National Labor Relations Board v. Circle a & W Products Company

647 F.2d 924 107 L.R.R.M. (BNA) 2923 , 91 Lab.Cas. P 12,803 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CIRCLE A & W PRODUCTS COMPANY, Respondent. No. 79-7534. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 9, 1980. Decided June 8, 1981. Linda B. Weisel, Washington, D. C., for petitioner. Gerald R. Lucey, Oakland, Cal., argued, for respondent; Terry T. Lewit, Emeryville, Cal., Corbett, Kane & Berk, Oakland, Cal., on brief. On Application for Enforcement of an Order of The National Labor Relations Board. Before KENNEDY, PREGERSON and POOLE, Circuit Judges. KENNEDY, Circuit Judge: 1 In this case, a union disclaimed representation of a bargaining unit during the existing term of a collective bargaining agreement with the employer. While the collective bargaining agreement with the first union was still extant, the employees selected a new union as their collective bargaining agent in an election supervised by the National Labor Relations Board (Board). The employer refused to bargain with the new union, claiming a right to stand upon the existing collective bargaining agreement until it expired. The employer's position was based on an elaboration…

In this case, a union disclaimed representation of a bargaining unit during the existing term of a collective bargaining agreement with the employer. While the collective bargaining agreement with the first union was still extant, the employees selected a new union as their collective bargaining agent in an election supervised by the National Labor Relations Board (Board). The employer refused to bargain with the new union, claiming a right to stand upon the existing collective bargaining agreement until it expired. The employer’s position was based on an elaboration of the Board’s contract bar rule, discussed more fully below. The Board cited the employer for refusal to bargain, rejected the contract bar defense, and ruled that the employer had committed an unfair labor practice. The Board now petitions for enforcement of its order directing the employer to bargain. We grant enforcement.

In more detail, the background of the dispute is as follows: Circle A & W Prod *925 ucts Co. (Circle A & W) manufactures electrical equipment in Portland, Oregon. Since 1962, it has engaged in a series of collective bargaining agreements with International Brotherhood of Electrical Workers Local…

(dissenting):

I respectfully dissent. I agree with the majority that the Board’s adjudication of this dispute was not entirely satisfactory because the Board failed to articulate the basis for its conclusion that the contract-bar rule does not apply here. Unlike the majority, however, I would not draw the inferences necessary to support the Board’s decision. Rather, I would remand the matter to the Board for an explanation of the basis of its decision not to apply the contract-bar rule.

As the majority correctly points out, the Board’s longstanding interpretation of the contract-bar rule does not square precisely with the Board’s most recent contract-bar decision, American Sunroof Corp.-West Coast, Inc., 243 NLRB No. 172 (1979). Up until the American Sunroof decision, it appeared that a valid disclaimer of representational interest by a union was insufficient, standing alone, to suspend the contract-bar rule. Instead, under the formulation set forth in East Manufacturing Corp., 242 NLRB No. 5 (1979), a valid disclaimer merely prompted the Board to examine the policies underlying the rule. In deciding whether to impose a contract bar, the Board would strike a balance between the…