International Union of Painters & Allied Trades, Local Unions No. 970 & 1144 v. National Labor Relations Board

309 F.3d 1, 353 U.S. App. D.C. 349, 171 L.R.R.M. (BNA) 2065, 2002 U.S. App. LEXIS 22409
CourtCourt of Appeals for the D.C. Circuit
DecidedOctober 25, 2002
DocketNos. 01-1242 and 01-1323
StatusPublished
Cited by17 cases

This text of 309 F.3d 1 (International Union of Painters & Allied Trades, Local Unions No. 970 & 1144 v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
International Union of Painters & Allied Trades, Local Unions No. 970 & 1144 v. National Labor Relations Board, 309 F.3d 1, 353 U.S. App. D.C. 349, 171 L.R.R.M. (BNA) 2065, 2002 U.S. App. LEXIS 22409 (D.C. Cir. 2002).

Opinion

Opinion for the Court filed by Senior Circuit Judge WILLIAMS.

STEPHEN F. WILLIAMS, Senior Circuit Judge:

This case arises from the refusal of an employer to enter into and abide by a collective bargaining agreement (“CBA”) negotiated with various unions (collectively, the “union”). The employer claimed that it had not authorized the negotiators and therefore was not bound by the agreement; it also argued that the union’s failure to have obtained majority status excused the employer’s non-compliance. The National Labor Relations Board rejected these arguments. See W.R. Mollohan, Inc., 333 NLRB No. 162, 2001 WL 497324, at *1, *3 (2001). The employer also claimed that two clauses of the agreement violated the National Labor Relations Act. The Board rejected one such claim and accepted the other, relating to the “succes-sorship clause.” Id. at *2. But it ruled that the allegedly defective language in that clause was severable and therefore did not justify the employer’s refusal to abide by the agreement. Id. at *3. The union petitioned for review, challenging the Board’s edit of the successorship clause, and the Board filed an application for enforcement. The employer then filed an answer under Rule 15(b)(2) of the Federal Rules of Appellate Procedure, defending its refusal to bargain. Rejecting the employer’s claims and accepting those of the union, we grant the Board’s application for enforcement except with regard to the order’s deletion of language from the sue-cessorship clause.

Because there is little overlap between the issues relating to the negotiations and majority status on the one hand, and to the two disputed clauses on the other, we address them separately.

Our review is governed by § 10(e) of the Act, 29 U.S.C. § 160(e), and the Administrative Procedure Act. The Board’s factual findings “shall be conclusive” if supported by substantial evidence. 29 U.S.C. § 160(e). Its reasonable interpretations of the Act are entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984). Board interpretations of the CBA, however, receive no deference. Litton Fin'l Printing Div. v. NLRB, 501 U.S. 190, 202-03, 111 S.Ct. 2215, 2223-24, 115 L.Ed.2d 177 (1991).

W.R. Mollohan, Inc. is in the business of painting and repainting bridges, overpasses, and tunnels on federal and state highways. For many years, Mollohan signed union contracts negotiated by the Charleston Chapter of the Painting and Decorating Contractors of America (“the Association”), which represented several area employers in collective bargaining negotiations with the union. Mollohan’s Vice President of Operations, Joe Beam, was president of the Association and served on its negotiating committee. The Association negotiated the contract preceding the one now in dispute, which Beam then signed on behalf of the company.

[4]*4In March 1998 the union expressed its desire to negotiate a new contract by sending a letter to the Association. Beam, in his capacity as president of the Association, sent a similar letter to the union expressing the Association’s desire to negotiate as well. At the first bargaining session, Beam and Association Secretary-Treasurer Ken Bowen told the union that they were representing seven named employers, including Mollohan. Negotiations began.

Beam resigned from the negotiating committee in the course of the negotiations, but didn’t indicate that Mollohan was withdrawing authority from the Association to bargain on its behalf. About 10 days later, on April 28, 1998, the union and the Association reached agreement on a new CBA, subject to ratification by the union’s membership, which followed in due course.

On May 8 Mollohan notified the Association and the union that it was withdrawing authorization from the Association to bargain on its behalf. The union took the position that the company was already bound, and asked Mollohan to sign. Mol-lohan refused and, without bargaining with the union, ceased making contractually required payments to several funds, and instead began depositing employee pension funds into an escrow account.

Acting on separate charges filed by the union, the Board’s General Counsel issued a consolidated complaint alleging that Mol-lohan had violated §§ 8(a)(1), (5) of the Act, 29 U.S.C. § 158(a)(1), (5), by these and related acts of non-compliance with the agreement. Besides its claim that the negotiators lacked authority, Mollohan argued that the agreement was invalid because two of its clauses violated the Act, thus excusing Mollohan’s non-compliance.

After a hearing, the Administrative Law Judge issued a decision entirely rejecting Mollohan’s claims. It didn’t have to consider severability, as it found the two challenged clauses not violative of the Act.

The Board affirmed the ALJ’s findings of violations, holding that the Association had apparent authority to bind the company. Mollohan, 333 NLRB No. 162, 2001 WL 497324, at *1. Contrary to the ALJ, however, the Board found that some language in the successorship clause violated § 8(e) of the Act, and accordingly it modified the ALJ’s recommended order to require that Mollohan execute and abide by the contract only after deletion of the unlawful language. Id. at *2-*3.

First, we reject Mollohan’s argument that the Board’s finding of apparent authority was not supported by substantial evidence. As both the ALJ and the Board discussed at length in their opinions, the Association told the union, in the presence of company representatives, that it represented the company, and the company did not purport to revoke that authority until after the agreement was reached. Id. at *1. Thus the Board’s conclusion that the Association had apparent authority to bind Mollohan is supported by substantial evidence.

Although the company argues that the Board erred in deciding the case on an issue, apparent authority, that it says was not litigated before the ALJ, Employer’s Br. at 13, Mollohan failed to raise the argument before the Board. Thus we lack jurisdiction. 29 U.S.C. § 160(e) (“No objection that has not been urged before the Board ... shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.”). Mollo-han’s attempted parry — that it could not raise the claim because it didn’t know that the Board would adopt that theory until it issued its decision — doesn’t work. Mollo-[5]*5han could have raised the point in a petition for reconsideration. International Ladies’ Garment Workers’ Union v. Quality Mfg. Co., 420 U.S. 276, 281 n. 3, 95 S.Ct. 972, 975 n. 3, 43 L.Ed.2d 189 (1975).

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309 F.3d 1, 353 U.S. App. D.C. 349, 171 L.R.R.M. (BNA) 2065, 2002 U.S. App. LEXIS 22409, Counsel Stack Legal Research, https://law.counselstack.com/opinion/international-union-of-painters-allied-trades-local-unions-no-970-cadc-2002.