Rd. Sprinkler Fitters Local Union No. 669 v. Nat'l Labor Relations Bd.

324 F.Supp.3d 85

ROAD SPRINKLER FITTERS LOCAL UNION NO. 669, U.A., AFL-CIO, Plaintiff,

v.NATIONAL LABOR RELATIONS BOARD, Defendant.

Civil Action No. 17-1200 (TJK)

United States District Court, District of Columbia.

Signed August 24, 2018

William W. Osborne, Jr., Osborne Law Offices, P.C., Washington, DC, for Plaintiff.

Kevin Patrick Flanagan, Daniel Brasil Becker, Contempt, Compliance & Special Litigation Branch, Washington, DC, for Defendant.

MEMORANDUM OPINION

TIMOTHY J. KELLY, United States District Judge

Plaintiff Road Sprinkler Fitters Local Union No. 669, U.A., AFL-CIO ("Local 669") brings this action challenging an order of Defendant National Labor Relations Board (the "Board") affirming a decision to order a union decertification election. Through that election, sprinkler fitters employed by construction company AFP Specialties Inc. ("AFP") decisively voted out Local 669 as their representative for collective-bargaining purposes. Although federal courts generally lack subject matter jurisdiction over Board orders emanating from representation proceedings, Local 669 argues that the Court has jurisdiction under the narrow exception announced in Leedom v. Kyne , 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958). As explained below, the Court concludes that the Leedom exception does not apply. As such, the Court does not have subject matter jurisdiction over this matter and will grant the Board's Motion to Dismiss (ECF No. 11). It will also deny as moot Local 669's Cross-Motion for Summary Judgment (ECF No. 13) and Corrected Cross-Motion for Summary Judgment (ECF No. 17).

I. Background

A. Statutory Background

"The National Labor Relations Act of 1935 (‘NLRA’), 29 U.S.C. §§ 151 - 169, establishes a federal regime for managing labor relations and generally authorizes the [Board] to resolve disputes between labor organizations and employers." Dist. No. 1, Pac. Coast Dist., Marine Eng'rs' Beneficial Ass'n v. Liberty Mar. Corp. , 815 F.3d 834, 839 (D.C. Cir. 2016). One of the Board's principal duties is to determine whether employees want to be represented for collective-bargaining purposes. See 29 U.S.C. § 159. A decertification election provides employees with "an opportunity to choose no longer to be represented by a union." Brooks v. NLRB , 348 U.S. 96, 100-01, 75 S.Ct. 176, 99 L.Ed. 125 (1954). Under certain circumstances, incumbent unions are protected from decertification elections for a period of time by the Board's "contract bar" rule. In this case, the question of whether the "contract bar" rule applies turns on whether the employees at issue have a relationship with Local 669 that is governed by Section 9(a) or Section 8(f) of the NLRA.

Under Section 9(a), "a union that obtains the support of ‘the majority of the employees in a unit’ will become the recognized representative of those employees, and the employer will be obligated to communicate and negotiate with it on the terms and conditions of employment." Colo. Fire Sprinkler, Inc. v. NLRB , 891 F.3d 1031, 1035 (D.C. Cir. 2018) (quoting 29 U.S.C. § 159(a) ). "[T]he scope of the bargaining unit is determinative of what employees the unit represents." Boise Cascade Corp. v. NLRB , 860 F.2d 471, 474 (D.C. Cir. 1988) (emphasis omitted). If a collective bargaining agreement reflects a Section 9(a) relationship between a unit of employees and a union, it triggers the three-year "contract bar." See Shepard Convention Servs., Inc. v. NLRB , 85 F.3d 671, 672 n.2 (D.C. Cir. 1996). Under the "contract bar rule," the Board "will generally refuse decertification elections, whether requested by the employer, the employees or another union," for three years from the effective date of the collective bargaining agreement, except during a brief window that opens shortly before the three years are up. NLRB v. Dominick's Finer Foods, Inc. , 28 F.3d 678, 683 (7th Cir. 1994). The "contract bar" rule "is well established in NLRB adjudications though it appears nowhere in statute and is not the result of judicial mandate." Hill v. WMATA , 309 F.Supp.2d 63, 68 (D.D.C. 2004).

Section 8(f) of the NLRA "creates a limited exception to this majority support requirement for the construction industry." Nova Plumbing, Inc. v. NLRB , 330 F.3d 531, 534 (D.C. Cir. 2003). Under Section 8(f), an employer that is a construction-industry contractor "may sign a ‘pre-hire’ agreement with a union regardless of how many employees authorized the union's representation." Id. (citing 29 U.S.C. § 158(f) ). These agreements "respond to the unique nature of the industry" because "[c]onstruction companies need to draw on a pool of skilled workers and to know their labor costs up front in order to generate accurate bids" and "union organizing campaigns are complicated by the fact that employees frequently work for multiple companies over short, sporadic periods." Id. (citing NLRB v. Local Union No. 103 , 434 U.S. 335, 348-49, 98 S.Ct. 651, 54 L.Ed.2d 586 (1978) ). Significantly, "a construction-industry contract will be presumed to be governed by section 8(f) unless the employer and union clearly intended to create a section 9(a) agreement." Colo. Fire Sprinkler , 891 F.3d at 1038 (quoting Nova Plumbing , 330 F.3d at 537 ). By statute, a Section 8(f) agreement "is not protected by traditional contract-bar rules." Donald Schriver, Inc. v. NLRB , 635 F.2d 859, 875 (D.C. Cir. 1980) ; see 29 U.S.C. § 158(f) ("[A]ny agreement which would be invalid, but for clause (1) of this subsection, shall not be a bar to a petition filed pursuant to section 159(c) or 159(e) of this title.").

