.
In Allied, the Board determined that the Company had
violated sections 8(a)(3) and 8(a)(1) of the National Labor
Relations Act (“the Act”), see 29 U.S.C. § 158(a)(3), (a)(1)
(2006), by refusing to consider and hire four job applicants
because of their union membership and by refusing to reinstate
ten strikers upon their unconditional offers to return to work.
The Company does not contest these determinations on appeal.
In Allied Supp., the Board found that Allied and Local
Union 357 of the United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL-CIO (“the Union” or “Local
357”) had a section 9(a) bargaining relationship, see 29 U.S.C.
§ 159(a) (2006), and that Allied therefore violated sections
3
8(a)(5) and (1) of the Act, 29 U.S.C. § 158(a)(5), (a)(1), by
unilaterally changing its job-application procedures, by refusing
to furnish information to the Union, and by withdrawing
recognition from the Union. The Board ordered Allied to cease
and desist from its unlawful activities and to recognize and,
upon request, bargain with the Union. Allied Supp., 351
N.L.R.B. at 82–87.
The principal question before the court is whether the
relationship between the Company and the Union – which has
extended over two decades – is governed by section 8(f), 29
U.S.C. § 158(f), or section 9(a) of the Act. Under sections 9(a)
and 8(a)(5), employers are obligated to bargain with unions that
have been “designated or selected for the purposes of collective
bargaining by the majority of the employees in a unit
appropriate for such purposes.” 29 U.S.C. § 159(a); see also id.§ 158(a)(5) (making it an unfair labor practice to refuse to
bargain with a union selected in accordance with section 9(a)).
“[S]ection 8(f) creates a limited exception to this majority
support requirement for the construction industry. Under this
exception, a contractor may sign a ‘pre-hire’ agreement with a
union regardless of how many employees authorized the union’s
representation.” Nova Plumbing, Inc. v. NLRB, 330 F.3d 531,
534 (D.C. Cir. 2003) (citation omitted). An employer is not
obliged to enter an 8(f) bargaining relationship. And if an
employer purports to enter an 8(f) relationship, but never
executes an agreement with the union, the employer is free to
withdraw from the relationship. In addition, “an employer may
refuse to bargain after a section 8(f) agreement expires because
the union enjoys no presumption that it ever had majority
support.” Id. (citation omitted). Allied contends that the
Company and the Union never entered into anything more than
an 8(f) relationship, from which the Company was free to
withdraw. We disagree.
We hold that substantial evidence in the record, reasoned
4
decisionmaking, and established case law support the Board’s
finding that Allied and the Union were parties to a 9(a)
bargaining relationship. In April 1990, the Union requested
recognition as the majority representative of Allied’s employees
and offered to give proof of its majority status. Allied declined
to recognize the Union. The Union then filed unfair labor
practice charges. In December 1990, the Board’s General
Counsel issued a Complaint against the Company. The
Complaint stated that the Union represented a majority of
Allied’s employees, and it sought a “Gissel bargaining order.”
See NLRB v. Gissel Packing Co., 395 U.S. 575, 614–15 (1969).
Rather than contest the Complaint, Allied signed an agreement
settling the matter. The settlement agreement provided that
Allied would recognize and bargain in good faith with the Union
as the exclusive collective bargaining representative of the unit
employees. The Board’s decision – that the circumstances
surrounding the execution of the settlement agreement, as well
as the agreement itself, established a 9(a) bargaining relationship
– is eminently reasonable. Finding no merit in Allied’s petition
for review, we hereby grant the Board’s cross-petition for
enforcement.
I. BACKGROUND
A. The Facts
Allied employs plumbers and pipefitters in southwestern
Michigan. The instant dispute arose in 1990, when Local 337
engaged in a campaign to organize Allied’s plumbing and
pipefitting employees. On April 24, 1990, Local 337 asserted to
Allied that the Union represented a majority of the Company’s
employees. The Union demanded that Allied recognize the
Union as the employees’ collective bargaining representative
and offered to give proof of its majority status to a third party.
The Company, however, declined to recognize the Union.
On December 13, 1990, in response to unfair labor practice
5
charges filed by the Union, the Board’s General Counsel issued
a Complaint against the Company. The Complaint stated that a
majority of Allied’s employees had designated the Union as its
collective bargaining representative through authorization cards,
and that Allied had committed serious violations of the Act
effectively undermining the Union’s status. See I Joint App.
(“J.A.”) 407–09. The Complaint sought a Gissel bargaining
order on the grounds that the Company’s unlawful conduct was
so serious and substantial in character that the possibility
of erasing the effects of these unfair labor practices and
of conducting a fair election after the use of traditional
remedies is slight and the employees’ sentiments
regarding representation, having been expressed through
authorization cards, would, on balance, be better
protected by the entry of a remedial order requiring
[Allied] as of April 24, 1990, to recognize and bargain
with the [Union] as the exclusive collective bargaining
representative of its [unit] employees . . . than by
traditional remedies.
