National Labor Relations Board v. International Brotherhood of Teamsters, Local 251 , 691 F.3d 49 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-1818
NATIONAL LABOR RELATIONS BOARD,
Petitioner, Cross-Respondent,
v.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 251,
Respondent, Cross-Petitioner.
ON APPLICATION FOR ENFORCEMENT AND CROSS-PETITION FOR REVIEW
OF A FINAL ORDER OF THE NATIONAL LABOR RELATIONS BOARD
Before
Lynch, Chief Judge,
Souter,* Associate Justice,
and Lipez, Circuit Judge.
David A. Seid, with whom Ruth E. Burdick was on brief, for
petitioner.
Marc B. Gursky, with whom Elizabeth Wiens and Gursky Law
Associates were on brief, for respondent.
Thomas J. McAndrew, with whom Thomas J. McAndrew & Associates
were on brief, for intervenor J.H. Lynch & Sons, Inc.
August 14, 2012
__________________
* The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
LIPEZ, Circuit Judge. This case is before us upon an
application for enforcement, and a cross-petition for review, of an
order of the National Labor Relations Board ("NLRB" or the
"Board"). Although the dispute between the parties has involved
many issues, there is one central issue in this appeal -- whether
a May 28, 1999 letter of agreement (the "May 1999 agreement")
between the International Brotherhood of Teamsters, Local 251
("Local 251" or the "union") and J.H. Lynch & Co. ("Lynch")
violated section 8(e) of the National Labor Relations Act (the
"Act"), 29 U.S.C. § 158(e), by impermissibly preventing Lynch from
doing business with two third-party subcontractors. The
Administrative Law Judge ("ALJ") who originally heard the case
found that the agreement did not violate section 8(e) with respect
to one subcontractor, but did with respect to the other. Upon
review, the NLRB, emphasizing the plain terms of the May 1999
agreement, found that the agreement's application to both
subcontractors violated section 8(e) of the Act and entered a
remedial order.
The Board now applies for enforcement of its order. In
turn, Local 251 petitions for limited review of the NLRB's
decision, arguing that the NLRB erred in reversing the ALJ and
that, because more than 10 years passed between the events in
question and the NLRB's decision, it would be inappropriate to
enforce the decision.
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We conclude that the NLRB erred in finding that the May
1999 agreement violated section 8(e) of the Act with respect to one
of the subcontractors. In light of contradictory evidence in the
record that the Board failed to consider, the plain text of the May
1999 agreement is not substantial evidence supporting the Board's
conclusion that the agreement had an impermissible intent. Rather,
as the ALJ found, the evidence in the record indicates that the
agreement was intended to preserve union jobs at Lynch, a lawful
purpose under the Act. Therefore, we reverse the Board's finding
with respect to this aspect of the May 1999 agreement. However,
the union does not challenge the Board's finding as it relates to
the other subcontractor, and thus the Board is entitled to
enforcement of that aspect of its order. Accordingly, we grant the
Board's application for enforcement only as to the agreement's
prohibition on Lynch's use of that second subcontractor.
I.
A. The Dispute
Lynch is a highway construction general contractor with
facilities in Rhode Island, and a signatory of the Construction
Industries of Rhode Island's ("CIRI") collective bargaining
agreement with Local 251. CIRI is an association representing
construction industry employers in Rhode Island. As of 2000, there
were approximately 100 Rhode Island employers who had joined the
CIRI collective bargaining agreement with Local 251 and were thus
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bound by its terms. Local 251 is the Teamsters local union with
jurisdiction over Rhode Island and portions of Massachusetts.
Local 251 is the longtime representative of truck drivers employed
by Lynch, although the number of members in Local 251's bargaining
unit at Lynch has been steadily declining. Lynch employed 26 Local
251 members in 1995, 16 in 1997, and only 10 in 2001. According to
Local 251's vice president and business agent, Joseph Boyajian,
this decline is part of a concerted effort on the part of Lynch to
replace its unionized drivers with non-union subcontractors.
Before the ALJ, he testified that, each time a truck driver
retired, Lynch would sell a truck and replace that person with a
subcontractor, gradually reducing the number of bargaining unit
employees.
