United States Court of Appeals,

Fifth Circuit.

Nos. 91–4106, 91–4249 and 91–4268.

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

CATALYTIC INDUSTRIAL MAINTENANCE CO. (CIMCO), Respondent.

July 6, 1992.

Application for Enforcement of Orders of the National Labor Relations Board.

Before WISDOM, REYNALDO G. GARZA, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

In the first two cases in this consolidated appeal, the National Labor Relations Board (the

Board) seeks to enforce its orders requiring Catalytic Industrial Maintenance Co. (CIMCO) to

bargain collectively with the Board-certified representative of skilled electricians at two

facilities—one owned by Sterling Chemical (Case No. 91–4106), the other by Union Carbide (No.

91–4268)—where CIMCO had contracted to perform industrial maintenance and refurbishing

services. In the third case (No. 91–4249), the Board asks us to enforce its finding that CIMCO

committed unfair labor practices when, following the election at the Sterling Chemical plant, it

terminated electricians referred by the newly certified bargaining unit.

We hold that the Board's decisions in all three cases are supported by law and by substantial

evidence. Accordingly, we enforce the Board's orders requiring CIMCO to bargain collectively at

the Union Carbide and Sterling Chemical facilities, as well as its order directing CIMCO to remedy

violations of the protected rights of electricians at the Sterling Chemical site.

I.

BACKGROUND

CIMCO, a corporation with its principal place of businessin Pennsylvania, supplies contract
 

1Section 8(f) provides in relevant part:

It shall not be an unfair labor practice under subsections (a) and (b) of this section

for an employer engaged primarily in the building and construction industry to

make an agreement covering employees engaged (or who, upon their employment,

will be engaged) in the building and construction industry with a labor organization

of which building and construction employees are members (not established,

maintained, or assisted by any action defined in subsection (a) of this section as an

unfair labor practice) because (1) the majority status of such labor organization has

not been established under the provisions of section 159 of this title prior to the

making of such agreement ... Provided further, That any 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.

A pre-hire agreement allows employers to recognize and enter into

collective-bargaining agreements with a construction industry union before any employees

have been hired. Employers are therefore authorized to negotiate, adopt and implement

collective-bargaining agreements even when the union's actual majority status has not been

determined as would otherwise be required by § 9(a). See John Deklewa & Sons, 282

NLRB 1375, 1380–81 (1987), enf'd sub. nom., Internat'l Ass'n of Bridge, Structural &

Ornamental Ironworkers, Local 3 v. NLRB, 843 F.2d 770 (3rd Cir.1988), cert. denied,

maintenance and refurbishing services to nuclear, chemical and industrial facilities throughout the

United States. Sterling Chemical and Union Carbide retained CIMCO to perform maintenance

services at their plants in Texas City, Texas. CIMCO employs an all-union workforce at these two

facilities, including workers from a number of trade crafts. In 1956, CIMCO and other owners of

continuous maintenance businesses negotiated a nationwide collective bargaining agreement with

more than a dozen international building trades unions. That agreement is known as the General

Presidents' Project Maintenance Agreement (GPA) and is administered by the General Presidents'

Council (GPC), a standing committee of representatives from the international unions. When an

individual contractor wants to employ skilled workers under a GPA at a particular site, it applies to

the GPA administrator, who is employed and supervised by the GPC. Once executed, the GPA

governsthe terms and conditions of employment for the various crafts at that site. The parties to the

GPA are the individual contractor, in this case CIMCO, and the individual international unions that

comprise the building construction trades department of the AFL–CIO, including the International

Brotherhood of Electrical Workers (IBEW). Local union affiliates are not parties to the GPA.

Notably, the parties in this case have stipulated that the GPA is a "pre-hire" agreement governed by

§ 8(f) of the National Labor Relations Act (the Act), 29 U.S.C. § 158(f).1
488 U.S. 889, 109 S.Ct. 222, 102 L.Ed.2d 213 (1988). 

 

2The IBEW withdrew from the GPA at these two sites at the request of its local union affiliate,

Local Union 527 (Local 527), evidently because the GPA provided that electricians at these

facilities would be paid at only 90% of the prevailing area wage. The implications of the IBEW's

withdrawal from the GPA are discussed more fully below. The IBEW continues to participate in

nationwide administration of the GPA and apparently has not withdrawn from other

GPA-operated facilities. 