Id. at 409. The Complaint further demanded that Allied
[r]ecognize and, upon request, bargain in good faith with
the [Union] as the exclusive collective bargaining
representative of the [unit] employees . . . respecting
rates of pay, wages, hours, and other terms and
conditions of employment; and if an understanding is
reached, embody it in a signed agreement.
Id. at 410.
In its answer to the Complaint, Allied stated that it had “no
factual basis upon which to admit or deny” that the Union
represented a majority of the employees in an appropriate
bargaining unit. The answer additionally demanded proof of the
Union’s majority status, and there is nothing to indicate that the
Company did not receive the proof. Instead, on July 30, 1991,
6
the Company signed a settlement agreement which was
approved by the Board’s Regional Director. The Complaint was
then withdrawn.
The agreement included a non-admission clause stating that
“[t]he Charged Party does not, by the execution of this
Agreement, admit that it has, in fact, violated the Act.” Id. at
417. More particularly, however, the settlement agreement
provided that Allied would
recognize and, upon request, bargain in good faith with
[the Union] as the exclusive collective bargaining
representative of the [unit] employees . . . with respect to
rates of pay, wages, hours, and other terms and
conditions of employee [sic], and if an understanding is
reached, embody it in a signed collective bargaining
agreement.
Id. at 419. There is nothing in the Board’s Complaint, Allied’s
responses to the Complaint, or the settlement agreement to
suggest that the Board, the Company, or the Union assumed that
the relationship between Allied and the Union was governed by
section 8(f).
During 1992 and 1993, ten Allied employees engaged in an
economic strike. See Allied Mech. Servs., Inc., 320 N.L.R.B. 32,
32 (1995), enforced 113 F.3d 623 (6th Cir. 1997) (“Allied
1995”). Nine of the strikers eventually made unconditional
offers to return to work, but Allied refused to reinstate them.
Charges were filed with the Board, and a Complaint was issued
against the Company. The Board found violations of sections
8(a)(3) and (1) of the Act, and ordered the Company to reinstate
and make whole the nine strikers. See id. at 33–34. On May 16,
1997, the Sixth Circuit enforced the Board’s order. Allied 1995,
113 F.3d at 624.
During the course of the Allied 1995 litigation, more
problems arose between the Company and the Union, giving rise
7
to further litigation. See Allied Mech. Servs., Inc., 332 N.L.R.B.
1600 (2001) (“Allied 2001”). The Union again filed unfair labor
practice charges, and a Complaint was issued, alleging that
Local 337 had been the section 9(a) representative of Allied’s
unit employees since the 1991 settlement, and that Allied had
committed multiple violations of the Act. Allied denied both
that Local 337 was the section 9(a) representative of its
employees and that it had violated the Act.
The decision of the Administrative Law Judge (“ALJ”) in
Allied 2001 stated that the Union was the “certified”
representative of Allied’s employees. Id. at 1600 n.1, 1607,
1608, 1611. Allied filed an exception and argued before the
Board that, while it had “voluntarily recognized the Union”
pursuant to the 1991 settlement agreement, there was “no
evidence to support the Union being a Section 9(a) or a certified
bargaining representative of the employees” of Allied. I J.A.
192, 221–23.
The Board found, inter alia, that Allied had violated section
8(a)(5) of the Act, see Allied 2001, 332 N.L.R.B. at 1601, but
made no explicit finding as to whether the parties’ relationship
was governed by section 8(f) or section 9(a). The parties dispute
whether collateral estoppel bars Allied from now arguing that it
was in an 8(f) relationship with the Union: The Board argues
that the decision in Allied 2001 was necessarily predicated on a
finding of a section 9(a) relationship, see Resp’t’s Br. at 53–56;
Allied counters that collateral estoppel does not apply here, see
Pet’r’s Br. at 17. In light of the decision that we reach in this
case, it is unnecessary for us to resolve the parties’ dispute over
collateral estoppel. The Board’s decision in Allied 2001 is
currently on appeal, so we will have nothing further to say about
the matters at issue in that case.
On March 1, 1998, the United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL-CIO, merged Local 337 with
8
Local 513 to create Local 357. Local 337 was then succeeded
by Local 357.
B. The Instant Litigation
During 1998, Allied declined to offer ten strikers
reinstatement, despite their unconditional offers to return to
work. The Company also declined to hire four job applicants
because of their union membership. The Board found that this
conduct violated sections 8(a)(3) and 8(a)(1) of the Act. Allied,
341 N.L.R.B. at 1084–85; Allied Supp., 351 N.L.R.B. at 79.
Allied does not contest these findings.
Allied also does not dispute having engaged in other
conduct during 1998, the legality of which turns on the nature of
the relationship governing the parties. First, in June 1998, the
Union requested information from Allied, which Allied supplied
only in part. Allied Supp., 351 N.L.R.B. at 81. Second, in July
1998, Allied withdrew recognition from the Union. Id. Finally,
in August 1998, Allied revised its job-application procedure to
require applicants to apply in person at its office in Kalamazoo,
Michigan, without providing notice to the Union. Id.
In June 1999, the Board issued the instant Complaint.
