The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 13, 2002 Decided July 2, 2002
No. 01-1282
AT Systems West, Inc., f/k/a Armored Transport, Inc.,
Petitioner
v.
National Labor Relations Board,
Respondent
International Union, Security and
Fire Professionals of America,
Intervenor
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
Marta M. Fernandez argued the cause for petitioner.
With her on the briefs was Patrick W. Jordan.
Jeffrey M. Hirsch, Counsel, National Labor Relations
Board, argued the cause for respondent. With him on the
brief were Arthur F. Rosenfeld, General Counsel, John H.
Ferguson, Associate General Counsel, Aileen A. Armstrong,
Deputy Associate General Counsel, and Sharon I. Block,
Attorney. Julie B. Broido, Senior Attorney, entered an
appearance.
Scott A. Brooks was on the brief for intervenor.
Before: Ginsburg, Chief Judge, Randolph and Tatel,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: The principal issue in this review
of an order of the National Labor Relations Board is whether
the employer refused to bargain in the face of a valid bargain-
ing demand, in violation of s 8(a)(1) and (5) of the National
Labor Relations Act, 29 U.S.C. s 158(a)(1) & (5). On that
issue, our decision in Prime Serv., Inc. v. NLRB, 266 F.3d
1233, 1238 (D.C. Cir. 2001), controls the outcome.
The employer, AT Systems West, Inc., operates an ar-
mored car company. The company transports, processes and
stores cash, coins, checks and other valuables for banks and
retail stores. At each of the company's facilities in Bakers-
field, Santa Maria, Fresno, Merced and Temecula, California,
an employee association served as the exclusive bargaining
representative of the employees. The employee associations
negotiated and communicated with AT Systems on the em-
ployees' behalf, and entered into triennial contracts. None of
the associations had elected officers or office space, none kept
records, and none had a constitution or bylaws.
In March and April of 1998, the employee associations for
the five facilities designated the Currency and Security Han-
dlers Association ("CASHA") as their agent for collective
bargaining. The associations did not notify AT Systems of
their actions. David Troy Nelsen, then president of CASHA,
sent letters on CASHA letterhead to AT Systems' president
Richard Irvin. One of Nelsen's letters, dated April 6, 1998,
stated:
On March 23, 1998, the Armored Transport Santa Maria
Employees Association voted to affiliate with the Curren-
cy And Securities Handlers Association.
Please be advised that CASHA is now the bargaining
representative for the Armored Transport Santa Maria
Employees Association.
CASHA will honor the existing contract between the
Armored Transport Santa Maria Employees Association
and Armored Transport, Inc.
CASHA requests Armored Transport, Inc. to recognize
CASHA as the representative of the Armored Transport
Santa Maria Employees Association.
Armored Transport, Inc. will conduct future bargaining
with the same representatives of the Armored Transport
Santa Maria Employees Association who conducted such
bargaining in the past.
Please respond to this request by April 20, 1998.
Nelsen sent similar letters to Irvin on the same day regard-
ing the Fresno and Temecula Employee Associations.
After AT Systems failed to respond, Nelsen wrote to Irvin
again on May 18, 1998, stating:
On April 6, 1998, CASHA demanded recognition for the
following A.T.I. Branches due to Merger Elections held:
1-Fresno
2-Santa Maria
3-Temecula
4-Van Nuys
A.T.I. has not responded.
Please be advised that CASHA is also demanding recog-
nition for the following A.T.I. Branches for Merger Elec-
tions also held:
1-Bakersfield
2-Merced
3-Victorville
CASHA will respectfully file charges for refusal to bar-
gain with the N.L.R.B. if we do not receive a response
by May 29, 1998.
On June 11, 1998, Nelsen and some other CASHA repre-
sentatives met with Irvin on an unrelated matter. At the
meeting, Nelsen asked Irvin for a response to CASHA's April
6 and May 18 letters. Irvin replied that there was no reason
for AT Systems to recognize CASHA for those units because
there were no contracts due to expire.
Between June 24 and October 15, 1998, CASHA filed unfair
labor practice charges against AT Systems alleging that the
company had unlawfully refused to recognize and bargain
with CASHA at the five facilities (Bakersfield, Santa Maria,
Fresno, Merced and Temecula). Then on February 10, 1999,
Nelsen--who had become the President of Local 100 after
CASHA became affiliated with the United Plant Guard Work-
ers of America--sent another letter to AT Systems, request-
ing a response to the earlier requests for recognition. The
letter stated:
On May 18, 1998, CASHA demanded recognition for the
following A.T.I. Branches due to Merger Elections held:
1-Bakersfield
2-Fresno
3-Merced
4-Santa Maria
A.T.I. did not respond.
