COLORADO FIRE SPRINKLER, INC., PETITIONER v. NATIONAL LABOR RELATIONS BOARD, RESPONDENT ROAD SPRINKLER FITTERS LOCAL UNION NO. 669, U.A., AFL-CIO, INTERVENOR
No. 16-1261
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 7, 2017 Decided June 8, 2018
Consolidated with 16-1319
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
Thomas A. Lenz argued the cause for petitioner. With him on the briefs was L. Brent Garrett.
John N. Raudabaugh and Glenn M. Taubman were on the brief for amicus curiae Robert Blackwell in support of Colorado Fire Sprinkler, Inc.
Jeffrey W. Burritt, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Richard F. Griffin, Jr., General Counsel at the time the brief was filed, Jennifer Abruzzo, Deputy General Counsel at the time the brief was filed, John H. Ferguson, Associate Deputy Counsel, Linda Dreeben, Deputy Associate General Counsel, and Usha Dheenan, Supervisory Attorney.
William W. Osborne Jr. argued the cause and filed the brief for intervenor, Road Sprinkler Fitters Local Union 669, U.A., AFL-CIO.
Before: ROGERS and MILLETT, Circuit Judges, and RANDOLPH, Senior Circuit Judge.
MILLETT, Circuit Judge: When the Colorado Fire Sprinkler company‘s labor agreement with the Road Sprinkler Fitters Union expired, the Company announced that it would no longer recognize or negotiate with the Union as a representative of the Company‘s employees. The Company asserted a right under
I
A
This is a tale of two statutory provisions, and of a Union‘s effort to move between them.
A different rule operates in the building and construction industries. For those businesses, labor costs need to be known in advance so that companies can bid for work. In addition, union organization is difficult because projects can be relatively short-lived and employees migrate between jobs. See Nova Plumbing, Inc. v. NLRB, 330 F.3d 531, 534 (D.C. Cir. 2003) (explaining that
To address those challenges,
A pre-hire agreement in the construction and building industries is presumed to be governed by
Under the more commonplace
Not so for
That is all a long way of saying that, when a labor agreement expires, an employer‘s rights and obligations under
B
Colorado Fire Sprinkler, Inc., installs, services, and inspects fire sprinkler systems across commercial properties in Southern Colorado. Ken Stringer founded the Company in 1991 and still serves as its sole owner. At the time of the Company‘s founding, Stringer entered into a
The
In 1994, the Company hired its first employees. Over the next two decades, the Company continued to hire employees primarily through the Union‘s apprenticeship program, and entered into successive multi-year representation Agreements with the Union. The next three Agreements—in 1994, 1997, and 2000—likewise said that the Company acknowledged “the Union‘s status as the exclusive bargaining representative of its employees pursuant to
In 2005, the Company signed its fifth Agreement with the Union, which again was a nationwide form contract. The 2005 Agreement included a similar acknowledgement of representative status, and then added the additional statement “that the Union has offered to provide the Employer with confirmation of its support by a majority of such employees.” J.A. 83. The subsequent two Agreements retained that same language.
In 2010, Stringer told the Union that the Company was in serious financial straits, and that he was concerned that he would be unable to continue meeting the same contractual obligations, especially the payments into the Union‘s Health and Welfare, Education, and Pension Funds. After
At that same time, Stringer and the Union were also attempting to hammer out a new collective bargaining agreement. Stringer told the Union‘s business agent that he wanted to remain a Union contractor, but could not afford fund payments because of increased competition from non-union sprinkler installation companies. The Union responded that the Company was obligated to honor the existing terms and to negotiate a new contract. After several efforts to reach an agreement failed, Stringer informed the Union in October 2013 that he had gone ahead and offered his employees a non-union health insurance plan. The Union claimed that was a violation of their Agreement because it was the employees’ exclusive bargaining representative.
The Union then filed two unfair labor practice charges with the National Labor Relations Board against the Company. The charges alleged that the Company had violated the
An administrative law judge concluded that the Company was at fault, reasoning that the 2005 Agreement had converted the
The National Labor Relations Board affirmed in part and reversed in part. Pointing to the added language in the 2005 and subsequent Agreements about the Union‘s offer of proof of its representative status, the Board agreed that the Company‘s and Union‘s relationship had become one governed by
The Company filed a timely petition for review of the Board‘s decision, and the Board filed a cross-petition for enforcement.
II
A
Recognizing the Board‘s substantial expertise in evaluating unfair labor
All that means that, in reviewing the Board‘s decision, we will defer to the reasonable, but will not green light the unreasoned.
