Allied Mechanical Services, Inc. v. National Labor Relations Board
668 F.3d 758
D.C. Cir.2012Background
- Allied declined to recognize the Union after its April 1990 assertion of majority status.
- The Board filed a complaint in December 1990 seeking a Gissel bargaining order.
- In July 1991 Allied signed a settlement agreeing to recognize and bargain with the Union; the agreement contained a non-admission clause.
- From 1992–1993, ten Allied employees went on economic strikes and some offered to return; Allied refused reinstatement.
- During 1998 Allied refused to reinstate ten strikers and declined to hire four applicants because of union membership; later, Allied withdrew recognition and revised its application process.
- Board decisions on 8(a)(3), 8(a)(1), and related issues culminated in 2004 and 2007 rulings holding a 9(a) relationship existed and ordering bargaining with the Union; on remand after New Process Steel, the court upheld enforcement of those orders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Allied–Union was a 9(a) relationship rather than 8(f). | Allied argues the relationship remained 8(f). | Board found a 9(a) relationship based on settlement context and extrinsic evidence. | 9(a) relationship supported; enforcement affirmed. |
| Whether the 1991 settlement created a 8(f) or 9(a) status. | Settlement created only an 8(f) relationship. | Settlement together with evidence showed 9(a) status. | Settlement did not reflect 8(f); record supports 9(a). |
| Whether the Board’s bargaining-order remedy was proper given 9(a) status. | Remedies premised on 9(a) status were improper if 8(f) applied. | Once 9(a) status shown, bargaining obligations and remedies are proper. | Remedies upheld under 9(a) framework. |
Key Cases Cited
- Nova Plumbing, Inc. v. NLRB, 330 F.3d 531 (D.C. Cir. 2003) (construction industry 8(f) presumption may be overcome by majority evidence in 9(a) context)
- M & M Backhoe Serv., Inc. v. NLRB, 469 F.3d 1047 (D.C. Cir. 2006) (Nova Plumbing limitation on converting 8(f) to 9(a) discussed)
- Gissel Packing Co., 395 U.S. 575 (Supreme Court 1969) (establishes bargaining orders when likelihood of majority is uncertain)
- Nova Plumbing, Inc. v. NLRB, 330 F.3d 531 (D.C. Cir. 2003) (refined Deklewa/8(f) versus 9(a) framework; majority status must exist)
- Kravis, 550 F.3d 1188 (D.C. Cir. 2006) (reasonable basis to find 9(a) status; deference to Board’s reasoning)
- United Dairy Farmers Coop. Ass’n v. NLRB, 633 F.2d 1054 (3d Cir. 1980) (majority status doctrine relevant to bargaining orders)