Lynch acknowledged that hiring subcontractor drivers was
a common practice, noting that during particularly busy times it
would hire as many as 30 to 40 additional trucks each day. These
additional drivers were employed by several different
subcontractors, many of which were non-union employers. Boyajian
was especially troubled by Lynch's use of two subcontractors,
Northeast Transportation, Inc. ("Northeast") and Cullion Excavating
Corp. ("Cullion"), because these two subcontractors did not pay the
prevailing rate to their drivers.1 The collective bargaining
1
The prevailing rate is the rate of compensation, including
wages and benefits, established by the terms of the collective
bargaining agreement. An agreement requiring the employer to pay
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agreement ("CBA") between Local 251 and CIRI provides that
employers are not permitted to use subcontractors unless employees
of the subcontractors are paid the prevailing rate. Over the
course of several years, Boyajian complained to Lynch about its use
of subcontractors, especially Northeast, that did not pay the
prevailing rate. Finally, in May 1999, Local 251 filed grievances
with the NLRB complaining that the use of subcontractors who failed
to pay the prevailing rate was a violation of the union's CBA with
CIRI.2
After these grievances were filed, Boyajian met with
David Lynch, the president of Lynch, and Billy Cabral, Lynch's
controller, to discuss the issue. At the meeting, Lynch promised
not to use Northeast or Cullion, and he subsequently sent a May 28,
1999 letter to Boyajian memorializing the agreement between the
parties. In relevant part, this letter states:
The trucking services of Northeast
Transportation Corp. and Cullion Excavating
Corp. will not be utilized. Should a
particular project come along that requires
any subcontractors the prevailing rate (also known as a "union
standards" clause) removes the economic incentive for an employer
to subcontract work done by union members.
2
The version of the CBA included in the record is that which
was in effect from May 1, 2000, to April 30, 2003. This version
contains a provision requiring that any subcontracting done by CIRI
signatories comply with the terms of the CBA, including the wages,
hours and working conditions established by the CBA. Although the
parties did not provide the CBA that was in effect in May 1999,
Local 251 asserts that it had a similar provision, and Lynch does
not dispute this fact.
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excessive trucking and we are not able to
supplement our fleet adequately, we will
notify you of the situation to allow us to
amicably resolve the problem. The Employer
acknowledges the Union's right to strike to
enforce this Agreement.
This agreement is the primary subject of the dispute between the
parties at this stage.
In April 2001, Boyajian learned that Lynch was again
using Northeast for trucking services, even though Northeast
drivers still were not being paid the prevailing rate. After Lynch
indicated that it intended to continue to use Northeast, Local 251
members went on strike on April 16, 2001, at Lynch locations in
Cumberland and East Providence. Lynch sought a temporary
restraining order enjoining the strike, which was eventually
resolved by the union's agreement to end the strike on April 23,
2001. In a separate lawsuit, Lynch sought money damages against
Local 251 for what it alleged to be an illegal strike.3
B. The ALJ's Decision
Immediately following the strike, Lynch filed several
charges against Local 251 with the NLRB alleging violations of
section 8(b)(4)(ii)(A) & (B) and 8(e) of the Act.4 These charges
3
The suit seeking damages, J.H. Lynch & Sons v. Int'l Bhd. of
Teamsters, Local 251, No. 01-193 (D.R.I. filed Apr. 20, 2001), is
currently in abeyance awaiting resolution of this appeal.
4
Generally, section 8(e) makes it unlawful for any labor
organization and employer "to enter into any contract or agreement,
express or implied, whereby such employer ceases or refrains or
agrees to cease or refrain from . . . doing business with any other
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were consolidated with those filed by another employer and the case
referred to an administrative law judge. With regard to the
charges brought by Lynch, the major issue was whether the parties'
May 1999 agreement violated section 8(e) of the Act by
impermissibly preventing Lynch from doing business with a third
party. As described in greater detail below, such an agreement is
valid if its objective is the preservation of work for bargaining
unit employees -- such an agreement involves primary activity. In
contrast, if the purpose of the agreement is to further union
objectives with respect to a third party (e.g., pressuring the
third party to accept unionization of its employees), it involves
secondary activity and violates section 8(e). Thus, the focus of
the ALJ was an inquiry into Local 251's motives in entering into
the May 1999 agreement.
After eight days of hearings, held between August and
December of 2001, the ALJ issued his decision on April 25, 2002.
