Before BAZELON, Senior Circuit Judge, and MacKINNON and GINSBURG, Circuit Judges.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
ROAD SPRINKLER FITTERS LOCAL UNION NO. 669, UNITED
ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE
PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED
Petition for Review of an Order of the National Labor Relations Board
Opinion for the Court filed by Senior Circuit Judge BAZELON.
Dissenting opinion filed by Circuit Judge MacKINNON.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BAZELON
This case is before us for the second time on a petition for review of a decision of the National Labor Relations Board (Board). In our earlier opinion, *fn1 we remanded to the Board because of its apparent failure, without explanation, to apply the long-standing "clear and unmistakable" waiver standard to determine whether a union had forfeited its rights under section 8(a)(5) of the National Labor Relations Act. *fn2 Upon review of the Board's supplemental decision on remand, we find that the Board has satisfactorily resolved one aspect of the case, but has thrown the core of the case into even deeper confusion. We are therefore compelled to remand once again for explanation and application of the proper legal standard. I. BACKGROUND
The factual background of this dispute, and its history prior to remand, are set out in our previous opinion. *fn3 We recapitulate them briefly to put our own discussion into perspective.
In 1973, George Corcoran formed two corporations, Corcoran Automatic Sprinklers, Inc. and A-1 Fire Protection, Inc. (A-1), to install fire sprinklers. Corcoran intended to carry on a "double breasted" operation, operating CAS as a union company capable of bidding on jobs that required union contractors, and operating A-1 as a nonunion company. Shortly thereafter, Corcoran entered into a contract on behalf of CAS with the Road Sprinkler Fitters Local 669, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (Local 669). The union was not aware of the existence of A-1 when it signed the CAS contract. When the union did find out, it warned Corcoran that A-1 could not do any maintenance and installation work covered by the CAS contract.
There is some evidence in the record that, prior to 1975, the scope of A-1's work and solicitation of work was limited to "small" installation jobs and to noninstallation services such as sales of equipment and shop fabrication. *fn4 A-1 did not hire any nonsupervisory employees until 1975. In early 1975, Corcoran, with grudging union assent, laid off a number of CAS employees and then hired some of them to work for A-1 at union wages, but without union benefits. Nevertheless, on May 1, 1975, Local 669 entered into a second contract covering CAS employees and did not request that the contract also cover A-1 or its employees. *fn5 Subsequent to the signing of the second CAS contract, the relative fortunes of CAS and A-1 began to shift. *fn6 By August 1976, CAS, which had once employed 10 sprinkler fitters, employed only two. It received only one new job in 1976. Meanwhile, the work of A-1, by now definitely extending to "large" jobs, increased and by August 1976, it employed seven sprinkler fitters. Some of the work picked up by A-1 was for former customers of CAS. There is also evidence in the record that Corcoran stated his intention to "phase out" CAS and to have A-1 "take over the sprinkler work." *fn7
In late 1975, the union demanded that the 1975 collective bargaining agreement be applied to A-1. When Corcoran refused to comply with the demand, the union filed unfair labor charges against CAS and A-1. The union alleged that CAS and A-1 violated the duty to bargain embodied in § 8(a)(5) by ...