Elec/Mech Svcs Inc v. NLRB ( 1997 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
INDUSTRIAL TURNAROUND
CORPORATION;
ELECTRICAL/MECHANICAL SERVICES,
INCORPORATED,
No. 96-1783
Petitioners,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
INDUSTRIAL TURNAROUND
No. 96-1926
CORPORATION;
ELECTRICAL/MECHANICAL SERVICE,
INCORPORATED,
Respondents.
On Petition for Review and Cross-Application for
Enforcement of an Order of the
National Labor Relations Board.
(5-CA-23392, 5-CA-23915)
Argued: January 30, 1997
Decided: May 30, 1997
Before LUTTIG and WILLIAMS, Circuit Judges, and
CLARKE, Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.
_________________________________________________________________
Petition for review granted in part and denied in part. Petition for
enforcement granted in part and denied in part, and remanded by pub-
lished opinion. Judge Williams wrote the opinion, in which Judge
Luttig and Senior Judge Clarke joined.
_________________________________________________________________
COUNSEL
ARGUED: David Raymond Simonsen, Jr., Richmond, Virginia, for
Petitioners. Linda S. Neighborgall, NATIONAL LABOR RELA-
TIONS BOARD, Washington, D.C., for Respondent. ON BRIEF:
Frederick L. Feinstein, General Counsel, Linda Sher, Associate Gen-
eral Counsel, Aileen A. Armstrong, Deputy Associate General Coun-
sel, Linda Dreeben, Supervisory Attorney, NATIONAL LABOR
RELATIONS BOARD, Washington, D.C., for Respondent.
_________________________________________________________________
OPINION
WILLIAMS, Circuit Judge:
Industrial TurnAround Corporation (ITAC), an electrical construc-
tion firm, petitions for review of a decision and order of the National
Labor Relations Board (NLRB) finding that ITAC and its alter ego,
Electrical/Mechanical Services, Inc. (EMSI), violated § 8(a)(1),
(a)(3), and (a)(5) of the National Labor Relations Act (the Act), see
29 U.S.C.A. § 158(a)(1), (a)(3), & (a)(5) (West 1973 & Supp. 1997),
by refusing to abide by a collective-bargaining agreement negotiated
on ITAC's behalf by the Virginia Chapter of the National Electrical
Contractors Association (NECA). The NLRB cross-petitions for
enforcement of its decision and order. For the reasons that follow, we
conclude that ITAC and EMSI were alter egos, and that the compa-
nies violated § 8(a)(1), (a)(3), and (a)(5) of the Act. We also con-
clude, however, that the NLRB abused its discretion in ordering the
remedy in this case. Accordingly, we grant in part and deny in part
ITAC's petition for review, grant in part and deny in part the NLRB's
cross-petition for enforcement, and remand the case to the NLRB for
the entry of an appropriate remedial order.
2
I.
On April 2, 1990, ITAC President Sidney Harrison executed a let-
ter of assent designating NECA as ITAC's "collective bargaining rep-
resentative for all matters contained in or pertaining to the current and
any subsequent approved INSIDE CONSTRUCTION labor agree-
ment between [NECA] and [the International Brotherhood of Electri-
cal Workers, Local 666, AFL-CIO (the Union)]." (J.A. at 316.) By its
terms, the letter of assent was to remain in effect until terminated by
ITAC's "giving written notice to [NECA] and to the Local Union at
least one hundred fifty (150) days prior to the then current anniver-
sary date of the applicable approved labor agreement." (J.A. at 316.)
At the time the letter of assent was executed, a collective-bargaining
agreement between NECA and the Union was in force until August
31, 1992.
On August 31, 1992, when the 1990-92 agreement expired, the par-
ties had not completed negotiations for a successor agreement. During
the fall of 1992, while negotiations for a new agreement were under-
way, ITAC continued to comply with the 1990-92 agreement, paying
wages specified in the expired agreement and collecting and remitting
to the Union employee-authorized payroll deductions for Union dues
and benefit funds.
On November 9, 1992, Harrison incorporated EMSI as a nonunion
company performing electrical construction and pipefitting work.
