*1 190 interpreted courts have Bankruptcy
court.
Fetherson, 2
In Re
the rule otherwise. See
LABOR RELATIONS
NATIONAL
5,
(W.D.Wisc.
122
Jan.
Petitioner,
Dec.
BOARD,
Bankruptcy Ct.
counsel
preoccupation of
1976) (professional
v.
Moreover, the
neglect).
not excusable
is
INC.,
BECKHAM,
Respondent.
4,
under Rule
Feder
holdings
cases
clear
Procedure, and its
77-1223.
Appellate
al Rules
No.
F.R.C.P.,
which
73
from
Rule
predecessor
Appeals,
Court of
United States
derived, are
802(c)
that counsel’s
Rule
is
Fifth Circuit.
of ex
permit
finding
workload does
8,
Files
of Rock
neglect.
City
v.
Dec.
1977.
cusable
See
ford,
(7
1971);
States Helms, Corporation v. 171
Tucker Products (9 1948); v.
F.2d 126 Cir. Christoffel United
States, 88
(1950); League Citizens Protective (1950); 178 U.S.App.D.C. F.2d 703 395, 154 U.S.App.D.C. v.
Maghan Young, Rules Proce
F.2d 13 of Civil Rules of Pro apply Bankruptcy
dure Ward, Recile v. F.2d 1374
cedure. 1974). depart no We find reason to precedent in the such longstanding
from claimed
face of excuse could be Stern, Changes every
almost
instance. See
Rules,
in Federal argument ap
Appellant’s is to move dismiss the
pellee estopped jurisdiction patently is
appeal lack of notice timely
without merit. Failure file matter. In Re appeal jurisdictional (S.D.N.Y. Co., F.Supp. T.
W. Grant failed raise the mat Had appellee to con required
ter we would have it on own motion.
sider our appeal
We order be dismissed that the jurisdiction.
want of
DISMISSED. *2 Associate, Gen. Moore, Deputy
Elliott Griffin, Supervisor, Counsel, Marion L. Fine, Irving, John Gen. Atty., Howard F. S. Jr., Counsel, Higgins, Deputy John E. Gen. Counsel, Taylor, L. Associate Gen. Carl N.L.R.B., D.C., Counsel, Washington, petitioner. Burke, Orlando, Fla.,
Norman F. Beckham, Inc. BROWN, Judge, and
Before Chief RO- FAY, Judges. NEY and Circuit RONEY, Judge: Circuit Court is wheth- sole issue before the record con- er on the substantial evidence finding supports sidered as a whole Board that the National Labor Relations Inc., manifested respondent, by group to be bound intention than individual action in collective rather bargaining, so that his refusal to resulting bargaining agreement collective Al- bargain. amounted to a refusal evidence though undisputed could inferences, the subject differing standard requires an permitted of review this Court remedial order enforcement of the Board’s with the collective requiring compliance by the bargaining agreement negotiated group’s representatives. multi-employer vote, Board, reversed a two to one Judge Law a decision of the Administrative (“ALJ”) and Beckham had vio- ruled that 8(a)(5) (1) the National lated sections Act, Labor Relations 29 U.S.C.A. 158(a)(5) (a)(1), by refusing to ad- §§ union, ing, being here to a collective and whether the informed Florida Chapter, delegation between Central bargaining authority Decorating Painting and Contractors of the group, assented and entered into has America, (the “Association”) Division group representative. with the See, Hart, and the International Brotherhood of Paint- 453 F.2d g., e. NLRB v. Trades, AFL-CIO, ers denied, and Allied Local Un- 409 U.S. 1971), cert. *3 (the “Union”). 46, ion (1972); 1010 S.Ct. 84 Western 34 L.Ed.2d 3,No. Int’l Regional States Council Wood petition the Board’s for enforce On NLRB, 176, U.S.App.D.C. workers v. 130 ment, very this role is The Court’s limited. 770, parties 398 F.2d Both 773 clear, legal the facts largely test are with is the agree appro the Board real only dispute and the be undisputed, priate legal test. (and the tween the difference be The facts the Board upon which based its decisions) tween ALJ and Board relates the findings are, ALJ, the words of the “in in to the effect of what If the legal occurred. 