*1 PETITION SUR ORDER COMPANY LIMBACH REHEARING
FOR Judge. SLOVITER, Chief INTERNA METAL WORKERS
SHEET ASSOCIATION, AFL-CIO TIONAL Association, Workers Sheet Metal International Metal Workers Sheet 108, Ap Association, have Union Union No. Local Local AFL-CIO “of rehearing banc pellants. petition filed a July decision panel portion of the No. 90-3606. Cir.1991) in the (3d 949 F.2d Appeals, Court States United with sec- dealt case that above-entitled Third Circuit. of the majority A issue.” ondary-boycott having voted the court judges
active April Argued issue, it is as to rehearing in banc 9, 1991. Reargued Oct. 6, 1991. Dec.
Decided rehearing banc
ORDERED (3d 90-3606, in No. granted is vacated opinion Cir.1991) panel’s and the appeal as it dealt insofar to the pertains it Solely as petitioners. entry of the stay the appeal, petitioners’ intact inso- leaving judgment judgment, appeal pertains far as Company. the Clerk
FURTHER ORDERED limited case for the above list this Court at the the court banc rehearing before mandate the court. convenience order further stayed until shall be court. *3 King (argued), P. Rich- International and Local 108 which we will A. Jerome
Robert re- hereafter in certain contexts sometimes Ingersoll, Corp., Professional ey, Buchanan the exclusion of the fer to as the unions to Pa., Pittsburgh, for Limbach Co. other locals. Toledo, Ohio, Fisher, Judith Donald W. background While the on the case is set D.C., Rivlin, Washington, for Sheet Metal panel’s opinion, purposes forth Ass’n, Intern. AFL-CIO. Workers completeness repeat we will it. Limbach is Wohlner, Shelley, Kaplan, Phil- Michael contracting company a mechanical with of- Encino, Cal., Shelley Young, lips, Vogel, & Woburn, Pittsburgh, Pennsylvania, fices Ass’n, Intern. Lo- Metal Sheet Workers (Boston), Compton, Massachusetts Califor- cal Union No. 108. *4 (Los (De- Pontiac, Michigan Angeles), nia (ar- Berzon, Laurence Gold Marsha S. troit), Columbus, and Prior to the Ohio. D.C., of counsel with gued), Washington, case, underlying events this Limbach was a Intern. Ass’n and Lo- Sheet Metal Workers union contractor of and was a member cal Union No. 108. multi-employer in bargaining associations April Argued 1991. metropolitan operated. areas where Through membership bargain- its in these SLOVITER, Judge, and Before Chief ing organizations, Limbach had collective WISDOM,* GREENBERG and Circuit bargaining relationships with the sheet Judges. metal 12 in workers’ union —Local No. Reargued October Boston, Pittsburgh, No. 17 in Local Local SLOVITER, Judge, and Before Chief Detroit, No. 80 in Local 98 in No. Colum- BECKER, STAPLETON, GREENBERG, bus, Angeles. and No. 108 in Local Los HUTCHINSON, SCIRICA, COWEN, 1982-83, reorganized Limbach was NYGAARD, ALITO, ROTH, and Circuit subsidiary wholly-owned and became a of Judges. Constructors, and, part Limbach Inc. of Constructors, reorganization, Jovis Inc. OF THE OPINION COURT sister-company Lim- was formed as a GREENBERG, Judge. Circuit purpose reorganization A and bach. so that formation of Jovis was I. organization acquire Limbach could non- BACKGROUND operations geographic in areas. new Thus, purchased Harper July Jovis This matter is before the court banc Plumbing Heating Company, & Inc. Flor- 21, 1991, pursuant August of to our order Harper ida. had been a nonunion contrac- granting rehearing partial to Sheet Metal and, years following acquisi- tor for 30 Association, Workers International AFL- Jovis, by tion continued to be nonunion. CIO and Sheet Workers International Asso- ciation Local Union No. 108 in No. 90-3606. Carlough, When General Edward 9, 1991, By opinion July panel our of of Union, President of International disposed appeals this court of of these acquisition, learned of this he wrote letter organizations ap- 10, 1983, Limbach, August two labor as well as the dated to Walter (Limbach) peal Company president of Limbach of Limbach until 90-3639, Constructors, (3rd Cir.1991). president of Inc. Limbach 1988, stating: from 1983 to prior opinion partially our While was organizations favor of these two congratulate I you your want com- wholly in was favor of three other local pany’s Plumbing Harper takeover of against Orlando, unions and thus to that extent was Heating Florida. We have Limbach, cross-petitioned it has not for re- attempting organize been this contrac- Thus, hearing. good years, concerned with tor for a and it number petition very thoughtful you the issues in the filed raised was to have us * Wisdom, Circuit, sitting by designation. Honorable John Minor Senior Circuit the Fifth Judge Appeals of the United Court of States bargaining existing collective their purchase through your firm organize this agreements. of it. grievances filed local App. at Limbach alleging that summer between meeting suggested a The letter bargaining its collective in violation Director International’s Bassett, the Lonnie of its sis- them virtue agreements with Cassidy, Car- Larry Organization, griev- Harper. The ter-relationship with a labor assistant, to “consummate lough’s ultimately Locals ances of shop.” Walter your new agreement Adjustment Joint National before the came Prey, to Charles letter gave this Limbach Industry, Metal for the Sheet Board Limbach, who President his successor collective under the maker decision final that Lim- informing him Carlough wrote This board was agreements. bargaining Harper. acquired bach had union and equal number of composed of Walter 1983, Cassidy In October representatives. Pittsburgh of- Limbach’s met at Limbach alleged grievances The unions’ Cassidy told Walter fice. basis on a nonunion operation of to have Carlough expected Form Standard a breach sign a collective by the Inter- negotiated Agreement, Union *5 that stated and union affiliate with a Air and Metal Sheet Union and the national exist- violated operation Harper nonunion Associa- National Conditioning Contractors be- agreements bargaining ing The collective Limbach. represented tion which 80, 12, 17, col- and Locals local Limbach model for tween as a agreement serves It was the agreements. bargaining and lective Form the Standard that belief unions’ Cassidy, with disagreed Limbach Walter “double- prohibited Agreement Union Limbach, Jovis, had not maintaining that company owns meaning that breasting,” sepa- Harper was Harper, that acquired Carlough shops. nonunion and union both that Lim- Limbach and from rate recognize Harper he force could believed labor Harper’s authority over no had bach process grievance through the the union Walter Cassidy told matters. relations in violation was Limbach claiming that sign a not labor Harper did that if Limbach with its affiliation through agreements its grievances violation contract agreement, 8,1985, the National February Harper. On result they did if not filed and would its decision issued Board Adjustment Joint face unionizing, Limbach would Harper’s deadlocked was but grievances on the problems. labor serious any of the violated had Limbach whether Limbach Cassidy Walter and Carlough, agreements. bargaining provisions of 1983, 23, to discuss on November met however, that did, find It Carlough not asserted 17 was Local Harper situation. and Limbach between collec- no force of its local binding in violation and Limbach valid virtue agreements tive effect. Walter he told operation and grievances failure with Faced griev- file would the Union Limbach Carlough Limbach, met against Walter violations. these alleging ances Executive General Union’s International that Lim- position his method Limbach maintained develop alternate an Council to the led double-breasting were and this bach combat “Integrity a collec- authority sign so-called had no development obligated Integrity Clause on behalf bargaining agreement tive Clause.”1 if it be- union notify Walter Carlough told an Harper. ownership common resolved, through affiliated came not if the were situation gave local shop and nonunion represent- awith disclaim interest locals would agree- their rescind power to expiration upon the ing Limbach here, decision our are set forth integrity clause details 1. The important for panel’s but decision situation, employer’s becoming very so af- He is a upon ments who knows. 1985, 22, March filiated. In a letter dated smart fellow. Carlough the local unions to instructed straighten He wants to the situation out. negotiated into Integrity
have the
Clause
He will
out he is welcome back in
find
agreements
possible.
as soon as
their local
family.
We want them union ....
15,
Carlough
April
met on
Furthermore
App.
added).
(emphasis
at 2858
with the Executive Committee of
Conditioning
and Air
Contrac-
Sheet Metal
II.
Washington
tors National Association
At
Integrity
discuss the
Clause.
the same
PROCEDURAL
AND
HISTORY
time,
attempted to dis-
the International
THE PANEL OPINION
working
for
suade union members
17, 1986,
On June
Limbach filed its com-
contractors,
double-breasting
including
plaint
against
in the district court
the Inter-
Limbach, doing
appeals
written
this with
Union,
national
and Locals
17 and
promoting
loyalty
changes
12, 1988,
January
and on
it filed an amend-
pension
rights
withdrawal card
bene-
complaint joining
ed
Local 98 as a defen-
working
fits
continued
for members who
complaint
asserted
dant.
unfair labor
companies
op-
nonunion
affiliated with
practice claims under section 303 of the
erations.
Management
Act,
Labor
Relations
In
spring
and summer
Lo-
damages
U.S.C.
allows a
ac-
§
did not
cals
17 and 108
renew
boycott
tion
violations of the
bargaining agreements
collective
8(b)(4)
provisions of section
of the National
expired and the locals issued disclaimers
Act, (NLRA),
Labor Relations
29 U.S.C.
terminating
representation
their
of Lim-
158(b)(4).
addition,
Limbach asserted
*6
§
employees.2
bach
Local 98 disclaimed the
antitrust
claims under section
of the
following year
agreement expired.
when its
Act,
Clayton
15 U.S.C.
15.3
§
By
operations
June
Limbach’s
were
nonunion.
