RC Aluminum Industries, Inc. v. National Labor Relations Board

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 21, 2003 Decided April 25, 2003

No. 01-1353

RC ALUMINUM INDUSTRIES, INC. AND

RC ERECTORS, INC.,

PETITIONERS

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

On Petition for Review and Cross–Application

for Enforcement of an Order of the

National Labor Relations Board

Harry N. Turk argued the cause and filed the briefs for

petitioners.

Meredith L. Jason, Attorney, National Labor Relations

Board, argued the cause for respondent. On the brief were

Arthur F. Rosenfeld, General Counsel, John H. Ferguson,

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

2

Associate General Counsel, Aileen A. Armstrong, Deputy

Associate General Counsel, and Sharon I. Block, Attorney.

Before: GINSBURG, Chief Judge, and SENTELLE and

RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge: This petition for review raises

several issues arising from an attempt by two local chapters

of a union—Local Union No. 272 and Shopmen’s Local Union

No. 698 of the International Association of Bridge, Structural,

Ornamental, and Reinforcing Iron Workers, AFL–CIO—to

represent employees at the companies in a double-breasted

operation.1

One of the companies, RC Aluminum Industries, Inc.

(‘‘RCA’’), incorporated in 1990, is headquartered in Miami.

RCA fabricates windows, doors, and handrails at production

facilities in Miami, transports them to high-rise construction

projects throughout Florida, and installs them at the sites.

Among the workers at RCA are about 80 production and

maintenance employees working in the Miami facilities and

about 140 installers working throughout the State.

The other company, RC Erectors, Inc. (‘‘RCE’’), incorpo-

rated in 1998, has the same Miami headquarters and is

managed by the same officers as RCA. RCE was created

after RCA’s president, Raul Casares, learned of an installa-

tion job for which only signatories to union collective bargain-

ing agreements could bid. RCA had no such agreement.

Once, in 1993, it had entered into a prehire agreement2 with

1 A double-breasted operation consists of affiliated union and

nonunion firms that allow a contractor to compete for both union

and nonunion work. See Rd. Sprinkler Fitters Local Union No.

669, United Ass’n of Journeymen & Apprentices of the Plumbing &

Pipefitting Indus. of the United States & Canada, AFL–CIO v.

NLRB, 789 F.2d 9, 12 n.2 (D.C. Cir. 1986); Local 627, Int’l Union

of Operating Eng’rs, AFL–CIO v. NLRB, 595 F.2d 844, 845 n.1

(D.C. Cir. 1979).

2A prehire agreement results from an employer’s voluntary

bargaining with a union without an initial election or other showing

3

Local 272, but that agreement covered only installers at a

particular site and expired by its terms later the same year.

Thereafter, Local 272 occasionally referred workers to RCA,

and RCA gave those workers the wages and benefits specified

in the expired agreement.

After its incorporation, RCE signed a comprehensive pre-

hire agreement3 with the union (Local 272 and another local

not involved in this case), bid, and got the job. RCE employs

about 80 installers at scattered Florida sites. It does not

produce or transport its own products; it installs products

made and transported to its sites by RCA and other compa-

nies.

The events precipitating this litigation began on May 10,

2000, when Locals 272 and 6984 petitioned the National Labor

Relations Board to certify them as the joint representative of

RCA and RCE employees. The proposed bargaining unit5

consisted of RCA’s production and maintenance employees,

RCA’s installers, and RCE’s installers. After a hearing, the

Board’s regional director (1) determined that RCA and RCE,

though formally separate, were a single employer for pur-

poses of the National Labor Relations Act, and (2) rejected

the locals’ proposed unit, deciding instead that two units—one

of majority support. See Bentson Contracting Co. v. NLRB, 941

F.2d 1262, 1268–69 (D.C. Cir. 1991). Such bargaining would be an

unfair labor practice but for 29 U.S.C. § 158(f), which permits

prehire agreements in the construction industry. See Bentson, 941

F.2d at 1268–69.

3The agreement was not limited to any particular project, al-

though it was set to expire on September 30, 2000.

4 Local 272 is an ‘‘outside shop,’’ meaning that it traditionally

represents workers in the field. Local 698 is an ‘‘inside shop,’’

traditionally representing workers in plants.