Allied, 341 N.L.R.B. at 1089. On February 8, 2000, the ALJ
concluded, inter alia, that (1) Allied’s relationship with the
Union was governed by section 8(f); (2) Because Local 337’s
members had not been given the opportunity to vote on the
merger, Local 357 did not succeed to Local 337’s bargaining
rights; and (3) Allied had bargained for a reasonable period of
time as required by the 1991 settlement. See id. at 1098–99.
However, the ALJ found that Allied had violated the Act by
refusing to reinstate strikers and by refusing to hire job
applicants because of their union membership. Id. at 1125.
In 2004, the Board found that Local 357 did not succeed to
Local 337’s bargaining rights pursuant to the merger. The
Board, therefore, concluded that Allied was not required to
9
bargain with Local 357. Id. at 1084. The Board declined to
determine whether the relationship between Allied and the
Union was governed by section 8(f) or section 9(a). Id. at
1084–85.
In 2007, the Board issued a Supplemental Decision and
Order revising its initial decision. Relying on Raymond F.
Kravis Center for the Performing Arts, 351 N.L.R.B. 143(2007), enforced 550 F.3d 1183 (D.C. Cir. 2008), the Board
found that the absence of a vote on the merger did not permit
Allied to withdraw recognition, see Allied Supp., 351 N.L.R.B.
at 80. The Board also determined that Allied had a section 9(a)
bargaining relationship with the Union, because (1) the 1991
agreement and extrinsic evidence indicated as much, and (2)
Allied 2001 collaterally estopped the Company from arguing
otherwise. Id. at 82–84. The Board thus determined that Allied
had violated the Act when it unilaterally changed its application
procedure, refused to furnish information to the Union, and
withdrew recognition from the Union. See id. at 84.
On May 30, 2008, a two-member Board denied Allied’s
motion for reconsideration. Allied Mech. Servs., Inc., 352
N.L.R.B. 662 (2008). Allied petitioned this court for
review. On June 17, 2010, the Supreme Court issued its
decision in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635(2010), making it clear that a panel of the Board must “maintain
a membership of three in order to exercise the delegated
authority of the Board,” id. at 2644. This court then remanded
the case for further proceedings before the Board. See Allied
Mech. Servs., Inc., 356 N.L.R.B. No. 1 (Oct. 14, 2010). On
remand, a properly constituted panel of the Board ruled that,
“[h]aving considered [Allied’s] motion for reconsideration and
the parties’ briefs, the Board has decided to deny the motion for
reconsideration for the reasons set forth in the Order reported at
352 NLRB 662 (2008), which is incorporated herein by
reference.” Id. Allied then filed the instant petition for review.
10
II. ANALYSIS
A. Standard of Review
This court reviews the Board’s factual findings for
substantial evidence, upholds the Board’s application of law to
facts “unless arbitrary or otherwise erroneous,” N.Y. &
Presbyterian Hosp. v. NLRB, 649 F.3d 723, 729 (D.C. Cir.
2011) (citations omitted) (internal quotation marks omitted), and
gives “substantial deference” to inferences the Board draws
from the facts, Halle Enters., Inc. v. NLRB, 247 F.3d 268, 271
(D.C. Cir. 2001) (citation omitted) (internal quotation marks
omitted). Furthermore, where “‘the statute is silent or
ambiguous with respect to the specific issue, the question for the
court is whether the [Board’s] answer is based on a permissible
construction of the statute.’” NLRB v. United Food &
Commercial Workers Union, Local 23, 484 U.S. 112, 123
(1987) (quoting Chevron U.S.A. Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 843 (1984)); see also Hammontree
v. NLRB, 925 F.2d 1486, 1491 (D.C. Cir. 1991) (en banc).
The “function of striking [the] balance to effectuate national
labor policy is often a difficult and delicate responsibility, which
the Congress committed primarily to the National Labor
Relations Board, subject to limited judicial review.” ABC, Inc.
v. Writers Guild, 437 U.S. 411, 431 (1978) (alteration in
original) (citations omitted) (internal quotation marks omitted);
see also NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775,
786 (1990) (“This Court has emphasized often that the NLRB
has the primary responsibility for developing and applying
national labor policy.” (citations omitted)); Exxel/Atmos, Inc. v.
NLRB, 28 F.3d 1243, 1249 (D.C. Cir. 1994) (“It is up to the
Board, not the courts, to make labor policy.” (citation omitted)).
Therefore, we must accord considerable deference to policy
judgments of the Board. See Curtin Matheson, 494 U.S. at 786;
Pittsburgh Press Co. v. NLRB, 977 F.2d 652, 662 (D.C. Cir.
1992) (“We are mindful of the deference we owe the Board’s
11
expertise and judgment . . . .” (citation omitted)).
B. Summary Enforcement of the Board’s Findings of
8(a)(3) and 8(a)(1) Violations
Because Allied does not contest the Board’s determinations
that it violated sections 8(a)(3) and (1) by refusing to reinstate
ten strikers and hire four union applicants, we summarily
enforce the Board’s findings and order on these charges. See
Grondorf, Field, Black & Co. v. NLRB, 107 F.3d 882, 885 (D.C.
