
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 91-1905                           NATIONAL LABOR RELATIONS BOARD,                                     Petitioner,                                          v.                              AUCIELLO IRON WORKS, INC.,                                     Respondent.                                 ____________________                    ON APPLICATION FOR ENFORCEMENT OF AN ORDER OF                          THE NATIONAL LABOR RELATIONS BOARD                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                             and Keeton,* District Judge.                                          ______________                                 ____________________            John D. O'Reilly,  III, with whom O'Reilly  & Grasso was on  brief            ______________________            __________________        for respondent.            Collis  Suzanne  Stocking  with  whom  Jerry  M.  Hunter,  General            _________________________              _________________        Counsel, D. Randall Frye, Acting Deputy General Counsel, and Aileen A.                 _______________                                     _________        Armstrong,  Deputy  Associate  General  Counsel,  were  on  brief  for        _________        petitioner.                                 ____________________                                    July 21, 1995                                 ____________________                                    ____________________        *Of the District of Massachusetts, sitting by designation.                      CAMPBELL, Senior Circuit Judge.  Several years ago,                                ____________________            the  National Labor Relations  Board ("the Board") petitioned            this  court for enforcement of an order it had issued against            Auciello Iron Works, Inc. ("the Company") pursuant to   10(e)            of  the National  Labor Relations  Act,   29 U.S.C.    160(e)            ("NLRA").   We affirmed, in large  part, the Board's decision            underlying the order.  NLRB v. Auciello Iron Works, Inc., 980                                   ____    _________________________            F.2d  804   (1st  Cir.  1992).     However,  while  retaining            jurisdiction, we  declined to enforce the  order and remanded            to the Board for  further consideration of an issue  which we            found  the Board to  have inadequately addressed.   The Board            has now, at  long last, responded by  issuing a comprehensive            supplemental  decision  and  order  addressing  the  problems            raised  in  our opinion.    Auciello  Iron Works,  Inc.,  317                                        ___________________________            N.L.R.B. No.  60 (1995).   Pursuant to  our invitation,  both            parties  have commented on the Board's opinion.  We now grant            the Board's petition for enforcement of its order.                      The Board issued its original order upon concluding            that the Company  had committed an  unfair labor practice  in            refusing to negotiate with the Shopmen's Local Union No. 501,            a/w  International  Association  of  Bridge,  Structural  and            Ornamental  Iron  Workers (AFL-CIO)  ("the  Union"),  a union            certified  to   be   the  exclusive   collective   bargaining            representative  for  a  number  of  the  Company's employees.            Auciello  Iron Works, Inc., 303  N.L.R.B. 562 (1991).  During            __________________________                                         -2-            negotiations for a  new collective bargaining agreement,  the            Union   had  accepted  one   of  the   Company's  outstanding            proposals.1   The Company, however,  subsequently refused  to            sign  an agreement  based on that  proposal and  withdrew its            recognition of the Union.                      In   concluding  that   the  Company   had  thereby            committed an  unfair labor  practice, the Board  affirmed the            administrative law judge's refusal to  consider the Company's            defense that,  at the time  the Union accepted  the Company's            contract proposal, the Company entertained a good-faith doubt            of  the Union's majority status.   The Board  thus refused to            allow  the Company to present evidence that the Union in fact            lacked majority support at the time it accepted the Company's            outstanding offer.  In a footnote to its summary opinion, the            Board wrote:                      We agree  .  . .  that under  established                      Board  precedent,  once  the Board  finds                      that  the parties have  reached a binding                      collective-bargaining  agreement,  it  is                      unnecessary  to consider  the issue  of a                      respondent's alleged  good-faith doubt of                      the  union's  majority  status.   Belcon,                                                        _______                      Inc., 257  NLRB 1341, 1346  (1981); North                      ____                                _____                      Bros. Ford, 220 NLRB 1021, 1022 (1975).                      __________            Auciello Iron Works, Inc., 303  N.L.R.B. 562, 562 n.2 (1991).            _________________________                                            ____________________            1.   In  opposition  to  the  petition for  enforcement,  the            company  challenged  the  continuing  availability,  and  the            subsequent  acceptance, of  its  proposal.   In our  previous            opinion, we affirmed the NLRB's finding that the proposal was            still open and that the union had accepted it.  Auciello, 980                                                            ________            F.2d at 808-09.                                         -3-                      Unsatisfied with  the  Board's brief  treatment  of            this issue, we remanded  for further consideration.  Although            we  recognized that Board precedents clearly barred employers            from  raising a  good-faith  doubt about  a union's  majority            status  arising  from  events  occurring  after  the  parties                                                      _____            reached an agreement,  see, e.g., North Bros. Ford, Inc., 220                                   ___  ____  ______________________            N.L.R.B.  1021, 1022 (1975), we found it less clear that such            a prohibition extended to  bar good-faith doubts arising from            events occurring before the parties reached an agreement.  We                             ______            thus  objected  to  the   Board's  casual  extension  of  the            "contract bar  rule" to  pre-agreement doubts about  majority            status, without any reasoned  policy analysis to support that            extension.  We were further troubled by the fact that neither            party had addressed the Seventh Circuit's decision in Chicago                                                                  _______            Tribune Co. v.  NLRB, 965 F.2d 244 (7th Cir. 1992), which was            ___________     ____            handed down prior  to oral  argument in this  case and  which            reached a result at odds with the Board's conclusion.                        Unlike  the Seventh  Circuit, however,  we  did not            undertake to pass ultimate judgment on the appropriateness of            the Board's policy judgment.  We noted instead that the Board            "has  the  chief responsibility  for developing  coherent and            correct labor negotiation rules" and that the question "calls            for  the  Board's  reasoned  application  of  its expertise."            Auciello, 960 F.2d at 812, 813.  