He found that the May 1999 agreement, memorialized by Lynch's May
28, 1999 letter, violated section 8(e) of the Act with regard to
Cullion, but not Northeast. The written decision explains that
"the May 1999 agreement is secondary activity with regards to
Cullion because the Union has not established that Cullion was
person." 29 U.S.C. § 158(e). Relatedly, section 8(b)(4)(ii)(A) &
(B) make it an unfair labor practice for a union to seek to coerce
an employer into an agreement that would violate section 8(e) or
coerce a third-party employer into recognizing the union. Id.§ 158(b)(4)(ii)(A) & (B)
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performing work traditionally performed by Lynch's bargaining unit
employees." In contrast, the ALJ found that the Northeast drivers
hired by Lynch were doing bargaining unit work. Therefore,
the . . . agreement and the Union's efforts to
enforce it with regard to Northeast in April
2001, were valid efforts at 'work
preservation' . . . . [Accordingly, the]
dispute with Lynch over the use of Northeast
trucks [is] a primary dispute and therefore I
find that the parties' May 1999 agreement with
regard to Northeast did not violate Section
8(e). Similarly, I find that the Union's
efforts to enforce this agreement in April
2001 did not violate Section 8(b)(4).
C. The NLRB's Decision
The NLRB reversed the ALJ's decision with respect to
Northeast. While it applied the same legal standard, and stated
that it did not intend to disturb the ALJ's findings of fact, the
NLRB found that "the May 1999 agreement [between Local 251 and
Lynch] violated Section 8(e) on its face without regard to whether
the work covered by the agreement was work traditionally performed
by employees in the unit."
In reaching this conclusion, the NLRB focused on the fact
that the May 1999 agreement singled out two companies, Northeast
and Cullion. It acknowledged that "an agreement that permits an
employer to subcontract bargaining unit work only to subcontractors
that honor the economic terms of the collective-bargaining
agreement serves a lawful primary purpose -- eliminating any
economic incentive to take work away from employees in the unit."
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However, it found that the May 1999 agreement was more akin to a
union signatory clause, which forbids an employer from
subcontracting work to any person not party to an agreement with
the union. Focusing on the text of the agreement, the NLRB
concluded that it was intended to achieve union objectives with
respect to Northeast and Cullion and was not aimed at work
preservation at Lynch. Accordingly, it found that the agreement
violated section 8(e) of the Act. Because the NLRB found that the
May 1999 agreement was unlawful, it also found that Local 251
violated section 8(b)(4)(ii)(A) & (B) of the Act by attempting to
enforce the agreement through its April 2001 strike.
To remedy these violations, the Board's order requires
Local 251 to cease and desist from seeking to enforce the May 1999
agreement and from attempting to obtain any similar agreement with
other employers. Additionally, the order requires Local 251 to
post a remedial notice at its office, and to distribute the notice
to members, as well as send the notice to the NLRB regional
director who will seek to post the notice at each of the affected
companies.
With this background in mind, we turn to the legal
standards governing our review of the Board's decision and order.
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II.
A. The Substantial Evidence Standard
We are typically deferential in reviewing decisions of
the NLRB. "As the Board is primarily responsible for developing
and applying a coherent national labor policy, we accord its
decisions considerable deference." Yesterday's Children, Inc. v.
NLRB, 115 F.3d 36, 44 (1st Cir. 1997) (quoting NLRB v. Bos. Dist.
Council of Carpenters, 80 F.3d 662, 665 (1st Cir. 1996)) (internal
quotation marks omitted). This deference means that "[w]e may not
substitute our judgment for the Board's when the choice is 'between
two fairly conflicting views, even though the court would
justifiably have made a different choice had the matter been before
it de novo.'" Id. (quoting Universal Camera Corp. v. NLRB, 340
U.S. 474, 488 (1951)). Thus, although "[w]e review the Board's
conclusion[s] of law de novo," we "take the Board's findings of
fact to be 'conclusive if supported by substantial evidence on the
record considered as a whole.'" Posadas de P.R. Assoc., Inc. v.
NLRB, 243 F.3d 87, 90 (1st Cir. 2001) (quoting NLRB v. Beverly
Enters.-Mass., Inc., 174 F.3d 13, 21 (1st Cir. 1999)) (citation
omitted); see also 29 U.S.C. § 160(e) ("The findings of the Board
with respect to questions of fact if supported by substantial
evidence on the record considered as a whole shall be
conclusive.").
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"Substantial evidence is 'such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.'"