5 ‘‘Representatives designated or selected for the purposes of

collective bargaining by the majority of the employees in a unit

appropriate for such purposes, shall be the exclusive representa-

tives of all the employees in such unit for the purposes of collective

bargaining in respect to rates of pay, wages, hours of employment,

or other conditions of employmentTTTT’’ 29 U.S.C. § 159(a).

4

of RCA’s production and maintenance employees (Unit A),

and the other of both RCA’s and RCE’s installers (Unit B)—

were appropriate. The regional director ordered an election

in each unit in which employees could vote for or against joint

representation by the two locals. The companies requested

review of the decision, but the Board rejected their request in

a brief order, stating that there were ‘‘no substantial issues

warranting review.’’ The elections went forward and the

locals won both. On November 9, 2000, the regional director

certified them jointly as the exclusive collective bargaining

representative of each unit. The locals requested bargaining

on behalf of both units; the companies refused to bargain;

the locals filed an unfair labor practice charge; and the Board

ordered the companies to bargain on the grounds that their

refusal violated § 8(a)(1) and (5) of the Act, 29 U.S.C.

§ 158(a)(1), (5). The companies then sought judicial review.

The Board cross-petitioned for enforcement.

As to the representation proceeding, RCA and RCE com-

plain that the regional director’s single employer finding was

unnecessary; that in any event they are not a single employ-

er; and that their installers do not belong in a single bargain-

ing unit.

Contrary to the companies’ argument, the single employer

determination was necessary. Section 9(b) of the Act autho-

rizes the Board to ‘‘decide in each case whether, in order to

assure to employees the fullest freedom in exercising the

rights guaranteed by this subchapter, the unit appropriate for

the purposes of collective bargaining shall be the employer

unit, craft unit, plant unit, or subdivision thereof.’’ 29

U.S.C. § 159(b) (emphasis added). This language does not

expressly sanction bargaining units composed of employees of

multiple employers. If anything, it suggests that such units

are impermissible. See NLRB v. L.B. Priester & Son, Inc.,

669 F.2d 355, 359 (5th Cir. 1982). Nevertheless the Board

has long construed ‘‘employer unit’’ to allow them, Int’l Bhd.

of Elec. Workers, Local Union No. 68, AFL–CIO v. NLRB,

448 F.2d 1127, 1128 n.3 (D.C. Cir. 1971), and multi-employer

bargaining is well-established, Brown v. Pro Football, Inc.,

518 U.S. 231, 240 (1996).

5

The Board, however, approves multi-employer bargaining

only when employers participate voluntarily. See Charles D.

Bonanno Linen Serv., Inc. v. NLRB, 454 U.S. 404, 412

(1982); Int’l Union of Elec., Radio & Mach. Workers, AFL–

CIO–CLC v. NLRB, 604 F.2d 689, 695 n.14 (D.C. Cir. 1979).

RCA and RCE certainly have not agreed, explicitly or implic-

itly, to participate in multi-employer bargaining. Therefore

the regional director could approve a bargaining unit includ-

ing both companies’ employees only after determining that

the companies constituted a single employer.

In deciding whether RCA and RCE were integrated

enough to be considered a single enterprise, the Board exam-

ined several indicia: (1) common management; (2) centralized

control of labor relations; (3) interrelation of operations; and

(4) common ownership or financial control. Naperville Ready

Mix, Inc., 329 N.L.R.B. 174, 179 (1999). See also Radio &

Television Broad. Technicians Local Union 1264 v. Broad.

Serv. of Mobile, Inc., 380 U.S. 255, 256 (1965). Not all four

criteria must be satisfied for the Board to find a single

employer. See Local No. 627, Int’l Union of Operating

Eng’rs, AFL–CIO v. NLRB, 518 F.2d 1040, 1045–46 (D.C.

Cir. 1975), aff’d in relevant part sub nom. South Prairie

Constr. Co. v. Local No. 627, Int’l Union of Operating Eng’rs,

AFL–CIO, 425 U.S. 800, 806 (1976). Here, the regional

director found, among other things, that RCA and RCE share

the same officers; that President Casares was in charge of

dealing with the union on behalf of both RCA and RCE; that

RCA manufactured products for RCE’s primary project to

date and transported them there; and that RCA made some

fringe benefit payments on behalf of RCE. The record

supports all of these findings. The companies’ only signifi-

cant contrary argument is that there was insufficient evidence

to establish central control of labor relations. But the busi-

ness manager of Local 272 testified at the representation

hearing that he had dealt exclusively with President Casares

on matters relating to collective bargaining agreements with

both RCA and RCE. The regional director’s conclusion that

RCA and RCE were a single employer therefore rested on

substantial evidence.