Harrison's primary purpose for establishing EMSI was to "get
around" ITAC's union contract. Harrison's wife, Glenn, was the sole
shareholder of EMSI. Her $100,000 investment in the company was
made up of funds supplied to her by Harrison, who withdrew them
from ITAC bank accounts and directed their deposit into an EMSI
account.
ITAC stopped bidding on electrical construction jobs in November
1992. At that time, the company's outstanding electrical construction
work was transferred to EMSI. During 1993, over 70 percent of
EMSI's electrical projects were performed either directly for or under
subcontract to ITAC, or for ITAC's former customers. ITAC was
responsible for over 45 percent of EMSI's total sales during 1993.
ITAC and EMSI shared a business address and premises, furnishings,
3
tools, equipment, and trucks. The companies also used the same sup-
pliers of accounting, insurance, and banking services. Sidney Harri-
son controlled both ITAC and EMSI.
In late 1992, ITAC informed its two remaining employees, John
Perkins and David Deane, that ITAC had run out of electrical con-
struction work and did not intend to bid for more, and asked them
whether they would work at EMSI, a nonunion shop. Both declined.
Beginning in November 1992 and continuing through 1993, EMSI
hired electrical workers. During this time, EMSI told five employ-
ment applicants who wore union insignias or whose applications
revealed prior employment with union contractors that it was not hir-
ing. At one employment interview, an EMSI representative asked an
applicant, "Are you Union?" (J.A. at 54.)
Finally, on January 25, 1993, NECA and the Union reached agree-
ment and signed the 1992-94 successor agreement. The 1992-94
agreement, effective retroactively to September 1, 1992, required sig-
natories to obtain unit employees from the Union's hiring hall. On
May 6, 1993, ITAC notified NECA and the Union that effective
immediately it was terminating its letter of assent, revoking its grant
of bargaining authority to NECA, and repudiating the 1992-94 agree-
ment.
On March 19 and September 20, 1993, the Union filed charges
against ITAC, alleging that ITAC and EMSI were alter egos and that
the companies had violated § 8(a)(1), (a)(3), and (a)(5) of the Act.
The case was heard by an Administrative Law Judge (ALJ) on June
21-24, and August 8-10, 1994. The ALJ concluded that ITAC had
violated § 8(a)(5) of the Act by creating EMSI as an alter ego and by
repudiating the 1992-94 agreement. Additionally, the ALJ determined
that ITAC and EMSI violated § 8(a)(1) and (a)(3) of the Act by inter-
rogating a job applicant concerning his Union affiliation, by construc-
tively discharging employees John Perkins and David Deane because
they balked at working for a nonunion company, and by refusing to
hire job applicants Thomas Dagrosa, Dudley Ledford, Robert Burks,
George Harris, and Ernest Kelley because of their affiliation with the
Union.
The ALJ recommended an extensive remedy, ordering that ITAC
cease and desist from engaging in unfair labor practices; make whole
4
applicants, employees, and various employee trust funds; and comply
with the 1992-94 collective-bargaining agreement. The remedy was
premised on the ALJ's finding that "[f]or the period September 1,
1992 through August 31, 1994, the Union was the exclusive bargain-
ing representative of the employees in the appropriate unit within the
meaning of Section 9(a) of the Act." (J.A. at 506.) The NLRB
adopted the recommended order of the ALJ with no substantial modi-
fications. ITAC appeals.
II.
The NLRB's findings of fact are "conclusive" if supported by "sub-
stantial evidence on the record considered as a whole." 29 U.S.C.A.
§ 160(e) (West 1973); accord AMF Bowling Co. v. NLRB, 63 F.3d
1293, 1301 (4th Cir. 1995) (citing Universal Camera Corp. v. NLRB,
340 U.S. 474, 493 (1951)). Although we ordinarily review questions
of law de novo, the NLRB's interpretation of the Act is entitled to
deference if it is reasonably defensible. See Holly Farms Corp. v.
NLRB, 116 S. Ct. 1396, 1406 (1996); NLRB v. Iron Workers, 434 U.S.