Posadas de P.R., 243 F.3d at 90 (quoting Beverly Enters., 174 F.3d
at 21). In considering whether a conclusion is supported by
substantial evidence, "[w]e must take contradictory evidence in the
record into account." Howard Johnson Co. v. NLRB, 702 F.2d 1, 2
(1st Cir. 1983) (quoting Universal Camera, 340 U.S. at 487-88).
Thus, the Board "is not free to prescribe what inferences from the
evidence it will accept and reject, but must draw all those
inferences that the evidence fairly demands." Allentown Mack Sales
and Serv., Inc. v. NLRB, 522 U.S. 359, 378 (1998).
In a case such as this, where the Board and its appointed
examiner, or ALJ, reach different conclusions, the Supreme Court
has instructed that "[t]he 'substantial evidence' standard is not
modified in any way." Universal Camera, 340 U.S. at 496. The
examiner's findings and written decision are simply part of the
record that the reviewing court must consider in determining
whether the Board's decision is supported by substantial evidence.
Id. at 493. However, when the ALJ and Board reach different
conclusions there is, necessarily, evidence in the record
contradicting the Board's conclusion. This circumstance has
implications for our review of the Board's decision. In Universal
Camera, the Supreme Court explained that "evidence supporting a
conclusion may be less substantial when an impartial, experienced
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examiner who has observed the witnesses and lived with the case has
drawn conclusions different from the Board's than when he has
reached the same conclusion." Id. at 496. Putting the Supreme
Court's observation into practice, we have stated that "where the
board has reached a conclusion opposite of that of the ALJ, our
review is slightly less deferential than it would be otherwise."
Haas Elec., Inc. v. NLRB, 299 F.3d 23, 28-29 (1st Cir. 2002)
(quoting C.E.K. Indus. Mech. Contractors, Inc. v. NLRB, 921 F.2d
350, 355 (1st Cir. 1990)) (internal quotation marks omitted).
B. Section 8(e) of the Act
As noted, section 8(e) of the Act makes it unlawful for
any labor organization and employer "to enter into any contract or
agreement, express or implied, whereby such employer ceases or
refrains or agrees to cease or refrain from . . . doing business
with any other person." 29 U.S.C. § 158(e). However, the Supreme
Court has held that this provision of the Act is intended to reach
only agreements with secondary objectives, not those with primary
purposes protected by the Act. NLRB v. Int'l Longshoremen's Ass'n,
447 U.S. 490, 504 (1980). As we have previously explained,
[t]he basic test for distinguishing between
primary and secondary activity is whether the
union's conduct was "addressed to the labor
relations of the [employer against whom the
pressure is exerted] vis-a-vis his own
employees," and therefore primary, or whether
the union's conduct against a neutral employer
was "tactically calculated to satisfy union
objectives elsewhere," and therefore
secondary.
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John B. Cruz Constr. Co., Inc. v. United Bhd. of Carpenters and
Joiners of Am., Local 33, 907 F.2d 1228, 1230 (1st Cir. 1990)
(second alteration in original) (quoting Nat'l Woodwork Mfrs. Ass'n
v. NLRB, 386 U.S. 612, 645 (1967)) (citations omitted).
The Supreme Court has observed that "[a]mong the primary
purposes protected by the Act is 'the purpose of preserving for
contracting employees themselves work traditionally done by them.'"
Longshoremen, 447 U.S. at 504 (quoting NLRB v. Pipefitters, 429
U.S. 507, 517 (1977)). It has established a two-part test for
identifying an agreement intended to serve this purpose, stating
"[f]irst, it must have as its objective the preservation of work
traditionally performed by employees represented by the union[,
and,] [s]econd, the contracting employer must have the power to
give the employees the work in question." Id.With regard to the first element of this test, it is the
intended purpose of an agreement, not its effect, that determines
whether the agreement has a permissible primary object. In
Longshoremen, the Court explained that "[t]he effect of work
preservation agreements on the employment opportunities of
employees not represented by the union, no matter how severe, is of
course irrelevant to the validity of the agreement so long as the
union had no forbidden secondary purpose to affect the employment
relations of the neutral employer." 477 U.S. at 507 n.22 (emphasis
added); see also In re Bituminous Coal Wage Agreements, 756 F.2d
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284, 289 (3d Cir. 1985) ("So long as the union has no forbidden
secondary purpose to affect the employment relations of an outside
employer, the agreement is valid even though it adversely affects
the employment opportunities of non-represented workers.").