 

3CIMCO insists that the IBEW's withdrawal from a particular site covered by the GPA was

not only improper, but threatened to jeopardize its relations with other international building

trades unions at more than 40 other GPA-covered sites across the country. CIMCO's labor

relations manager testified that the IBEW's withdrawal from the GPA at the Sterling Chemical

facility was "unprecedented," and he and other CIMCO officials expressed their belief that Local

527 electricians would no longer man the job site once the IBEW's withdrawal took effect on

January 1, 1991. In disagreeing with this assessment, the Board cited other evidence in the record

suggesting that CIMCO was in fact aware that Local 527 would continue to man the Sterling

Chemical plant even after the GPA expired. 

In January, 1987, CIMCO applied for and was granted a GPA to cover union employment

forsupplementalmaintenance services at the SterlingChemicalfacility. In 1989, CIMCO also applied

for a GPA at the Union Carbide plant, but the parties disagree asto whether this GPA was approved.

CIMCO contends that it was notified on August 29, 1989 that the GPC had granted its request for

a GPA at Union Carbide. The Board, however, concluded that the IBEW never participated in the

GPA at that facility. In either event, on August 30, 1989, the IBEW notified CIMCO by letter that

it was withdrawing from participation in the GPA at both the Sterling Chemical and Union Carbide

plants.2 After the IBEW notified CIMCO that it was withdrawing from participation in the GPA at

the Sterling Chemicalsite, Local 527 filed a petition for a certification election pursuant to § 9(c) of

the Act. Local 527 sought to be certified as the representative unit of all "journeymen electricians,

instrument technicians, and apprentices working for CIMCO at its job site at Sterling Chemicals,

Texas City, Texas." On June 8, 1990, the NLRB regional director found that the proposed

electricians' unit was entitled to severance from the multi-craft unit. Accordingly, he directed an

election. The majority of electricians at the Sterling Chemical site voted for representation by Local

527, which was then certified as their bargaining representative. CIMCO refused to bargain with

Local 527, and the Board's finding that CIMCO had violated §§ 8(a)(1) and (5) of the Act led to the

enforcement action in No. 91–4106.3
 

4At one point, CIMCO officials traveled to Washington, D.C., where IBEW officials explained

the international union's policy that it would not require any local union affiliate to work under the

GPA at a given site for less than 100% of the prevailing area wage if the local chose not to do so. 

More than six months after Local 527 filed its petition for an election at the Sterling Chemical

site, Local 527 also sought certification of a similar unit at the Union Carbide facility. The NLRB

regional director issued a substantially identicalruling and a certification election was held at that site

on November 7. Once again, a majority voted in favor of representation by Local 527, and it was

certified as the bargaining representative. CIMCO's refusal to bargain with Local 527 in its pursuit

of a collective-bargaining agreement at Union Carbide, and the Board's finding that CIMCO had

engaged in unfair labor practices, triggered the enforcement action in 91–4268. The terms of the

GPA mandate that allskilled craft positions at the GPA-covered facility be filled by union members.

In the course of negotiations with Local 527, CIMCO stated that it would be forced to hire

electriciansfrom a source other than the Union's hiring hallshould the IBEW conclusively withdraw

from the GPA. Local 527 responded that it would picket the Union Carbide facility and, despite

CIMCO's request, it refused to refer electricians from its hiring hall to staff that site. CIMCO then

hired electriciansresponding to newspaper advertisements, and Local 527 engaged in the threatened

picket, which disrupted operations at the Union Carbide plant.

As the deadline approached for the IBEW's withdrawal from participation at the Sterling

Chemical GPA, CIMCO and Local 527, along with national union officials, tried unsuccessfully to

negotiate a compromise.4 CIMCO strenuously disagrees with the Board's finding that CIMCO was

aware at the time of these negotiations of Local 527's plans to continue to refer electricians to the

Sterling Chemicalsite even after the IBEW had withdrawn from the GPA. CIMCO officials testified

that they believed Local 527 would no longer refer any electricians to the Sterling Chemical site,

prompting CIMCO to advertise in local newspapers and to make gate hires. CIMCO took the

position at the time that hiring "non-union electricians"—even ifthey belonged to Local 527—would

violate the provision of the GPA requiring that all trade po sitions be held by union members.

Accordingly, on December 29, 1990, the last day before the IBEW-scheduled withdrawal from the
GPA, CIMCO notified all electricians at the Sterling site that they had "voluntarily quit" their

employment with CIMCO by virtue of the IBEW's withdrawal from the GPA. Several electricians

protested that they were not voluntarily resigning and wished to remain on the workforce.