335, 341, 350-51 (1978).
A.
The ALJ determined that ITAC and EMSI both performed electri-
cal construction work in central and southeastern Virginia, that EMSI
completed jobs begun by ITAC, and that EMSI functioned as ITAC's
favored subcontractor and "construction arm." EMSI, the ALJ found,
began operations in ITAC's office and electrical shop, and thereafter
the two companies shared a business address and premises. EMSI
used ITAC's tools and equipment without charge, and, throughout
1993, ITAC paid EMSI's expenses for trucks and insurance. In addi-
tion, the ALJ determined that the two companies shared the same
management and supervision: Aaron Gay and Bill Knight managed
the day-to-day electrical construction operations of both companies
under the direction of Sidney Harrison, who controlled both compa-
nies.
The ALJ also determined that an EMSI representative asked a job
applicant if he was a member of the Union, that ITAC laid off Perkins
and Deane after they made it clear that they were not interested in
5
working for a nonunion company, and that EMSI refused to hire job
applicants who were affiliated with the Union. These factual findings
were adopted in full by the NLRB, are supported by substantial evi-
dence, and are not contradicted by any evidence offered by ITAC. See
29 U.S.C.A. § 160(e); AMF Bowling, 63 F.3d at 1301. Indeed, ITAC
does not challenge these findings on appeal.
Because EMSI was created as the alter ego of ITAC, EMSI "is in
reality the same employer and is subject to all the legal and contrac-
tual obligations of [ITAC]." Howard Johnson Co. v. Detroit Local
Joint Executive Bd., 417 U.S. 249, 259 n.5 (1974). Thus, if ITAC was
subject to the terms of the 1992-94 collective-bargaining agreement
between NECA and the Union, then EMSI also was subject to the
terms of, and is liable for failing to comply with, that agreement. See
Alkire v. NLRB, 716 F.2d 1014, 1018 (4th Cir. 1983) ("If alter ego
status is imposed upon the two entities, the labor obligations of the
original employer will be carried over to the subsequent entity, and
both will be held liable for any violation of these duties by either
employer.").
B.
Not surprisingly, ITAC contends that it was not subject to the terms
of the 1992-94 collective-bargaining agreement during the time that
it incorporated EMSI and refused to employ Union electrical workers.
The company argues that no § 8(f) collective-bargaining agreement
existed between September 1, 1992, when the 1990-92 agreement
expired, and January 25, 1993, when NECA and the Union entered
into the 1992-94 agreement. Because no § 8(f) agreement existed,
ITAC argues, "EMSI was free to set any terms and conditions of
employment it desired; EMSI could have no duty to bargain with the
Union during any period in which no 8(f) agreement existed." (Peti-
tioners' Br. at 15.)
Section 8(f) allows employers or multi-employer associations in
the construction industry to enter into collective-bargaining agree-
ments, commonly called "pre-hire agreements," with unions that have
not formally established majority status. See 29 U.S.C.A. § 158(f)
(West 1973). Moreover, an individual construction employer can vol-
untarily execute a letter of assent, by which the individual employer
6
authorizes a multi-employer bargaining association to represent it in
§ 8(f) negotiations. In such an arrangement, the individual employer
agrees to be bound by the § 8(f) agreement reached between the
multi-employer bargaining association and the union.
On April 2, 1990, ITAC President Sidney Harrison executed just
such a letter of assent, thereby binding ITAC to the then current 1990-
92 agreement and to all successor agreements. The letter of assent
provides in relevant part:
[T]he undersigned firm does hereby authorize [NECA] as
its collective bargaining representative for all matters con-
tained in or pertaining to the current and any subsequent
approved INSIDE CONSTRUCTION labor agreement
between [NECA] and [the Union]. . . . This authorization,
in compliance with the current approved labor agreement,
shall become effective on the 2nd day of April, 1990. It
shall remain in effect until terminated by the undersigned
employer giving written notice to [NECA] and to [the
Union] at least one hundred fifty (150) days prior to the then
current anniversary date of the applicable approved labor
agreement.