B. Factual and Procedural Background

Local 669 is a "national labor organization" as defined in the NLRA. ECF No. 1 ("Compl.") ¶ 3; ECF No. 11 ("Def.'s MTD") at 6. In 1954, it was certified by a national election pursuant to Section 9(a) of the NLRA as the exclusive collective bargaining representative of "sprinkler fitter employees" who, through their employer, belonged to the National Fire Sprinklers Association, Inc. (the "Association")—"an association of construction employers in the fire protection industry." Compl. ¶¶ 4, 7.

AFP is a company in the construction industry that installs, repairs, and dismantles fire protection and control systems. Compl., Ex. E ("Decision") at 1. In 2005, AFP executed an acknowledgment with Local 669 (the "2005 Acknowledgment") that recognized Local 669 as its sprinkler fitters' exclusive collective bargaining representative. Id. at 5; Def.'s MTD at 6. The 2005 Acknowledgment states in relevant part:

[AFP] confirmed that a clear majority of the sprinkler fitters in its employ are members of, and are represented by[,] [Local 669] for purposes of collective bargaining.

[AFP] therefore unconditionally acknowledges and confirms that Local [ ] 669 is the exclusive bargaining representative of its sprinkler fitter employees pursuant to Section 9(a) of the National Labor Relations Act.

Decision at 5; Def.'s MTD at 6.

In 2010, AFP and Local 669 executed an "Assent and Interim Agreement" (the "2010 Assent"). Decision at 5; Def.'s MTD at 6. It provides that:

[AFP] hereby freely and unequivocally acknowledged that it has previously confirmed to its full satisfaction and continues to recognize [Local 669]'s status as the exclusive bargaining representative of its employees pursuant to Section 9(a) of the National Labor Relations Act ....

Decision at 5; Def.'s MTD at 6.

In 2011, AFP settled a lawsuit with four funds regarding unpaid fringe benefit contributions. Compl. ¶ 8; see also id. , Ex. B (the "2011 Settlement Agreement"). As part of the 2011 Settlement Agreement, AFP agreed that, if it did not pay the funds what it owed by March 31, 2013, it would "designate ... [the Association] to act on its behalf as representative in national collective bargaining for, and to be bound by any successor Collective Bargaining Agreement or Agreements with[,] [Local 669]." Compl. ¶ 8 (quoting 2011 Settlement Agreement ¶ 12). AFP did not meet the March 31 deadline, and so it designated the Association as its representative and "became part of the national [Association] multi-employer bargaining unit covered by the existing 1954 NLRB certification." Id. ¶ 9. Local 669 and the Association have entered into several national multi-employer agreements, with the most recent one running from April 1, 2016 to March 31, 2021. Id. ¶ 10; Decision at 5.

On November 4, 2016, an AFP employee filed a petition under Section 9(c) of the NLRA seeking to decertify Local 669 as the exclusive bargaining representative for a unit of AFP sprinkler fitters. Decision at 2; Def.'s MTD at 7. AFP argued, among other things, that the "contract bar" rule did not apply because the unit had a Section 8(f), not a Section 9(a), relationship with Local 669. Decision at 2. Local 669, for its part, argued that the "contract bar" rule did apply because, by designating the Association to be its collective bargaining representative in 2013, AFP "agreed to be bound to the terms of its multi-employer contract" reached in 2016, which was governed by the Board's 1954 certification of Local 669 pursuant to Section 9(a). Id. ; see also id. (noting Local 669's position that "the single employer unit sought ... does not exist").

On January 11, 2017, a Regional Director of the Board issued a Decision and Direction of Election, in which she concluded that the "contract bar" rule did not apply. Decision; see Compl. ¶ 11. As a preliminary matter, she explained that the bargaining unit for the purposes of the Decision encompassed "[a]ll journeymen sprinkler fitters and apprentices in the employ of AFP" who perform certain enumerated tasks (the "AFP Unit"). Decision at 2; see id. at 2 n.1. She noted that this definition was "taken from the 2016-2021 collective bargaining agreement between the Union and the [Association]," and that "[a]ll parties stipulated that this unit is ‘an appropriate unit within the meaning of Section 9(b) of the [NLRA].’ " Id. at 2 n.1.

Most significantly, the...