100%
The case
for trial
was bifurcated
be-
liability
damages
tween the
and
issues with
1986, Carlough spoke
In the summer of
phase involving liability.
the initial
At this
at the
of
Metal
convention
Sheet
Workers
phase,
jury
the
was instructed on alternate
said,
part:
He
International Association.
liability
theories of
on the unfair
labor
message
... Take this
back to Limbach.
Thus,
practices claims.
it was told that it
getting
We are not
the business of
rid
practice
could find an unfair labor
based
are in
union contractors. We
the busi-
inducing
on the
em-
organizing
ness of
either
unions’
Limbach
contractors.
tional
To me it’s
in the union man’s mind. Limbach used to be with
al
ought
and Air
[*]
to understand the union
Association]
[*]
Conditioning
[*]
years
[*]
Contractors Na-
[the
ago.
Sheet Met-
[*]
thinking
You
[*]
ployees
tive
union or to have Limbach disassociate itself
course of their
ions’ coercion of
representation
to force
to refuse to
of Limbach with the
employment
Limbach, by disclaiming
perform
to
negotiate
services
or on the un-
with the
objec-
29, 1990,
Harper.
jury
June
the
On
never too late. The door in this union
special
open.
returned three
verdicts on the liabil-
ity
Special
issues under
303.
In
section
the man wants to come back and
If
jury
Verdict No. 1 the
found that Limbach
operate
right way
the
I
know both our
separate employers
were
with-
Angeles
people, both in Los
and in Pitts-
NLRA,
meaning
burgh,
gang
the
the
of the
29 U.S.C.
and Walsh and
Bos-
ton,
seq.
151 et
straighten
Special
if the man wants to
out
Verdict No.
§
Earlier,
April
complaint
2.
on
Local 17 declared
made other
3.
also
claims which
its
with Limbach to be void and
panel opinion
were described in the
but are not
representing
disclaimed interest in
Limbach em-
involved here.
ployees
subsequently
in Boston but
it was
relationship
forced to resume its
with Limbach
pursuant
to court order.
impermissible
basis.
predicated on
and been
Union
International
that
jury
found
because while
this
reached
conclusion
had We
unions
local
affiliated
the four
each
may
induced
have
under
the unions
practice
an unfair
committed
concluded
we
employment,
their
quit
However,
Verdict
Special
303.
work
would not be
refusal
finding
this
jury’s
whether the
2 did
reveal
not
within
employment
on the course
was based
practice
an unfair labor
NLRA,
may
verdict
and the
8(b)(4)(i)
employees to
inducing Limbach
the unions’
This
basis.
predicated on this
on have been
was based
work,
or whether
refuse
in banc court
this
ruling is
before
Special
of Limbach.
coercion
the unions’
rehearing.
has not petitioned
No. 3 asked:
Verdict
vote that
held, however, by a divided
We
of Section
the violation
Was
appropriately
may have been
com-
Act
Management Relations
Labor
8(b)(4)(ii)of
under section
liable
held
defendants
the union
any
mitted
provisions
NLRA
boycott
secondary
bring-
factor in
a substantial
below
listed
for a
and remanded
reversed
thus we
business
plaintiff's
harm to
ing about
We affirmed
section.
under
trial
new
property?
entering judgment
order
court’s
the district
as to
“yes”
jury
answered
In response
on
of Locals
in favor
(Los
Local 108
Union
the International
claims,
because
boycott
12, 17 and
as to Locals
“no”
Angeles) but
determination
jury’s
found that
not submitted
claim was
The antitrust
appli-
damages in the
no
Limbach suffered
3, 1990,
district
as,
July
jury
disturbed under
not be
could
cable areas
a di-
motion for
unions’
granted the
court
of review and
appropriate standard
that claim.
verdict on
rected
us.
before
presently
is not
determination
court, in the
9, 1990, the district
July
On
court’s
district
Finally, we affirmed
3, ruled that
Verdict No.
light
Special
Lim-
against
verdict
directed
grant of the
dam-
present evidence
could
un-
against the
claim
on its antitrust
bach
toas
boycott claim
ages on
in-
there was
we found
ions because
not as
but
Angeles operation
Los
support
in the record
evidence
sufficient
Boston,
Columbus.
Pittsburgh,
those in
ruling
conspiracy,
claim
Limbach’s
re-
the trial was
after
July
On
*7
We directed
us.
before
is not
also
which
presented,
testimony
and additional
sumed
Lim-
of whether
the issue
on remand
on dam-
special
a
verdict
jury
the
returned
employers
separate
Harper are
and
bach
against
$2,823,000
awarding Limbach
ages
retried.
be
not
would
108 on
Local
Union and
the International
district
The
boycott
secondary
claim.
the
III.
of
in favor
judgment
thus entered
court
INTERNATIONAL
THE
APPEAL OF
Un-
the International
against
and
Limbach
LOCAL
AND
UNION
$2,823,000,
it also
but
for
Local 108
and
ion
12, 17
Locals
in favor of
judgment
entered
International Union
the
Subsequently,
3,
August
On
Limbach.
against
and
rehearing in
for
petitioned
and Local
Limbach,
motions
court denied
the
August
by our order
and
No. 90-3606
judg-
Internationa]
108 for
Local
and
the
and
rehearing in bane
granted
we
and, in
notwithstanding the verdict
ments
per-
solely as it
opinion
panel
the
vacated
for
by Limbach
addition,
a motion
it denied
Thus, as
appeals.
unions’
to these
tains
Union, Lo-
International
new trial.
rehearing
for
petitioned
not
has
timely appeals
filed
cal
alleged
the
only on
focus
banc,
now
we
U.S.C.
under 28
invoking
jurisdiction
our
boycott provi-
secondary
the
violation
as viable
recognized
§
NLRA
sions of
pan-
challenge the
unions
panel.
we held
panel determination
In our
that,
matter of
as a
argue
opinion
el’s
entering judgment
court’s order
the district
liable for
law, they
be
cannot
Local
International
against
the disclaimer
for
violation
boycott
may have
stand,
verdict
as the
not
could
ed.1989).
agreements
upon
with Limbach
find that
there will be no
bargaining
We
regardless
that,
expiration,
jury
their natural
their
injustice if the
is informed
Accordingly,
motives
the disclaimer.
purposes
of its determination
whether
that,
they contend
as the verdict could have
8(b)(4)(ii),
the unions
section
Lim-
violated
disclaimer,
or on their
rested
on that
Harper
separate employers.
are
bach
alleged
inducing
conduct in
Accordingly,
panel
reinstate the
will
quit
employment,
panel
which the
their
opinion and will remand this case to
actionable, rather than
determined
district court for a trial on the issue of
re-
remanding for a new trial we should
whether the union’s actions violated the
entry
judgment
in their
mand for
of a
secondary boycott provisions of section
favor. The unions also contend that
8(b)(4)®.
denying their
district court erred in
mo-
judgment
verdict and
tions for a directed
IV.
notwithstanding the
on the second-
verdict
that,
they
ary boycott violations as
contend
STATUTORY FRAMEWORK
verdict,
notwithstanding
Limbach and
8(f) Agreements
a. Section
in the Con-
separate employers
Harper are not
within
Industry
struction
meaning
boycott pro-
course,
the NLRA. Of
if
visions of
An understanding
requires
of this case
employers, there
separate
were not
could description
princi
of some basic labor law
secondary boycott.
no
ples.
general,
under the NLRA an em
ployer
engage in
and a union can
collective
agree
opinion
panel.
We
bargaining only majority
employ
if a
Thus, we hold that the disclaimer scheme
ees in the
unit choose the union.
finding
could be the
for the
basis
However,
8(f)
See 29 U.S.C. 159.
§
secondary boycott violation under section
exception
of the NLRA contains an
to this
8(b)(4)(ii)and further hold that the district
applicable
industry
rule
to the construction
denying
court did not err in
the unions’
permits employers and unions to en
judg-
motions for a
verdict and
directed
voluntary
ter into
collective bar
notwithstanding
ment
which the
verdict
gaining agreements, commonly
“pre-
called
grounded
on the contention that
agreements,”
regard
hire
without
for the
separate
Limbach and
are not
em-
majority
union’s
status.4
29 U.S.C.
ployers
provi-
secondary boycott
within the
158(f).
pre-hire agreement
A
is a con
Rather,
§
sions of the NLRA.
we find that
tract between an
and a union
jury’s
Special
Verdict No.
conclusion
before the workers to be covered
Limbach and
contract have been hired.
Interna
employers,
supported record and is
Bridge,
tional Ass’n
Structural
justified
and,
by our
there-
established law
*8
Workers,
Ornamental
Iron
Local 3 v.
fore,
court
we hold that the district
correct-
NLRB,
(3d Cir.),
843 F.2d
773
cert.
ly
grounded on
denied the unions’ motions
denied,
488
109
102
U.S.
S.Ct.
argument.
v.
Pursuant
to Childers
(1988).
Cir.1988),
8(f),
L.Ed.2d 213
(3d
Under section
em
Joseph,
we
ployers
employer
and unions in the construction in
issue is
find that
dustry
permitted
pre-hire
need
are
separate and
not be an
to enter into
distinct and
agreements, designating
jury on the retrial. See also
the union as the
issue for the
¶
(2d
59.06
representative
company’s
6A
Federal Practice
exclusive
Moore’s
NLRA,
158(f),
(not
employees
U.S.C. §
struction
lished, maintained,
are members
Section
estab-
provides
part:
by any
in
or assisted
action
(a)
defined in subsection
of this
practice
section as an
be an unfair labor
under
shall not
[i]t
(1)
(b)
practice)
(a)
majority
unfair labor
because
and
of this section for an
subsections
organization
primarily
building
employer engaged
status
such labor
has not been
in the
of
industry
agree-
provisions
to make an
established under the
section
construction
of
covering employees engaged
prior
making
agree-
this title
ment
...
in the
to
such
building
industry
construction
with a la-
ment ....
added).
organization
building
(emphasis
bor
of which
and con-
such
testing
provisions
the unions’ ma-
under the
employees without
title____
Workers,
of section 159 of this
Iron
843 F.2d at
jority status.
con-
is involved
773. Since Limbach
added).
