NLRB v. Aucillo Iron Works

• Court: Court of Appeals for the First Circuit
• Decided: November 30, 1992
• Docket: 91-1905
• Status: Published

Opinion

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.


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                                    July 21, 1995

                                 ____________________


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        *Of the District of Massachusetts, sitting by designation.



CAMPBELL, Senior Circuit Judge.  Several years ago,
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            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
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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  NLRB 1341, 1346  (1981); North
                      ____                                _____

                      Bros. Ford, 220 NLRB 1021, 1022 (1975).
                      __________



            Auciello Iron Works, Inc., 303  N.L.R.B. 562, 562 n.2 (1991).
            _________________________


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            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.



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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
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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.


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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



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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.



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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. 
                      _______________________________________


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