6

It does not necessarily follow that an employer-wide bar-

gaining unit of installers was appropriate. See South Prairie,

425 U.S. at 805. In making such determinations pursuant to

§ 9(b), the Board considers whether the employees share a

‘‘community of interest.’’ A host of factors influence the

Board’s judgment in this regard. See Deferiet Paper Co. v.

NLRB, 235 F.3d 581, 583 (D.C. Cir. 2000); Bentson Contract-

ing Co. v. NLRB, 941 F.2d 1262, 1265 (D.C. Cir. 1991).

When the proposed bargaining unit covers multiple worksites,

as here, the Board pays some extra attention to the consisten-

cy of employees’ interests across different sites. The Board

thus considers skills and duties; wages and benefits; inter-

change between sites; functional integration; geographic

proximity; centralized control of management, supervision,

and labor relations; and bargaining history. See Cleveland

Constr., Inc. v. NLRB, 44 F.3d 1010, 1013 (D.C. Cir. 1995);

Alley Drywall, Inc., 333 N.L.R.B. No. 132, 2001 WL 400276,

at *4 (Apr. 17, 2001); Alamo Rent–A–Car, 330 N.L.R.B. 897,

897 (2000); P.J. Dick Contracting, Inc., 290 N.L.R.B. 150, 151

(1988). Once again, no particular factor controls. See Bent-

son, 941 F.2d at 1265.

Given the fact-intensive nature of these decisions, the

Board has wide latitude in determining an appropriate bar-

gaining unit. See, e.g., NLRB v. Action Automotive, Inc., 469

U.S. 490, 494 (1985). As is frequently observed, the Board

need not choose the most appropriate unit, but simply an

appropriate unit. See, e.g., Cleveland Constr., 44 F.3d at

1013. Nonetheless, the Board’s decision must be consistent

with its precedent, and its factual findings must be supported

by substantial evidence. See id. at 1014.

Here the regional director acknowledged that one factor—

bargaining history (RCE’s sustained history of operating

under a comprehensive prehire agreement, in contrast with

RCA’s limited adoption of a single, project-specific agreement

and occasional application of its terms after expiration)—cut

against combining the companies’ installers in a single unit.

But she decided that other factors—the companies’ installers

did the same kind of work, and all the installers worked

7

under centralized management—outweighed the bargaining

history.

RCA and RCE believe the regional director should have

approved separate units of each company’s installers. They

rely largely on Cleveland Construction, in which we rejected

a unit determination because of lack of substantial evidence

and because the Board had not explained how its decision

could be squared with its precedents. Id. at 1014–16. Nei-

ther of the companies objects to the regional director’s find-

ing that installers at RCA and RCE did the same type of

work. This contrasts with Cleveland, in which the evidence

supported none of the community-of-interest factors. Id. at

1014. The companies believe the regional director’s finding

on another factor—centralized management—is unfounded.

It is true, as we explained in Cleveland, that the centrality-of-

control test requires more than merely some ‘‘joining of

corporate lines of responsibility at some point higher than the

immediate supervisors’’ at various sites. Id. If nothing more

were required, the test would be meaningless; local supervi-

sors are ultimately responsible to top management. Id.

What is required is some evidence that day-to-day labor

decisions such as hiring, firing, and grievance handling were

centrally controlled.

In this case, each site (both RCA’s and RCE’s) had one or

more foremen with authority to hire, fire, and discipline

installers. All the foremen (both RCA’s and RCE’s) reported

to a general installation superintendent, Juan Encinosa, who

visited the jobsites on a daily basis, had hiring and firing

authority, and coordinated installer hiring with a personnel

director. This evidence adequately supports the centralized

supervision finding.