Nonetheless, all 34 electricians at the Sterling Chemical site were terminated on that date. CIMCO

had earlier invited these same electriciansto submit resumesto work at the Sterling Chemicalfacility

for CIMCO on a non-union basis once the IBEW had withdrawn from the GPA, and by the end of

January, eight Local 527 members had been rehired as non-union employees.

In its complaint to the NLRB, Local 527 asserted that the electricians were terminated

because they had been referred by its hiring hall and accused CIMCO of trying to pressure the IBEW

to remain in the GPA at the Sterling site. The NLRB regional director then issued a complaint that

CIMCO had violated §§ 8(a)(1) and (3) of the Act by terminating the Sterling Chemical site

electricians. After a hearing, an administrative law judge agreed. The Board affirmed, adopted the

ALJ's decision, and filed an application for enforcement with this court which, together with the

Board's petitions to enforce its bargaining orders stemming from the elections at the Union Carbide

and Sterling Chemical facilities, form the basis of this appeal.

II.

PROCEDURAL BAR

Before proceeding to the merits of the Board's decisions, it is necessary to address a

procedural question that islimited to No. 91–4268, the Board's decision ordering CIMCO to bargain

with Local 527 at the Union Carbide facility. Because CIMCO did not file a separate request for

review of the order in the Union Carbide decision, the Board insiststhat CIMCO has waived itsright

to appeal that order in this court. So confident is the Board of its correctness that its brief fails to

address any of CIMCO's legal arguments in No. 91–4268, despite a previous order by a panel of this

court to do so.
We emphatically reject the Board's claim that CIMCO is procedurally barred fromappealing

the Union Carbide case. As CIMCO rightly observes, both election decisions involve the same

employer, the same petitioner, and virtually identicalfactual issues; indeed, the parties stipulated that

the factual record in the Sterling Chemical election case (No. 91–4106) applies here. The stipulated

record includes all record entries, including CIMCO's request for review. See 29 C.F.R. § 102.68

(1990) (defining record on review asincluding "the petition, notice of hearing with affidavit ofservice

thereof, motions... stipulations, exhibits... and any briefs or other legal memoranda submitted by the

partiesto the regional director ofthe Board, and the decision ofthe regional director, if any"). Based

on this authority, the panel denied t he Board's motion for summary enforcement and ordered the

Board to proceed with briefing—an order that the Board has defied.

Although the Board's arguments would likely be identical to those advanced in No. 91–4106,

that does not excuse its failure to comply with the court's request that the substantive legal issues in

No. 91–4268 be briefed. Because the record is broadly defined by regulation, because this court has

previouslydenied summaryenforcement, and because both parties have treated the two election cases

as proceeding jointly, CIMCO is not procedurally barred from appealing the Board's order in the

Union Carbide case.

III.

CERTIFYING THE ELECTIONS

Moving to the merits, our first task is to decide whether CIMCO violated §§ 8(a)(1) and (5)

ofthe Act byrefusing to bargain with Local 527 at the UnionCarbide and Sterling Chemicalfacilities.

The answer necessarily turns on whether the Board properly certified a separate bargaining unit for

skilled electricians carved out from the pre-existing multi-craft unit mandated by the GPA. We are

mindful that § 9(b) of the Act confers broad authority and discretion upon the Board to determine
 

5Section 9(b) provides:

[T]he Board shall 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). 

appropriate bargaining units. NLRB v. DMR Corp., 699 F.2d 788, 791 (5thCir.1983).5 The Board's

decision must stand unlessit is "arbitrary, capricious, an abuse of discretion, or lacking in substantial

evidentiary support." NLRB v. J.C. Penney Co., Inc., 559 F.2d 373, 375 (5th Cir.1977).

In determining the appropriateness of the bargaining unit, the Board applies a "community of

interests test" that weighs a range of factors in evaluating the commonality of interest between the

workers and the proposed units. DMR Corp., 699 F.2d at 791. As this court has explained:

Whether employees have a community of interests is determined by looking at such factors

as: similarity in the scale and manner of determining earnings; similarity in employment

benefits, hours of work and other terms and conditions of employment; similarity in the kind

of work performed; similarity in the qualifications, skills and training of employees;

frequency of contact or interchange among employees; geographic proximity; continuity or

integration of production processes; common supervision and determination of

labor-relations policy; relationship to the administrative organization of the employer; history

of collective bargaining; desires of the affected employees; and extent of union organization.

