Application for Enforcement and Cross-Petition for Review of an Order of the National Labor Relations Board (Nos. 4-CA-30325-1, 4-CA-30325-2)
The opinion of the court was delivered by: Aldisert, Circuit Judge
Argued: February 14, 2005
Before: SLOVITER, AMBRO and ALDISERT, Circuit Judges
We must evaluate an Application for Enforcement by the National Labor Relations Board ("the Board") and a Cross-Petition for Review by D.A. Nolt, Inc. ("D.A. Nolt"). In a split decision, the Board held that D.A. Nolt was bound to a successor agreement negotiated by the Roofing Contractors' Association (the "RCA") and United Union of Roofers, Waterproofers and Allied Workers ("the Union"). It concluded that there were no "unusual circumstances" to justify D.A. Nolt's withdrawal from the agreement because the conduct at issue did not constitute "collusion or conspiracy" as contemplated by the dicta in Chel LaCort, 315 NLRB 1036 (1994).
We must determine whether the following legal conclusions of the Board are rational and consistent with the National Labor Relations Act ("the Act"): (1) the conduct at issue did not constitute "unusual circumstances;" and (2) even if "unusual circumstances" had existed, D.A. Nolt had forfeited its opportunity to withdraw from the RCA. We have jurisdiction over the Board's Application for Enforcement pursuant to 29 U.S.C. § 160(e) and D.A. Nolt's Cross-Petition for Review pursuant to 29 U.S.C. § 160(f). We will uphold a Board rule as long as it is rational and consistent with the Act, even if we would have formulated a different rule had we sat on the Board. NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 787 (1990). Although judicial review of the Board's balancing of conflicting interests is limited, "the balance struck by the Board is [not] immune from judicial examination and reversal in proper cases." NLRB v. Brown, 380 U.S. 278, 290-291 (1965). "When the Board's decisions create an artificial and unwarranted imbalance of economic weapons, the courts are not bound to show abject deference to the Board's views." Charles D. Bonanno Linen Serv., Inc. v. NLRB, 454 U.S. 404, 421 (1982) (Burger, J., dissenting).
We will deny the Board's Application for Enforcement and grant D.A. Nolt's Cross-Petition for Review. We conclude that the Board's holding is not rational or consistent with the Act.
D.A. Nolt is a corporation engaged in commercial, industrial and residential roof repair and installation. David Nolt ("Nolt") is the president who incorporated the business in 1990. The RCA is a multiemployer bargaining association of contractors who perform commercial roofing work. Richard Harvey is the executive director of the RCA. The Union has historically entered into collective bargaining agreements with the RCA. Tom Pedrick is vice-president of the Union.
Since 1993, the RCA and the Union have entered into collective bargaining agreements ("RCA agreements") covering commercial work. Historically, negotiations are conducted between the Union and the RCA, and after an agreement is reached, copies are sent to independent employers for their acceptance and execution. Generally, a new RCA agreement is negotiated approximately three months before the expiration of the old RCA agreement.
Nolt signed assents binding D.A. Nolt to the terms of the 1993-1997 and 1997-2001 RCA agreements. In June 1999, Nolt signed a Bargaining Agent Authorization ("BAA") with the RCA, allowing the RCA to negotiate a new commercial roofing contract with the Union on behalf of D.A. Nolt. Under the BAA, an employer may withdraw from the RCA 90 days prior to the expiration of the contract in place at that time.
In June, 2000, ten months before expiration of the 1997-2001 RCA agreement, Pedrick, vice-president of the Union, initiated a discussion with Harvey, executive director of the RCA, about beginning negotiations for the subsequent RCA agreement. Negotiating committees for the Union and the RCA began discussing the terms of a new, eight year contract. Harvey testified that, in the course of negotiations, Union officials told him that they did not want the Union membership to become aware of the terms being discussed and they asked if the RCA would keep the negotiations confidential. Harvey testified that the Union and the RCA agreed to keep the negotiations secret from their respective memberships. Michael McCann, the Union's business manager, denied that the negotiations were kept secret from the Union membership.
On July 5, 2000, Harvey faxed a memorandum of the agreement to the Union and the eight employer-members of the negotiating committee. Following their vote for ratification, Harvey then faxed the agreement to the ten other employer-members who were not included in the negotiating committee, including D.A. Nolt. According to Harvey, there was continued concern that the terms of the agreement would reach the employee-members of the Union. To avoid that possibility, Harvey testified ...