The companies also argue, again on the basis of Cleveland,

44 F.3d at 1014–16, that the wages and benefits of RCA’s and

RCE’s installers were not similar; that installers were rarely,

if ever, transferred between RCA’s and RCE’s sites; and that

these considerations defeat any possible community of inter-

est between RCA’s and RCE’s installers. RCA did pay most

of its installers (with the exception of a few installers referred

8

to RCA by the union) lower wages than RCE paid its workers

under the prehire agreement, and RCA’s installers received

fewer benefits than RCE’s installers received under the

agreement. It is also correct that the evidence of installer

transfer between RCA and RCE is scant. All the record

shows is that five RCE employees were employed by RCA

before they worked for RCE. These facts may establish that

separate units of RCA installers and RCE installers, or

separate units of the installers at each jobsite, would have

been appropriate. But that does not undermine the regional

director’s conclusion, in light of the similarity of the installers’

work and their common supervision, that a unit of all the

installers was appropriate.

The companies believe the regional director did not suffi-

ciently explain why she accorded little weight to RCA’s and

RCE’s disparate bargaining histories. In Cleveland we noted

that Board precedent conflicts on how much weight bargain-

ing history should carry in the decision whether to certify a

multi-site bargaining unit. Id. at 1016. The Board at one

time had ruled that in processing representation petitions the

appropriate unit ‘‘normally will be the single employer’s em-

ployees covered by [a preexisting prehire] agreement.’’ P.J.

Dick Contracting, 290 N.L.R.B. at 151 (quoting John Dekle-

wa & Sons, Inc., 282 N.L.R.B. 1375, 1377 (1987)). But later

it qualified this position, stating that the ‘‘Board’s remarks on

unit scope in Deklewa should not be interpreted so as to rob

construction industry employees of meaningful choice, simply

because an employer has unilaterally decided to limit its

relations with craft unions to project agreements.’’ Dezcon,

Inc., 295 N.L.R.B. 109, 112 (1989). In Cleveland we faulted

the Board for its silence regarding how these precedents

affected its decision. 44 F.3d at 1016. Here the regional

director’s discussion of the Board’s precedents was sufficient,

although cursory. The regional director quoted Dezcon’s

discussion of Deklewa and relied on it for the proposition that

bargaining history was not conclusive in determining the

scope of the unit—in other words, other community-of-

interest factors could outweigh bargaining history.

9

In short, the regional director chose an appropriate unit.

The possibility that separate units of installers at RCA and at

RCE might also have been appropriate does not render the

decision erroneous.

The companies’ last contention is that the local unions

failed to make a valid demand for joint bargaining, and thus

the companies did not ‘‘refuse to bargain’’ within the meaning

of § 158(a)(5). See AT Sys. West, Inc. v. NLRB, 294 F.3d

136, 139–40 (D.C. Cir. 2002). The contention rests on the

following post-election events. On November 9, 2000, the

regional director (1) certified both locals as the joint repre-

sentative of the production and maintenance employees (Unit

A) and (2) certified both locals as the joint representative of

the installers (Unit B). Shortly thereafter, the locals sent

several letters to RCA’s officials (and thus RCE officials) and

the companies’ attorney.

Local 698, in a November 20 letter on its letterhead,

claimed to be the ‘‘sole collective bargaining agent’’ of Unit A

and requested information (regarding wages and other mat-

ters, needed to prepare a negotiating position) about those

particular employees. Local 272, in a separate November 20

letter on its own letterhead, claimed to be the ‘‘sole collective

bargaining agent’’ of Unit B and requested necessary infor-

mation about those employees. The locals repeated their

requests the next month, using similar language. In its letter

of December 15, 2000, Local 698 referred to itself as ‘‘the sole

collective bargaining agent of your production and mainte-

nance employees’’ and requested information regarding those

employees. In its letter of December 19, 2000, Local 272

referred to itself as ‘‘the sole collective bargaining agent of

your erector employees’’ and requested information regarding

those employees.

The companies responded in a December 21 letter to the

President of Local 272, stating: ‘‘We believe that the Region-

al Director’s unit determination TTT and the finding of single

employer status were incorrect TTT and RC Aluminum in-

tends to exercise its right to seek judicial review of that

ruling. Accordingly, TTT we must respectfully decline to

10

engage in any collective bargaining.’’ The letter mentioned

neither Local 698 nor any objection to the validity of either

local union’s bargaining requests.

