-
USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 91-1905
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
AUCIELLO IRON WORKS, INC.,
Respondent.
____________________
ON APPLICATION FOR ENFORCEMENT OF AN ORDER OF
THE NATIONAL LABOR RELATIONS BOARD
____________________
Before
Selya, Circuit Judge, _____________
Campbell, Senior Circuit Judge, ____________________
and Keeton,* District Judge. ______________
____________________
John D. O'Reilly, III, with whom O'Reilly & Grasso was on brief ______________________ __________________
for respondent.
Collis Suzanne Stocking with whom Jerry M. Hunter, General _________________________ _________________
Counsel, D. Randall Frye, Acting Deputy General Counsel, and Aileen A. _______________ _________
Armstrong, Deputy Associate General Counsel, were on brief for _________
petitioner.
____________________
July 21, 1995
____________________
____________________
*Of the District of Massachusetts, sitting by designation.
CAMPBELL, Senior Circuit Judge. Several years ago, ____________________
the National Labor Relations Board ("the Board") petitioned
this court for enforcement of an order it had issued against
Auciello Iron Works, Inc. ("the Company") pursuant to 10(e)
of the National Labor Relations Act, 29 U.S.C. 160(e)
("NLRA"). We affirmed, in large part, the Board's decision
underlying the order. NLRB v. Auciello Iron Works, Inc., 980 ____ _________________________
F.2d 804 (1st Cir. 1992). However, while retaining
jurisdiction, we declined to enforce the order and remanded
to the Board for further consideration of an issue which we
found the Board to have inadequately addressed. The Board
has now, at long last, responded by issuing a comprehensive
supplemental decision and order addressing the problems
raised in our opinion. Auciello Iron Works, Inc., 317 ___________________________
N.L.R.B. No. 60 (1995). Pursuant to our invitation, both
parties have commented on the Board's opinion. We now grant
the Board's petition for enforcement of its order.
The Board issued its original order upon concluding
that the Company had committed an unfair labor practice in
refusing to negotiate with the Shopmen's Local Union No. 501,
a/w International Association of Bridge, Structural and
Ornamental Iron Workers (AFL-CIO) ("the Union"), a union
certified to be the exclusive collective bargaining
representative for a number of the Company's employees.
Auciello Iron Works, Inc., 303 N.L.R.B. 562 (1991). During __________________________
-2-
negotiations for a new collective bargaining agreement, the
Union had accepted one of the Company's outstanding
proposals.1 The Company, however, subsequently refused to
sign an agreement based on that proposal and withdrew its
recognition of the Union.
In concluding that the Company had thereby
committed an unfair labor practice, the Board affirmed the
administrative law judge's refusal to consider the Company's
defense that, at the time the Union accepted the Company's
contract proposal, the Company entertained a good-faith doubt
of the Union's majority status. The Board thus refused to
allow the Company to present evidence that the Union in fact
lacked majority support at the time it accepted the Company's
outstanding offer. In a footnote to its summary opinion, the
Board wrote:
We agree . . . that under established
Board precedent, once the Board finds
that the parties have reached a binding
collective-bargaining agreement, it is
unnecessary to consider the issue of a
respondent's alleged good-faith doubt of
the union's majority status. Belcon, _______
Inc., 257 N.L.R.B. 1341, 1346 (1981); North ____ _____
Bros. Ford, 220 N.L.R.B. 1021, 1022 (1975). __________
Auciello Iron Works, Inc., 303 N.L.R.B. 562, 562 n.2 (1991). _________________________
____________________
1. In opposition to the petition for enforcement, the
company challenged the continuing availability, and the
subsequent acceptance, of its proposal. In our previous
opinion, we affirmed the NLRB's finding that the proposal was
still open and that the union had accepted it. Auciello, 980 ________
F.2d at 808-09.
-3-
Unsatisfied with the Board's brief treatment of
this issue, we remanded for further consideration. Although
we recognized that Board precedents clearly barred employers
from raising a good-faith doubt about a union's majority
status arising from events occurring after the parties _____
reached an agreement, see, e.g., North Bros. Ford, Inc., 220 ___ ____ ______________________
N.L.R.B. 1021, 1022 (1975), we found it less clear that such
a prohibition extended to bar good-faith doubts arising from
events occurring before the parties reached an agreement. We ______
thus objected to the Board's casual extension of the
"contract bar rule" to pre-agreement doubts about majority
status, without any reasoned policy analysis to support that
extension. We were further troubled by the fact that neither
party had addressed the Seventh Circuit's decision in Chicago _______
Tribune Co. v. NLRB, 965 F.2d 244 (7th Cir. 1992), which was ___________ ____
handed down prior to oral argument in this case and which
reached a result at odds with the Board's conclusion.
Unlike the Seventh Circuit, however, we did not
undertake to pass ultimate judgment on the appropriateness of
the Board's policy judgment. We noted instead that the Board
"has the chief responsibility for developing coherent and
correct labor negotiation rules" and that the question "calls
for the Board's reasoned application of its expertise."