(J.A. at 316 (emphasis added).) By its terms, the letter of assent
authorized NECA to bargain on ITAC's behalf and provided that the
authorization would continue unless ITAC withdrew the authorization
in writing at least 150 days prior to the anniversary date of the appli-
cable § 8(f) agreement. During the time ITAC incorporated EMSI and
refused to hire Union electrical workers, the company made no
attempt to revoke the letter of assent designating NECA as its
collective-bargaining agent.
Acting on ITAC's behalf pursuant to the letter of assent, NECA
negotiated the 1992-94 collective-bargaining agreement. The agree-
ment was signed on January 25, 1993, and was expressly made retro-
active to September 1, 1992. Because ITAC made no attempt to
revoke the letter of assent prior to January 25, 1993, we conclude that
the company was subject to the terms of the 1992-94 collective-
bargaining agreement as negotiated by its authorized bargaining agent
and the Union.1
_________________________________________________________________
1 The NLRB determined that ITAC, in addition to being bound by the
1992-94 agreement by virtue of its unrevoked letter of assent, was bound
7
ITAC contends that even if it was bound by the 1992-94 agreement
by virtue of its unrevoked letter of assent, the NLRB erred in ordering
it to comply with the agreement because the agreement was unen-
forceable. The agreement was unenforceable, ITAC claims, because
it impermissibly included in the bargaining unit"foremen" and "gen-
eral foremen," who, according to the company, are supervisors as
defined in § 2(11) of the Act, see 29 U.S.C.A. § 152(11) (West 1973).
Under the Act, "no employer . . . shall be compelled to deem individ-
uals defined herein as supervisors as employees for the purpose of
any law . . . relating to collective bargaining." 29 U.S.C.A. § 164(a)
(West 1978). By finding appropriate a unit that included supervisors,
the company contends, the Board violated its duty to determine an
"appropriate unit." 29 U.S.C.A. § 159(b) (West 1973).
It was NECA, however, ITAC's authorized bargaining agent pursu-
ant to the letter of assent, who negotiated the 1992-94 collective-
bargaining agreement which ITAC contends improperly included
supervisors in the appropriate bargaining unit. The NLRB has held
that "when parties to a collective-bargaining relationship, as here,
have voluntarily agreed to include supervisors in a unit, the Board
will order the application of the terms of the collective-bargaining
agreement to those supervisors." Gratiot Community Hosp., 312
N.L.R.B. 1075, 1075 n.2 (1993), enforced in part , 51 F.3d 1255 (6th
Cir. 1995); see also Plaza Hotel & Casino, 296 N.L.R.B. 918, 918 n.4
(1989), enforced sub nom. E.G. & H., Inc. v. NLRB, 949 F.2d 276
(9th Cir. 1991). The NLRB's interpretation of the Act in this respect
is reasonably defensible. See Holly Farms Corp. v. NLRB, 116 S. Ct.
1396, 1406 (1996). Accordingly, we conclude that the 1992-94
collective-bargaining agreement was not unenforceable for the reason
that it included foremen and general foremen in the bargaining unit.
Therefore, we must conclude, as did the NLRB, that because ITAC
_________________________________________________________________
by the agreement by virtue of an "evergreen" clause in the 1990-92
agreement, which continued in effect the terms of the 1990-92 agreement
until negotiations for a successor agreement could be completed. ITAC
contends that this determination is not supported by substantial evidence
because the 1990-92 agreement was not included in the record. Given
our holding that ITAC was bound by the 1992-94 agreement by virtue
of its unrevoked letter of assent, we have no occasion to pass upon this
issue.
8
was subject to the terms of the 1992-94 agreement, ITAC's incorpora-
tion of EMSI and its subsequent refusal to employ Union electrical
workers violated § 8(a)(1), (a)(3), and (a)(5) of the Act.
III.
On May 6, 1993, ITAC notified NECA and the Union in writing
that it was revoking the letter of assent and repudiating the 1992-94
collective-bargaining agreement. The ALJ, citing John Deklewa &
Sons, Inc., 282 N.L.R.B. 1375 (1987), enforced sub nom.