However, if an agreement is motivated by any secondary purpose,
even if it be merely one purpose of many, it is in violation of
section 8(e). See Local Union No. 25, Int'l Bhd. of Teamsters v.
NLRB, 831 F.2d 1149, 1153 (1st Cir. 1987) ("It is not necessary
that the only object of the guild's actions be a secondary one; so
long as an object is to pressure a neutral employer, the violation
is complete."). As to the second element of the test, the Supreme
Court explained that "if the contracting employer has no power to
assign the work, it is reasonable to infer that the agreement has
a secondary objective, that is, to influence whoever does have such
power over the work." Longshoremen, 447 U.S. at 504-05.
As a result of this framework, there is an important
distinction between a "union standards" clause and a "union
signatory" clause:
Union standards clauses prohibiting employers
from contracting work normally performed by
its union employees to others who are paid
less than union wages are widely held to be
permissible under the NLRA. Union signatory
clauses on the other hand, prohibiting
employers from contracting work to others not
signatory to the collective bargaining
agreement or otherwise approved by the Union,
have been held to be illegal secondary
pressure that violates the NLRA.
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Va. Sprinkler Co., Inc. v. Road Sprinkler Fitters Local Union No.
669, 868 F.2d 116, 121 (4th Cir. 1989) (citation omitted); see also
NLRB v. Hotel and Rest. Emps. and Bartenders' Union, Local 531, 623
F.2d 61, 67 (9th Cir. 1980) (collecting cases). Union standards
clauses remove the incentive for an employer to give bargaining
unit work to subcontractors. Because the pressure generated by
such an agreement is focused upon the primary employer, and
benefits the employees of that employer, such a clause is lawful.
See Hotel and Rest. Emps., 623 F.2d at 67. In contrast, "clauses
requiring [union] affiliation or approval are directed at more than
work preservation -- they are generally viewed as an effort to
expand the union's sphere of influence by impermissible secondary
pressure." Gen. Truck Drivers, Chauffeurs, Warehousemen and
Helpers of Am., Local 957 v. NLRB, 934 F.2d 732, 736-37 (9th Cir.
1991) (quoting Hotel and Rest. Emps., 623 F.2d at 67).
Finally, the Court has emphasized that the question of
whether an agreement is a valid attempt to preserve bargaining unit
work requires consideration of all surrounding circumstances.
Longshoremen, 447 U.S. at 504. Because of the holistic nature of
the inquiry, the NLRB and reviewing courts must often look beyond
the face of the agreement itself. The Third Circuit has explained
that "it is often difficult, if not impossible, to determine from
the wording of the clause the union's 'tactical object,' or
'design.' More than the document itself is generally needed for
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that analysis." Bituminous Coal, 756 F.2d at 290 (citations
omitted). Thus, no rigid, per se rule may be applied, and "the
fact that work preservation aims are not apparent from a reading of
the provisions does not establish that they are or are not present.
The inability to discern this purpose from the clause itself does
not make it violative of § 8(e)." Id. at 290 n.4. Rather,
circumstances surrounding the agreement must be considered, and
"[a]s a general proposition, [those] circumstances might include
the remoteness of the threat of displacement by the banned product
or services, the history of labor relations between the union and
the employers who would be boycotted, and the economic personality
of the industry." Nat'l Woodwork, 386 U.S. at 644 n.38.
III.
A. The May 1999 Agreement
In reversing the ALJ's decision on the May 1999
agreement, the NLRB focused exclusively on the language of the
agreement, and particularly on the fact that Northeast and Cullion
were identified by name in the agreement.5 It explained that "we
5
Our analysis focuses on the agreement's prohibition against
subcontracting with Northeast. Without elaboration, the ALJ found
that the May 1999 agreement violated section 8(e) of the Act with
respect to Cullion because the union failed to establish that
Cullion subcontractors were doing bargaining unit work. The union
did not take issue with this conclusion before the NLRB and does
not raise the issue here. Accordingly, we consider only whether
the agreement's prohibition against subcontracting to Northeast
violated the Act. Furthermore, Northeast is the more significant
of the two subcontractors identified in the May 1999 agreement.
Boyajian testified that, after the May 1999 agreement, Lynch ceased
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find that the May 1999 agreement violated section 8(e) on its face
without regard to whether the work covered by the agreement was
work traditionally performed by employees in the bargaining unit."