Cir. 1997); Int’l Union of Petroleum & Indus. Workers v. NLRB,
980 F.2d 774, 778 n.1 (D.C. Cir. 1992).
C. Bargaining Relationships Under Sections 9(a) and 8(f)
Under section 9(a), a union that has been “designated or
selected for the purposes of collective bargaining by the
majority of the employees in a unit appropriate for such
purposes, shall be the exclusive representative[] of all the
employees in such unit for the purposes of collective bargaining
in respect to rates of pay, wages, hours of employment, or other
conditions of employment.” 29 U.S.C. § 159(a). Section
8(a)(5) makes it an unfair labor practice for an employer “to
refuse to bargain collectively with the representative[] of [its]
employees, subject to the provisions of [section 9(a)].” 29
U.S.C. § 158(a)(5). And section 8(a)(1) makes it an unfair labor
practice for an employer “to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in [section
7].” See id. § 158(a)(1); id. § 157 (2006).
The Board explained the principal differences between
sections 8(f) and 9(a) as follows:
Section 8(f) . . . permits unions and employers in the
construction industry to enter into collective-bargaining
agreements without the union having to establish that it
has the support of a majority of the employees in the
covered unit. The provision therefore creates an
12
exception to Section 9(a)’s general rule requiring a
showing of majority support of unit employees for the
union. Section 8(f) also creates an exception to the
general rule that an employer and a union lacking
majority support of unit employees commit unfair labor
practices by entering into a bargaining relationship with
respect to those employees.
. . . [A]n 8(f) relationship may be terminated by
either the union or the employer upon the expiration of
their collective-bargaining agreement. By contrast, a
9(a) relationship (and the associated obligation to
bargain) continues after contract expiration, unless and
until the union is shown to have lost majority support.
Similarly, an 8(f) contract does not bar a representation
petition under Section 9, while a contract made with a
9(a) representative does bar such a petition.
Allied Supp., 351 N.L.R.B. at 81 (citations omitted) (quoting
Madison Indus. Inc., 349 N.L.R.B. 1306, 1307 (2007)).
It is undisputed that companies and unions in the
construction industry may be parties to section 9(a) bargaining
relationships. See, e.g., M & M Backhoe Serv., Inc. v. NLRB,
469 F.3d 1047, 1050 (D.C. Cir. 2006). Indeed, the Board has
made it clear that “unions [do not] have less favored status with
respect to construction industry employers than they possess
with respect to those outside the construction industry.” John
Deklewa & Sons, Inc., 282 N.L.R.B. 1375, 1387 n.53 (1987),
enforced sub nom. Int’l Ass’n of Bridge, Structural &
Ornamental Iron Workers, Local 3 v. NLRB, 843 F.2d 770 (3d
Cir. 1988). However, bargaining relationships in the
construction industry are presumed to be covered by section
8(f). Any party who asserts that a company and union in the
construction industry are parties to a section 9(a) relationship
carries the burden of proving it. Deklewa, 282 N.L.R.B. at 1385
n.41.
13
In Staunton Fuel & Material, Inc., d/b/a Central Illinois
Construction, 335 N.L.R.B. 717 (2001), the Board held that,
when a union and employer execute a collective bargaining
agreement that appears to convert an 8(f) bargaining relationship
into a 9(a) bargaining relationship,
[a] recognition agreement or contract provision will be
independently sufficient to establish a union’s 9(a)
representation status where the language unequivocally
indicates that (1) the union requested recognition as the
majority or 9(a) representative of the unit employees; (2)
the employer recognized the union as the majority or 9(a)
bargaining representative; and (3) the employer’s
recognition was based on the union’s having shown, or
having offered to show, evidence of its majority support.
Id. at 719–20 (footnote omitted). However, the Board’s decision
in Central Illinois was called into question by this court’s
decision in Nova Plumbing, Inc. v. NLRB:
Section 8(f) represents a real benefit to both employers
and unions in the construction industry, allowing them to
establish bargaining relationships without regard to a
union’s majority status. But the Board cannot, as it did
here and in Central Illinois, allow this relatively
easy-to-establish option to be converted into a section
9(a) agreement that lacks support of a majority of
employees. Otherwise the Board would be giving
employers and unions “the power to completely frustrate
employee realization of the premise of the Act – that its
prohibitions will go far to assure freedom of choice and
majority rule in employee selection of representatives.”
330 F.3d at 537 (quoting Int’l Ladies’ Garment Workers’ Union
v. NLRB, 366 U.S. 731, 738–39 (1961)).
Nova Plumbing rests on a simple principle: An employer
and union in the construction industry are not free to “convert”
14
an 8(f) relationship into a 9(a) bargaining relationship “that
lacks support of a majority of employees.” Id. at 537. Nova
Plumbing recognizes, however, that “[contract language and
intent] are perfectly legitimate factors that the Board may
consider in determining whether the Deklewa presumption has
been overcome.” Id. (citation omitted). “Standing alone
. . . contract language and intent cannot be dispositive at least
where . . . the record contains strong indications that the parties
had only a section 8(f) relationship.” Id. (emphasis added).
