NLRB v. Baker ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, Local Union
No. 26,
No. 96-1377
Intervenor,
v.
D. L. BAKER, t/a Baker Electric,
Respondent.
D. L. BAKER, t/a Baker Electric,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
No. 96-1548
Respondent,
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, Local Union
No. 26,
Intervenor.
On Petition for Review and Cross Application
for Enforcement of an Order of the
National Labor Relations Board.
(5-CA-24131, 5-CA-24190)
Argued: December 6, 1996
Decided: January 8, 1997
Before WILKINS, HAMILTON, and WILLIAMS, Circuit Judges.
Application for enforcement granted and petition for review denied
by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: J. Raymond Sparrow, Jr., SHUMATE, KRAFTSON &
SPARROW, P.C., Reston, Virginia, for Baker. Julie Brock Broido,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
NLRB. Brian A. Powers, O'DONOGHUE & O'DONOGHUE, Wash-
ington, D.C., for Intervenor. ON BRIEF: Michael E. Avakian, THE
CENTER ON NATIONAL LABOR POLICY, INC., North Spring-
field, Virginia, for Baker. Frederick L. Feinstein, General Counsel,
Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy
Associate General Counsel, Margaret Gaines Neigus, Supervisory
Attorney, NATIONAL LABOR RELATIONS BOARD, Washington,
D.C., for NLRB. John M. McIntire, O'DONOGHUE &
O'DONOGHUE, Washington, D.C., for Intervenor.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
The National Labor Relations Board (the Board) filed a complaint
against D. L. Baker, Inc. (the Company) on February 7, 1994, alleg-
ing that the Company violated § 8(a)(1) and (a)(3) of the National
Labor Relations Act (the Act), see 29 U.S.C.A. § 158(a)(1), (a)(3)
(West 1973), by firing an employee for pro-union activity, and that
the Company violated § 8(a)(1) of the Act by coercively interrogating
employees about union activity, see 29 U.S.C.A. § 158(a)(1). Later,
the Board filed a second complaint, alleging that the Company vio-
lated § 8(a)(1) and (a)(5) of the Act, see 29 U.S.C.A. § 158(a)(1),
(a)(5) (West 1973), by refusing to comply with a§ 8(f) prehire agree-
2
ment, see 29 U.S.C.A. § 158(f) (West 1973). On May 19, 1994, the
complaints were consolidated. The case was heard by an administra-
tive law judge (ALJ) on October 3 and 4, 1994.
The ALJ concluded that the Company had violated the Act by (1)
firing Michael Tangy for his pro-union activity; (2) coercively ques-
tioning other employees about their union activities; and (3) refusing
to adhere to the current collective bargaining agreement between
Local Union No. 26, International Brotherhood of Electrical Workers
(the Union), and the Washington, D.C., Chapter of the National Elec-
trical Contractors Association (NECA). After considering exceptions
filed by the Company, the Board adopted the ALJ's factual findings,
legal conclusions, and proposed order.1 Thereafter, the Company filed
a petition for review, and the Board filed a cross-petition for enforce-
ment of the order.
The ALJ's findings of fact are adequate to address most of the
Company's arguments. Therefore, we will reiterate the facts only
when specifically relevant. And although we review de novo the
ALJ's legal conclusions, if accepted by the Board,"we must sustain
the [ALJ's] factual findings ``if supported by substantial evidence on
the record considered as a whole.'" Virginia Concrete Co. v. NLRB,
75 F.3d 974, 980 (4th Cir. 1996) (quoting 29 U.S.C.A. § 160(e) (West
1973)). Moreover, "absent exceptional circumstances, the ALJ's cred-
ibility findings, ``when adopted by the Board are to be accepted by the
[reviewing] court.'" NLRB v. Air Prods. & Chems., Inc., 717 F.2d
141, 145 (4th Cir. 1983) (alteration in original) (quoting Dubin-
Haskell Lining Corp. v. NLRB, 375 F.2d 568, 571 (4th Cir. 1967)).
In its petition, the Company argues first that there was insufficient
evidence to support the Board's conclusion that Michael Tangy was
fired for pro-union activity. The Company lodges a similar evidenti-
ary argument against the Board's conclusion that other employees
were coercively interrogated about their union activities. Finally, the
Company challenges the holding that it violated§ 8(a)(1) and (a)(5)
by not adhering to the current § 8(f) agreement between the Union
_________________________________________________________________
1 The Board did modify the ALJ's proposed remedy for the Company's
violation of § 8(a)(1) and (a)(5). That issue is not before us, however,
and we need not address it.
3
and NECA. Finding no merit to the Company's arguments, which we
consider in turn, we deny the Company's petition for review and
enforce the Board's order.
I.
An employer violates § 8(a)(1) and (a)(3) of the Act by firing an
employee because of the employee's pro-union activities. See FPC
Holdings, Inc. v. NLRB, 64 F.3d 935, 942 (4th Cir. 1995); NLRB v.