1975, large part undisputed.” Prior to supported are conclusions sub Board’s Beckham members of the and other Associ- the stantial evidence on record considered bargained group, ation with the Union as a whole, as a grant we must enforcement. signing but with purpose the individual This the though is true Board disa even was procedure contracts. followed in ALJ, Such greed with the NLRB v. Materials negotiation 3-year the and execution of Co., 1074, (5th Transportation 412 F.2d 1079 point prior in At some to 1972. Miami 1969); Cir. NLRB v. Coca-Cola Bot 1975, 1972 date of the con- expiration Co., 921, tling (5th 1967), F.2d 923 382 Cir. tract, bylaws its amended to Association contrary and even where the conclusions of multi-employer enable it to as a act support have substantial in ALJ also single negotiate unit and record, Mfg. Russell-Newman Co. v. members, although bylaws did for its 247, NLRB, (5th 253 407 F.2d Cir. purpose. not refer to this specifically multi-employer bargaining While is not May meeting, At its Association’s any in labor specifically mentioned of the Pass, announced that the William acts, president, long many it has a history relations a unit employers negotiate as for a would Congress, rejecting proposals industries. as individual single contract, instead of em- multi-employer bargaining, eliminate has previously done. All of ployers as multi-employer bargaining concluded that including vital in the present, often is “a factor effectuation members policy the national to this. Before com- promoting agreed labor menced, peace through strengthened requested its collective bar Association (and NLRB gaining.” Drivers, employers v. Truck other who Local members several (Buffalo Linen), 87, Union) 449 95, 353 U.S. 77 S.Ct. with the execute an contracts 643, 647, (1957), 1 L.Ed.2d Rights and quoted “Assignment Bargaining Des- Billboards, Inc., Hi-Way NLRB v. F.2d Bargaining ignation Agency” of Collective 1973). Congress intended returned Only companies form. three “ ‘to specialized judg leave Board’s Beckham never assignment signed form. questions ment concerning however, the inevitable Union, the form. was never multi-employer bound to arise in Association’s request informed about ” 96, 77 the future.’ at U.S. S.Ct. at 647. forms. June 24 Negotiations The Board has commenced formulated a court July 28, early negotiat- determine At an approved test to mul ended 1975. whether a session, bargaining unit has told the Union ti-employer ing been estab Pass all The test is whether Association of its employer lished. have members indicated from members as instead of group, individually the outset an Beckham previously intention to be as had occurred. by group bargain- this, virtually subsequent bound action collective all present signature, sessions, he never indicated Beckham for his refused however, Pass’ sign did, with statement. it. He disagreement state that he had any with negotiate agreed “nothing against signing Union document” multi-employer unit. as a and that he do so as soon as he had uncertain apparently completed some other discussions While with the rep- exactly time, who the Association Union. At the sug- same clearly understood resenting, the Union gested that the name of another employer Beckham was a member of the Associ- A, Appendix be removed from because he by any agree- and would be bound ation felt that the employer might other and the reached the Union Associa- ment the agreement. Beckham did not ask tion. Association to remove his Ap- name from pendix A. the final session
At
held on
When
employers
returned from a
Beckham later refused to
July
sign the
*4
caucus,
reported
agreement,
and
that
filed an
private
they
the Union
unfair labor
the
agreed
proposed
practice
to the terms of
con-
charge against
which led
tract, except
that Beckham needed relief
to
complaint against
the
Beck-
filing of a
provisions.
the
pay
from
retroactive
The
ham
The
by the
Counsel.
ALJ
General
was
make
unwilling
any excep-
Union
to
of the complaint,
recommended dismissal
contract,
in the
tions
written
but
it did
was not a
concluding that “there
clear de-
object
that
it
if
agree
would not
Beckham termination or
by
announcement
Asso-
[the
convince his
to waive
employees
could
their
bargain
that
it would
for certain
ciation]
pay. This apparently
retroactive
satisfied
unit”;
employers
single
as a
multi-employer
Beckham, who said he
take care
could
of his
between
that
the difference
the
nego-
negotiators
and then all of the
employees,
tiating procedures
prior procedures
was
hands
shook
and announced that
had
(the
not clearly
previous
established
con-
open
an
The
left
agreement.
contract
for
by
tract was
the
same people
action
joint
future
the formation of a
trade who were on the Association’s negotiating
board and an
on residential
team, and the ALJ believed that Pass’ re-
rates.