“A union can achieve the [section 9(a)] status of a
majority collective bargaining representative through either
Board certification or voluntary recognition by the
employer – in a contract, for example.” Kravis, 550 F.3d at
1188 (citation omitted). In addition, the Board can order an
employer to bargain with a union as a remedy for the employer’s
unfair labor practices, where there is a “showing that at one
point the union had a majority,” and the Board finds that “the
possibility of erasing the effects of past practices and of ensuring
a fair election . . . by the use of traditional remedies, though
present, is slight and that employee sentiment once expressed
through cards would, on balance, be better protected by a
bargaining order.” Gissel, 395 U.S. at 614–15; see also United
Dairy Farmers Coop. Ass’n v. NLRB, 633 F.2d 1054, 1067 (3d
Cir. 1980) (“[T]he Supreme Court in Gissel . . . held that Section
9(a)’s requirement that representatives be ‘designated or
selected’ by a majority of the employees did not preclude
determination of majority will by means other than elections.
The Court explicitly recognized the authority of the Board to
issue a bargaining order . . . .” (citation omitted)).
Once a union achieves section 9(a) status, an employer
will be found to have violated section 8(a)(5) if it breaches its
duty to bargain with the union, fails to provide information
necessary for the union to act as the employee representative, or
15
unilaterally changes conditions of employment. See M & M
Backhoe, 469 F.3d at 1051.
If an employer and union convert from an 8(f) to a 9(a)
bargaining relationship based on the union’s offer to provide
evidence of its majority status, the employer cannot thereafter
withdraw from the relationship “solely because the employer
never took the union up on its offer.” Id. So long as the union
had evidence to support its majority status, the employer is not
free to walk away from the 9(a) relationship. “To rule otherwise
would be to allow the employer to frustrate the employees’
section 7 rights by turning its back to the union’s evidence.” Id.(citing Gissel, 395 U.S. at 596–98).
Allied’s claim in this case is quite simple. The Company
does not appear to dispute that if it was in a 9(a) bargaining
relationship with the Union, the unfair labor practices found by
the Board would justify a Gissel bargaining order. Rather,
Allied argues that it had nothing more than an 8(f) relationship
with the Union and, therefore, it was free to withdraw
recognition. Allied thus essentially concedes that the nature of
the relationship between the Company and Union determines the
outcome of this case.
D. The Nature of the Relationship Between Allied and
the Union
1. The Scenario Painted by the Facts in This Case
Before assessing the parties’ positions regarding the
nature of the relationship between Allied and the Union, it is
important to point out that the circumstances that gave rise to the
dispute in Nova Plumbing are not presented in this case. Nova
Plumbing involved “a construction company’s refusal to extend
its contract with a labor union.” Nova Plumbing, 330 F.3d at
533. The Board found that the parties’ collective bargaining
agreement was governed by section 9(a), not section 8(f). In
reaching this conclusion, “the Board relied solely on a contract
16
provision suggesting that the company and the union intended
a 9(a) relationship despite strong record evidence that the union
may not have enjoyed majority support as required by section
9(a).” Id. The situation in this case is quite different.
Before the Company signed the 1991 settlement
agreement, the Union and Allied had not established an 8(f)
relationship through the execution of a pre-hire agreement or a
collective bargaining contract. Rather, the dispute in this case
arose when the Union claimed that it represented a majority of
the employees, offered to prove its majority status, and
demanded that Allied recognize the Union as the employees’
collective bargaining representative. After Allied refused to
bargain, the Union filed unfair labor practice charges. The
Board’s General Counsel then issued a Complaint asserting that
the Union had established its majority status through
authorization cards. The Complaint sought a Gissel bargaining
order, which is a remedy for a refusal to bargain in situations
covered by section 9(a).
Rather than litigate the unfair labor practice charges that
had been filed against it, Allied signed a settlement agreement,
in which it agreed to recognize and bargain with the Union. The
Board then relied on both “the relevant extrinsic evidence” and
the settlement agreement in determining that Allied and the
Union had a 9(a) relationship. Allied Supp., 351 N.L.R.B. at 82.
2. The Evidence Supporting the Board’s Finding of
a 9(a) Relationship Between Allied and the
Union
Allied’s principal claim is that the 1991 settlement
agreement created a bargaining relationship under section 8(f).
We reject this claim as utterly implausible. The Board’s
General Counsel could not have premised the Complaint against
Allied on a charge that the Company had violated section 8(f).
Section 8(f) merely permits unions and employees in the
17
construction industry to enter into collective bargaining
agreements without the union’s having to establish that it has the
support of a majority of the employees in the covered unit. If a
union and an employer enter into an 8(f) relationship and
execute an agreement, the contract may be terminated by either
party upon expiration. However, neither an employer nor a
union is ever obliged to enter into an 8(f) relationship, and
neither an employer nor a union is obliged to renew an 8(f)
agreement. In this case, Allied had no obligations whatsoever
under section 8(f), because the Union and the Company had no
8(f) agreement in place.