Auciello, 960 F.2d at 812, 813. We therefore remanded to the ________
-4-
Board, ordering it to "revisit, clarify, and explain the
principles that it thinks apply in the present
circumstances." Id. at 812. ___
The Board has responded with a thorough
supplemental decision in which it affirms its earlier
conclusion, namely, that an accepted offer bars an employer
from later raising, as a defense to an unfair labor practice
charge, a good faith doubt about the union's majority status
arising out of events occurring prior to the acceptance of
the offer. Auciello Iron Works, Inc., 317 N.L.R.B. No. 60 __________________________
(1995). Now, however, the Board has for the first time
articulated the policy considerations underlying its rule,
weighing both the advantages and disadvantages of varying
rules in the specialized collective bargaining context. The
Board found that the policies underlying the relevant
provisions of the NLRA and earlier Board precedents supported
extending the contract-bar rule to cover good faith doubts
arising from events occurring prior to the acceptance. In
particular, the Board found that the rule furthered the
policy of preserving stable bargaining relationships and did
not undermine the policy of preserving the workers' freedom
to choose their own representatives. Pursuant to our remand,
the Board also considered the Seventh Circuit's opinion in
Chicago Tribune, concluding that it was inconsistent with the _______________
policies underlying the NLRA.
-5-
As earlier stated, the Board's policy judgments on
this type of question are entitled to substantial deference
from the courts. "Especially as the relevant principles here
are informed less by statutes than by Board policies set out
in its decisions, the area is one where the Board's presumed
expertise is key." Auciello, 960 F.2d at 812. The public, ________
the bar, the parties, and the courts are entitled, however,
to have the Board's key rulings supported by "articulate,
cogent, and reliable analysis." Id. at 813 (citations ___
omitted). Having at last the benefit of the Board's
explanation, we are now satisfied, as we were not before,
that the Board's decision is amply supported by rational
application of its expertise. While the question is perhaps
close, the Board's policy choice is reasonable and, as now
articulated, quite persuasive. The Board's choice falls well
outside the sphere of arbitrariness that might tempt us to
substitute our own judgments for the Board's expertise on a
question like this. See Fall River Dyeing & Finishing Corp. ___ ___________________________________
v. NLRB, 482 U.S. 27, 42 (1987) ("If the Board adopts a rule ____
that is rational and consistent with the Act, then the rule
is entitled to deference from the courts.")
We accordingly accept the Board's ruling that,
absent exceptional circumstances2, an employer is barred in
____________________
2. The Company seeks to bring this case within the
exception set forth in the Board's opinion for cases in which
a company's good faith doubt arises simultaneously with the
-6-
these circumstances from raising, after the union's
acceptance of its outstanding offer, a defense of good faith
doubt as to the union's majority status premised on events
prior to that acceptance. In adopting the Board's rule, we
reach a result different from that of our sister circuit in
Chicago Tribune, Co., 915 F.2d at 250. The Seventh Circuit ____________________
was, however, without the benefit of the Board's present
analysis. We hope the time and effort expended in this case
will cause the Board to avoid the kind of perfunctory,
inarticulate decision-making that caused the present
difficulties.
The Company argues finally that, even if we uphold
the Board's decision, we should condition enforcement of the
Board's order upon a Board-supervised election to ensure that
the Union still enjoys the support of the workers. The
Company cites NLRB v. LaVerdiere's Enter., 933 F.2d 1045, ____ ____________________
1053 (1st Cir. 1991), in which we refused to enforce the
Board's bargaining order and instead ordered an election
where: (1) there existed a showing of substantial employee
dissatisfaction with the union prior to the employer's
misconduct; (2) the employer's misconduct was less than
egregious; and (3) there had been an inordinate delay in the
____________________
union's acceptance of the offer. See Auciello, 317 N.L.R.B. ___ ________
No. 60, at 11-12. We agree with the Board's implicit
conclusion that this case does not fall within the exception,
as the Company had all of the relevant information to support
its claim prior to its acceptance of the offer.
-7-
Board's decision.
Although there is no doubt that a great amount of
time has elapsed since the underlying unfair labor practice,
we are disinclined to order, on our own initiative and
contrary to the Board's requested relief, a Board-supervised
election at this point. This case is distinguishable from
LaVerdiere's, insofar as LaVerdiere's involved a clear ____________ ____________
showing of employee dissatisfaction with the union. In that
case, the employees had filed a decertification petition with
the Board, and had exhibited other substantial evidence of
dissatisfaction. Id. at 1048, 1054. In this case, by ___
contrast, although there existed evidence that the strike was ______
losing employee support, the evidence that the Union was _____
losing employee support fell far short of that in
LaVerdiere's. Accordingly, without meaning to pass judgment ____________
on the propriety of an election should one be sought and
considered in another context, we enforce the Board's order
in its entirety. See id. at 1053 (holding that the Board's ___ ___
choice of remedy is entitled to deference).
The order of the Board will be enforced. _______________________________________
-8-
Document Info
Docket Number： 91-1905
Filed Date： 11/30/1992
Precedential Status： Precedential
Modified Date： 9/21/2015