International Ass'n of Bridge, Structural & Ornamental Iron Workers
v. NLRB, 843 F.2d 770 (3rd Cir. 1988) ("Deklewa"), concluded that
ITAC's "May 6, 1993 repudiation of the collective bargaining agree-
ment violated Section 8(a)(5) of the Act," and held that "the terms of
that agreement were binding on EMSI from the time it commenced
operations until August 31, 1994" (J.A. at 503). Based on this conclu-
sion, the ALJ fashioned a remedy that required, inter alia, that ITAC
and EMSI reimburse employees, applicants, and employee trust funds
for the period September 1, 1992 through August 31, 1994. The
NLRB, in its decision and order, adopted the remedy ordered by the
ALJ.
In Deklewa, the NLRB overruled a number of its prior decisions
and held that § 8(f) collective-bargaining agreements may not be uni-
laterally repudiated by employers or unions. Prior to Deklewa, the
NLRB had held that a § 8(f) agreement could be terminated by unilat-
eral repudiation, either by the employer or the union, so long as the
union had not achieved majority status. See, e.g., R.J. Smith Constr.
Co., 191 N.L.R.B. 693 (1971), enforcement denied sub nom. Local
No. 150, Int'l Union of Operating Engineers v. NLRB , 480 F.2d 1186
(D.C. Cir. 1973). This pre-Deklewa interpretation of § 8(f) was
approved by the Supreme Court, see, e.g., Jim McNeff, Inc. v. Todd,
461 U.S. 260, 269-70 (1983), and by our Circuit, see Clark v. Ryan,
818 F.2d 1102, 1106-07 (4th Cir. 1987). In Deklewa, however, the
NLRB reversed its course and held that "[w]hen parties enter into an
8(f) agreement, they will be required . . . to comply with that agree-
ment unless the employees vote, in a Board-conducted election, to
reject (decertify) or change their bargaining representative." 282
N.L.R.B. 1375, 1987 WL 90249, at *14. Several Circuits have fol-
9
lowed the lead of the Third Circuit, which enforced Deklewa, and
have adopted this new interpretation of § 8(f).2
In determining that ITAC's repudiation of the 1992-94 collective-
bargaining agreement violated Section 8(a)(5) of the Act, and that the
terms of the 1992-94 agreement were binding on EMSI from the time
it commenced operations until August 31, 1994, the ALJ (and the
NLRB) apparently assumed that Deklewa was the controlling law of
this Circuit. Deklewa, however, does not control in the Fourth Circuit.
We recognize that several Circuits have deemed the NLRB's current
interpretation of § 8(f) to be reasonable and have adopted Deklewa.
We emphasize, however, that federal agencies, including the NLRB,
are "required to abide by the law of this Circuit in matters arising
within the jurisdiction of this court, until and unless it is changed by
this court or reversed by the Supreme Court of the United States." See
United States Dep't of Energy v. FLRA, 106 F.3d 1158, 1165 (4th Cir.
1997) (Luttig, J., concurring).
We are precluded from adopting Deklewa as the law of the Circuit
because it stands in conflict with Clark v. Ryan , 818 F.2d 1102 (4th
Cir. 1987), a prior panel opinion of this court. In Clark, we unequivo-
cally held -- contrary to Deklewa -- that "a pre-hire agreement may
be repudiated at any time by either party prior to the union's achieve-
ment of majority status." Clark, 818 F.2d at 1107. In reaching this
conclusion, we relied on the Supreme Court's decision in Jim McNeff,
Inc. v. Todd, 461 U.S. 260, 269-70 (1983), which itself held that
§ 8(f) agreements are subject to repudiation until the union establishes
majority status in a § 9(a) election. Neither McNeff nor Clark dis-
_________________________________________________________________
2 The Courts of Appeals for the First, Seventh, Eighth, Ninth, and
Tenth Circuits have adopted Deklewa as a reasonable construction of the
Act. See NLRB v. Viola Indus.-Elevator Div., Inc., 979 F.2d 1384, 1393-
95 (10th Cir. 1992) (en banc); C.E.K. Indus. Mechanical Contractors,
Inc. v. NLRB, 921 F.2d 350, 357 (1st Cir. 1990); NLRB v. Bufco Corp.,
899 F.2d 608, 609, 611 (7th Cir. 1990); NLRB v. W.L. Miller Co., 871
F.2d 745, 748 (8th Cir. 1989); Mesa Verde Constr. Co. v. Northern Cali-
fornia Dist. Council of Laborers, 861 F.2d 1124, 1129-34 (9th Cir. 1988)
(en banc). The Fifth Circuit, in United Brotherhood of Carpenters and
Joiners Local Union 953 v. Mar-Len of Louisiana, Inc., 906 F.2d 200
(5th Cir. 1990), declined to decide "whether the NLRB's present inter-
pretation of § 8(f), announced in Deklewa , is the controlling law in this
circuit." Id. at 203.