Thus, the NLRB concluded that the agreement violated section 8(e)
regardless of the circumstances surrounding the negotiation of the
agreement and whether the agreement was actually intended to
preserve union jobs. However, because significant record evidence
of these surrounding circumstances indicated that the May 1999
agreement did not have an impermissible purpose, the plain text of
the agreement is not substantial evidence supporting the Board's
conclusion.
As just noted, the Supreme Court has instructed that
"[w]hether an agreement is a lawful work preservation agreement
depends on 'whether, under all the surrounding circumstances, the
Union's objective was preservation of work for bargaining unit
employees, or whether the agreement was tactically calculated to
satisfy union objectives elsewhere.'" Longshoremen, 447 U.S. at
504 (emphasis added) (quoting Nat'l Woodwork, 386 U.S. at 644-45).
Although the NLRB's decision recites this important principle, it
ignores record evidence shedding light on the intent behind the May
using Cullion, and thus all negotiations between the parties after
that point focused on Northeast. The April 2001 strike was
triggered by Lynch's continued use of Northeast, and thus the
question of whether the union's conduct in connection with the
strike violated section 8(b)(4) of the Act turns on whether the
prohibition on using Northeast was valid.
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1999 agreement and focuses instead on the specific identification
of Northeast and Cullion by name in the agreement, and on the fact
that the agreement did not bar all subcontracting or limit
subcontracting to companies that paid the prevailing rate:
The May 1999 agreement did not wholly prohibit
J.H. Lynch from subcontracting work performed
by its own employees. Nor did it limit
subcontracting to companies that paid their
employees wages and benefits commensurate with
those required by J.H. Lynch's collective-
bargaining agreement with the Respondent.
Rather, it permitted subcontracting generally,
but prohibited it only to two specific
companies . . . , both of which were not
parties to an agreement with [Local 251].
That the May 1999 agreement does not bar all
subcontracting or name any other companies -
despite the fact that [Local 251] was aware
J.H. Lynch used other subcontractors - belies
[Local 251's] contention that its primary
dispute was with J.H. Lynch and not with
Northeast or Cullion.
However, the circumstances surrounding the May 1999
agreement indicate that it was intended to enforce the union
standards clause in the collective bargaining agreement between the
parties, and thus preserve union jobs. Most importantly, record
evidence indicated that Northeast and Cullion were identified by
name in the May 1999 agreement because they were the only two
subcontractors that failed to pay the prevailing rate.
Lynch and the Board make much of the fact that the union
was aware that Lynch used other subcontractors aside from Northeast
and Cullion. Lynch argues that, given this fact, singling out
those two companies indicates that the May 1999 agreement was
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intended to achieve union objectives with those companies and not
to preserve work at Lynch. However, the relevant inquiry is not
whether Lynch used other subcontractors, but whether Lynch used
other subcontractors that failed to pay the prevailing rate. There
is record evidence, in the form of testimony at the hearings before
the ALJ, that, as of May 1999, these were the only subcontractors
used by Lynch that failed to pay the prevailing rate. Lynch and
the Board have pointed to no evidence to the contrary. Thus
understood, identification of these two companies in the May 1999
agreement is consistent with the proposition that the union's
primary dispute was with Lynch, and not with these two companies.
Additionally, the NLRB failed to consider other
surrounding circumstances showing that the agreement was intended
to preserve Local 251 jobs at Lynch. In particular, the NLRB's
decision ignores evidence regarding repeated meetings between
Boyajian and Lynch officials concerning the use of subcontractors
who did not pay the prevailing rate. Boyajian testified that he
raised the issue several times between 1997 and 1999, and that the
gist of these conversations was that Lynch's use of Northeast
drivers who did not receive the prevailing rate was costing
bargaining unit jobs. In fact, David Lynch testified that during
the 2001 strike intended to enforce the May 1999 agreement, he met
with Boyajian and the parties reached a tentative agreement.
Describing the terms of the agreement, Lynch testified that
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Boyajian told him that Lynch could not use Northeast, but "if you
are going to use Northeast, you have to pay health and welfare to
use them and you'll be all set." Similarly, Boyajian testified
that the understanding between the parties was that Lynch was not
absolutely prohibited from using Northeast, but that, if it chose
to use Northeast, it would pay drivers the prevailing rate. This
is powerful evidence that the May 1999 agreement was intended to
preserve Local 251 jobs at Lynch, rather than achieve union
objectives with respect to Northeast. None of this evidence is
discussed in the NLRB's decision.
