United Telegraph Workers, Afl-Cio v. National Labor Relations Board, Western Union Telegraph Company and Western Union Corporation, Intervenors

571 F.2d 665, 187 U.S. App. D.C. 231, 97 L.R.R.M. (BNA) 2962, 1978 U.S. App. LEXIS 12462

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 24, 1978
• Docket: 76-1505
• Status: Published

Opinions

WILKEY, Circuit Judge:

This case presents the question of the collective bargaining obligations of a group of interrelated corporations. The United Telegraph Workers (the Union) long have been the collective bargaining representative of employees of Western Union Telegraph Co. (Telegraph). During 1969-73, Telegraph reorganized itself into a parent holding company and five subsidiaries. Telegraph, the common carrier, became the major subsidiary; its various non-FCC-regulated operations were spun off into four other subsidiaries. Following this corporate reorganization, the Union demanded that it be recognized as the collective'bargaining representative, not only of the employees of Telegraph, but also of the employees of the parent and four other subsidiary corporations. These corporations refused to recognize the Union. The Union filed an unfair labor practice charge with the National Labor Relations Board, asserting that the six corporations constituted a “single employer” for purposes of collective bargaining, and that these corporations (excepting Telegraph) had unlawfully refused to recognize and bargain with it in violation of § 8(a)(1) and (5) of the National Labor Relations Act.¹ Reversing the Administrative Law Judge (ALJ), a divided panel of the Board found that each corporation was a “separate and independent entity,” and that the six corporations therefore did not constitute a “single employer”; accordingly, it held that Telegraph’s bargaining obligations “had no application” to the parent or four other subsidiaries, and dismissed the complaint.² The Board’s findings were amply supported by substantial evidence in the record, and we affirm on the basis of its opinion. We write briefly to address the suggestions aired by our dissenting colleague.

As in other areas of the law, corporations normally are treated as separate entities under the Labor Act. The Board treats multiple corporations as a single employer only when it is established that the nominally separate corporations are in fact operated as a single integrated business enterprise. As explained approvingly by the Supreme Court in 1965, the Board weighs four factors in ascertaining whether several businesses are sufficiently integrated to be treated as one: (1) interrelation of operations; (2) common management; (3) centralized control of labor relations; and (4) common ownership or financial control.³ After careful consideration of the facts, the Board concluded that of these “four key elements . . . only common ownership is present here.”⁴ Because common ownership is necessarily a feature of any conglomerate organization, and because common ownership is not determinative where common control is not shown,⁵ the Board held that the Union failed to demonstrate that the six corporations were a single employer.

Our dissenting colleague concedes that the record contains substantial evidence to support the Board’s findings that these six corporations were not a single employer.⁶ He denies, however, that disposition of this case can rest solely on consideration of the elements comprising the “single-employer” test, and would remand to let the Board consider whether the “alter-ego” and “successorship” doctrines are relevant to the circumstances of this case. We disagree.

First, we think that the “single-employer” test adequately disposes of this litigation. In Local 627, IUOE v. NLRB7 this Court squarely held that the collective bargaining obligations of integrated parent/ subsidiary corporations under NLRA § 8(a)(1) and (5) were to be determined by means of the four-factor “single-employer” test that the Board used here. From the outset the litigation has proceeded on this assumption; from the outset the parties have done no more than dispute as to how facts under the “single-employer” test should be found.⁸ If there is any doubt that the “single-employer” test is adequate to dispose of this case, it has never been expressed by this Court, by any other court, by any of the parties to this litigation, or by any of the expert decisionmakers who have considered the case thus far.