10
cussed the deference due to the NLRB's interpretation of the Act, nor
did those opinions reason that the Board's pre-Deklewa construction
of § 8(f) was merely a defensible interpretation of the Act subject to
change.
"A decision of a panel of this court becomes the law of the circuit
and is binding on other panels unless it is overruled by a subsequent
en banc opinion of this court or `a superseding contrary decision of
the Supreme Court.'" Etheridge v. Norfolk & Western Ry. Co., 9 F.3d
1087, 1090 (4th Cir. 1993) (quoting Busby v. Crown Supply, Inc., 896
F.2d 833, 840-41 (4th Cir. 1990)); see also Jones v. Angelone, 94
F.3d 900, 905 (4th Cir. 1996) ("[W]e cannot, as a panel of the court,
overrule the decision of another panel; only the en banc court may
overrule a prior panel decision."); Capital Produce Co. v. United
States, 930 F.2d 1077, 1079 (4th Cir. 1991) (holding that a prior panel
decision "is immune from attack at the panel level"). Because the
Fourth Circuit has not adopted Deklewa, and because we are bound
by a prior panel decision, we analyze ITAC's repudiation of the 1992-
94 agreement under Clark, 818 F.2d at 1102. Panels of the Ninth and
Eleventh Circuits have similarly refused to adopt Deklewa in the face
of contrary Circuit precedent. See Local Union 48 Sheet Metal Work-
ers v. S.L. Pappas & Co., 106 F.3d 970, 975 (11th Cir. 1997) (declin-
ing to adopt Deklewa because of contrary prior panel decision); Mesa
Verde Constr. Co. v. Northern California Dist. Council of Laborers,
820 F.2d 1006, 1013 (9th Cir.) (same), withdrawn , 832 F.2d 1164
(9th Cir. 1987), reheard en banc, 861 F.2d 1124 (9th Cir. 1988)
(adopting Deklewa); cf. United Brotherhood of Carpenters and Join-
ers Local Union 953 v. Mar-Len of Louisiana, Inc. , 906 F.2d 200, 203
n.2 (5th Cir. 1990) (declining to decide whether"we are bound by the
precedent of prior panels . . . that have expressly affirmed the
NLRB's pre-Deklewa interpretation of § 8(f)").
In Clark, we held that a § 8(f) agreement may be repudiated at any
time by either party prior to the union's achievement of majority sta-
tus. Here, it is not disputed that the Union did not establish majority
status. Because a § 8(f) pre-hire agreement is voidable by repudiation
until the union establishes majority support, and because it is undis-
puted that the Union has never achieved majority status, ITAC had
the right to repudiate the § 8(f) 1992-94 collective-bargaining agree-
ment.
11
ITAC notified NECA and the Union by letter dated May 6, 1993,
that it was terminating the letter of assent and repudiating the
collective-bargaining agreement effective immediately. In clear terms,
the letter stated that as of May 6, 1993, NECA was no longer the
labor-negotiating agent for ITAC. An employer may repudiate a
§ 8(f) agreement by "providing notice to the union." Clark, 818 F.2d
at 1107; see also McNeff, 461 U.S. at 270 n.11 (suggesting that "send-
ing notice to the union" would bring about the repudiation of a § 8(f)
agreement). We therefore hold that the letter from ITAC to NECA
and the Union operated as an effective repudiation of the 1992-94
collective-bargaining agreement.