As you know, CASHA has voted to affiliate with the
United Plant Guard Workers of America and is now
CASHA LOCAL #100.
CASHA LOCAL #100 is now officially demanding recog-
nition in the following A.T.I. locations:
1-Bakersfield
2-Fresno
3-Merced
4-Santa Maria
AT Systems' director of labor relations, Joel Curnutt, told
Nelson in a telephone conversation that the company's posi-
tion had not changed and that it would not recognize CASHA
or Local 100. Local 100 then filed unfair labor practice
charges with the Board, alleging that AT Systems unlawfully
refused to recognize and bargain with Local 100 at the five
facilities.
In a consolidated proceeding, an Administrative Law Judge
ruled that AT Systems violated section 8(a)(1) and (5) of the
Act, see 29 U.S.C. s 158(a)(1) & (5), by refusing to recognize
and bargain with CASHA and Local 100 as agents of the five
employee associations. The Board affirmed the ALJ's rul-
ings, findings and conclusions and adopted his order requiring
AT Systems to cease and desist from refusing to recognize
and bargain with Local 100.
AT Systems disputes the Board's decision on alternative
grounds. It first contends that because none of the employ-
ees' representatives advised AT Systems of their selection of
an agent for bargaining purposes, the company could not
have unlawfully refused to bargain. See, e.g., Tree-Free Fiber
Co., 1999 WL 305507, at *7 (N.L.R.B. May 10, 1999); Hamp-
ton Lumber Mills-Washington, Inc., 2001 WL 618204, at *10
(N.L.R.B. May 31, 2001). The company's second argument is
that it violated no duty to bargain because only a request to
recognize (not a request to bargain) was made and the Act
does not impose any independent duty to recognize a bargain-
ing agent absent a valid bargaining demand. We agree with
the second argument and therefore do not reach the first.
The ALJ faulted AT Systems for failing to "recognize and
offer to bargain with CASHA" in violation of s 8(a)(1) and (5)
of the Act. Armored Transport, Inc., 2001 WL 589388, * 12
(N.L.R.B. May 29, 2001). But there is no authority to
support the proposition that an employer violates the Act
simply by not recognizing a bargaining agent upon request.
Counsel for the Board conceded as much at oral argument.
The Act imposes on employers a duty to "bargain collectively
with the representatives of [its] employees." 29 U.S.C.
s 158(a)(5). Part of the duty to bargain includes the duty to
recognize, but until a valid bargaining demand is made, there
is no independent duty to recognize a bargaining agent.
Thus, the key question is whether AT Systems received a
valid bargaining demand.
Although a "union need utter no particular words to convey
its demand for bargaining," Prime Serv., Inc. v. NLRB, 266
F.3d 1233, 1238 (D.C. Cir. 2001), a valid bargaining demand
nevertheless "must contain more than merely a suggestion
that the parties should meet to discuss representation."
Williams Enter., Inc. v. NLRB, 956 F.2d 1226, 1233 (D.C.
Cir. 1992). If a union's communications to an employer do
not explicitly demand bargaining, a refusal-to-bargain charge
cannot be sustained unless there is "some indicia of a de-
mand, such as a suggested meeting place and time, proposed
topics, and a method for reply." Id. The burden is on the
union to make its bargaining wishes known. The "union must
do more than simply suggest a meeting without specifying the
subjects of the meeting or when or where the union would
like to get together." Prime Serv., 266 F.3d at 1238.