The settlement agreement had nothing to do with
establishing a section 8(f) relationship, nor did the Complaint it
settled allege a violation of section 8(f). Put simply, the 1991
settlement agreement resolved a Complaint that was premised
on the assumption that the employer was obligated to bargain
with a union that had majority status, and thus should be in a
section 9(a) relationship with the employer. As the Board said:
“[A] settlement agreement establishing only an 8(f) relationship
would make little sense, as it would bear no relationship to the
allegations of the complaint” it settled. Allied Supp., 351
N.L.R.B. at 82. The non-admission clause contained in the 1991
agreement does not refute these premises; it merely provides
that by executing the agreement, Allied was not admitting to
having violated the Act. Allied specifically agreed to recognize
and bargain with the Union without any section 8(f) caveats.
Furthermore, on the record here, the Board’s decision
clearly rests on a showing of union support among a majority of
employees in an appropriate unit, as required by Nova Plumbing.
Allied points to M & M Backhoe in support of its argument that
the Union’s majority status was not established. M & M Backhoe
states: “We held in Nova Plumbing that an offer of proof could
not substitute for actual proof.” 469 F.3d at 1050. We think
that this statement is dicta, both because it reflects an
18
overreading of Nova Plumbing and it is unnecessary to the
decision in M & M Backhoe. The precise holding of Nova
Plumbing is that an employer and union in the construction
industry are not free to “convert” an 8(f) relationship into a 9(a)
bargaining relationship “that lacks support of a majority of
employees.” 330 F.3d at 537. That standard has been met here.
As noted above, in the instant case, the Union requested
recognition as the majority representative of Allied’s employees
and offered to give proof of its majority status. The Complaint
stated that the Union represented a majority of Allied’s
employees, and it sought a Gissel bargaining order. Indeed, the
Complaint explicitly states that employee sentiments had been
expressed “through authorization cards.” I J.A. 409. Allied
demanded proof of the Union’s majority status, and there is
nothing to indicate it did not receive such proof. Instead, the
Company signed an agreement settling the unfair labor practice
charges pending against the Company. On these facts, the Board
reasonably found an 8(a)(5) violation and issued a Gissel
bargaining order.
Allied argues that “even if the July 1991 settlement could
be considered evidence of majority support, the Union’s April
24, 1990 demand letter offering to make the required showing
preceded the parties’ agreement by more than fourteen months,”
thus precluding it from being considered a contemporaneous
showing of majority support. Pet’r’s Br. at 41. We agree with
the Board, however, that “the very premise of a Gissel
bargaining order is that, because of the employer’s unfair labor
practices, it is likely that the union will not be able to show that
it has maintained its majority at the time the Board’s remedies
are implemented.” Resp’t’s Br. at 53; see Gissel, 395 U.S. at612–14. The settlement agreement parrots the language of
Gissel, showing that Allied’s agreement to bargain with the
Union was predicated on the previous existence of majority
status. See Gissel, 395 U.S. at 614 (allowing the Board to order
an employer to bargain with a union as a remedy for the
19
employer’s unfair labor practices where there is, inter alia, a
“showing that at one point the union had a majority”).
The settlement agreement surely was not a full collective
bargaining agreement or a section 8(f) pre-hire agreement, as
Allied contends. It was, instead, merely a promise by the
employer to recognize and bargain with the Union with the aim
of reaching a collective bargaining agreement. Nor was the
1991 agreement ever understood to be a collective bargaining
agreement of any sort. In fact, it was the absence of a collective
bargaining agreement that resulted in the various work
stoppages that occurred after the settlement agreement was
executed. As the Sixth Circuit noted in enforcing the Board’s
order in Allied 1995, Allied employees had struck in 1992 and
1993 “to protest the Company’s . . . failure to negotiate a
contract with the Union.” Allied 1995, 113 F.3d at 627. If the
1991 agreement had been understood to constitute a collective
bargaining agreement, those employees would have had no need
to strike for one in the years following it.
Allied argues that the settlement agreement was sufficient
to satisfy the terms of section 8(f), simply because it was an
“agreement.” See Pet’r’s Br. at 52–53. This is a specious claim.
The reference to “agreement” in section 8(f) has been
understood to mean pre-hire agreements or complete collective
bargaining agreements – i.e., agreements that specify terms and
conditions of hire and employment. See Bufco Corp. v. NLRB,
147 F.3d 964, 966 n.2 (D.C. Cir. 1998) (“The collective
bargaining agreements were pre-hire agreements negotiated
under § 8(f) of the National Labor Relations Act, 29 U.S.C. §
158(f).”); Donald Schriver, Inc. v. NLRB, 635 F.2d 859, 873
(D.C. Cir. 1980) (“[A]n § 8(f) prehire agreement[ is] the
standard means of initiating collective bargaining in the
construction industry.” (footnote omitted)); see also, e.g., Nat’l
Treasury Emps. Union v. Fed. Labor Relations Auth., 452 F.3d
793, 794 (D.C. Cir. 2006) (noting the “collective bargaining
20
agreement” at issue “govern[ed] the terms and conditions of
employment”). The 1991 agreement contained no such
provisions – to the contrary, it provided that the parties would
bargain “with respect to rates of pay, wages, hours, and other
terms and conditions of employ[ment].” I J.A. 419.