(emphasis
agreements
industry, its
with
struction
8(b)(4)
theory in
Limbaeh’s
its section
8(f) agreements.5
local unions were
against
claim
the unions was that
the un.
encouraging
ions actions in
Limbach em-
Secondary Boycott
Restrictions
b.
quit
ployees
disclaiming
to
their
Management
8(f) agreements
303 of the Labor
with
Section
Limbach con-
Act,
187, creates a
Relations
29 U.S.C.
stituted coercion
violation of the second-
§
8(b)(4)(i-
damages
ary boycott provisions of section
cause of action for
for violations
ii),
8(b)(4)
NLRA,
causing
damages.
29 U.S.C.
Limbach economic
of section
Limbach,
158(b)(4).6
8(b)(4)
According to
of the NLRA
unions’ actions
Section
§
intended to coerce
part:
were
into bar-
provides,
or,
gaining with a non-certified union
alter-
practice for a
shall be an unfair labor
[i]t
Limbach,
natively,
to force
Limbach Con-
organization
agents—
or its
structors, Inc.,
Jovis and
to disasso-
(i)
in,
engage
or to induce or encour-
to
course,
ciate from each other. Of
as an in
by any per-
age any
employed
individual
court
banc
concerned with the
or in an indus-
engaged
son
commerce
aspect
disclaimer
of this claim.7
in,
affecting
engage
try
commerce
or a refusal
in the course of his
strike
8(b)(4)(h)
Section
of the NLRA
use, manufacture, pro-
employment
prohibiting secondary boycotts by unions
cess, transport,
handle or
or otherwise
essentially prohibits union conduct de
articles, material,
any goods,
or
work
(the
signed
primary employer
to force
services;
perform any
or to
commodities
a dis
employer with which
union has
(ii)
threaten, coerce,
any
or restrain
or
bargain
to force a
pute) to
with a union or
in an
person engaged in commerce or
(an
employer
neutral
with
commerce,
industry affecting
where
dispute)
doing
the union has no
to cease
object
either case an
thereof is—
primary employer.
business with
(A) forcing
requiring any employer
or
proscribed methods used
achieve
ob
any
join
la-
self-employed person
or
coercing,
jectives
threatening,
include
or
employer organization or to en-
bor or
See,
restraining
secondary employer.
prohibit-
any
ter into
which is
Drink
Local 812
e.g.,
Workers Union
Soft
(e)
section;
of this
ed
subsection
NLRB,
Ass’n of encouraged an ef- unlawfully NLRB, Workers, 3 v. Local Iron mental had but decertified fort to have denied, Cir.), (3d cert. F.2d 770 contract by the time the not succeeded 102 L.Ed.2d U.S. expired, the the contract expired. Once argument that (1988), support of their refused to recognition, employer withdrew law, to free, a matter of they were unilaterally changed bargain, and 8(f) agreements with section disclaim their bargain- working conditions wages and expiration. natural upon their ar- General ing employees. Counsel unit view, in their it follows Consequently, precluded employer was gued that secondary motive is irrele any proscribed bargaining agree- repudiating the vant. Deklewa, ment, notwithstanding because (1) Deklewa, the considered: Board faith. tainted bad repudiation was 8(f) agreement is unilat- whether a argument, stat- rejected this The Board or is as its term erally during revocable [employ- agree that the ing, “[although we un- any during that term other binding representation jury that a disclaimer argument in- point of the unions' focal sec- be unlawful when undertaken their issue of disclaimer would volves the 8(b)(4). their agreements It objective prohibited Limbach. Since tion position right directly had disclaim jury related issue instruction expiration and upon agreements itself, their natural issue it is not the substantive disclaimer negate illegal any motive does not that right. separately. we find that Because discussed theory, consequence of this a direct As *10 the for a sec- could be basis scheme disclaimer given to instructions the claim the unions violation, 8(b)(4)(ii) that the we determine tion jury issue were the disclaimer erroneous. the on jury were erroneous. to the not instructions objection, the court instructed Over the unions’ unlawfully encouraged the decertifica- tions that the refusal bargain predi- er] effort, an cated improper tion misconduct does not warrant on an motive. The issue exception to policy our under Deklewa.” before the Board in Deklewa was whether 8(f) rely agreement Id. at 993. The on the unions Yellowstone section could be unilat- proposition “[mjotive erally the repudiated during ... its existence. stated, principles.” Simply irrelevant under Deklewa it assumed that there was employer’s illegal objective unions claim that “the nullifica- no repudiation to the other 8(f) bargaining repudiation tion of the collective rela- than the itself. § tionship is as effective and as unassailable Further, the argument unions’ as to the upon imper- when motives otherwise based voluntary 8(f) agree- nature of the section under the statute as under- missible when by ment is belied the decision in Deklewa. taken for other reasons.” 8(f) agree- The Board did state that section
Similarly,
rely
voluntary
the
are
on Garman ments
but the Board further
Co.,
(1987),
that,
simply
had to be dismissed.
The issue in this ease differs from that er’s However, case, present Deklewa. Here the issue is whether either the record party may repudiate bargaining rela- makes it clear that the unions’ actions had tionship upon expiration agree- illegal objective coercing Harper into object repudiation ment where the an uncertified itself, forcing one forbidden the NLRA to disassociate itself from an issue clearly Indeed, Board Harper. did not decide in there is not a scintilla of Dekle- The unions that the rely support wa. nonetheless evidence to a conclusion lan- guage to the if Deklewa effect that section have disclaimed unions would 8(f) agreements voluntary, pointing shop upon Carlough’s out a union had become “upon expi- that Deklewa indicated that demand. 8(f) agreement
ration of
Section
...
[a
]
reaching
result we do not write on
In
our
party may repudiate
either
bargain-
Metal
slate
Sheet
blank
Gottfried
Deklewa,
ing relationship.”
282 N.L.R.B.
1245, 1250
Workers’Local
unions,
According
at 1377-78.
to the
Cir.1989),
(6th
supports
argu
Limbach’s
principle is based on the fact that “Con-
freely repu
the unions could not
ment that
8(f) agree-
gress plainly mandated that
8(f) agreements upon their
diate the section
voluntary.”
ments
at 1381.
Id.
objective
repudi
expiration since
Despite
illegal
the unions’ effort to fit this ease
under the NLRA. Gott-
ation was
Deklewa,
holding
into the
case sim-
the same disclaimer scheme
involved
fried
ply does not
before this
at
in this case but was concerned with
address
issue
issue
Deklewa,
Detroit,
allega-
against
court.
there were no
Local 80 in
which Limbach
*11
1246. This
at
agreement.” Id.
prehire
the
The alle-
charges.
practice
filed unfair
had
1249.
Id. at
holding in Deklewa.
the
was
to those
virtually identical
gations were
refused
is,
the unions
here,
that
that
made
that the deci-
However,
found
the court
the renewal
over
Limbach
bargain with
did not
Yellowstone
in Deklewa and
sions
Lim-
threatened
agreements
pre-hire
by
regional
the
posed
questions
the
answer
for continu-
sanctions
with
bach
injunc-
for
petition
in his
director’s claims
expira-
the
after
Limbach
ing
for
to work
relief,
improp-
variable
in which the
tive
objec-
agreement, the
pre-hire
of the
tion
sce-
the Deklewa
was added to
motive
er
signing
into
being
pressure
tive
court distin-
Specifically,
Id.
the
nario.
uncertified un-
an
with
agreement
a labor
dis-
the reasons
for
guished Yellowstone
at 1246.
ion. Id.
court read Yellow-
As the
above.
cussed
charges,
illegal
the re-
the
nothing
about
stone,
filed
was
“there
After Limbach
Rela-
the bar-
repudiating
Labor
objective
the National
employer’s
gional director
injunctive
pre-hire
relief
the
relationship
for
once
petitioned
gaining
Board
tions
adjudi-
region-
final
the
pending
expired.
the
had
Under
against the union
bar, by
that
the
at
charges, arguing
theory in the case
of the
al director’s
cation
practice
repudiation
labor
was
contrast,
object
unfair
of the
an
the
repudiation was
by
illegal mo-
was an
repudiation
itself
prompted
illegal, and the
because was
at 1250.
practice.” Id.
tive.
Id.
unfair
court, relying on Deklewa
district
The
the
before
the issue
Since
Gottfried
proposition that
the
and Yellowstone
denial of
of the
propriety
was the
court
repudi-
right to
unions
an absolute
the
had
appeals
injunction, the court
preliminary
relationship
ate their collective
the merits of
pass on
definitively
did not
expiration
upon the
it had
theory, as
director’s
regional
the
ob-
regardless of the
8(f) contract
the district
whether
to determine
peti-
the
repudiation, denied
jective of the
theory
finding the
court was correct
court
The district
injunctive relief.
tion for
theory
the
It
merit.
found
totally without
theory, posited
contrary
that the
found
and,
reversing the
lacking
so
not to be
director,
lacking
so
was
regional
the
preliminary
denial of the
court’s
district
could not
regional director
merit that the
commented,
that
injunction, it
[coerc
“[i]f
cause
found reasonable
properly have
in fact the
bargaining] was
ing
into
committed an
had
unions
believe that the
pressure
economic
object of the
court
The district
practice.
unfair labor
refusing
putting on
were
relief
therefore,
injunctive
concluded,
that
why
it,
it hard to see
find
deal with we
it did not
and that
inappropriate
would be
suggest
is not correct
regional director
at
relief. Id.
grant such
power to
have
violating
sec
unions were
ing that the
ondary boycott provisions
[NLRA].”
director’s
finding
regional
that the
reversed,
remand-
Id.
appeals
court of
frivolous,
court noted
theory
not
to consider
district court
ing the case to
provisions
boycott
claim
regional
“[t]he
director’s
merits of
Congressional
‘clearly reflect a
appeals
[NLRA]
relief.
court
injunctive
power
no
have
unions should
theory
attitude that
regional director’s
found
compel second
employers
neutral
Board over
and that
not
frivolous
”
(quoting
at 1250-51
ary action.’