Apparently apprised of the companies’ refusal to bargain

with Local 272, Local 698, in a letter dated January 19, 2001,

referring to itself as ‘‘the representative’’ of Unit A, asked

whether the refusal applied to it as well, and requested that

negotiations begin immediately. The companies’ attorney

replied in a February 2 letter, addressed only to Local 698,

reiterating RCA’s intent ‘‘to seek judicial review of the Re-

gional Director’s determination.’’ The letter also raised the

sufficiency of the request for the first time by stating that

Local 698’s ‘‘letter [did] not appear to be a valid request to

commence negotiations.’’

The local unions filed an unfair labor practice charge with

the regional director on February 14, alleging that RCA and

RCE, as ‘‘a Single Employer,’’ had ‘‘refus[ed] to bargain TTT

with the Union.’’ The charge listed the charging party as

‘‘L.U. #272 and #698 Int’l Assoc. of Bridge, Structural,

Ornamental & Reinforcing Ironworkers, AFL–CIO.’’ Kevin

Wallace, President of Local 272 and District Representative

of Local 698, signed the charge on behalf of both locals. The

charge was served on President Casares the day after it was

filed. Later that month (on February 26), the companies sent

a letter to the Board stating that they were ‘‘challeng[ing] the

underlying certification of the labor organizations involved.’’

The letter said nothing about the bargaining request issue.

The next month (on March 8), the regional director issued a

complaint. The complaint alleged in part that ‘‘the Union’’

(meaning both locals collectively) had requested bargaining

‘‘as the exclusive collective-bargaining representative’’ of Unit

A, and made the same allegation regarding Unit B. The

companies denied these allegations in their answer, filed

March 23. In further proceedings before the Board, the

companies contended that the locals intended to bargain

separately on behalf of the units, so that the complaint should

be dismissed and the unit determination overturned.

11

In sustaining the refusal-to-bargain charge, the Board as-

sumed that the letters alone would not have been sufficient

bargaining demands. But the Board held that the February

14 charge, filed jointly by the local unions and signed by a

person acting on behalf of both locals, dispelled any confusion

the letters might have created. Together, the earlier letters

and the charge, according to the Board, constituted a valid

demand.

We see no basis for upsetting the Board’s judgment. The

letters raised doubts about the local unions’ intent to bargain

jointly.6 See Suburban Newspaper Publ’ns, Inc., 230

N.L.R.B. 1215, 1217 (1977); Automatic Heating & Serv. Co.,

194 N.L.R.B. 1065, 1065 (1972). But the joint charge cleared

up these doubts. The Board’s ruling is consistent with its

precedent. A line of Board cases holds that the filing of an

unfair labor practice charge may cure an inadequate request

and give rise to a valid bargaining demand. See, e.g., Park-

view Manor, 321 N.L.R.B. 477, 477 (1996), overruled in part

on other grounds by Grancare, Inc., 331 N.L.R.B. 123 (2000).

See also NLRB v. Williams Enters., Inc., 50 F.3d 1280, 1286–

87 (4th Cir. 1995) (citing Fall River Dyeing & Finishing

Corp. v. NLRB, 482 U.S. 27, 53 (1987)). Cf. Patent Office

Prof’l Ass’n v. FLRA, 872 F.2d 451, 455–56 (D.C. Cir. 1989).

We do not go so far as saying that a charge alone could

constitute a valid demand. As the Board noted, the compa-

nies repeatedly indicated that they intended to trigger the

charge in order to contest the unit determination. No matter

how clear the bargaining demand, it would have been futile.

See Regal Cinemas, Inc. v. NLRB, 317 F.3d 300, 314 (D.C.

Cir. 2003).

6 The companies also argue that the letters were defective de-

mands in other respects—that they failed to propose a specific time

and place or particular topics for bargaining. We decline to reach

this argument because the companies raised it neither before the

Board, see 29 U.S.C. § 160(e), nor before us until their reply brief,

see, e.g., Rollins Envtl. Servs. (NJ) Inc. v. EPA, 937 F.2d 649, 652

n.2 (D.C. Cir. 1991).

12

The petition for review is denied and the Board’s cross-

petition for enforcement is granted.

So ordered.