On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board. (NLRB Docket No. 4-CD-765).
Before: Sloviter, Chief Judge, Cowen and Nygaard, Circuit Judges.
Local 30, United Slate, Tile and Composition Roofers, Damp and Waterproof Workers Association, AFL-CIO (Local 30, the Union or Roofers) petitions this court for review of the decision and order of the National Labor Relations Board (the Board) of July 20, 1992 finding that Local 30 violated the National Labor Relations Act (the NLRA or the Act) by (1) picketing with an object of coercing Gundle Lining Construction Corporation (Gundle or the Employer) to reassign work being performed by another union, and (2) maintaining a section 301 suit against Gundle following the Board's decision in a section 10(k) proceeding to assign the disputed work to Local 172, Laborers International Union of North America, AFL-CIO (Local 172 or Laborers). This appeal has been docketed here as No. 92-3416. The Board cross-applies for enforcement of its order, docketed at No. 92-3498. We consider these appeals together. In a separate appeal, Gundle appeals from the decision of a federal district court confirming an arbitration award in favor of Local 30 and against Gundle. This appeal, docketed at No. 92-1614, is considered in a separate opinion.
Facts and Procedural History
Gundle is a manufacturer and installer of high-density polyethylene linings at landfills. After it was awarded the job of lining cells (particular areas of a landfill into which garbage is placed) at the Ocean County Landfill in Lakehurst, New Jersey, it entered into a Memorandum Agreement with Local 30 on November 18, 1988 providing that employees represented by Local 30 would perform the cell lining work at that landfill and that Gundle would abide by the terms of Local 30's collective bargaining agreement with the Roofing and Sheet Metal Contractors' Association of Philadelphia and Vicinity (RSMCA) "as of 11/18/88 through completion." App. at 2269. This entailed hiring employees selected through Local 30's hiring hall. Until the fall of 1989, Local 30 performed all of Gundle's cell lining work at the Ocean County Landfill.
In the fall of 1989, Gundle bid for and was awarded another cell lining job at the Ocean County Landfill, which Gundle assigned to Local 172. According to Michael Sullivan, Gundle's Project Manager at that time, Gundle had decided not to use Local 30 for any subsequent work at the Ocean County Landfill because the landfill's developer expressed dissatisfaction with Local 30's work. On November 6, 1989, Gundle and Local 172 executed a project agreement and Local 172 began work at the Ocean County Landfill.
Coincidentally, also on November 6, 1989, there was a hearing at the RSMCA in Philadelphia on Local 30's grievance regarding Gundle's use of its own unrepresented employees to perform cell lining work at a landfill in Tullytown, Pennsylvania (the Tullytown Landfill). At that time, Thomas Pedrick, President of Local 30, learned that Gundle was again working at the Ocean County Landfill. Pedrick questioned Sullivan, who confirmed that information. Because of the Tullytown Landfill situation, Pedrick assumed that Gundle was using its own unrepresented employees at the Ocean County Landfill.*fn1
Two days later, on November 8, 1989, four persons wearing Roofers' jackets picketed the Ocean County Landfill carrying signs which stated that Gundle did not pay union and area wages. After several hours and at the request of the landfill owner, the Local 172 workers left the work site. Shortly thereafter, the picketing ceased and it never resumed. According to Pedrick, the picketing ceased once he discovered that employees represented by Local 172, not Gundle's own unrepresented employees as he had previously assumed, were performing the work. He explained the cessation on the ground that, "it wouldn't have been an area wage and standard picket line" if Local 172 had been working at the site. App. at 1060-61. The Local 172 workers returned to the site approximately one week later and finished the project without interruption.
Tony Priesol, Gundle's Vice-President of Construction, called Pedrick within the next two weeks and asked why Local 30 had picketed. Priesol testified that Pedrick responded by asking him why Gundle was using employees represented by Local 172 when "basically that was [Local 30's] work." App. at 2116-17.*fn2
On November 13, 1989, Gundle filed an unfair labor practice charge against Local 30, alleging that the picketing had the objective of seeking the reassignment of the work in violation of section 8(b)(4)(ii)(D) of the NLRA.*fn3 After holding a hearing pursuant to section 10(k) of the Act,*fn4 the Board determined on June 28, 1990 that both Local 30 and Local 172 had legitimate contractual claims to the work. It then considered other factors, including employer preference and past practice, area and industry practice, relative skills, and the economy and efficiency of operations, in reaching its decision to award the work to Local 172. See Local 30, United Slate, Tile & Composition Roofers, 298 N.L.R.B. 951, 953-54 (1990). This procedure followed the Supreme Court's instruction
to the Board in NLRB v. Radio & Television Broadcast Engineers Union, Local 1212, 364 U.S. 573, 578-80, 5 L. Ed. 2d 302, 81 S. Ct. 330 (1961), to decide on the merits jurisdictional disputes between unions with conflicting contractual claims and thereafter award the disputed work.
Meanwhile, on November 14, 1989, the day after Gundle filed its unfair labor practice charge, Local 30 informed Gundle that it believed that Gundle had violated the applicable RSMCA collective bargaining agreement. Gundle responded that its contract with Local 30 had expired on January 27, 1989 upon the completion of the job Local 30 was performing when the Memorandum Agreement was signed. On December 5, 1989, Local 30 filed its grievance alleging that Gundle breached the collective bargaining agreement by failing to hire through Local 30's hiring hall and to pay the wages and fringe benefits required by the collective bargaining agreement. The RSMCA notified Gundle that its Joint Conference Board (JCB) would hear Local 30's grievance on January 3, 1990. Gundle responded that because its contract with Local 30 expired before the disputed work commenced, the JCB lacked jurisdiction over Gundle and it would not participate in the hearing or recognize or be bound by the JCB's decision
On January 17, 1990, the JCB sustained Local 30's grievance, concluding that Gundle "continued to be bound by the labor contract at least until the completion of its work at the Ocean County Landfill." App. at 2281. It directed Gundle to "make whole those individuals who were deprived of work opportunities, including the payment of dues, wage and benefit fund contributions required by the labor contract." App. at 2281. On March 26, 1990, Local 30 filed a complaint in federal district court under section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185 (1988), seeking an order requiring Gundle to comply with the arbitration award.
As noted above, the Board resolved the section 10(k) dispute in favor of Local 172 on June 28, 1990. On December 14, 1990, the Board issued a complaint against Local 30 alleging that its picketing of the Ocean County Landfill and its continued maintenance of the section 301 suit after the Board's section 10(k) decision were unfair labor practices in violation of section 8(b)(4)(D) of the NLRA.*fn5 After a hearing, the Administrative Law Judge (ALJ) ordered the complaint dismissed.
On June 30, 1992, while the General Counsel's appeal to the Board was still pending, the district court granted summary judgment for Local 30 in the section 301 suit, holding that Gundle's failure to move to vacate the arbitration award within the applicable thirty-day statute of limitations barred it from raising any affirmative defenses to Local 30's motion to confirm the award. See United Union of Roofers, Waterproofers, ...