marks at the
as to
change
first session
the
unit
to a
“were not
multi-employer
explic-
“recognition
a
contained
contract
The
it”);
at the
agreed
negotiating
that it was
clause,” which stated that
employers
sessions that
who were to be
Union recognizes
The
the Association as
sign Appendix
to the
would
contract
agent
and on
of the companies
behalf
A;
that
clauses in the
various
contact
A,
listed under Appendix
hereinafter
re-
showed that
contemplated
the Union
indi-
to as
“Employer,”
ferred
the
as the pri-
contracts,
vidual
and various oth-
employer
mary bargaining representative
for all
provisions
er
not been
settled before
contractors
within
operating
geo-
effective;
the contract became
and that
jurisdiction of the Union
graphic
.
express or
by
implied
Beckham did not
con-
justify
assuming
duct
the Union
that he
to list who
using
Appendix
idea
of the
by
was bound
the actions
undefined
sug-
had been
by
was bound
a
multi-employer
By
vote,
unit.
two to one
during
negotiations,
and was
gested
reversed, noting
the Board
that
the ALJ
by
both sides. The Union did not
agreed
had taken an “unnecessarily restrictive
Appendix
that
the contract or the
request
legally
view” of what was
sufficient
by
employers,
and the con-
signed
be
show an unequivocal intention to be bound
signed
by
was
for the Association
its
tract
by multi-employer bargaining.
Pass,
secretary, Turner.
president,
Turner later
that
it would
Board based its
Pass and
decided
decision almost en-
tirely
A to
good
Appendix
idea for
also
on the facts found
be
ALJ. The
Board, however,
employers
lines where
could
found
contain
Association presi-
Appendix
When
A dent
to the
sign.
presented
Union,
Turner
Pass’ statement
that the
First,
A.
while
sign Appendix
unit
refusal
employers
that the
and As-
contract,
“clear and un-
the ALJ concluded
Union
single
that an
negotiators
agreed
record.
sociation
supported by
is
This
equivocal.”
signed
negotiator,
testi-
was not bound until
employer
Johnson, the chief Union
disagreed, believing
Association
Appendix,
that the
the Board
Pass said
fied that
of Union
an after-
employers
signature
lines were
all
representing
agreed
Union
workers,
unilaterally
Appendix
added
thought,
and that
“Tr.”).
34-35, 68,121; hereafter
after the contract had
by Pass and Turner
(Transcript
Wright, similar-
evidence
negotiator,
signed.
There
substantial
Union
Another
employers
language
in the
Pass said
both
support
Board
ly testified
(Tr.
(which speaks
of em-
as an
the contract
itself
would be
”
Turner,
A)
secretary,
and in the
ployers
Appendix
135). The Association’s
“listed
311)
first meet-
the three
very
(Tr.
testimony
one
of Pass
that at
testified
employ-
team
Union
members of the
ings, Pass told
174).
(Tr.
136, 411,
Thus, the
(Tr.
signing
as a
bargaining
ers were
the first
Associ-
that “one of
Pass and Turner for the
testified
Pass himself
negotia-
in the
all
the Association’s mem-
up, again,
ation bound
brought
points
Union,
A,
the fact
whether or not
Appendix
listed on
bers
tions with
Association,
Appen-
employer signed
as the
each individual
[they] were
(Tr. 304).
correct,
Second,
if
members”
even
the ALJ
as individual
dix.
and not
that would not excuse Beckham’s conduct.
Pass
when
present
*5
reached,
been
as it
agreement
Once an
has
Union,
ob
and he did not
so informed
28,
July
was here
it is an unfair labor
on
had
He knew that
the Association
ject.
sign
practice
party
to refuse
permit multi-employer
reorganized to
Strong,
written contract. NLRB v.
393
May
the Association’s
bargaining, and at
541,
357, 359,
21
89
L.Ed.2d 546
U.S.
S.Ct.
agreed
he
to bar
meeting
specifically
had
NLRB,
(1969);
v.
311
H. J. Heinz Co.
U.S.