Id.
conclude,
an action
...
“could well
Bhd.
Elec.
NLRB v. International
if under-
may
unlawful
normally
lawful
(9th Cir.1968),
Workers,
objective.”
accomplish a forbidden
taken to
denied,
U.S.
recog-
cert.
appeals
court of
1247. The
Id. at
Therefore,
right
(1969)).
L.Ed.2d 237
principle
general
nized the
“[i]n
con
unilaterally to
terminate
of a union
objective, it
improper
any such
absence
legitimate
relationship for
reasons
tractual
have been
unions would
that the
is clear
pur
terminating for the
does
extend
bargaining relation-
their
to terminate
free
coercion to
applying economic
pose of
expiration of
upon ship with Limbach
*12
8(f)
NLRA,
of the
added in
secondary objective.
Section
prohibited
a
achieve
recognition
the na-
resulted from the
that
at 1251.9
Id.
not
industry
of the
did
ture
construction
has
appeals
The court
Gottfried
operation
under
lend itself
successful
history
subsequent
by the
vindicated
been
the NLRA as it then
provisions
the
in that
charges involved
unfair labor
the
provisions, the ma-
existed. Under these
Metal
Sheet
Union No.
Local
case.
exclusive
status of a
as the
jority
union
Ass’n,
305 N.L.R.B.
Int’l
Workers
employees,
representative of the
once es-
30, 1991),
Rela-
the National Labor
(Sept.
tablished,
presumed for a reasonable
squarely held
Board
tions
Upon expiration
period
time.
secondary object
enmesh
is this
[i]t
—to
agreement,
the em-
collective
the Inter-
80 and
Local
[the
[Limbach]
recogni-
was not free
withdraw
ployer
Harper,
the
dispute with
with
national]
it
unilaterally
from the union
unless
tion
recognize
latter to
compelling
aim of
the
reasonable, good
grounds
faith
for be-
had
renders the
the
[unions’]
[union]—that
majority
lost
lieving that the union had
unlawful,
distin-
and that
disclaimers
Workers,
11. We note
unilaterally to
employers
free
8(f)
employer nor
agreement
and/or
neither
section
promotes stability
in the
agree-
unilaterally
disclaim
disclaim
the union can
industry.
The fact
Id. at 1386.
ment,
8(f)’s
pre-
specifically
construction
proviso
final
vote,
decer-
to vote to
pursu-
remain free
that the
right
employees to
serves the
employee free choice.
tify
promotes
159(e),
decertify
change
§
ant
29 U.S.C.
infra,
Similarly,
Deklewa,
discussed
Id. at
bargaining representative.
their
20 v.
con- Metal
Local Union No.
suggest that undesirable
Workers’
The unions
Cond., Inc.,
Heating
Baylor
from restrictions on
and Air
sequences
follow
will
(7th
Cir.1989)(collective
repudiate
unions
F.2d
bar-
powers
out, however,
point
agreements
8(f)
gaining
promote stability).
We
agreements.
opinion
very
narrow and is
that our
precluding
Finally,
such as those
actions
repudia-
context
applicable
general
here fulfills
taken
constituting
boycott.
It
tion
statutory policies by integrating section
does not
union from
certainly
restrain a
NLRA,
other sections of
repudiating
legitimate purpose.
for a
*14
8(b)(4).
Deklewa,
namely section
In
ground
nothing
in hold Board found that there was
in ei-
We revisit familiar
may
legislative
make
history
motive
ther the text or the
ing
improper
8(f)
suggest
unassailable
what
is otherwise
to
that was intended
unlawful
section
Thus,
industry employers
Petrochemi
conduct.
Kenrich
to leave construction
Cir.),
(3d
cals,
NLRB,
1468
Inc.
893 F.2d
at
282
repudiate
v.
free to
contracts
will.
(3d Cir.) (in
result,
F.2d 400
rehearing,
on
907
it found the
N.L.R.B. at 1388. As a
— U.S. -,
banc),
denied,
repudiation
cert.
violated
employer’s unilateral
that,
(1990),
held
8(a)
The unions that our ployer, dispute the unions’ parity them in with Limbach not leave Harper, years which for 30 had been 8(f) repudiate the section Limbach could shop. nonunion position unions’ is that While upon expiration. their agreements separate are not em- true, nothing proves it may well be meaning ployers within the of the second- 8(b)(4) provides that of the NLRA NLRA, provisions ary boycott a labor practice “for is an unfair labor therefore the unions could not have a sec- engage agents” or its organization ondary disclaiming motive in the section lack of boycotts. The unlawful law, 8(f) and, agreements as a matter of the law consequence of parity simply 8(b)(4) they could not be liable for a section recog- also by Congress. We as enacted violation. of the section nize that the continuation Limbach and jury determined that to termi- party seeks relationship when employers and the create may in some circumstances nate it for a di- However, *16 court denied the unions’ motions this is not a practical problems. judgment and a notwith- refuse to enforce rected verdict valid reason to certainly ap- are no such boycott standing law for there the verdict on this issue. On boy- practical problems why in this peal, unions advance two reasons the Furthermore, the re- damages cott action. error and the denial of these motions was Rela- gional director of the National Labor stand. why jury the determination cannot Counsel tions Board and General First, that the instructions the unions claim that litigation obviously thought fatally given jury the were erroneous. Gottfried problems were not insurmountable the Second, that, “on the the unions assert ultimately injunc- they sought and obtained trial, applying prop- a facts adduced at party as a to a treating relief Limbach tive standard, court should legal the trial er agreement after Local refused new requested granted the directed verdict have of the section bargain over the renewal We on this issue....” defendants charges Limbach filed agreement alleged both errors have considered event, any in an NLRB the Board. reject them.13 appropri- Board will fashion proceeding the a disclaimer is an relief if it finds that ate Jury a. Instructions secondary boycott, which is exact- unlawful No. 80. ly it did Local Union what following requested The unions that “separate given on the em- instruction be
VI.
Limbach,
Limbach Con-
ployer” status
Harper:
structors and
ISSUE
EMPLOYER
SEPARATE
sepa-
Separate corporate subsidiaries are
Har-
that Limbach
The unions claim
if
employers
rate
neither the subsidiaries
sec-
employers within
per
separate
not
are
regard
being
ing and we do not
it as
before the
argued
that it
their brief
unions also
13. The
point
court
We also
out that the deci-
error for the district
in banc court.
was reversible
of an ad-
judge
repudi-
decision
from evidence the
law
exclude
ministrative law
sion of the administrative
recommending
judge
dismissal
point by the Board in Local Union
ated on this
Union
complaint against the International
op.
slip
at 6-7 & n.
and in the circum-
ground that Limbach
and Local 80 on the
certainly
stances we
would not at this time
However, they
not
did
employer.
a neutral
not
of exclusion of this evidence.
reverse
reason
petition for rehear-
point in their
mention
interrelationship of the
one, the
factors:
over
control
parent exercises
nor the
manage-
second, common
operations;
of the other.
relations
operations or labor
la-
third,
control over
ment;
Com-
centralized
Limbach
However,
you
if
find
fourth,
own-
relations; and,
operations
common
over
bor
control
pany exerts
you
if
Harper, or
ership.
relations of
and labor
Constructors, Inc. ex-
factors,
that Limbach
separately
find
none
While
and labor
operations
over
particu-
erts control
viewed,
you
controlling,
should
Har-
Company and
of Limbach
relations
three factors
larly consider the first
that Limbach
find
you
per, then
should
function-
was a
there
whether
determine
separate
not
Harper are
Company and
and,
companies
integration
these
al
Limbach
find that
you
If
employers.
centralized
there was
especially, whether
over
control
not exercise
Company did
of labor relations.
control
Har-
relations of
operations or labor
upon
depends
employer status
Separate
Limbach Con-
you
if
find
per, and
case, and
of the circumstances
all
control
structors,
exercise
did not
Inc.
need to
controlling factors
all of
relations of
or labor
operations
over the
present.
be
you
then
Harper,
Company and
Limbach
sepa-
corporate subsidiaries
Separate
Company and
that Limbach
find
should
subsidiaries
if neither the
employers
rate
I in-
employers.
separate
Harper are
control
actual
parent exercises
nor
a
imposition
you that
struct
opera-
or the
relations
overall
over
corpo-
upon a
non-union framework
the other.
tions
subsidiary
substantial
indicates
rate
con-
potential
ownership
Common
re-
over labor
control
degree
central
other-
not establish
alone will
trol
sepa-
case, the test of
In this
lations.
single
em-
employers are
wise
whether,
taken
employer status
rate
or
Rather,
must
actual
there
ployer.
fi-
ownership,
whole, management,
labor relations
control over
active
opera-
control,
inter-relation
nancial
operations.
overall
among
operations
control of
tions and
Constructors,
you find
If
Constructors,
Inc., Limbach
*17
the labor
control over
exerted
Inc.
actual
Harper is characteristic
Company and
of
of
operations
or the overall
relations
relationship
length
the arm’s
found
you
Harper, then
Company and
Limbach
I
companies. As
unintegrated
among
Company and
find
Limbach
should
that
has
plaintiff
you,
already instructed
have
employers.
separate
Harper are not
Limbach Com-
that
proving
the burden
Con-
However,
find that Limbach
you
if
employers.
separate
Harper are
pany and
structors,
actual
did not exercise
Inc.
added).