The factors identified by the Court in National Woodwork
also suggest that this agreement was intended to preserve
bargaining unit work. See 386 U.S. at 644 n.38 (identifying threat
of displacement, history of labor relations, and economic
personality of the industry as factors to be considered). Local
251 members faced a real threat of displacement by Northeast
subcontractors, as illustrated by the diminishing size of the Local
251 bargaining unit at Lynch and the increased use of
subcontractors. The Board never mentions this fact. Furthermore,
there is nothing in the record suggesting a history of strained
labor relations between Local 251 and Northeast, and no reason to
believe that the union had some reason for specifically targeting
Northeast. In contrast, there is a long history, extensively
documented in the record, of disputes between the union and Lynch
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concerning the use of subcontractors that did not pay the
prevailing rate.
As the NLRB acknowledged in its decision, "an agreement
that permits an employer to subcontract bargaining unit work only
to subcontractors that honor the economic terms of the collective-
bargaining agreement serves a lawful primary purpose -- eliminating
any economic incentive to take work away from employees in the
unit." In this case, the May 1999 agreement between Local 251 and
Lynch is precisely this sort of agreement. It identified Northeast
and Cullion by name because, at that time, those were the only
subcontractors that did not pay the prevailing wage. Thus the
agreement was tailored to directly address the practice that the
union believed threatened bargaining unit work and violated the
collective bargaining agreement.6
Therefore, both prongs of the Court's test for
identifying lawful work preservation agreements are present here --
the objective of the agreement is to preserve bargaining unit work
and the party with whom the agreement is made, Lynch, has the power
to assign employees the work in question. See Longshoremen, 447
6
We note that the May 1999 agreement is memorialized in an
informal letter from David Lynch to Boyajian. Given this fact, it
is all the more likely that this letter reflects the parties'
discussions about the use of these particular subcontractors that
did not pay the prevailing wage, and it is unsurprising that such
a letter is not a precisely worded expression of the complete
understanding between the parties. It is an oddity of this case
that the union is held liable for the specific language in a letter
authored by the employer.
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U.S. at 504. The NLRB reached a different conclusion only because
it focused on the face of the agreement and ignored evidence of the
surrounding circumstances. In light of these circumstances, the
plain text of the May 1999 agreement is not substantial evidence
supporting the Board's conclusion. See Howard Johnson, 702 F.2d at
2 (stating that substantial evidence review requires that one "take
contradictory evidence in the record into account" (quoting
Universal Camera, 340 U.S. at 487-88)). Accordingly, we reverse
the Board's decision with respect to that portion of the May 1999
agreement concerning Northeast and we reinstate the finding of the
ALJ that the May 1999 agreement did not violate section 8(e) of the
Act with respect to Northeast.
Finally, both the ALJ and the Board note that, because
the 2001 strike was intended to enforce the May 1999 agreement, the
lawfulness of the strike depends on the lawfulness of the
agreement. Thus, the ALJ found that the 2001 strike did not
violate section 8(b)(4) of the Act, while the Board found that it
did. Because we conclude that the Board's decision was not
supported by substantial evidence, and that the May 1999 agreement
did not violate section 8(e) of the Act with respect to Northeast,
we also conclude that the 2001 strike, which concerned only the use
of Northeast subcontractors, did not violate section 8(b)(4) of the
Act.
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B. Portions of the ALJ's Decision Unaddressed by the Board
The Board chose not to address certain issues raised by
the parties in its initial review of the ALJ's decision. In
particular, it declined to consider issues raised by Local 251's
alleged threats to strike or conduct informational picketing
targeting other employers. The ALJ found that these threats
violated section 8(b)(4)(ii)(B) of the Act, but the NLRB explained
that "[w]e find it unnecessary to pass on the judge's findings that
the [union] also violated Sec. 8(b)(4)(B) by . . . threats [to
other employers] . . . . Even if those alleged violations were
found, they would be cumulative to the other 8(b)(4)(B) threat
. . . [based on the May 1999 agreement], which we find."
Similarly, the Board also declined to consider an argument that the
strike was unlawful because it sought to enforce another provision
of the CIRI collective bargaining agreement that was itself alleged
to be unlawful, explaining that because it found the strike
unlawful on other grounds it need not reach this issue.