We therefore remanded to the            ________                                         -4-            Board,  ordering it  to  "revisit, clarify,  and explain  the            principles   that   it   thinks   apply   in    the   present            circumstances."  Id. at 812.                             ___                      The   Board   has   responded   with   a   thorough            supplemental  decision   in  which  it  affirms  its  earlier            conclusion, namely,  that an accepted offer  bars an employer            from  later raising, as a defense to an unfair labor practice            charge, a good faith doubt about the  union's majority status            arising out  of events occurring  prior to the  acceptance of            the  offer.  Auciello Iron  Works, Inc., 317  N.L.R.B. No. 60                         __________________________            (1995).    Now, however,  the Board  has  for the  first time            articulated  the policy  considerations underlying  its rule,            weighing  both the  advantages and  disadvantages of  varying            rules in the specialized  collective bargaining context.  The            Board  found  that  the  policies   underlying  the  relevant            provisions of the NLRA and earlier Board precedents supported            extending the  contract-bar rule  to cover good  faith doubts            arising from  events occurring prior  to the acceptance.   In            particular,  the  Board found  that  the  rule furthered  the            policy of preserving stable  bargaining relationships and did            not undermine  the policy of preserving  the workers' freedom            to choose their own representatives.  Pursuant to our remand,            the Board  also considered  the Seventh Circuit's  opinion in            Chicago Tribune, concluding that it was inconsistent with the            _______________            policies underlying the NLRA.                                         -5-                      As earlier stated, the Board's  policy judgments on            this type  of question are entitled  to substantial deference            from the courts.  "Especially as the relevant principles here            are  informed less by statutes than by Board policies set out            in  its decisions, the area is one where the Board's presumed            expertise is key."   Auciello, 960 F.2d at 812.   The public,                                 ________            the  bar, the parties, and  the courts are entitled, however,            to  have the  Board's key  rulings supported  by "articulate,            cogent,  and  reliable  analysis."   Id.  at  813  (citations                                                 ___            omitted).    Having  at  last  the  benefit  of  the  Board's            explanation, we  are now  satisfied, as we  were not  before,            that  the Board's  decision  is amply  supported by  rational            application of its expertise.  While the question is  perhaps            close, the  Board's policy choice  is reasonable and,  as now            articulated, quite persuasive.  The Board's choice falls well            outside the sphere  of arbitrariness that  might tempt us  to            substitute our own judgments for  the Board's expertise on  a            question  like this.  See Fall River Dyeing & Finishing Corp.                                  ___ ___________________________________            v. NLRB, 482 U.S. 27, 42 (1987) ("If the Board  adopts a rule               ____            that is rational and  consistent with the Act, then  the rule            is entitled to deference from the courts.")                        We  accordingly accept  the  Board's  ruling  that,            absent  exceptional circumstances2, an  employer is barred in                                            ____________________            2.   The  Company  seeks  to   bring  this  case  within  the            exception set forth in the Board's opinion for cases in which            a company's  good faith doubt arises  simultaneously with the                                         -6-            these   circumstances   from  raising,   after   the  union's            acceptance  of its outstanding offer, a defense of good faith            doubt as  to the union's  majority status premised  on events            prior to that acceptance.   In adopting the Board's  rule, we            reach a result different  from that of our sister  circuit in            Chicago Tribune, Co., 915  F.2d at 250.  The  Seventh Circuit            ____________________            was,  however, without  the  benefit of  the Board's  present            analysis.  We hope  the time and effort expended in this case            will  cause  the  Board to  avoid  the  kind  of perfunctory,            inarticulate   decision-making   that   caused  the   present            difficulties.                      The Company argues finally  that, even if we uphold            the Board's decision, we  should condition enforcement of the            Board's order upon a Board-supervised election to ensure that            the  Union  still enjoys  the support  of  the workers.   The            Company  cites NLRB  v. LaVerdiere's  Enter., 933  F.2d 1045,                           ____     ____________________            1053  (1st Cir.  1991), in  which we  refused to  enforce the            Board's  bargaining  order and  instead  ordered an  election            where: (1)  there existed  a showing of  substantial employee            dissatisfaction  with  the  union  prior  to  the  employer's            misconduct;  (2)  the  employer's misconduct  was  less  than            egregious;  and (3) there had been an inordinate delay in the                                            ____________________            union's acceptance of the offer.   See Auciello, 317 N.L.R.B.                                               ___ ________            No.  60,  at  11-12.   We  agree  with  the Board's  implicit            conclusion that this case does not fall within the exception,            as the Company had all of the relevant information to support            its claim prior to its acceptance of the offer.                                         -7-            Board's decision.                      Although there is  no doubt that a great  amount of            time has elapsed since  the underlying unfair labor practice,            we  are disinclined  to  order,  on  our own  initiative  and            contrary to  the Board's requested relief, a Board-supervised            election at  this point.   This case is  distinguishable from            LaVerdiere's,   insofar  as  LaVerdiere's  involved  a  clear            ____________                 ____________            showing of employee dissatisfaction with the union.   In that            case, the employees had filed a decertification petition with            the Board,  and had  exhibited other substantial  evidence of            dissatisfaction.   Id.  at  1048, 1054.    In this  case,  by                               ___            contrast, although there existed evidence that the strike was                                                               ______            losing  employee support,  the  evidence that  the Union  was                                                               _____            losing   employee  support   fell  far   short  of   that  in            LaVerdiere's.  Accordingly, without meaning  to pass judgment            ____________            on  the propriety  of an  election should  one be  sought and            considered in  another context, we enforce  the Board's order            in its entirety.   See id. at 1053  (holding that the Board's                               ___ ___            choice of remedy is entitled to deference).                      The order of the Board will be enforced.                       _______________________________________                                         -8-