(emphasis
App. at 3412
or the
the labor relations
over
control
de-
requested instruction was
The unions’
Company
operations of Limbach
overall
fol-
objection the
the unions’
nied and over
that
find
Harper,
you should
then
and
given by the district
lowing instruction
sepa-
Harper are
Company and
Limbach
court:
employers.
rate
principles
following
general
are
The
added).
App.
(emphasis
at 3472-74
employers:
separate
regarding
law
shortcomings in the
find no
Harper
We
Company and
Limbach
whether
no er
jury
court’s
instructions
purposes of district
employers
separate
are
the re
give
to
refusal
de-
ror in the court’s
Act
Relations
Labor
the National
unions ac-
Even
following quested instructions.14
analysis of the
upon an
pends
in this
problematic
explanation, is
helpfulness
further
out
Stapleton questions the
Judge
quo requires
status
concerning
addressing
jury
context. Maintenance
this context
par-
power. Where a
likely
affirmative
no
exercise
it is
that
"potential control." While
open shop
previously
has
established
phrase
to the
ent
to refer
used this
district court
retaining the
subsidiary
policy
and while
for a
corporate
to alter
ability
stockholder
aof
simply
policy, has
power
that
managing
by changing
current
reverse
subsidiary
policy
aof
so,
control,"
is a risk that
do
there
thus far not
phrase
with-
chosen
"potential
personnel, the
basis,
alia,
Limbach,
court’s instruc
inter
that
knowledge that the district
Constructors,
Harper
Inc. and
single
the four criteria
are a
correctly identified
tions
employer
jury
and that no
could
reasonable
ordinarily used
determine
conclude otherwise. The unions made the
jury
and advised the
that
employer issue
arguments in a
judgment
same
motion for
control over labor relations
centralized
notwithstanding
verdict,
and in a re-
jury
important
the most
factor.15
judgment
motion for
newed
notwithstand-
charge adequately
jury
instructed the
verdict,
ing
both which were denied.
it was whether Limbach
the issue before
entities,
Harper,
formally separate
two
appeal,
On
the unions assert that it was
single integrated
actually part of a
were
motions,
deny
error for the court to
their
purposes
enterprise so that for
arguing
jury
that the evidence before the
only single
NLRA there was
fact
em
question
left no
Browning-Ferris
ployer. See NLRB v.
separate employers
are within the
Inc.,
Pennsylvania,
691 F.2d
Industries
meaning
We, however,
of the NLRA.
find
of
(3d
Cir.1982)
(“[t]he question in
that,
presented
on the evidence
based
situation,
then,
employer’
‘single
jury,
the district
did
court
not err
nominally independent en
whether the two
denying the motions.
terprises,
reality,
constitute
one
Corporate subsidiaries are nor
origi
enterprise”) (emphasis
integrated
mally
separate persons
treated as
under
nal).
Telegraph
the NLRA. United
Workers
evidence,
light
the in-
Viewed
NLRB,
(D.C.Cir.),
cert.
fairly
adequately
given
structions
did
denied,
439 U.S.
separateness
the issue of
submit
(1978). Accordingly, separate
L.Ed.2d
mislead the
jury
to the
and would not have
usually
question
status is
fact,
the district
jury.
we note
jury.
resolved
fact
be
Sheet
added care to avoid instructions
court took
Ass’n,
Metal
Int’l
Local Union
Workers
jury.
might have confused the
v. Atlas
Metal
AFL-CIO
Sheet
charge adequately apprised
jury
Jacksonville, 384 F.2d
Company of
four criteria to deter-
should consider the
(5th Cir.1967). However, corporate
mine whether Limbach and
were
sepa
may lose their status
subsidiaries
jury
separate employers and informed the
operated as a
persons
rate
when
that the control over
relations was to
single
enterprise, a determination
business
consideration,
of its
as the
focus
(1)
four factors:
common owner
based on
requested
request
in their
(3)
(2)
operations;
ship;
interrelation
charge.
(4)
management; centralized
common
*18
relations. Radio & Tele
control of labor
Denial Motions
a Directed Ver-
b.
of
Technicians Local
vision Broadcast
1264
Judgment Notwithstanding
dict and
Mobile, Inc., 380
v. Broadcast Service of
the Verdict
876, 877,
255, 256,
L.Ed.2d
S.Ct.
13
U.S.
85
10, 1990,
(1965);
Corporation v. Inter
Eichleay
789
July
the unions unsuccess-
On
and
Bridge, Structural
fully moved for a directed verdict on the
national Ass’n of
Cir.1986).
(3d
jury
interpreting
in
jury might regard
parent
having
When
922
structions,
a
"potential
object
reviewing
control.” The unions did not
court considers
court,
phrase by
this
the district
particular
to the use of
totality
the instructions and not
of
however,
Judge Stapleton
regard
does not
Braen,
and
paragraph
re
In
sentence or
in isolation.
segment
charge
rising
to the level
—
this
denied,
621,
Cir.1990),
(3d
cert.
900 F.2d
626
"plain error.” Fed.R.Civ.P. 51.
of
(1991).
U.S. -,
845
111
112 L.Ed.2d
S.Ct.
requested
jury as
does
Failure to instruct
charge to determine "whether
15. We review the
instruction,
long as the
not constitute error so
charge,
light
and viewed in
taken as a whole
whole,
apprises
jury
of
properly
taken as a
evidence, fairly
adequately
and
submits
applicable law.
the issues and the
Gutzan
jury," and reverse
the issues in the case to the
(3d
Inc.,
Airlines,
Cir.
766 F.2d
Altair
confusing
"only
capable
the instruction was
if
1985).
misleading
jury.”
thereby
Link v. Mer
America, Inc.,
F.2d
North
cedes-Benz of
operations,
Workers,
As to interrelation of
Walter
Iron
Ornamental
Cir.1991).
Harper
de
(3d
The district court
Limbach testified
Limbach
jury
separate
separate
these factors to
offices and
each of
maintain
scribed
Furthermore,
recog
have
charge.
accounts,
we
compete
and do not
or
bank
work
used to
that these four criteria
any projects.
nized
There are
other on
with each
single
are a
if related entities
determine
intercompany
cross-guarantees
no
loans
assessing
enter
employer in
whether
there is no shift-
performance
on
bonds and
prac
labor
prise has committed an unfair
company
ing
from one
back
industry by main
in the construction
tice
another, though
execu-
several Limbach
and nonunion
taining
union
double-breasted
Harper after it
resigned to work for
tives
representative of the
operations so that the
acquired by Jovis.
recognized by the
entity is not
unionized
management,
Walter
On centralization
of the non
representative
as the
testified,
the restructur-
that after
NLRB v. Al
employees.
union
centralized
ing, some staff functions were
Cir.1983),
(3d
Inc.,
F.2d
Bryant,
Constructors, and that each
in Limbach
denied, 464 U.S.
rt.
ce
subsidiary pays Limbach Constructors for
(1984). Therefore,
699,
president,
representa-
because the union
notwithstanding the verdict. Kinnel v.
approached
However,
tives
him.
he main-
Mausoleums, Inc.,
Mid-Atlantic
850 F.2d
tained
proposals
that he made no
on behalf 958,
(3d Cir.1988).
Although there is
Harper
meetings.
at these
He further
evidence
support
the unions’ claim that
Harper’s
testified that he never advised
Limbach and
separate
are not
em-
management on the issue.
ployers,
above,
as discussed
there was also
evidence from
jury
which a
could determine
Subsequent
disclaiming
to the unions’
otherwise.
It cannot be said that
8(f) agreements,
the section
Walter Lim-
record
sepa-
reflects so little evidence of
presided
strategy meetings
bach
over
held
rateness
jury’s
that the
verdict should have
respond
to determine how to
to the locals’
been overturned.
disclaimers. He sent memos to Limbach’s
president
managers
reject
sugges
and to branch
contain-
We also
the unions’
separate
tion that the
ing
handling post-disclaimer
status of
advice on
la-
However,
should be
problems.
viewed with extra
bor
business
Ste-
scrutiny in view of
Wurzel,
Walter Limbach’s ac-
phen
president
Limbach,
knowledgement
purpose
that a
of the reor
Stock,
Angeles
manager,
Paul
Los
branch
ganization and formation of Jovis was so
they
always accept
testified that
did not
organization
acquire
could
nonunion
the advice in the memos.
shops. The four factors discussed above
Viewing
light
evidence
most
determining
those to be considered in
Limbach,
say
favorable to
we cannot
separate
and-employer
status issue
mo
question
there was no
of material fact for
tive is not one of those factors.16 Further
jury
any
and that
verdict other than the
more,
improper
it
is not
for an
sought by
one
the unions would be errone-
wish to conduct its activities on a nonunion
governing
ous under
Macleary
law.
Indeed,
basis.
it would be
remarkable
Hines,
(3d Cir.1987).
very
organization
hold that the
fact that an
Thus, the district court’s denial of the di-
attempting
to order its affairs so as to
rected verdict motion will
affirmed.
be
satisfy legal
gives
standards
reason in it
question
self to
whether it has succeeded.