Id. (citing NLRB v. Purnell's Pride, Inc., 609 F.2d 1153, 1155 (5th Cir.1980)). The community of

interests test recognizes that "[t]he most reliable indicium of common interest among employees is

similarity of their work, skills, qualifications, duties and working conditions." DMR Corp., 699 F.2d

at 792. To analyze the Board's application of the test, this court need not ascertain whether every

factor has been satisfied; "[t]he crucial consideration is the weight or significance, not the number,

of factors relevant to a particular case." Purnell's Pride, 609 F.2d at 1156. Thus, the Board's

decision must indicate "how the facts of the case, analyzed in light of the policies underlying the

community ofintereststest,support its appraisal of the significance of each factor." Id. at 1157. The

court's review is limited to the facts and conclusions found in the Board's decisions. Post-hoc

justifications are not to be considered. NLRB v. Pioneer Natural Gas Co., 397 F.2d 573, 576 (5th
Cir.1968).

Both parties argue that the facts unequivocally support their respective positions regarding

the propriety of carving out the electricians' unit from the multi-craft collective-bargaining group.

CIMCO argues that the electricians' daily tasks are inextricably correlated with other skilled craft

tasks. Buttressing this assertion is the fact that approximately 90% of CIMCO's maintenance projects

at the UnionCarbide and Sterling Chemicalplantsrequire input fromseveraldifferent crafts. CIMCO

also emphasizesthe extensive collective bargaining history of the GPA. The Board counters that the

relevant bargaining history should be limited to that of the electricians working at a particular site.

Thus, for instance, prior to January 1987, all contract maintenance electricians at the Sterling

Chemical plant belonged to Local 527 and were represented by it. The Board also ascribes critical

importance to the fact that the electricians had separate locker and tool room facilities, and were

provided with a separate fleet of vehiclesfor their maintenance tasks. Moreover, the electricians were

apparentlythe onlytrade craft employeesto identifythemselves with chartreuse-colored dots on their

helmets.

On balance, we cannot say that the Board erred in finding that the community ofintereststest

warranted severance of Local 527 from the multi-craft units at the Sterling Chemical and Union

Carbide plants. Contrary to the Board's position before our court, the ALJ based this determination

onMallinckrodtChemical Works, 162NLRB 387 (1966), which established six non-exclusive factors

for craft severance determinations. The Mallinckrodt factors concentrate on the bargaining unit's

history and community of interests, as well as the nature of the employer's operations. Id. at 396 n.

83. Mallinckrodt addressed an election petition in which certain instrument mechanics desired

separate representation at a highly integrated uranium processing facility, as opposed to a

maintenance contractor serving the construction industry. The Mallinckrodt factors typically apply

in a situation where a single employer operates a "wall-to-wall" manufacturing or processing facility,

and where the respective trade craft employees' own interests have been largely submerged in the
broader community of interests shared by all plant employees. See, e.g., The Bendix Corp., 227

NLRB 1534, 1535–40 (1977); Dow Chemical Co., 202 NLRB 17, 17–20 (1973); and ASG

Industries, 190 NLRB 557, 558 (1971). According to one hornbook,

The cases and the commentators have indicated that the Mallinckrodtstandard usuallyresults

in a denial of craft severance....

The Board's reluctance to disrupt an established stable bargaining relationship will generally

prevail over a claimthat a separate craft unit is entitled to different representation. [footnotes

omitted].

C. Morris, The Developing Labor Law 430–31 (1983).

Mallinckrodt governsthis case, but the wayinwhich its 6–factor test appliesis hotlydisputed.

CIMCO urges us to focus on the integrated nature of the maintenance operations that it performs,

likening themto a single plant's wall-to-walloperations. CIMCO contends that in the 30–year history

of the GPA, these are the only casesin which a union has withdrawn from the GPA at particular sites

and thus attacked the necessary uniformity and stability of bargaining at those sites. If IBEW's

carve-out fromthe GPA is permitted to prevail here, CIMCO fears, the inter-craft harmony on which

it relies is jeopardized, the future of the GPA threatened, and ultimately, union contractors'

competitive abilities against non-unionized contractors are drawn into question.