Second, we think that remand for further consideration would serve no purpose. Remand for consideration of the “alter-ego” doctrine would be redundant, for in ascertaining under the “single-employer” test whether the various corporations have interrelated operations, common management, common ownership, and centralized control of labor relations, the Board plainly made factual findings akin to any it would make under an “alter-ego” rubric.⁹ Remand for consideration of the “successor-ship” doctrine would be futile, and unjustifiable in any event. The General Counsel, representing the charging party before the ALJ, stated that the successorship doctrine was inapplicable.¹⁰ The charged parties agreed that “the doctrine of successorship ‘would require radical transformation’ to be applicable” here.¹¹ The ALJ concluded that this case “[did] not involv[e] ... a successorship situation.”¹² The successor-ship doctrine was not mentioned by the majority or dissenter on the Board, nor by any party on brief or on oral argument to this Court. There is simply no reason to remand this case to an expert agency for consideration of a theory which both it and all parties before it have at all times agreed is irrelevant.

Our role in this case is to affirm the Board’s decision if its decision is supported by substantial evidence in the record. We all agree that the Board’s decision is supported by substantial evidence in the record and its decision according is

Affirmed.

1 . 29 U.S.C. § 158 (1970):

(a) It shall be an unfair labor practice for an employer—

(1) to interfere with, restrain, or coerce employees in the exercise of the rights [to organize and bargain collectively] guaranteed in [§ 7 of the NLRA];

(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of [§ 9(a) of the NLRA].

2 . The ALJ’s decision is reported at 224 N.L.R.B. 279 (1976). The Board’s decision is reported in id. at 274, 92 L.R.R.M. 1443 (1976).

3 . Radio & Television Broadcast Technicians Local 1264 v. Broadcast Serv., 380 U.S. 255, 256, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965) (per curiam), quoted with approval in South Prairie Constr. Co. v. Local 627, IUOE, 425 U.S. 800, 802 & n.3, 96 S.Ct. 1842, 48 L.Ed.2d 382 (1976).

4 . 224 N.L.R.B. at 276, 92 L.R.R.M. at 1446.

5 . E. g., AFTRA v. NLRB, 149 U.S.App.D.C. 272, 462 F.2d 887, 892 (1972); NLRB v. Welcome-American Fertilizer Co., 443 F.2d 19, 20-21 (9th Cir. 1971). See Local 627, IUOE v. NLRB, 171 U.S.App.D.C. 102, 518 F.2d 1040, 1044-47 (1975) , aff’d in relevant part and remanded on other grounds sub nom., South Prairie Constr. Co. v. Local 627, IUOE, 425 U.S. 800, 96 S.Ct. 1842, 48 L.Ed.2d 782 (1976).

6 . Dissenting op. at 571 F.2d 670 & n. 11.

7 . 171 U.S.App.D.C. 102, 518 F.2d 1040, 1045-47 (1975), aff’d in relevant part and remanded on other grounds sub nom., South Prairie Constr. Co. v. Local 627, IUOE, 425 U.S. 800, 802-04 & n.3, 96 S.Ct. 1842, 48 L.Ed.2d 782 (1976).

8 . In its charge, the Union alleged that the six “nominally separate corporations [were] under the Act a single integrated enterprise and/or a single employer.” App. 7. The General Counsel, the Union, and the corporations alike rested their cases before the ALJ on the “single-employer” rationale. App. 115-17. The ALJ stated that the “primary issue is whether the holding company and the various new subsidiaries are, in substance, . . . merely segments or departments of [Telegraph], which continues to operate as a single integrated enterprise,” App. 79, and made detailed findings on each of the four factors of the “single-employer” test. App. 117-25. Reversing the ALJ, the Board made different factual findings on each of these four factors, and concluded that the corporations did not “constitute a single employer.” 224 N.L.R.B. at 274, 92 L.R.R.M. at 1444. Member Fanning agreed that the “single-employer” test disposed of the case, and dissented on factual grounds. Id. at 277-79, 92 L.R.R.M. at 1447-49. The parties, on brief and oral argument to this Court, have agreed that the “single-employer” test disposes of the case, and merely rehearsed the factual dispute that divided the Board.

9 . Indeed, the ALJ made explicit findings on the “alter-ego” theory, App. 87, and his findings were implicitly rejected by the Board.

10 . App. 115.

11 . App. 116.

12 . App. 127.