Finally, Allied attempts to derive significance from the
fact that on June 1, 1995, the Union made a written proposal for
a contract with a section 8(f) recognition clause. The Union’s
demand for section 8(f) status during collective bargaining four
years after the 1991 settlement agreement, however, surely does
not indicate that the 1991 agreement was a section 8(f)
agreement. As the Board said:
Local 337’s written proposal, in subsequent contract
negotiations, for an 8(f) recognitional clause sheds little
light on the nature of the relationship created under the
settlement agreement, as the record does not reveal Local
337’s reasons for offering this proposal, and parties
routinely offer concessions in negotiations to obtain other
desired benefits. Moreover, any probative value of this
contract proposal is largely negated by the fact that Local
337 also made a request, albeit orally, for 9(a)
recognition during negotiations.
Allied Supp., 351 N.L.R.B. at 83 n.19.
E. The Board’s Judgment Is Consistent with Nova
Plumbing
Allied contends that the court’s decision in Nova
Plumbing precludes enforcement of the Board’s decision here.
We disagree. As noted above, the record in this case is
materially different from the record in Nova Plumbing. First,
there are no “strong indications that the parties had only a
section 8(f) relationship.” Nova Plumbing, 330 F.3d at 537.
Quite the contrary.
21
Second, the Board’s decision in this case does not
implicate Nova Plumbing’s broader concern about the
possibility of employer-union collusion. This concern is
inapposite here. The 9(a) relationship between Allied and the
Union is predicated on a Board-approved settlement agreement
that resolved a Gissel Complaint. The NLRB Regional
Director’s approval of the settlement agreement protected
against the kind of collusion that might be present in a private-
settlement scenario.
Finally, “[b]efore the General Counsel issues a
complaint, he [or she] conducts an investigation in order to
ascertain, analyze, and apply the relevant facts. According to
the Board’s regulations, a complaint will issue only if the charge
appears to have merit. If investigation reveals that there has
been no violation of the Act or evidence is insufficient to
substantiate the charge, no complaint will issue.” See Davis
Supermarkets, Inc. v. NLRB, 2 F.3d 1162, 1179 (D.C. Cir. 1993)
(citations omitted) (internal quotation marks omitted). We
presume “that agency officials and those who assist them have
acted properly.” United Steelworkers v. Marshall, 647 F.2d
1189, 1217 (D.C. Cir. 1980) (as amended Jan. 30, 1981)
(citation omitted); see also La. Ass’n of Indep. Producers &
Royalty Owners v. FERC, 958 F.2d 1101, 1119 (D.C. Cir. 1992)
(per curiam) (“Under the well-settled presumption of
administrative regularity, courts assume administrative officials
to be men [and women] of conscience and intellectual discipline,
capable of judging a particular controversy fairly on the basis of
its own circumstances.” (alteration in original) (citation omitted)
(internal quotation marks omitted)); Braniff Airways, Inc. v.
Civil Aeronautics Bd., 379 F.2d 453, 460 (D.C. Cir. 1967) (“A
strong presumption of regularity supports the inference that
when administrative officials purport to decide weighty issues
within their domain they have conscientiously considered the
issues and adverted to the views of their colleagues.” (citations
omitted)). It is therefore unlikely – and even illogical – to
22
suppose that the Board’s General Counsel would have asserted
that a majority of Allied’s unit employees had designated the
Union as their representative through authorization cards, and
that a Gissel bargaining order was necessary to remedy the
Company’s unfair labor practices, without first investigating the
Union’s claim of majority status and satisfying itself that a
Gissel bargaining order was appropriate.
Allied’s claims to the contrary are entirely unconvincing.
The employer knew that it could seek proof of the Union’s
majority status, did so, and never claimed that the proof was not
forthcoming before signing the settlement agreement. With so
many safeguards in place, we cannot conclude that the potential
for collusion was afoot. In short, we find that the concern raised
by the court in Nova Plumbing has no play in this case.
F. Deference Is Due to the Board’s Judgment in This
Case
Substantial evidence review “gives the agency the benefit
of the doubt, since it requires not the degree of evidence which
satisfies the court that the requisite fact exists, but merely the
degree which could satisfy a reasonable factfinder.” Allentown
Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 377 (1998)
(citation omitted). And it does not allow a court to “supplant the
agency’s findings merely by identifying alternative findings that
could be supported by substantial evidence.” Arkansas v.
Oklahoma, 503 U.S. 91, 113 (1992); see also Robinson v. Nat’l
Transp. Safety Bd., 28 F.3d 210, 215 (D.C. Cir. 1994)
(explaining that an agency decision “may be supported by
substantial evidence even though a plausible alternative
interpretation of the evidence would support a contrary view”
(citations omitted) (internal quotation marks omitted)).