Although some of
Lim-
Walter
anything,
If
quite
opposite might
be
testimony
bach’s
disclosed a fair amount of
thought to
true.
operations
control over the
of the whole
organization and a certain amount of cen
approach
We find instruction as to the
management,
tralized
he also testified that
opinions
take
this matter in recent
always
subsidiary
intended that each
court
which arose
different situa
direct
its own labor relations and that
tions in labor
cases
law
but
also
Thus,
did so.
he testified in fact that labor
questions
separate
involved
status of
relations decisions
were made
individual
corporate
Eichleay Corpora
entities.
Therefore,
light
subsidiaries.
Bridge,
tion v.
Ass’n
International
factors to be used to determine
Iron
Structural
Ornamental
Work
relevant,
single employer
16. The four factors of the
test
breasted situation is
to the extent
*20
relationship
pur-
focus on the current
portedly separate employers.
may
of two
light
it
shed
on whether Walter Limbach or
past
The
is rele-
Limbach Constructors has current de
con-
facto
upon
present.
vant
Accordingly,
to the extent it bears
trol over whether
does or does not enter
purpose
the fact that the
an
with a union.
original reorganization was to create a double-
guaranteed
portion of the
chleay
ECI’s
ap
entertained an
ers,
we
944 F.2d
ECI
job.
an
There
evidence that
from order
Pitcal
peal by certain unions
by
vacating
Eichleay
awards
controlled
arbitration
and
were both
district court
grievance
Eichleay
in a.
Eichleay,
to the unions
and
Geoff
favorable
Geoff
griev
Eichleay Corporation.
compa-
The
against
major
decisions for both
made
Eichleay
nies,
Eichleay
violated
including
ance asserted
the decision that
agreements by estab
collective
out and ECI
drop
should bid
should
corporation
ego nonunion
lishing an alter
job.
Pitcal
it
directing
to which should
work
and
Id.
employees.
by union
performed
been
have
Furthermore,
this
Eichleay differs from
prevailed in
Thus,
Eichleay
unions in
Har-
the fundamental reason that
case for
like that
a
somewhat
arbitration on
claim
long
enterprise
per
been a nonunion
had
un
in this case were
the unions
on which
purchase
Eichleay
in
whereas
before
before the Na
in the arbitration
successful
operation
newly
created.
the nonunion
In Ei-
Adjustment Board.
tional Joint
and
court
chleay
reversed
district
we
Eichleay
prime significance
award on this
that the arbitration
ordered
emphasis
appropriate
on our
for us is its
opinion
In our
we
point be confirmed.
in
scope
pointed out
of review. As we
necessary for a
pointed out that “elements
Eichleay, a court’s
an arbitration
view
finding
ego
of alter
status are substantial
“extremely deferential” and thus
award is
purpose,
identity management, business
unless it is
an
must be confirmed
award
customers, supervi
equipment,
operation,
exactly
Id. That test is
“irrational.”
corpo
ownership
the two
sion and
between
reviewing
in
as that which we use
same
inquiry
an
into whether
rations” and thus
a
denying a
the orders
directed verdict
ego situation “is essen
there was an alter
verdict,
notwithstanding
but
judgment
finding
a
tially the
that used for
same as
Thus, just
it is
as the arbitration
similar.
at
We
Id.
1059.
single
status.”
Eichleay
in
be vacated
award
could not
“determining single
in
em
then stated that
can the verdict on the
neither
status,
elements are con
ployer
four
case.
employer issue
interrelationship
operations,
sidered:
ap
We followed
same deferential
management, centralized control
common
Inspection
proach NLRB
Omnitest
relations,
ownership.”
and common
of labor
Cir.1991),
Services, Inc.,
(3d
a
here,
appears
Eichleay,
In
it
Id.
unlike
involving
application by
the Na
matter
keep
very little
was made
effort
Relations Board for enforce
tional Labor
separate,
pointed
corporations
for
we
upon a
depended
an order which
ment of
Eichleay:
out
corporation being
ego”
an “alter
successor
case,
ample
In this
there was
evidence
order,
predecessor.
enforced
of its
We
panel
the arbitration
could
which
that an
holding that
determination
“[t]he
Eichleay
that ECI
were
conclude
al-
ego
question
of fact for
alter
exists
egos.
Eichleay
ECI and
were both
ter
if,
Board,
uphold
upon re
we must
wholly
Eichleay
subsidiaries
owned
record,
supported
the entire
view of
Holdings, Inc. There was evidence that
937 F.2d at
evidence.”
substantial
space
office
Eichleay shared
ECI and
course,
precisely
Of
we used
Omnitest
ranking
High
corporate
clerical staff.
previously
had
used
same test
Ei-
were transferred between
officers
conclusion
reviewing the Board’s
chleay
companies
shared
and ECI.
that there was
double-breasted situation
sales,
estimating,
for
services
common
single employer.
Bryant,
v. Al
NLRB
check writ-
accounting,
processing,
data
Inc.,
1263 denied, Harper secondary boycott 429 purposes cert. U.S. by (1977). Rather see no basis reason of
law. we any L.Ed.2d 789 If there could be argument holdings limit our this usual this, surely doubt about it was removed sepa- determining related entities are when Labor National Relations Board Lo essentially rate. is The matter a definition- which, No. holding cal Union after that problem. al it is determined as a Once Harper separate and Limbach were em case, fact, happened in matter of this ployers, following: added the separate, that the then are entities are dissenting colleague Our claims that Indeed, it neutral. would be difficult not in Harper employer’ is fact a ‘neutral opinion conclude view of otherwise our meaning within the Act. If our Inc., Bryant in Al which used the standard colleague Harper means is that [Lim- if sepa- criteria to entities determine were ally, he we note that offers no bach’s] double-breasting rate in a situation. evidentiary support proposition, for this separate We on the close Thus, and find none. there we is no thought. issue final with one While probative support evidence that would suggest something unions that there is finding Harper performed that struck holding separate novel in our on the em [Limbach], single work for part is Indeed, ployer simply is issue this not so. integrated enterprise [Limbach], with the court v. Sheet Metal Gottfried prove relationship The burden to such flatly Workers’ Local No. 80 indicated [unions], plain- is on the and that burden Harper ‘per separate “Limbach and are ly however, If, has not been met here. meaning sons’ within the colleague contending our is that there boycott provisions of the [NLRA].” something special about double- obviously F.2d at 1247. While the context companies requires breasted of that was decision somewhat different single- Board to deviate its usual from from that here the court con integrated-employer analysis, ive dis- injunctive pending cerned relief with agree. Our colleague any has cited decision, Board’s fact is that the court’s supporting proposition. case such a absolutely unqualified statement was (citations Slip 7 n. separateness op. some at omitted and showing of was re added).17 quired emphasis so that it would be determined that regional theory case director’s totally was not merit. The without bottom VII. applying line is princi that we are standard ples of appropri law accordance with the CONCLUSION ate unexceptional standard of review an foregoing judgment way. For the reasons NLRB v. also International panel’s will consistent Operating Engineers, Union Locals be entered Cir.1976), etc., (3d 9, 1991, opinion July opinion. F.2d 8(b)(4)(i). 17. The decision of National Labor Relations under section Further- consideration brought Board in Local Union 80 was not affirming more we the determination of the are argument our attention until after the oral jury are em- that Limbach we this case. When received it we asked for ployers preclusive thus the effect issue briefing supplemental regarding impact point. only the moot on that This leaves issue case, have now Lim- which we received. 8(b)(4)(h) there was a section viola- whether argues give preclusive bach that we should ef- preclu- tion for consideration under Limbach’s germane fect decision. decision is argument. very sive We it is effect think doubt- (1) on three issues: whether the unions violated preclu- can ful that the decision of the board 8(b)(4)(i), being the board decision in- point, party sive on this as Local 108 not a panel opinion point; consistent with the on that proceedings to the board's and different dis- (2) violated whether claimers were involved. But than con- rather 8(b)(4)(h) (3) disclaiming; Lim- whether clusively passing point, on the instead do not separate employers. bach and We preclude any argument making it give preclusive decline to effect for the follow- appropriate regarding preclusive deems ef- ing already explained, reasons. we have As board fect of the decision on remand. preserved Limbach’s our claim has not been *22 1264 industry
SLOVITER, dissenting. the construction Judge, Unionization Chief the mid- has on decline since been from the decision respectfully I dissent Wallace, Non-Union 1950s. See David large spectre of a majority. The of Foothold, a Firmer Gain Contractors verdict, damage such as the more than $2.8 Journal, Philadelphia Business June case, impermissibly in this million awarded reported It has been that be- at 1. designed by playing the level field tilts percentage of tween 1984 and 1988 Congress. done in the five- nonunion construction case, no held that the Until this court has Philadelphia county around increased area boycott provisions Nation- id., and between 1980 70%, see to 56% applicable when Relations Act al Labor percentage of nonunion con- and 1987 the interest further a labor union disclaims York, Albany-Colonie, in the New struction ef- representation of the workforce 50%, from about to area soared about 5% from the ef- protect to its members fort see Tim As Non-Union Work- Cavanaugh, operations of fects of the double breasted ers Unions Grab Jobs: Construction majority reaches its employer. Ground, Capital Fight Regain to District is by holding that Limbach conclusion Review, 31, 1987, August at 15. Business purposes of the employer for Nationwide, only about construction 30% secondary boycott provisions unionized, compared companies are now 8(b)(4). I as a believe this erroneous See just years ago. Gary to ten about 75% I also believe that matter of law. Time, Right Eisler, Right Man at the negotiation of further unions’ disclaimer Business, July Oregon at 29. expiration following a section work has driv The increase in nonunion reasonably cannot within the be en, by, in turn driven double been 8(b)(4)(ii) merely scope because breasting. operations Double breasted be to by the unions are motivated desire industry in gan pervade the construction unionize the other half of a double breasted they received the the late 1970’s after operation. majority’s I conclusion view See imprimatur approval. Com Board’s tainted the de- that the disclaimers are Operations In The ment, Double-Breasted company to unionize a nonunion sire Industry: A Search For Construction erroneous a matter law. Guidelines, Concrete Dayton 6 L.Rev. U. Comment). 45-47, (1981) (Dayton Dou I. breasting permits contractors who wish ble Background Breasting Double compete jobs for nonunion also bid require unionized those contracts dispute, prac- This on the which centers and federal laws or workers due state breasting tice of double and the unions’ engaging contrac the desire of the firm it, can efforts to counteract be understood disputes employ tor to avoid own underly- only by some examination of recog previously As has ees. this court ing conditions set economic business engaged in a double nized contractor “[a] publicly forth in available of infor- sources has the best of operation both breasted mation. worlds, through its union since it can bid industry The construction is one of the jobs require union contrac company when remaining highly fragmented few indus company a unionized can underbid tors but Nonetheless, tries in United States. operation jobs through its second larger a decided trend towards there is NLRB union contractors.” require do not companies regional or national order Inc., Bryant, (3d v. Al particularly in diversify geographically, denied, Cir.1983), 1039, 104 cert. 464 U.S. Shake Thompson, Donald B. Sunbelt. (1984). L.Ed.2d S.Ct. Due; Merger Mania Hits out Was Con Week, Industry, Increasingly, companies be- Industry May unionized struction 17, 1982, (hereafter Thompson, operations breasted ac- at Indus come double companies Week). quiring existing nonunion try Sunbelt, lowest, pensation give rath- the employer expanded where unionization *23 leverage A at the by creating bargaining er than new subsidiaries. table. It fol- lows that a management union explained legitimate consultant has has a interest existing protecting the advantageous acquire working it is an conditions of its members using with a company get weapons “You a firm economic because: discourage functioning employer history, labor-relations it’s double breasting. under- open shop, you get who people an you feel open-shop operation, stand an II. eyes of the
you’re a lot cleaner in the
piece
your
a
carving
NLRB than
out
Separate Employers
organization
sending it across
own
8(b)(4)(ii)(B),
Under section
the secondary
Industry Week,
Thompson,
May
street.”