ITAC's letter operated as an effective repudiation, even though it
did not comply with the termination provision in the letter of assent,
which provided that termination could be effectuated only by ITAC's
"giving written notice to [NECA] and to the Local Union at least one
hundred fifty (150) days prior to the then current anniversary date of
the applicable approved labor agreement." (J.A. at 316.) ITAC's letter
was dated May 6, 1993, only 112 days prior to August 31, 1993, the
then-current anniversary date of the 1992-94 agreement. Our decision
in Clark, however, makes clear that an employer's notification of
repudiation need not comply with the termination provision of the
agreement "if the agreement is a pre-hire agreement under section
8(f)." 818 F.2d at 1106. Accordingly, we hold that ITAC's obligations
under the 1992-94 agreement, along with those of its alter ego EMSI,
came to an end on May 6, 1993, the day it provided notice of repudia-
tion to NECA and the Union.
IV.
The NLRB's remedial order was grounded on the ALJ's conclu-
sion that Deklewa controlled in this Circuit and that the companies'
labor obligations continued under the 1992-94 collective-bargaining
agreement through August 31, 1994. "The Board has broad discretion
to choose a remedy," NLRB v. Williams Enters., Inc., 50 F.3d 1280,
1289 (4th Cir. 1995), "provided that the choice made does not rest on
insubstantial evidence or erroneous legal standards and does not con-
stitute an abuse of discretion," Standard-Coosa-Thatcher Carpet Yarn
Div., Inc. v. NLRB, 691 F.2d 1133, 1144 (4th Cir. 1982) (citing NLRB
v. Gissel Packing Co., 395 U.S. 575, 612 n.32 (1969)). Because the
NLRB determined that ITAC's obligations under the§ 8(f) agreement
12
extended through August 31, 1994, the NLRB's ordered remedy rests
on an erroneous legal standard and constitutes an abuse of discretion.
See Standard-Coosa, 691 F.2d at 1144. We therefore deny enforce-
ment of the NLRB's remedial order. An appropriate remedy in this
case must redress the companies' violations of the Act occurring
between September 1, 1992, and May 6, 1993-- not between Sep-
tember 1, 1992, and August 31, 1994 as the NLRB ordered.
V.
For the foregoing reasons we grant in part and deny in part ITAC's
and EMSI's petition for review, grant in part and deny in part the
NLRB's cross-petition for enforcement, and remand this case to the
NLRB for the entry of an appropriate remedial order, consistent with
our holding that ITAC's obligations under the 1992-94 agreement
ended on May 6, 1993.3
PETITION FOR REVIEW GRANTED IN PART
AND DENIED IN PART, PETITION FOR
ENFORCEMENT GRANTED IN PART AND DENIED
IN PART, AND REMANDED
_________________________________________________________________
3 ITAC also asserts that its due process rights have been violated
because the caption of the case describes EMSI as an alter ego of ITAC,
thereby conveying prejudgment of the alter ego issue. In responding to
this argument below, the ALJ stated that ITAC "did not cite any legal
authority in support of [its] contention that inclusion of an allegation of
alter ego status in the caption of this case constituted a denial of due pro-
cess. I have been unable to find any authoritative basis for that conten-
tion and therefore reject it." (J.A. at 503 n.68.) The NLRB, without
discussion, adopted the ALJ's resolution of this issue.
Although our review of NLRB decisions is normally deferential, we
review the Board's ruling on a constitutional issue de novo. See Multi-
Channel TV Cable Co. v. Charlottesville Quality Cable Corp., 65 F.3d
1113, 1123 (4th Cir. 1995); United States v. Presley, 52 F.3d 64, 67 (4th
Cir. 1995). Like the ALJ, we have been unable to find any legal authority
supporting ITAC's contention that an allegation of alter ego status in the
caption of the case violates due process. Furthermore, we are convinced
that ITAC received all of the process the company was due. Accordingly,
we reject the company's contention that the NLRB's decision and order
should be set aside and the complaint dismissed on due process grounds.
13