Cnty. Concrete Corp. v. Nat'l Labor Relations Bd., 18-2013

COUNTY CONCRETE CORPORATION, Petitioner/Cross-Respondent v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner

No. 18-2013

No. 18-2105

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Submitted: March 18, 2019

March 28, 2019

NOT PRECEDENTIAL

Appeal from the National Labor Relations Board

(NLRB-1 : 22-CA-171328)

Submitted Under Third Circuit L.A.R. 34.1(a)

March 18, 2019

Before: SHWARTZ, KRAUSE, and BIBAS, Circuit Judges.

OPINION^*

SHWARTZ, Circuit Judge.

County Concrete Corporation petitions for review of the National Labor Relations Board's ("NLRB") decision that the company violated § 8(a)(1) and (5) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 158(a)(1) & (5), by (1) unilaterally modifying the dues-checkoff provisions of its collective-bargaining agreements ("CBAs") with the union and (2) refusing to collect dues as required under those CBAs. The NLRB ordered that County Concrete desist from unilaterally modifying the collective-bargaining agreements and reimburse the union for its untimely collection of dues. Because the NLRB's decision is supported by substantial evidence and its precedent, we will deny County Concrete's petition for review and grant the NLRB's cross-application to enforce.

I

A

County Concrete manufactures and sells ready-mix concrete in New Jersey. In May 2009, County Concrete recognized Local 863, International Brotherhood of Teamsters, as "the exclusive bargaining representative" of certain County Concrete "drivers, mechanics, laborers and heavy equipment operators." J.A. 318.

County Concrete and Local 863 negotiated five CBAs for the company's five facilities. The President and owner of County Concrete, John Crimi, and Local 863's Secretary Treasurer, Alphonse Rispoli, participated in the negotiations.

During the discussions, the parties agreed to use a CBA template that Local 863's predecessor union had with County Concrete. The template included "standard language" for union dues: "During the life of this Agreement the Employer agrees todeduct once each month from the employees' wages and remit to the proper officers of the Union monthly dues and initiation fees as membership dues . . . ." See, e.g., J.A. 324; see also J.A. 139. This provision is known as a dues-checkoff clause.

County Concrete made its "final offer" to Local 863 in May 2015. J.A. 149. The final offer proposed, among other things, a wage schedule and pension plan, but mentioned no changes to the template's dues-checkoff clause. The members of Local 863 approved County Concrete's final offer.

Rispoli called Crimi to tell him that the union accepted the final offer. Rispoli testified that he and Crimi agreed that November 2015 would mark the "start of the term of the contract[s]." J.A. 155. According to Rispoli, they also orally agreed that County Concrete would start deducting dues from the employees' wages and remitting them to Local 863 on January 1, 2016. Rispoli sent a letter to County Concrete confirming the January 1, 2016, dues-deductions start date.

At Local 863's request, County Concrete supplied the union with a list of employees so that Local 863 could distribute membership applications to them. The applications included a signature line for employees to authorize dues deductions from their wages. Between December 2015 and January 2016, Local 863 gathered more than 100 signed authorizations from 146 employees, but it had some difficulties collecting signatures from the remaining employees because of inaccuracies in the list.

The membership application stated that authorization was "voluntary" and that it was "not conditioned on [an employee's] present or future membership in the Union." J.A. 518. Local 863, however, did not inform employees that they could opt out of beingfull members of the union and instead be "financial core" members. J.A. 206-07. A financial core member is an employee who does "not want to be a full union member" and is "not subject to union discipline." Quick v. NLRB, 245 F.3d 231, 237 n.2 (3d Cir. 2001) (quotation marks omitted). Local 863 also did not notify the employees that a financial core member could object to union expenditures unrelated to collective-bargaining activities.

Eventually, County Concrete sent Rispoli copies of the CBAs for signature. The CBAs contained the dues-checkoff clause under Article 3, which stated:

This Article 3 is effective January 1, 2016. Thereafter and during the remainder of the life of this Agreement . . . the Employer agrees to deduct once each month from the employees' wages and remit to the proper officers of the Union monthly dues . . . levied by the . . . Union.

J.A. 535, 550, 565, 580, 595. The CBAs also contained a "union security" clause, which stated:

Any present or future employee who is or hereafter becomes a member of the Union shall remain a member of the Union during the terms of this Agreement as a condition of his employment and continued employment.

J.A. 534, 549, 564, 579, 594.

