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National Labor Relations Board v. Central Pennsylvania Regional Counsel of Carpenters

August 28, 2003


On Application for Enforcement of an Order of the National Labor Relations Board Case No. 04-CE-118 (Reported at 337 NLRB No. 162)

Before: Scirica, Chief Judge, Rendell and Ambro, Circuit Judges.

The opinion of the court was delivered by: Rendell, Circuit Judge.


Argued July 29, 2003

The National Labor Relations Board ("Board") seeks enforcement of its order issued August 1, 2002, prohibiting the Central Pennsylvania Regional Council of Carpenters ("Union") from attempting to enforce the "anti-dual shop" clause in its collective bargaining agreement with Novinger's, an employer in the construction industry. We have jurisdiction pursuant to 29 U.S.C. § 160(e), and will enforce the Board's order.

Novinger's engages in the installation of drywall or gypsum board walls and ceilings in commercial buildings. It is a wholly-owned subsidiary of Novinger Group, a parent company that, in addition to Novinger's, wholly owns Kelly Systems, another company engaged in commercial drywall construction work. All three companies are Pennsylvania corporations with the same principal place of business, and all are owned and ultimately controlled by their President, James Novinger.

Since 1982, Novinger's and the Union have been parties to collective bargaining agreements – the most recent running from May of 1998 to April of 2003 – containing the following provision, which forms the core of the dispute here:

The employers stipulated that any of their subsidiaries or joint venture to which they may be parties when such subsidiaries or joint venture engage in multiple dwelling, commercial, industrial, or institutional building construction work shall be covered by the terms of this agreement.

In October of 1998, the Union learned that Kelly was not conforming with the terms of the agreement signed by Novinger's. The following month, the Union filed a grievance asserting that Novinger's had violated the above-stated contractual provision by failing to apply the terms of the agreement to Kelly and Novinger Group. After receiving no response from Novinger's, the Union sought arbitration with the American Arbitration Association, and a hearing was scheduled for August 30, 1999.

Throughout 1999, the Union continued to pursue the grievance and prepare for the hearing. In July, they served on Novinger's a subpoena duces tecum; in early August, they sent Novinger's a request for additional information; and in mid-August, they requested that Novinger's accept service for further subpoenas related to the hearing.

Approximately a week before the scheduled hearing (and nine months after the grievance was filed), Novinger's filed an unfair labor practice charge. A Complaint and Notice of Hearing was issued on October 27, 1999, and the grievance hearing was held in abeyance. Novinger's complaint alleged that the above-cited provision of the collective bargaining agreement violated § 8(e) of the National Labor Relations Act ("Act"), which makes it an unfair labor practice "to enter into any contract or agreement, express or implied, whereby [the] employer... agrees to... cease doing business with any other person." 29 U.S.C. § 158(e).

After the parties stipulated to the relevant facts, an Administrative Law Judge ("ALJ") held that the Union had indeed committed an unfair labor practice because the clause at issue was on its face a violation of § 8(e). With minor modifications, a unanimous Board panel adopted the ALJ's order, agreeing that the Union violated § 8(e) by giving effect to and attempting to enforce the unlawful "cease doing business" clause. The Board ordered the Union to cease and desist from attempting to enforce the clause, and to post appropriate notices. The Board now seeks judicial enforcement of its order.

Initially, the Union asserts that this dispute primarily involves contract interpretation, and thus argues that the Board should have deferred these issues to the arbitrator. Although the Act allocates to the Board essentially plenary authority to prevent unfair labor practices, see 29 U.S.C. § 160(a), in appropriate cases the Board may in its discretion choose to defer to the arbitration process. See, e.g., Wheeling-Pitt. Steel Corp. v. NLRB, 618 F.2d 1009, 1015 (3d Cir. 1980). In determining whether the Board has abused that discretion, "it is the court's responsibility to ensure that the Board follow[s] its own policies." NLRB v. Yellow Freight Systems, Inc., 930 F.2d 316, 322 (3d Cir. 1991).

The Board clearly did not divert from its settled policies in this case. With court approval, the Board has long held that deferral is inappropriate where the underlying charge involves a facial challenge to a contractual provision, or, relatedly, where the attempt to arbitrate a dispute under a particular clause might itself be considered an unfair labor practice. See, e.g., Local 210, Laborers' Int'l Union of N. Am., N.Y.S. Chapter, Inc. v. Labor Relations Div. Associated ...

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