Hale Container Line, Inc., 943 F.2d 394, 398 (4th Cir. 1991). Here,
the ALJ concluded, and the Board agreed, that "[b]y discriminatorily
discharging Michael Tangy on December 1, 1993, for supporting the
Union, the Company has engaged in unfair labor practices" under
§ 8(a)(1) and (a)(3). (J.A. at 621.)
Applying our deferential standard of review, we uphold the ALJ's
findings of fact, which are clearly supported by substantial evidence
in the record. The ALJ specifically found that Tangy's testimony was
"truthful" (J.A. at 612), and that Tangy's witness, Graham, "im-
pressed [the ALJ] favorably as being [a] truthful witness[ ], trying to
recall accurately what had happened" (J.A. at 612). On the other hand,
the ALJ found that Daniel Baker, one of the principal witnesses for
the Company, "clearly gave fabricated testimony" (J.A. at 612), and
that "the Company fabricated the defense that it had already decided
to discharge Tangy" because of his poor performance (J.A. at 613).
In short, the ALJ observed the witnesses at length and made specific
credibility determinations, and the Board "carefully examined the
record and [found] no basis for reversing the[ALJ's] findings." (J.A.
at 609 n.1.) Because we must accord substantial deference to the
ALJ's credibility determinations and factual findings, as adopted by
the Board, we accept the conclusion that the Company fired Tangy
because of his pro-union activities and therefore violated § 8(a)(1)
and (a)(3).
II.
An employer also violates § 8(a)(1) by coercively interrogating
employees about their pro-union activities. See Equitable Gas Co. v.
NLRB, 966 F.2d 861, 866-67 (4th Cir. 1992); NLRB v. Nueva Eng.,
Inc., 761 F.2d 961, 966 (4th Cir. 1985). Mindful of our deferential
4
standard of review, we note that "[t]he coercive effect of an employ-
er's speech in a particular labor relations setting,``is a question essen-
tially for the specialized experience of the NLRB,'" J. P. Stevens &
Co. v. NLRB, 638 F.2d 676, 687 (4th Cir. 1980) (quoting Daniel Con-
str. Co. v. NLRB, 341 F.2d 805, 811 (4th Cir. 1965)). The ALJ found
that the Company "coercively interrogat[ed] employees and inform-
[ed] employees that it discharged Tangy because of his union-related
activity . . . ." (J.A. at 621.) The Company does not deny that it ques-
tioned employees about their union activity, but argues only that the
questioning was not coercive. The Company's lengthy argument,
however, does not change the fact that the ALJ heard the witnesses,
weighed the evidence, made credibility determinations, and con-
cluded that these statements were coercive. As noted above, the ALJ's
factual determination is entitled to deference on appeal. We therefore
find substantial evidence in the record to support the ALJ's conclu-
sion, adopted by the Board, that the Company coercively interrogated
its employees about their union activity, thereby violating § 8(a)(1) of
the Act.
III.
Finally, the Company challenges the Board's holding that it vio-
lated § 8(a)(1) and (a)(5) by failing to adhere to the current § 8(f)
agreement between NECA and the Union. Section 8(f) allows
employers or multiemployer associations in the construction industry
to enter into collective bargaining agreements, commonly called "pre-
hire agreements," with unions that have not formally established
majority status. See 29 U.S.C.A. § 158(f). Moreover, an individual
construction employer can voluntarily enter a "me-too" agreement, in
which the individual employer authorizes a multiemployer bargaining
association to represent it in § 8(f) negotiations. In such an arrange-
ment, the individual employer agrees to be bound to the § 8(f) agree-
ment reached between the multiemployer bargaining association and
the union. Here, the ALJ concluded, and the Board agreed, that the
Company had violated the current § 8(f) agreement between NECA
and the Union, to which it was bound by virtue of two "me-too" docu-
ments the Company signed in 1976.2 Although the Company chal-
_________________________________________________________________
2 The two "me-too" documents were the "Letter of Assent-A" (J.A. at
402) and the "Benefit Fund Agreement" (J.A. at 403).
5
lenges this conclusion on several grounds, we reject each of the
Company's arguments.
The Company first argues that it repudiated the 1976"me-too" doc-
uments by sixteen years of "notorious" nonunion operations. We
disagree.3 In Jim McNeff, Inc. v. Todd, 461 U.S. 260, 270 n.11 (1983),
the Supreme Court recognized that certain "specific acts would affect
the repudiation of a prehire agreement." See also Clark v. Ryan, 818
F.2d 1102, 1107 (4th Cir. 1987) (recognizing that, until an § 8(f)
agreement is repudiated, it must be followed). Under McNeff and
Clark, however, acts sufficient to repudiate the prehire agreement
require at least that the Union have some form of notice of the incon-
sistent conduct. Here, the ALJ specifically found that the Company
"succeeded in operating nonunion without discovery by the Union
until September 1993" (J.A. at 621), and that"[t]here was no reason
for [the Union] to suspect that Baker was reneging on his promises
and operating nonunion" (J.A. at 620). These factual findings are
supported by substantial evidence and are not contradicted by any
evidence offered by the Company. Therefore, we must reject the
Company's argument that its conduct prior to September 1993 was
sufficiently "notorious" to repudiate the contract.