In the letter accompanying these unsigned CBAs, County Concrete wrote: "We have . . . added the effective date of November 8, 2015 . . . and set January 1, 2016 as the start date for dues." J.A. 531. Rispoli signed the agreements and mailed them to Crimi in mid-January 2016.

By early February 2016, County Concrete informed Local 863 that it had not received signed authorizations to deduct wages from all employees, and it did not knowwhich employees chose to be financial core members. In response, Local 863 provided County Concrete with a "complete dues-accounting sheet, listing each union member for whom they had an authorization card, with their wage rate, and the dues owed." Resp't's Br. at 8.

County Concrete then (1) informed Rispoli that because not all employees signed the authorizations, it would change the effective date of the dues-checkoff clause so that dues deductions would start in March 2016, not January 2016; (2) returned the CBAs to Local 863 with the handwritten March 2016 date change to the dues-checkoff clause; and (3) asked Rispoli to agree to the change. Rispoli declined and returned the CBAs to County Concrete, changing the effective date back to January 1, 2016.

Although County Concrete collected and remitted dues to Local 863 for both March and April 2016, it did not do so for January and February. As a result, Local 863 filed an unfair labor practice charge against County Concrete.

B

An Administrative Law Judge ("ALJ") held a hearing. The ALJ received documents and heard testimony about the negotiations and the collection of dues checkoff forms. County Concrete also offered testimony purporting to show that Local 863 coerced employees to sign the forms. In this regard, Crimi testified that he learned that a union steward had gone to employees, "telling them that if they're a financial core member . . . they're not going to be represented by [Local 863]" and that they "can't go on union jobs." J.A. 248. One County Concrete employee also testified to this effect.Crimi testified that Rispoli said that he would tell the steward to stop pressuring employees to sign the forms.

The ALJ held that: (1) County Concrete and Local 863 had a "meeting of the minds" that the effective date of the checkoff clause would start on January 1, 2016; (2) the absence of formal notice from the union that the employees had a right to be a dues-paying non-member did not bar Local 863 from relief; (3) Local 863 did not coerce employees to sign the checkoff authorization forms; and (4) County Concrete violated § 8(a)(5) and (1) of the NLRA by "making a unilateral change" to the CBAs, and "failing and refusing to collect properly authorized dues from employees" in January and February 2016. J.A. 30. To remedy these violations, the ALJ recommended an order directing County Concrete to, among other things, "desist from . . . [m]aking unilateral changes to agreed-upon [CBAs]" and reimburse Local 863 for dues that it failed to collect and remit in January and February 2016. J.A. 30-31.

County Concrete filed exceptions to the ALJ's recommended order with the NLRB. The NLRB adopted most of the ALJ's findings and conclusions, and adopted, with rewording, the recommended remedy.

County Concrete petitions for review of the NLRB's decision, and the NLRB has filed a cross-application for enforcement of its order. Local 863 has intervened to support the NLRB's ruling.

II¹

We exercise plenary review over both "questions of law and the NLRB's application of legal precepts." NLRB v. ImageFIRST Unif. Rental Serv., Inc., 910 F.3d 725, 732 (3d Cir. 2018). "Factual findings by the NLRB are reviewed under the substantial evidence standard." Id. Substantial evidence "means relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Id. The familiar Chevron framework applies to the NLRB's interpretations of the NLRA. Holly Farms Corp. v. NLRB, 517 U.S. 392, 398-99 (1996).

III

Our analysis of the petition for review and cross-application proceeds in three parts. First, we determine whether there is substantial evidence to conclude that the parties agreed that County Concrete would start deducting dues and remitting them to Local 863 in January 2016. Second, we analyze whether County Concrete had grounds for not complying with its dues-collection obligation. Third, we determine whether substantial evidence supports the NLRB's conclusion that County Concrete unilaterally modified the CBAs.

A

"In the field of labor relations, the technical rules of contract law do not determine the existence of an agreement." Mack Trucks, Inc. v. Int'l Union, United Auto, Aerospace & Agric. Implement Workers of Am., 856 F.2d 579, 591-92 (3d Cir. 1988)."[T]o reach a labor agreement, the parties must establish a meeting of the minds." Id. at 591. If the parties "agree[] to the substantive terms and conditions of a contract, even though it may not be reduced to writing, they can nevertheless be held to its terms." NLRB v. N.Y.-Keansburg-Long Branch Bus Co., 578...