The Board, generally ignoring the larger issues painted by CIMCO, applied Mallinckrodt

solely from the perspective of the separate bargaining history of electricians at the Sterling Chemical

site. In this setting, CIMCO is but one component of the operations at Sterling Chemical and Union

Carbide. Unlike Mallinckrodt, CIMCO electricians are not part of an integrated production process,

for the relevant operations at Sterling Chemical involve not one but four separate building trades

workforces. The electricians at Sterling Chemical had a history of distinct representation. Moreover,

given the IBEW's withdrawal from the GPA, denying certification at these sites would apparently

leave the electricians unrepresented. No union has expressed interest in representing the employees

in a multi-craft unit of the sort in which CIMCO insists they be included.
 

6Nevertheless, the employer was not compelled to negotiate or adopt a successor agreement

with the union based solely on the existence of the § 8(f) relationship because by the time the

Board considered the case, the contract had expired, and the union no longer enjoyed a

presumption of majority status. Id. 

Although we understand and might sympathize with CIMCO's plight, three points render its

position unpersuasive. First, despite an eloquent oral argument depicting the instability that may

follow the Board's craft-severance decision here, there is no record evidence to support CIMCO's

fears. Second, despite the Board's tendency following Mallinckrodt to deny craft severance petitions

and to prefer historicallystable bargaining relationships, the fact-intensive test isflexible and amenable

to the position the Board adopted here. The Board did not misapply Mallinckrodt, even though we

might disagree with itsresult, nor are the findings perceived relevant by the Board so out of line with

Mallinckrodt as to be arbitrary and capricious. Third, the application of Mallinckrodt generally to

deny craft severance petitions in the construction industry may be problematic following Deklewa 's

rejection, discussed below, of the conversion doctrine. CIMCO did not argue this point, however,

and we are unwilling to gainsay the Board's implicit resolution of it in this case.

CIMCO next invokes the Board's decision in Deklewa to justify the company's refusal to

bargain with Local 527. As we have already noted, the parties have stipulated that the GPA was a

§ 8(f) pre-hire agreement. Deklewa proclaimed a major shift in Board policy on § 8(f) issues. That

decision's most significant holding, not directly applicable here, is that pre-hire agreements may not

be unilaterally repudiated unless the employees vote to decertify or to change their

collective-bargaining representative. 282 NLRB at 1381. The Board ruled in Deklewa that the

company, part of a multi-employer association, violated §§ 8(a)(1) and (5) ofthe Act bywithdrawing

recognition from a local union affiliate during the term of a pre-hire agreement. Thus, when the

employer voluntarily entered into a § 8(f) relationship with the union, the resulting contract was

binding, enforceable, and not subject to unilateral repudiation by the employer. Id. at 1389.6 More

important to this case, Deklewa abandoned the "conversion doctrine," which permitted a § 8(f)

prehire agreement to "convert" into a § 9(a) agreement by means other than a Board election or
 

7

See R.J. Smith Construction Co., 191 NLRB 693 (1971), enf. denied sub nom., Operating

Engineers Local 150 v. NLRB, 480 F.2d 1186 (D.C.Cir.1973); and Ruttmann Construction Co.,

191 NLRB 791 (1971). 

 

8The Board further explained that the "merger" doctrine in which employees of a single

employer "may normally be added into a multi-employer bargaining unit," will normally not apply

to union determinations in such cases. Id. 

 

9The Board stated: "In determining the appropriate unit for election purposes the Board will

no longer distinguish between "permanent and stable' and "project by project' work forces...." 

282 NLRB 1385. 

 

10By this language, we do not infer, as does CIMCO, that the Board misunderstood that

IBEW, not the local, is the party to the GPA. Rather, we interpret the Board as referring

functionally to the interests of the electricians through representation of the Local 527 and IBEW. 

Consistent with this interpretation is the Board's observation that even before Sterling Chemical

acquired its Texas City plant from Monsanto in 1986, Local 527 represented electricians at that

voluntary recognition.7 By rejecting the conversion doctrine, Deklewa allows the pursuit of a

representation petition by a union during the term of a § 8(f) pre-hire agreement. However, the