Substantial evidence supports the Board’s determination that,
based on “the relevant extrinsic evidence” and the settlement
agreement, Allied and the Union had a 9(a) relationship. Allied
Supp., 351 N.L.R.B. at 82.
23
First, as noted above, the Board’s General Counsel could
not have premised the Complaint that was issued against Allied
on a charge that Allied had violated section 8(f), because the
Union and employer had no section 8(f) agreement in
place. The Complaint and its settlement implicated section 9(a),
not section 8(f).
Second, the record supports the General Counsel’s
assertion that the Union had achieved majority status. On April
24, 1990, the Union asserted to Allied that it represented a
majority of the Company’s plumbing and pipefitting employees,
and demanded that Allied recognize the Union as the
employees’ bargaining agent. The Company refused the
Union’s demand. The Complaint filed against Allied
specifically alleged that on or about April 24, 1990, a majority
of Allied’s plumbing and pipefitting employees had designated
the Union as their exclusive collective bargaining representative
through authorization cards. Allied neither admitted nor denied
the Board’s allegation of majority support, based on an asserted
lack of “factual basis.” I J.A. 413. In other words, by its answer
to the Complaint, Allied essentially conceded that it had no basis
upon which to dispute the Board’s claim of majority status.
Finally, the Board reasonably rejected Allied’s claim that
Allied could withdraw from its 9(a) relationship with the Union
because it had bargained for a reasonable time. On this point,
the Board found
that the Respondent was not free to withdraw recognition
simply because it had bargained with Local 337 for a
reasonable period of time. Because the Respondent had
recognized and agreed to bargain with Local 337 under
a settlement agreement, Local 337 possessed an
irrebutable presumption of majority status for a
reasonable period of time. Although the reasonable
period had expired by the time that the Respondent
withdrew recognition, that fact alone did not privilege the
24
Respondent’s withdrawal of recognition. Rather, at that
point, the presumption of majority support became
rebuttable. Under the law at the time that the Respondent
withdrew recognition, the Respondent could rebut the
presumption of majority support and withdraw
recognition by showing either that the Union had actually
lost the support of a majority of the bargaining unit
employees or that the employer had good-faith doubt or
uncertainty, based on objective considerations, of the
Union’s continued majority status.
The Respondent failed to make such a showing.
Allied Supp., 351 N.L.R.B. at 84 (footnotes omitted).
In sum, the record in its entirety makes it clear that the
Board’s judgment in this case easily survives substantial
evidence review.
Administrative decisions by the Board demand a “very
high degree of deference.” United Steelworkers of Am., Local
Union 14534 v. NLRB, 983 F.2d 240, 244 (D.C. Cir. 1993).
Therefore, we must uphold the Board’s finding that the Act has
been violated, unless its adjudication “‘has no rational basis’ or
is ‘unsupported by substantial evidence.’” Bally’s Park Place,
Inc. v. NLRB, 646 F.3d 929, 935 (D.C. Cir. 2011) (quoting
United Mine Workers of Am., Dist. 31 v. NLRB, 879 F.2d 939,
942 (D.C. Cir. 1989)). “[T]he Board is to be reversed only when
the record is so compelling that no reasonable factfinder could
fail to find to the contrary.” Bally’s, 646 F.3d at 935 (citation
omitted) (internal quotation marks omitted). Where, as here, the
Board disagrees with the ALJ, “the standard of review with
respect to the substantiality of the evidence does not change,”
because “in the end it is the Board that is entrusted by Congress
with the responsibility for making findings under the statute.”
Id. at 935 n.4 (citation omitted) (internal quotation marks
omitted).
25
In examining specifically whether a section 8(f) or 9(a)
relationship was present, our inquiry is whether the Board’s
conclusion was “reasonable.” See Kravis, 550 F.3d at 1189(deferring to the Board’s finding of section 9(a) status where the
Board “reasonably” reached its conclusion); see also NLRB v.
Local Union No. 103, Int’l Ass’n of Bridge, Structural &
Ornamental Iron Workers, 434 U.S. 335, 350 (1978) (“The
Board’s resolution of the conflicting claims in this case
represents a defensible construction of the statute and is entitled
to considerable deference. Courts may prefer a different
application of the relevant sections, but ‘[t]he function of
striking that balance to effectuate national labor policy is often
a difficult and delicate responsibility, which the Congress
committed primarily to the National Labor Relations Board,
subject to limited judicial review.’” (alteration in original)
(citations omitted)). Given the circumstances recited above,
there is little doubt that we owe deference to the Board’s
judgment in this case.
III. CONCLUSION
More than twenty years ago, Allied asked for proof of
majority status, then, via agreement, settled a Complaint seeking
a Gissel bargaining order. Allied agreed to bargain based on the
premise of a section 9(a) relationship. Years later, the Company
asserted that it had nothing more than a section 8(f) relationship
with the Union. Given the settlement agreement and the context
in which it was executed, the Board’s rejection of Allied’s
claims are well founded and deserve our deference.
Accordingly, we deny Allied’s petition for review and grant the
Board’s cross-petition for enforcement.