boycott section that
majority
believes is
17, 1982, at 88.
applicable here, a union’s action can be
Although
may
there
some
be
transfer of
viewed as a
boycott only if the
portion
from the unionized
work
to the
object
union’s
is to
requir[e]
or
“fore[e]
portion
nonunionized
corporate
of the same
any
other
recognize
or bar-
enterprise,
major
effect of double gain
organization
with a labor
repre-
as the
breasting on
unionized
is a re-
employees.”
sentative of his
29 U.S.C.
wages
duction in their
and benefits. See
158(b)(4)(ii)(B)(1988) (emphasis added).
§
Hyland,
Bruce
Unions Lash Out at Dou-
holding
Limbach,
Buffalo,
Breasting,
ble
Business First —
together constitute
oper-
a double breasted
5,
August
1985, at 1.
Insofar as double
ation,
separate
can be treated as
employers
breasting
competition,
increases nonunion
purposes
secondary boycott pro-
for
of this
pressured
give wage
unions will be
con- vision, the majority mechanically applies
“givebacks”
cessions and
so that their em-
the factors that courts have used in other
ployers
competitive
grow-
can remain
in a
distinguish
contexts to
between
ing nonunion environment. As one com- employers
single
and a
enterprise.
business
mentator has noted:
However,
only
two such Third Cir-
double-breasting poses
significant
by majority,
cuit cases cited
Bryant,
Al
threat to the labor movement. From the
Inc.,
Eichleay Corp.
v.
perspective, double-breasting
union
im-
Workers,
Bridge
International Ass’n of
properly permits
an
to shed
(3d Cir.1991),
of related
Operating
re
Union
volume
business
International
minimum dollar
(D.C.Cir.
imposed by
NLRB,
Board itself as
quirement
Eng’rs
v.
F.2d
Milk
proceeding as
a
Cir.),
to cease
both
cert.
(2d
No.
Union
operation.
and nonunionized
denied, 382 U.S.
15 unionized
S.Ct.
(1965); Chauffers,
&
Teamsters
L.Ed.2d
dispute
ex-
The unions’
with Limbach is
NLRB,
Local
Helpers
Union
clusively
oper-
over Limbach’s decision to
curiam),
(D.C.Cir.1961) (per
F.2d
in a double breasted manner.
Insofar
ate
intra-family affair.
this
is
di-
pressure
the unions’ economic
decision,
entity
and,
at
that made
indeed,
majority
rected
undisputed
It
is
reasonably
believed that
its cor-
unions
restructured
concedes that Limbach
negative impact
this decision would have
created Jovis Construc-
porate form and
employment
acquire
nonunion
on the terms
conditions
tors,
so that it could
Inc.
Limbach,
represented,
Inc.
Prior to
contractors.
hardly
“secondary
industry in
neutral
a Limbach
competed in the construction
dispute.
employer”
unionized
this labor
fashion with the benefit
totally
lo-
agreements
with various
cry
where
This
a far
from the situation
merely
Had Limbach
desired to
cal unions.
union, seeking
recognition from
to force
Florida,
expand
operations to
it could
employ-
primary employer, pickets
office there similar
opened
have
a branch
suppliers,
er’s customers
businesses
Boston, Pittsburgh,
those maintains
dispute.
As
have no
the labor
stake
Columbus, Detroit,
Angeles.
*26
and Los
In-
National
in
recognized
Brennan
Justice
stead,
acquire
precisely
it had Jovis
Woodwork,
pervading
central theme
“[t]he
nonunion.
because
was
provisions
protection
of
for the neu-
[the]
of
purchased,
employer
the
tral
confirms the assurances
Harper was
unions
Once
recogni-
sponsoring the
that in
securing
to
those
section
directed their attention
[what
8(b)(4)(B) Congress
Carlough,
likewise
is now section
tion
the union. When Edward
of
]
protect
employer only
to
the
of the International meant
the General President
pressures designed
him in
Union,
August
union
to involve
Limbach
wrote Walter
625-26,
disputes
U.S. at
1983, stating
union
that
not his own.” 386
that
believed
explained
not-
labor
Further
secondary boy-
interpreted
inapplicability
existing
agreements
target
is
stymied
provisions
truly
not
applicable Harper
were
because
cott
when the
“ ‘ally
by the
doctrine’
Adjustment Board
neutral
illustrated
the National
Joint
cases,
pressure
(NJAB),
body composed
equal
the union’s
was
employers performing the
representation,
deadlocked
aimed toward
striking
Only
primary employer’s
grievances.
over
then did the work
Id. at
unions,
employees.”
disclaim
87 S.Ct. at
through their decision to
representation
Despite
Limbach
at
the literal terms
assignment
automobiles,
curement and
provision,
applied
it was not
in the
boycott
“ally
janitorial
cases because “the union
doctrine”
records and maintenance of com-
extending
activity
not
to a front
pany records.
dispute
from the immediate
but
remote
if
Even
the two halves of the double
unit
intimately
inextricably
and indeed
one
operation
breasted
had decentralized labor
Metropolitan
ed to it.”
Federa
Douds
relations, this could not serve to mask the
672, 677
Architects,
F.Supp.
tion of
interest of each in maintaining the status
Na
(S.D.N.Y.1948),
quoted approvingly
quo as a
operation.
double breasted
There-
Woodwork,
386 U.S. at
tional
fore, neither could be viewed as a neutral
at 1259.
respect
disputes
concerning the
legislative
light of the
Viewed
unionization of the other.
limiting
decisions
history and the Court’s
secondary boycott provi-
application
Neither the decision
v. Sheet
Gottfried
truly
those cases where a
neutral
sions to
Metal
Local No.
Workers’
F.2d
involved,
apparent
it is
(6th Cir.1989),
nor the Board’s
concept
Limbach does not fit into the
of a
decision in Local Union No.
hardly
true neutral.
It is
“remote” from
30, 1991),
(Sept.
provides
N.L.R.B. No. 36
Instead,
dispute.
the instant
any persuasive
why
reason
the halves of
single
Harper operate together
part
operation
the double breasted
should be
strategy designed to
coherent business
separate employers
viewed as neutral
advantage
take
of both
unionized
secondary boycott
purposes.
Gottfried,
segments
nonunionized
of the market for
merely
argument
the court
decided
construction.
separate employers
were
majority recognizes,
As the
frivolous,
the standard
which the Re-
boards
directors of
and Jovis
gional
petition
injunctive
Director’s
re-
non-operational “except
legal
to fulfill
were
judged.
lief should be
As for the Board’s
requirements,
presidents
and the
of both
decision Local Union No.
while we
*27
companies reported directly to
Lim-
Walter
ordinarily
the Board deference in its
owe
(949
1260).
F.2d at
Walter Lim-
bach.”
NLRA,
analysis
legal
this case its
apex
remained at the
Con-
bach
represent
decision does not
the kind of
reorganization.
I
structors Inc. after the
analysis
policy
expertise
reasoned
and
surprising
majority
find it
that the
fails to
are the
for deference. Be-
which
basis
acknowledge that Walter Limbach testified
single
considered the
cause that decision
management
at trial that “central
and ...
only
cursory
fashion and
employer issue
management”
business executive
were lo-
specifically hold that the traditional
did not
Inc.,
cated in
Limbach Constructors
apply
single employer
strictly
test should
parent
Harper.
the
Co. and
was
one,
present
need not
cases like the
we
App. at 1105-06. Limbach Co. sent its
See
Nothing
defer to the Board on this issue.
management personnel
to
to
own
opinion gives
rise to a rule on this
management
serve as the executive
of Har-
any
In
to which we owe deference.
issue
Furthermore,
Fern,
per.
of Lim-
John
one
event,
only
need
defer to Board inter-
Presidents,
sent to
bach’s Vice
was
Jovis
that are “rational
pretations of the NLRA
given
serve as its President and was
offi-
consistent with the Act.”