In this case, none of CASHA or Local 100's letters explicit-
ly demanded that AT Systems bargain with CASHA. The
April 6, 1998, letters told AT Systems to continue to bargain
with the employees' representatives--that is, the local em-
ployee associations. The letters said nothing about where
bargaining was to take place, when bargaining was to occur,
or what subjects would be covered. See Prime Serv., 266
F.3d at 1238. Although the letters demanded recognition of
CASHA as the employees' bargaining agent, a demand for
recognition is not a demand to bargain, as the Board made
clear in Sheboygan Sausage Co., 156 N.L.R.B. 1490, 1500-01
(1966). In that case, the Board held that a telegram stating
that the company's employees authorized the union to be
their representative and that the union requested "recogni-
tion as agent" was not a demand for bargaining because it did
not expressly request bargaining, nor did it propose a meet-
ing date or place, or any method to initiate a bargaining
session. Id. Relying on NLRB v. Williams, 50 F.3d 1280,
1286 (4th Cir. 1995), counsel for the Board argued that even if
the letters did not expressly seek bargaining, CASHA's filing
of charges against the company removed all doubt that this is
what it had in mind. But much of the conduct CASHA
complained about (such as AT Systems' failure to respond to
its letters of April 6, 1998, and May 18, 1998) preceded the
unfair labor practice charges, the first of which was filed on
June 24, 1998. Even if the June 24th filing of charges plus
the earlier requests for recognition amounted to a valid
request to bargain, only conduct occurring after that date
could serve as a basis for finding an unfair labor practice. Yet
the ALJ's decision adopted by the Board was not limited to
the company's conduct after June 24, 1998. In fact, the ALJ
never mentioned the filing of charges as a ground for deter-
mining that a valid bargaining demand had been made. The
ALJ relied solely on "CASHA's letters of April 6 and May 18,
1998, and subsequent communications by Local 100." 2001
WL 589388, * 12. The short of the matter is that the ALJ's
decision contained nothing to support the conclusion that
CASHA or Local 100 requested bargaining. See SEC v.
Chenery Corp., 332 U.S. 194, 196 (1947). Without a bargain-
ing demand, there can be no violation of a duty to bargain.
There is a separate issue remaining. It pertains to AT
Systems' dealings with employees at its Temecula facility.
On April 23, 1998--after the Temecula Employee Association
designated CASHA as its bargaining agent--thirteen Teme-
cula unit employees signed and submitted a letter to the
company stating that they would like to open their current
wage agreement to facilitate negotiations of a wage increase.
In response, AT Systems held a mandatory meeting with the
Temecula employees on May 20, 1998. Thirteen employees
attended. A renewed collective bargaining agreement was
negotiated at this meeting. Later, on March 18, 1999, AT
Systems held another mandatory meeting with the Temecula
employees, at which it offered the employees a revised collec-
tive bargaining agreement, including a two dollar an hour
increase in starting wages. The employees accepted the
agreement and signed a written contract.
The Board's General Counsel alleged that AT Systems
improperly bypassed the Temecula Employee Association,
CASHA and Local 100 and therefore violated s 8(a)(1) and
(5) of the Act. AT Systems defended on the ground that the
Temecula employees were one and the same as the Temecula
Employee Association and that the Association's decision to
negotiate new contracts with AT Systems therefore constitut-
ed a rescission of its earlier designation of CASHA and Local
100 as its agent. The ALJ, and hence the Board, ruled that
the company violated its s 8(a)(5) duty to bargain with the
designated representatives of the Temecula Association be-
cause it "did not deal with the Temecula employees as the
representing Association or labor organization." 2001 WL
589388, * 15. "Rather [the company] at all times material
herein treated the employees as employees," rushing the
employees to approve its offers, commanding their attendance
at mandatory meetings, and offering financial gain condi-
tioned on the employees' discontinuance of dealings with
CASHA. Id.
AT Systems argues that it did not violate s 8(a)(5) by
entering into the contract with the employees at the Temecu-
la facility because it "had no means by which it could meet
with the Employee Association other than meeting with the
employees." Brief for Petitioner at 48. We agree. Employ-
ee associations may--as they did here--serve as valid bar-
gaining representatives under the Act. See 29 U.S.C.
s 152(5) (defining the term "labor organization" to include
any "employee representation committee or plan"); see also
29 U.S.C. s 159(a); Guerdon Indus. & Mobile Home Workers
Ass'n, 199 N.L.R.B. 937-38 (1972). Thus, when AT Systems
met with the Temecula employees, it was doing no more than
meeting with the employees' valid labor representative.
The Act draws no distinctions between unions based on
their degrees of formality. That the Employee Association
had no elected officers or no formal structure did not render
it an invalid or improper labor organization. Because the
employees chose to represent themselves, AT Systems acted
reasonably--and in accord with its past practices--when it
held meetings with all the Temecula employees. The record
showed that when AT Systems wanted to deal with the
employee association, it spoke with "everybody." Further-
more, AT Systems did precisely what CASHA's April 6, 1998,
letter requested; it conducted "future bargaining with the
same representatives of the Armored Transport Temecula
Employees Association who conducted such bargaining in the
past." Letter from Troy Nelsen to Richard Irvin (Apr. 6,
1998).
AT Systems' petition for review on both the failure to
bargain and Temecula issues is granted, and the Board's
cross-application for enforcement is denied.
So ordered.