Board also stated that in processing § 9(a) petitions, "the appropriate unit normally will be the single

employer's employees covered by the agreement." Id. at 1377.8

CIMCO pins great hopes on the Board's pronouncement that a collective-bargaining unit

normally should be contiguous with the § 8(f) pre-hire unit. The Board responds that this principle

ofDeklewa isinapposite in this case, arguing that Deklewa was addressing unit "scope" determination

in situations where there are numerous physically segregated construction projects and a distinction

had arisen between workforces that are permanent and stable, as opposed to those that serve on a

project-by-project basis. While the government's point is well taken, the text of Deklewa, which

reflects the Board's willingness to undert ake a more general revision of its policy regarding § 8(f)

pre-hire agreements, precludes such a crabbed reading. See, e.g., 282 NLRB at 1382–84.9 More

accurate is the Board's argument that, after Deklewa, the different workforces covered by the GPA

do not necessarily qualify as a single "appropriate unit" for purposes of § 9(b). Consequently, it is

difficult to overrule the NLRB regional director'sfinding that "[t]he unit sought by [Local 527] isthe

unit of employees historically represented by [Local 527] both as a participant in the General

Presidents' Agreement and individually."10 Even under the GPA, moreover, the electricians were
facility. From 1940 to 1986, the Local 527 electricians worked for several maintenance

contractors at the Sterling site but retained the same bargaining unit. 

 

11Although Deklewa was enforced by the Third Circuit and certiorari was denied by the

Supreme Court, the Fifth Circuit has not conclusively adopted or rejected Deklewa 's holding. In

United Brotherhood of Carpenters & Joiners Local Union 953 v. Mar–Len of Louisiana, Inc.,

906 F.2d 200, 203 n. 2 (5th Cir.1990), the panel assumed arguendo that Deklewa would apply as

controlling law in this circuit but expressly reserved the issue for another day. Because neither

CIMCO nor the Board has briefed or argued the issue, we decline to decide it here. 

 

12While no circuit has specifically rejected Deklewa, some courts have declined to apply it

retroactively. See, e.g., Construction Industry Welfare Fund of Rockford, Illinois v. Jones, 672

F.Supp. 291 (N.D.Ill.1987); Mesa Verde Construction Co. v. Northern Cal. Dist. Council of

Laborers, 598 F.Supp. 1092 (N.D.Cal.1984), aff'd, 820 F.2d 1006 (9th Cir.1987), remanded en

banc, 861 F.2d 1124 (9th Cir.1988), cert. denied, ––– U.S. ––––, 111 S.Ct. 209, 112 L.Ed.2d

169 (1990). 

separately identified from other trade crafts at the international union level because the IBEW was

one of the GPA's signatory members. Thus, even assuming this court were to adopt Deklewa, a

question we have not yet squarely resolved in this circuit,11 we are not convinced that the GPA must

qualify asthe appropriate unit for electriciansin this case. Based on the record, the Board reasonably

could—and did—conclude otherwise.12

Having sought to availitself ofthe benefits ofDeklewa, CIMCO next arguesin the alternative

that Deklewa is not binding precedent in this circuit. Specifically, CIMCO contends that the

conversion doctrine, under which the § 8(f) pre-hire GPA could be automatically converted into a §

9(a) collective bargaining agreement upon a showing of the union's majority status, should apply in

this case. We agree with the Board that CIMCO has failed to preserve this issue on appeal.

Appellate preservation principles apply equally to petitions for enforcement or review of NLRB

decisions. Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665–66, 102 S.Ct. 2071, 72

L.Ed.2d 398 (1982). In the proceedings before the Board, CIMCO did not take issue with Deklewa

and in fact rejected the conversion doctrine on which it now seeks to rely. Having failed to invoke

this defense when the case was before the Board, CIMCO is foreclosed from raising it for the first

time here.
Finally, CIMCO insists that the IBEW did not effectively withdraw from the GPA, although

the company has not explained what would constitute an effective withdrawal. In a letter dated

August 30, 1989, the President of the IBEW notified both CIMCO and the GPA Administrator that,

effective on December 31st of that year, t he International was terminating "its participation in the

(GPA) presently in effect at the Sterling Chemical Facility located at Texas City, Texas." A similar

notice declaring the IBEW's withdrawal from the GPA at Union Carbide was received by CIMCO

on August 31, 1989. There is no indication that these letters failed to provide CIMCO adequate

notice of the IBEW's withdrawals from the GPAs at these sites. Letter notification has been held to

be sufficient notice of repudiation of § 8(f) agreements. Ion Construction Redistrict Council of

Painters, No. 16, 593 F.Supp. 233 (N.D.Cal.1984), affirmed, 803 F.2d 1050 (9th Cir.1986); John

S. Griffith Construction Co. v. Carpenters, 119 LRRM 2247, 1984 WL 49096 (C.D.Cal.1984,

reversed on other grounds, 785 F.2d 706 (9th Cir.1986).

