Seattle Auto Glass v. National Labor Relations Board

669 F.2d 1332
CourtCourt of Appeals for the Ninth Circuit
DecidedFebruary 25, 1982
DocketNos. 79-7603, 79-7578, 80-7050, 79-7520 and 79-7476
StatusPublished
Cited by3 cases

This text of 669 F.2d 1332 (Seattle Auto Glass v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Seattle Auto Glass v. National Labor Relations Board, 669 F.2d 1332 (9th Cir. 1982).

Opinion

SNEED, Circuit Judge:

In these cases, involving four different labor disputes, the National Labor Relations Board concluded that employers violated sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (5) (1976), by impermissibly withdrawing from multiemployer bargaining units. As a result, the Board contends, each employer should be bound by the agreement subsequently reached by the respective unit and union. Each employer argues that its withdrawal was permissible and that it is not bound by an agreement signed after it withdrew from its unit. Pursuant to 29 U.S.C. § 160(e) (1976), the Board petitions for enforcement of its orders. The employers challenge the Board’s orders pursuant to 29 U.S.C. § 160(f) (1976). In light of Charles D. Bonanno Linen Service v. NLRB, - U.S. -, 102 S.Ct. 720, 70 L.Ed.2d 656 (1982), we enforce the Board’s orders against Weatherford Motors, Inc., Golden Bear Motors, Inc., Seattle Auto Glass, Inc., and Western Pacific Roofing Corp., and decline to enforce the Board’s order against Birkenwald, Inc. Although each of these cases was briefed and argued, although not submitted, prior to the Bonanno decision, the facts and issues of each are sufficiently clear to enable us to reach a decision without additional briefing or argument.

I.

THE BONANNO DECISION

The employers in these four cases challenge the rules the Board has developed to govern withdrawal from multiemployer bargaining units following an impasse in bargaining. Congress committed primary responsibility for balancing the conflicting interests involved in formulating rules concerning multiemployer bargaining to the Board. NLRB v. Truck Drivers Local 449, 353 U.S. 87, 96, 77 S.Ct. 643, 647, 1 L.Ed.2d 676 (1957). Despite the limited standard of judicial review, a number of courts, including this circuit, had concluded that the Board’s rules governing withdrawal from multiemployer bargaining units did not reasonably balance the conflicting interests. See, e.g., H & D, Inc. v. NLRB, 665 F.2d 257 (9th Cir. 1980), mandate stayed, (9th Cir. Dec. 17, 1981), cert. granted, opinion vacated and remanded, - U.S. -, 102 S.Ct. 1243, 71 L.Ed.2d 440 (1982); NLRB v. Independent Association of Steel Fabricators, 582 F.2d 135 (2d Cir. 1978), cert. denied, 439 U.S. 1130, 99 S.Ct. 1049, 59 L.Ed.2d 91 (1979); NLRB v. Beck Engraving Co., 522 F.2d 475 (3d Cir. 1975). To resolve these differences, the United States Supreme Court granted certiorari in NLRB v. Charles D. Bonanno Linen Service, Inc., 630 F.2d 25 (1st Cir. 1980), a decision holding that an impasse in bargaining did not justify withdrawal from the unit. The Supreme Court affirmed the First Circuit. Charles D. Bonanno Linen Service, Inc. v. NLRB, - U.S. -, 102 S.Ct. 720, 70 L.Ed.2d 656 (1982). This decision controls the cases before us.

The Court recognized that a different balance of the conflicting legitimate interests involved in withdrawal by an employer from a multiemployer bargaining unit because of an impasse in bargaining might have been struck. It based its affirmance on the proposition that “assessing the significance of impasse and the dynamics of collective bargaining is precisely the kind of judgment that . .. should be left to the Board.” Id. at -, 102 S.Ct. at 725. [1335]*1335After Bonanno, therefore, an impasse in bargaining in a multiemployer unit is not an “unusual circumstance” permitting withdrawal by any party from a multiemployer bargaining unit. Id. at ---, 102 S.Ct. at 724-25. The signing of individual separate agreements that will survive unit negotiations, on the other hand, is a different matter. Those, the Court indicated, are clearly inconsistent with, and destructive of, group bargaining. By signing such an agreement, the union has so effectively fragmented and destroyed the integrity of the bargaining unit as to create an unusual circumstance under the Board’s rules. Id. We now turn to the four disputes before us.

II.

WEATHERFORD MOTORS, INC. V. NLRB, NO. 79-7578, AND NLRB V. GOLDEN BEAR MOTORS, INC., NO. 80-7050

The issue in these cases was whether an impasse existed when four employers withdrew from a multiemployer bargaining unit. The Court’s Bonanno decision makes the issue moot. An impasse in bargaining is not an “unusual circumstance” justifying withdrawal. No other grounds permitting withdrawal exist, inasmuch as an administrative law judge found that each employer was bound by the multiemployer unit’s agreement, and the Board affirmed that finding. Golden Bear Motors, Inc., 245 N.L.R.B. 300 (1979). Thus, we must grant enforcement in No. 79-7578 and No. 80-7050.

III.

SEATTLE AUTO GLASS V. NLRB, NO. 79-7603

This case posed the question whether the existence of an impasse, stipulated to by the parties, and the signing of intent agreements, justified the employer’s withdrawal from the bargaining unit. The association and the union executed the master agreement on August 1, 1977. The parties stipulated that they reached an impasse on August 9 concerning the glassmen agreement. On August 12, the union struck and picketed members of the association, including Seattle Auto Glass. The union offered to stop picketing members of the association who signed the master agreement and an interim agreement covering glassmen, the terms of which were those offered by the union on August 9. Six of the forty-one members of the unit signed these agreements between August 12 and September 29. On August 15 the employer informed the union and the association that it was withdrawing from the multiemployer bargaining unit. The union stated on August 31 that it would not accept the withdrawal. Negotiations between the union and the association resumed on September 1, and a final agreement was reached on September 23.

Under Bonanno, neither impasse nor the signing of interim agreements that do not survive the final master agreement, as opposed to separate agreements that do survive unit negotiations, is an “unusual circumstance” justifying withdrawal. Charles D. Bonanno Linen Service, Inc. v. NLRB, supra, --- U.S. at ---, 102 S.Ct. at 724-26. Here only interim agreements were signed. In light of Bonanno, we are required to enforce the order of the Board in No. 79-7603.

IV.

WESTERN PACIFIC ROOFING CORP. V. NLRB, NO. 79-7476

Western Pacific Roofing Corp. (“Western”) was one of thirty-two members of the Roofing Contractors Association of Southern California (the “association”), a mul-tiemployer bargaining unit. On July 15, 1977, negotiations began between the Roofers Union (the “union”) and the association to replace a contract due to expire August 15.

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