For whatever reason, the Board has not asked that the
case be remanded for it to consider these previously bypassed
issues if we reject any portion of its application for enforcement.
Accordingly, we decline to do so and deem any such argument waived.
See SEC v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010) ("[W]e deem
abandoned all arguments that have not been briefed and developed on
appeal."). We make exceptions to the waiver doctrine only in
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"exceptional" circumstances. See Banco Bilbao Vizcaya Arg. v.
Wiscovitch-Rentas, 625 F.3d 34, 41 (1st Cir. 2010) (quoting Nat'l
Ass'n of Social Workers v. Harwood, 69 F.3d 622, 627 (1st Cir.
1995)) (internal quotation mark omitted). No such circumstances
are present here. It took the NLRB nine years to decide this case
in the first instance, and, when it did so, it declined to consider
all of the issues raised, dismissing many as cumulative. Giving it
another opportunity to consider these previously ignored issues
would cause inequity to the parties awaiting final resolution of
this dispute, see id., and the Board has not pressed any
exceptional circumstances that would cause us to deviate from our
usual application of waiver rules.
C. Enforcement of the Remaining Portion of the Board's Order
Finally, because Local 251 has not challenged the NLRB's
decision that the May 1999 agreement violated section 8(e) of the
Act with respect to its prohibition against use of Cullion, we
conclude that the Board is entitled to enforcement of that portion
of its order. Accordingly, we grant the Board's application for
enforcement of its order insofar as the order bars the May 1999
agreement's prohibition on use of Cullion subcontractors and
requires Local 251 to take remedial action.
We find unpersuasive the union's argument that
enforcement of the Board's order is inappropriate because of the
passage of time. As the Supreme Court has explained, "[i]nordinate
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delay in any case is regrettable, but Congress has introduced no
time limitation into the Act except that in [section] 10(b)."7
NLRB v. Katz, 369 U.S. 736, 748 n.16 (1962). That said, if the
passage of time leads to changed circumstances rendering
enforcement of the Board's order unfair, unnecessary, or otherwise
inappropriate, we will decline to enforce an order of the Board.
See NLRB v. LaVerdiere's Enters., 933 F.2d 1045, 1054-55 (1st Cir.
1991); Emhart Indus. v. NLRB, 907 F.2d 372, 379 (2d Cir. 1990)
("[W]e must withhold enforcement of orders that will not effectuate
any reasonable policy of the act, even where the problems with the
order are caused primarily by the lapse of time.").
Despite the lengthy delay here, the union has failed to
demonstrate that changed circumstances make enforcement unfair,
unnecessary, or inappropriate. In order to justify a decision not
to enforce an order, courts have previously identified events such
as decertification of the union, closure of the relevant plant, or
an agreement between the parties resolving the dispute. See NLRB
v. Mountain Country Food Store, Inc., 931 F.2d 21, 22-23 (8th Cir.
1991); Emhart, 907 F.2d at 379-80. The union has identified no
such facts in this case.
7
In relevant part, section 10(b) of the Act provides that "no
complaint shall issue based upon any unfair labor practice
occurring more than six months prior to the filing of the charge
with the Board and the service of a copy thereof upon the person
against whom such charge is made." 29 U.S.C. § 160(b).
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In our assessment of the Board's decision to bypass a
number of issues raised by the ALJ's decision, we noted that the
passage of time was a relevant factor in our decision not to remand
the case to the Board for resolution of those issues. There we
were confronted with the likelihood of another lengthy delay.8 In
contrast, here we ask not whether another delay is acceptable, but
rather whether the time already passed renders enforcement of the
Board's order inappropriate. As noted, the union has failed to
show why that is the case here.
IV.
For the reasons set forth, we grant Local 251's cross-
petition for review of the Board's order. Having done so, we deny
the Board's application for enforcement of its order with respect
to the May 1999 agreement's prohibition on use of Northeast.
However, we grant the application for enforcement of the order
insofar as the order bars the May 1999 agreement's prohibition on
use of Cullion subcontractors and requires Local 251 to take
remedial action. The parties shall bear their own costs.
So ordered.
8
Our conclusion regarding the status of the May 1999
agreement affirms the lawfulness of the union's 2001 strike against
Lynch, and thus allows for resolution of the suit concerning this
strike currently pending before the United States District Court
for the District of Rhode Island.
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