CIMCO also complains of the inconsistency of the IBEW's withdrawal from the GPA at the

Union Carbide and Sterling Chemical plants, while maintaining participation in other GPAs

throughout the nation. IBEW explained, however, that it is the International's policy not to force a

local union to participate in a GPA for lessthan 100% ofthe prevailing area wage. CIMCO's attempt

to characterize the IBEW's participation in the GPA as an all-or-nothing proposition overlooks the

fact that the parties to the GPA are the individual contractor and the various international unions

providing craftsmen at a particular site or to a particular employer. Each contractor secures a GPA

for each individual site, establishing a contractual relationship between the contractor and the

international unions at that site. Neither the plain language of the GPA nor its interpretation by the

GPA Administrator reveals any contractual obligation on the part of a particular international union

to participate in each and every GPA.

Having determined that the Board did not err in ordering CIMCO to bargain with Local 527,

we now address the company's subsequent termination of electricians at the Sterling Chemicalsite.
 

13In light of this conclusion, the Board found it unnecessary to address the issue of whether

CIMCO's actions were motivated by anti-union animus under the analysis set forth in Wright Line

v. NLRB, 251 NLRB 1083 (1980), enforced, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S.

989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982). 

 

14Additionally, each of the electricians had made known their desire to continue working at the

Sterling sites by submitting resumes to CIMCO prior to the IBEW's withdrawal from the GPA. 

CIMCO officials acknowledged that when informed they had "voluntarily quit" their jobs, the

electricians protested vigorously. 

IV.

TERMINATING THE ELECTRICIANS

CIMCO'sfinal challenge to theBoard stemsfromthe company'stermination of all electricians

referred to the Sterling Chemical plant by Local 527's hiring hall. The Board rejected CIMCO's

contention that those 34 workers "voluntarily quit" their employment as a necessary consequence of

IBEW's withdrawal from the GPA, ruling that CIMCO's acts were "inherently destructive" of the

electricians' § 7 rights within the meaning of NLRB v. Great Dane Trailers, 388 U.S. 26, 33–34, 87

S.Ct. 1792, 1797, 18 L.Ed.2d 1027 (1967), and therefore violated §§ 8(a)(1) and (3) of the Act.13

In Great Dane Trailers, the Court held:

Some conduct ... is so "inherently destructive of employee interests' that it may be deemed

proscribed without the need for proof of an underlying improper motive.... That is, some

conduct carries with it "unavoidable consequences which the employer not only foresaw but

which he must have intended' and thus bears "its own indicia of intent'....

Id. (citations omitted). Concluding that the electricians had been terminated because they had been

referred to CIMCO by Local 527, and that the company was attempting to pressure the IBEW into

reinstating its participation in the GPA at the Sterling site, the Board rejected CIMCO's assertions

that it believed Local 527 would no longer refer electricians to the Sterling facility, noting that the

Union's businessmanager had notified the companythat the electricians would continue to be referred

on a non-union basis.14 The Board reasoned that mass discharges or layoffs of union adherents are

particularly destructive of the rights guaranteed them under § 7. "It is clear beyond peradventure,"

the administrative law judge concluded in his opinion, "that the discharge of all employees of a

particular craft because of their affiliation with, and referral from, a union, as was the case herein,"
 

15Under Great Dane Trailers, once the Board has established that a company has engaged in

conduct inherently destructive of employees' § 7 rights, the burden shifts to the employer to

establish that it was motivated by legitimate objectives. 388 U.S. at 34, 87 S.Ct. at 1797. 

 

16Portland Williamette specifically lists permanent discharge of workers for union activities as

an example of "inherently destructive" conduct on the part of their employer. Id. 

isinherently destructive of employees'rights within the meaning ofthe Great Dane Trailersstandard.

Finally, the Board found that CIMCO failed to establish legitimate and substantial business

justifications for terminating electricians at the Sterling site.15 This court must affirm the Board's

findingsif they are supported by substantial evidence. National Fabricators, Inc. v. NLRB, 903 F.2d

396, 399 (5th Cir.1990), cert. denied, ––– U.S. ––––, 111 S.Ct. 671, 112 L.Ed.2d 664 (1991).

Given CIMCO's unwillingness to recognize Local 527 as the duly elected bargaining unit of

electricians at the Sterling site, as well as the considerable evidence in the record that the electricians

were terminated because they had been referred to that site by the union's hiring hall, we have little

difficulty concluding that the company has engaged in conduct that "create[s] visible and continuing

obstacles to the future exercise of employee rights" within the meaning of Great Dane Trailers.