Beckham was
on a
basis.
gaining
320,
514, 525-526,
to the mony sought signature of individu- that he efforts were some reveals that the record “I because contractors al the commencement before made who was have no names. I didn’t know didn’t members, method this to convert members, anything. wasn’t or who bar- multiemployer into a bargaining Respondents Beckham and gotiations, the record does arrangement, assign their were solicited to McDaniel effectively purpose that indicate Association, rights to the both bargaining either to the Association communicated declined, expressly that stating McDaniel to the Union. themselves or members rights his to going give was not confronted, Rather, signifi- in a we are Later, July somebody else. after instances, with large cantly number of session, Beckham chal- final Respon- both the on Union’s behavior right of Pass to lenged the Turner and depar- suggests which that no part dents’ reaching agree- contract without sign a bargaining old scheme was from the ture pay and residen- ment on the retroactive bargaining partici- envisioned questions. tial rate does contain evi- pants. While record Furthermore, Turner, was contem- group bargaining that Pass and the in- dence stigators this evidence is not of convinc- plated, group bargaining plan, that unambiguous variety required by demonstrated even ing were uncer- multiemploy- as to whether prove consent to a tain the Association mem- Board bargaining arrangement. bers had consented to multiemployer er Both gaining. that Appendix testified A
Thus, although Turner testified that designed provide for individual bylaws were amended the Association signatures in order to bolster each mem- way multiemployer bar- prepare the contract, ber’s consent to be bound by- there is no reference in the gaining, consent which Pass admitted was at that it shown bargaining, laws to such nor is only implied. time aware Respondents that were made change. Similarly, Finally, while it is es- Union itself acted in a meeting May suggests manner which tablished it had no changeover bargaining understanding was dis- firm that multiemployer cussed, Respon- intended, is no there evidence that when after the specifically participated dent contract was it sought drafted to obtain Respondent signatures this discussion or to the contract individually McDaniel, who was absent from from the various contractors involved. what had meeting, notified as to My colleagues make much of the fact agreed. Additionally, there is no Respondents Beckham and McDaniel *7 at evidence that ses- first never communicated to Union a de- Respondents McDaniel sion Beckham and sire not to be bound the Association’s or remarks indi- heard understood Pass’ bargaining and appear- thus created the cating bargaining would be on a having acquiesced ance of in a multiem- multiemployer basis. ployer bargaining arrangement. But record is populated upon The with incidents close appears examination it my colleagues’ facts which Respondents’ only contradict contributions to this that multiemployer bargaining apparent conclusion creation of authority were their clearly intended. As the Administra- silence at first session observed, Judge tive Law and their appearance continued specific told which not contractors sessions.21 I would not base for nor does bargaining 21McDaniel, course, only participated of two or three sessions. appear it Union deduced contractors, in- my unequivocal names of these col- the manifestation of When, reed, leagues suggest.20 during ne- on so slim tention to be bound considering parties’ especially past America, of UNITED STATES
bargaining history. Plaintiff-Appellee, multiemployer Bargaining on a basis It “rooted in consent.”22 is for that rea- v. Association, Evening News Owner HENRICKSEN, Sherryl Lynn Grimsbo News,” and Publisher of "The Detroit Defendant-Appellant. (1965). NLRB 1494 that the requires son Board that contract- No. 77-5159 ing parties unequivocally manifest an in- Summary Calendar.* participate tention to in group bargain- Appeals, United States Court ing, before it finds a multiemployer unit Fifth Circuit. appropriate.23 Where there is no Bialy Bagel and Bakeries and Council of Dec. 1977. Members, Employer NLRB 902 its history prior multiemployer bargain- here,
ing, as is the case the Board must
insist on affirmative clear evidence of
parties’ engage joint consent to establishing above, given
intention. For the reasons I present.
do not find such evidence to be
As an additional reason for requir-
ing Respondents agree- to abide
ment I would find agreement
that no had in fact been
reached. matter of residential rates
was, contrary my colleagues to what sug-
gest, an intrinsic necessary part contract —not something without
which the contract could “float on its clearly
own.” It contemplated —and protest Beckham’s to Pass and Turner
bears this out —that until a residential
rate was reached the contract
would not be final. Since on
the residential going rates were still on at
the time of the hearing, I would not
require Respondents what is at
best an agreement. interim conclusion,
In I adopt the decision Judge Administrative Law complaint
would dismiss the in its entirety. *8 Antonio, Tex., Goldstein,
Gerald H. San for defendant-appellant. 18, Cir.; Enterprises, see Isbell Casualty al., Inc. v. Citizens
*Rule Co. of New York et 5 Cir.. 431 F.2d Part I.