Fall
and
responsibilities
labor relations
for Jov-
cial
NLRB,
Finishing Corp. v.
Dyeing
River
&
Notwithstanding
separa-
the technical
is.
2225, 2235,
27, 42,
482 U.S.
107 S.Ct.
96
tion,
integration
there
extensive
(1987).
light
In
of the clear
L.Ed.2d
operations.
Limbach Constructors Inc.’s
proscribe
a
Congressional intent to
sec-
Harper utilized the same ac-
Limbach and
ondary boycott only union conduct directed
services,
counting
payroll
personnel
and
against employers
truly neutral to
that are
services,
assistance,
research,
legal
market
I
the
services,
dispute,
the labor
believe that
Board’s
advertising and sales
mechanical
services,
services,
application
mechanical
of the four factor
engineering
estimating
including pro-
single employer
in this context is clear-
and administrative services
test
Labor-Management Reporting
intent
ly inconsistent
(1959),
NLRA.
at
Disclosure Act of
Admin.News, 2318, 2383.
Cong. &
U.S.Code
majority
summary,
the decision of
Limbach,
halves of a
two
Thus, DeBartolo,
Supreme
Court
operation,
separate em-
double
are
breasted
handbilling of
a
held that the
customers of
secondary boy-
ployers
purposes
secondary employer was not “coercion”
provision
represents
the NLRA
an
cott
8(b)(4)
meaning
be
within
section
extension of the
unwarranted
“[tjhere
violence, picketing,
cause
no
essentially a
boycott provisions to what is
patrolling
only
attempt
per
an
an ex-
family
I
that such
dispute.
believe
shop
suade
not to
in the mall.”
customers
policy
from the
enunciated
tension deviates
Id. at
at
The Court
S.Ct.
the second-
Supreme
Court
limit
explained that the mere
that the un
fact
where
ary
to those cases
boycott provisions
activity
impact
ion’s
had “some economic
Here, as
secondary.
a
activity
truly
support
on the neutral” was insufficient to
law,
clearly
it is
not.
matter of
finding of
a
“coercion.” Id. at
III.
Similarly, in
at 1399.
NLRB v. Fruit
S.Ct.
Packers,
58, 63,
377 U.S.
Disclaimer
Coercion
(1964),
Supreme
1271
ticularly
light
of the Board’s earlier hold-
agreements entered
In contrast to labor
9(a),
ing
employer
duty
under which
has no
to section
that an
bar-
pursuant
into
8(f)
union is irrebutt-
majority
gain
expiration
status of the
of a section
after the
for a reasonable
ably presumed to continue
agreement,
if the
moti-
even
NLRB,
time,
348
v.
period of
see Brooks
unlawfully
vated
antiunion animus and
(1954);
176,
96,
text. IV. me the Chief troubles about What however, analysis, is that it com- Judge’s majority’s The effect draconian test single employer supplants pletely Unlike be underestimated. holding cannot secondary boycott setting with prac- unfair labor the usual the situation of rule, unsuccessfully and one that general of the remedy is an order tice, where I believe attempts cover all situations. finding of a bargaining, a requiring Board completely all abandon that we need open the union boycott leaves well-established test when aspects of that damages, as were awarded extensive I write deciding single employer issue. leave unions upheld, If this will this case. a re- the contours of separately to outline efforts to combat in their defenseless would, test that consistent vised opera- of double breasted increasing use most ele- Judge’s position, retain Chief free to enter employers will be tions while single employer doctrine. ments any com- arrangements without into such judges useful to when a test would be Such parable deterrence. charging jurors doctrine and applying the Congress in the approach grants certiorari general Supreme The Court if the considering case, has been to allow each do might relations area as it well labor issue, bargaining strat- reverses party importance to use economic (and upon other. the district pressure judgment of this court egies to exert court). & La- on Education Senate Committee See
bor, Cong., 1st Sess. S.Rep. No. 74th out four single employer test sets The wages, (1935) hours of (“[disputes about corpo- determining whether two criteria work, working conditions should and other 1) in- employer: single rate entities are play of com- by the continue to be resolved 2) terrelationship operations; common forces”). By applying the second- petitive 3) of la- management; centralized control essentially provision to what ary boycott relations; 4) ownership. common bor struggle an economic between Inc., 711 F.2d Bryant, v. Al NLRB majority has de- employees, the and its (3d Cir.1983). critical The test’s weap- traditional prived the unions of their primarily from context arises in this flaw shifted, irrepara- perhaps thereby ons and on the centralization of emphasis parties bly, balance between majority makes much relations. industry. construction subsidiary responsible that each fact jury un- reasons, labor relations. I re- for its own foregoing would For the instruction, doubtedly reasoned from the deny- the district court verse the order of consistently with this given not- which was judgment motion for ing the unions’ standard, were decen- that labor relations on the issue of withstanding the verdict law, that, under the tralized and liability. secondary boycott *30 pre-hire may of its union’s disclaimer that Limbach not have 1. Because I believe practice. meaning an unfair employer with Limbach was Hence, within the been a neutral opinion join majority nor secondary boycott provisions I neither of the NLRA Judge opinion Sloviter’s against of Chief Part III the union’s actions and that do, however, join in Part employer, respect that issue. I against primary I to constituted action Judge opinion. unnecessary IV of Chief Sloviter’s determine whether the find it separate keeping operations therefore em- act of some and Limbach were ployers. deeper often evidences a intent to serve the corporate purpose of bifurcating pre- that decentralization of labor rela Given partially serve partially union and non-un- necessarily sepa evidence tions does Hence, ion workforces. in secondary status, employer Judge rate Chief Sloviter context, boycott the interrelationship op- single employer concludes entire prong emphasize erations should whether secondary test should be abandoned there is substantial overlap between Hence, boycott context. she advocates a performed by kind of work primary “common sense determination based on the employer and whether the totality of the circumstances” as to wheth operations appears designed structure of dispute. er a firm is a “neutral” single corporate serve a interest. Judge at 1237. I Dissent of Chief Sloviter not abandon the test believe that we should prong fourth and final single of the Instead, I that the completely. so believe test, employer prong, centralization determining appropriate standard for sin should completely applied be altered when gle employer status this context should secondary boycott to the pur- context. The depend single em on a modification of the pose single employer of the test is to deter- prongs ployer test. Two of the test should identity mine of interest between two enti- unchanged remain from the traditional ties, and centralization generally evidences ownership test. Both common and com identity. Nothing such dictates that decen- management mon are relevant factors to always tralization demonstrates the ab- secondary boycott consider in the context. interests, sence of identical however. In- They commonality evidence a of interests deed, pos- where decentralization makes between the two entities that is critical to employer respon- sible for an to avoid labor single employer the determination of sta Act, portions sibilities under other of the They tus. also serve bolster overall may such decentralization suggest well test, purpose single employer of the and, hence, identity purpose single em- genuinely is to determine whether there is ployer status. When the issue is whether a length relationship among an “arm’s found engaged secondary boycott union has in a unintegrated companies.” Local No. by saying and the union defends that the Operating Int’l Engineers Union single employer, two entities are a this NLRB, (D.C.Cir. 1045-46 prong of the test should focus on the over- 1975),aff’d as South Prairie Construction all structure of labor relations. The consid- Oper Co. v. Local No. Int’l Union of eration must be whether the structure ating Engineers, 425 U.S. designed one sin- labor relations is so that (1976) curiam). (per 48 L.Ed.2d 382 gle employer may have non-union and both prong single third workers to benefit the test, operations, requires interrelation of genuinely employers whether there are two applied modification when designed whose been labor relations have boycott Traditionally, context. courts have absent how to benefit each consideration of oper- focussed on whether the entities have other. befitting corporate ated in a manner one I modification of the believe that Thus, entity. day-to-day operations of the single adequate- more employer test would may important part entities ly purposes serve the test inquiry. situation, In the double-breasted give context and would secondary boycott however, might corporations not mesh their judges which to determine standard operations closely do in other single whether entities are fact a two larger corpo- contexts order serve the employer. maintaining rate function of both a union Nonetheless, Moreover, may operation. and a non-union there be situations where fact, double-breasting may part structure entities are not corporate two itself, closely in and of single employer secondary employ- demonstrate how but the corporation very is interrelated. The er is nonetheless not “neutral” within the *31 8(b)(4)of the National meaning of section words, al- In other Act.
Labor Relations
prove separate sta-
employers
though the
test, that
single
tus under the
not,
end
majority suggests,
may
as
activity direct-
Certainly,
all
inquiry.
not consti-
secondary employers does
ed at
may still
secondary boycott. Courts
tute a
single em-
go beyond
obligated
neutrality.
determine
ployer test
ac-
situations,
consider
do not
courts
some
“secondary” employer
tivity
at a
aimed
employer.
at a “neutral”
be aimed
explains,
Judge
doctrine,
Chief
ally
as the
See,
example,
provides
example.
one
459, IUE,
Local
v.
Mach.
NLRB Business
Hence,
Cir.1955).
(2d
in addi-
SHEET Welfare, Pen Sheet Metal Workers sion, Annuity, Industry, Apprentice and 19, Appellants Local Funds of Vacation 90-1839, GROUP, INC., Storage TM & M t/a Specialists, Appellant in 90-1878. 90-1839,
Nos. 90-1878. Appeals, United States Court Third Circuit. Argued June 1991. Nov. Decided