Esmark, Inc. v. NLRB, 887 F.2d 739, 748 (7th Cir.1989) (quoting Portland Williamette Co. v.

NLRB, 534 F.2d 1331, 1334 (9th Cir.1976)).16 In its defense, predicated on the lack of substantial

evidence to support the Board's determination, CIMCO characterizes itself as a victim of warring

union interests. The company contends that the IBEW's withdrawal from the GPA at the Sterling site

forced it to hire non-union electricians, in violation of the agreement's mandate that all covered

employees be union members. "In a perverse application of § 8(a)(3) of the Act," CIMCO argues

in its brief, "a company which operates all of its sites on a unionized basis, and which literally spent

months trying to achieve a labor relation solution to a problem caused by Local 527 and the IBEW,

only to have its efforts spurned, has been found to have violated the Act because it reluctantly took

the action it was required to take under the GPA and under its obligations to Sterling Chemical."

The crux of CIMCO's theory is that in order to comply with the GPA, CIMCO was obliged
 

17In the proceedings before the ALJ, CIMCO's counsel repeatedly sought to introduce

evidence of Local 527's picketing at the Union Carbide facility, which resulted in work

disruptions. The ALJ refused to admit this evidence, which CIMCO insists would have supported

its claim that Local 527 electricians would have refused to man the Sterling site once the IBEW

had withdrawn from GPA. Such evidence, CIMCO argues, would have been helpful in

establishing its legitimate business motivation for fearing that the Sterling Chemical site would be

disrupted by Local 527 members. In light of the evidence that the union planned to continue

referring electricians to the Sterling plant on a non-union basis after the IBEW's withdrawal from

the GPA at that site, we do not believe CIMCO was prejudiced by this decision.

Additionally, CIMCO complains that it was not allowed to cross-examine

witnesses called by the NLRB counsel with regard to Union Carbide site activities. 

Specifically, the company argues that it should have had the opportunity to present

evidence questioning the credibility of the IBEW witnesses regarding whether

representatives of the International told CIMCO that the Sterling Chemical and Union

Carbide facilities would not be manned by Local 527 electricians. This point is similarly

without merit. CIMCO had ample opportunity to cross-examine these witnesses in laying

the foundation for its legitimate business necessity defense.

More fundamentally, CIMCO overlooks the substantial differences between labor

conditions at the two sites. For instance, the ALJ found the Local 527 never overtly

threatened to picket the Sterling Chemical plant, apparently because the incumbent

electricians there would have risked permanent replacement had they struck. In contrast,

there were no incumbent electricians at the Union Carbide facility, thus allowing the union

to strike there without endangering the jobs of its members. 

to employ only union workers at the Sterling Chemical plant. Consequently, when the IBEW

withdrew its participation from the GPA, CIMCO was obliged to discharge the unrepresented

electricians, who had become "non-union" employees. All of this assumes that the IBEW's

withdrawal from the GPA at the Sterling site was improper—an assertion that we have already

rejected. Moreover, it obscures the fact that CIMCO rehired several Local 527 members as

non-union electricians within a few weeks after the IBEW's withdrawal from the GPA. CIMCO

explainsthis apparent inconsistency by stating that it feared the threat of a disruptive strike by IBEW

electricians similar to the picketing that occurred at the Union Carbide site.17 To the contrary, local

union officials testified that they had extended assurances to CIMCO that Local 527 would not

interfere with electricians after the effective date of the IBEW's withdrawal from the GPA.

Underscoring their testimony is the undisputed evidence that the electricians vociferously protested

when informed that they were "voluntarily" terminating their employment at the Sterling Chemical

site. The Board also found that CIMCO's claim that the Sterling site would be targeted for a strike

unlessthe electricians were terminated was not wellfounded. Besides significant differences in labor
relations between that facility and the Union Carbide plant, the Board noted that prior to the IBEW's

withdrawal from the GPA, Sterling site electricians filed applications to work as non-union

electricians and assured CIMCO officialsthat Local 527 administrators had promised not to interfere

if they continued to work there.

In sum, substantial evidence supports the Board's conclusion that CIMCO terminated the

electricians solely to bring pressure on the IBEW to reverse its withdrawal from the GPA, and that

this action was destructive of their collective bargaining rights under § 7 of the Act.

V.

CONCLUSION

Because the NLRB did not abuse its discretion in these three cases, we enforce its orders in

their entirety.