The Company also argues that it is not bound to the current § 8(f)
agreement between NECA and the Union because, in 1976, it agreed
only to be bound to the "current approved labor agreement." Because
the § 8(f) agreement existing in 1976 has been replaced by a series of
four successor agreements, culminating in the current § 8(f) agree-
ment, the Company argues that its consent in the"me-too" documents
it signed in 1976 does not bind it to the current§ 8(f) agreement.
The ALJ found, however, that the Company was bound to the cur-
rent § 8(f) agreement by virtue of renewal clauses contained in both
_________________________________________________________________
3 The ALJ apparently assumed that John Deklewa & Sons, Inc., 282
N.L.R.B. Dec. 1375 (1987), enforced sub nom. International Ass'n of
Bridge, Structural & Ornamental Iron Workers v. NLRB , 843 F.2d 770(3d Cir. 1988), controlled the issue. (J.A. at 616, 621.) Because the
Fourth Circuit has not adopted Deklewa, we analyze the Company's
argument under Clark v. Ryan, 818 F.2d 1102 (4th Cir. 1987). The result,
however, does not change under the rationale of either decision.
6
"me-too" documents,4 as well as in each § 8(f) agreement. Although
we normally afford the ALJ and the Board considerable deference, we
owe no deference to the interpretation of contractual provisions,
which we review de novo. See Litton Fin. Printing Div. v. NLRB, 501
U.S. 190, 203 (1991) ("We would risk the development of conflicting
principles were we to defer to the Board in its interpretation of the
contract . . . ."). We agree, however, with the Board's conclusion that
the Company is bound to the current § 8(f) agreement. Other courts
have reached the same result. See Local 257, Int'l Bhd. of Elec. Work-
ers v. Grimm, 786 F.2d 342, 345-46 (8th Cir. 1986) (binding an
employer to successor § 8(f) agreements by virtue of "me-too" docu-
ments identical to those in the instant case); NLRB v. Black, 709 F.2d
939, 940-41 (5th Cir. 1983) (per curiam) (holding that a "me-too"
document signed in 1978 bound the employer to a§ 8(f) agreement
effective from 1979-81); Nelson Elec. v. NLRB , 638 F.2d 965, 967-68
(6th Cir. 1981) (per curiam) (finding that an employer was bound to
a "new collective bargaining agreement" that became effective after
the employer signed a "me-too" document identical to the one at issue
here). We therefore agree with the ALJ and the Board that the Com-
pany's delegation of bargaining authority to NECA continued until
revoked, and that prior to this action the Company did not revoke
NECA's authority. Accordingly, we accept the Board's conclusion
that the Company was bound to the current § 8(f) agreement between
NECA and the Union.5
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4 Specifically, the Letter of Assent-A authorized NECA to act as the
Company's "collective bargaining representative for all matters con-
tained in or pertaining to the" § 8(f) agreement between NECA and the
Union. (J.A. at 402.) This authorization was to"remain in effect until ter-
minated by [the Company] giving written notice. . . ." (J.A. at 402.) The
Benefit Fund Agreement contained similar language. (J.A. at 403.)
5 The Company also argues that because Holly Baker, Baker's ex-wife,
signed the 1976 "me-too" documents in the name of Baker's sole propri-
etorship, the Company itself is not bound to the current § 8(f) agreement.
Holly Baker signed the "me-too" documents, however, as "President" of
the employer, and the Company never explains how she could have been
the president of a sole proprietorship. Moreover, the Company has never
demonstrated that Daniel Baker was, in fact, operating two separate legal
entities. We therefore reject this argument on the Board's reasoning.
(J.A. at 609.)
7
IV.
In conclusion, we agree with the Board's holding that the Company
violated § 8(a)(1) and (a)(3) by firing Tangy for his pro-union activi-
ties, and that the Company violated § 8(a)(1) by coercively interrogat-
ing employees. Moreover, we accept the Board's holding that the
Company violated § 8(a)(1) and (a)(5) by refusing to adhere to the
current § 8(f) agreement between the Union and NECA. Because the
Company never effectively repudiated the § 8(f) agreement, it may be
held liable for breaching its terms. We therefore deny the Company's
petition for review and grant the Board's cross-petition for enforce-
ment.
PETITION FOR ENFORCEMENT GRANTED;
PETITION FOR REVIEW DENIED
8