B
1
In deciding whether the relationship between the Union and the Company was governed by
To start, “a construction-industry contract will be presumed to be governed by section 8(f) unless the employer and union clearly intended to create a section 9(a) agreement.” Nova Plumbing, 330 F.3d at 537 (citing J&R Tile, Inc., 291 N.L.R.B. 1034, 1037 (1988)) (emphasis added). That presumption attached here. When the Union‘s and Company‘s relationship first started, it was governed by
Given that
Those burdens of proof matter. The raison d‘etre of the
The unusual
Because the statutory objective is to ensure that only unions chosen by a majority of employees enjoy
2
This court‘s decisions in Nova Plumbing and Allied Mechanical provide two goalposts guiding the analysis of what evidence is required for a union to score a
In Nova Plumbing, a construction contractor and union entered into a labor agreement. The contract included a “recognition clause” stating that “independently verified” evidence had been presented to the company “demonstrat[ing] that the Union represents an uncoerced majority of the employees * * *.” 330 F.3d at 535. Despite that language, the record was devoid of any actual evidence of employee support submitted by the union to Nova Plumbing or to anyone else. Even more damning, “uncontradicted testimony” in the record indicated that senior employees actually opposed union representation. Id. at 537.
We held that “contract language” and the “intent” of the union and company alone generally cannot overcome the
Conversely, Allied Mechanical established that, when there is strong evidence of employee majority support in the record, such as authorization cards signed by employees, then a union‘s offer to provide concrete evidence of its majority status can convert a
The Board concluded that contract language was enough, invoking past Board precedent holding that a written agreement can “establish a 9(a) relationship if its language unequivocally indicates that the union requested recognition as majority representative, the employer recognized the union as majority representative, and the employer‘s recognition was based on the union‘s having shown, or having offered to show, an evidentiary basis of its majority support.” Staunton Fuel, 335 N.L.R.B. at 717; see Colorado Fire Sprinkler Inc., 364 N.L.R.B. at 1 n.3 (“Here, it is undisputed that the Staunton Fuel requirements are met.“).
That approach by the Board will not do. The first two prongs of the Staunton test do nothing more than document the union‘s and employer‘s views on
As for the third prong, the Board‘s reliance in this case on a mere offer of evidence in a form contract—the language of which has been proven demonstrably false in at least one prior iteration—would reduce the requirement of affirmative employee support to a word game controlled entirely by the union and employer. Which is precisely what the law forbids. For what Garment Workers’ Union, Nova Plumbing, and Allied Mechanical collectively teach is that, while an employer and a union can get together to create a
The Board could point to no such evidence here. None of the usual indicia of majority support—authorization cards or votes—was introduced; it apparently does not exist. And the contract language on which the Board hung its hat defied reality. The very first 1991 Agreement between the Union and the Company recited that the Company had “confirmed that a clear majority of the sprinkler fitters in its employ have designated * * * [the Union] for purposes of collective bargaining,” and that the Union was the “exclusive bargaining representative * * * pursuant to
Nor is there any dispute that every Agreement signed by the Company was a carbon-copy contract proffered by the Union without any input from the Company or its employees. The 1991 Agreement, for example, was sent to Stringer, and “all [he] had to do was sign the agreement.” J.A. 26:13. He did not discuss with the Union what the Agreement contained, and there was no negotiation over its terms.
That same pattern continued for each successive Agreement. They were all just mailed to Stringer, who signed them without any “back and forth on the contents.” J.A. 27:10–11. The resulting union-recognition clauses were boilerplate. Apparently, they were never fact-checked either.
The Board points to the addition of language in the 2005 Agreement stating that the Union “offered to provide the Employer with confirmation of its support.” J.A. 83. But nothing in the record provided the Board any reasonable basis for finding this cut-and-paste language from the national contract any more accurate than the previous empty representations. Tellingly, at no point in the administrative record did the Union even explain, let alone proffer, what evidence it claimed to have collected. Given the central importance of honoring employees’ organizational rights and the risks of employer-union collusion, the Board must identify something more than truth-challenged form language before it can confer exclusive bargaining rights on a union under
* * * * *
By blinking away record evidence undermining the credibility or meaningfulness of the recognition clauses, the Board “entirely failed to consider an important aspect of the problem.” Motor Vehicle Mfrs. Ass‘n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Although actual employee support for the Union was the dispositive issue in the case, the record lacks any affirmative evidence—let alone substantial evidence—of the employees’ views.
The Board‘s decision was also arbitrary and capricious. By making demonstrably untrustworthy contractual language the be-all and end-all of
Accordingly, we grant the Company‘s petition for review, deny the Board‘s cross-application for enforcement, vacate the Board‘s decision, and remand.
So ordered.