Petition by the National Labor Relations Board to enforce its Supplemental Decision and Order, 252 N.L.R.B. 922 (1980), rendered after further consideration of issues previously considered by this court in N.L.R.B. v. Independent Association of Steel Fabricators, Inc., 582 F.2d 135 (1978), cert. denied, 439 U.S. 1130 (1979), and a further decision and order, 252 N.L.R.B. 904 (1980); and motion by intervenor Shopmen's Local Union No. 455, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, to reopen the Independent Association decision for further consideration in light of Charles D. Bonanno Linen Service, Inc. v. N.L.R.B., 50 U.S.L.W. 4087, decided by the Supreme Court on January 12, 1982. The orders are enforced; the motion is denied. Judge Lumbard concurs and dissents in a separate opinion.
LUMBARD, FRIENDLY and NEWMAN, Circuit Judges.
These proceedings deal with a 1975 labor dispute concerning a number of small employers in the steel construction and fabricating industry in metropolitan New York. Doubtless to their everlasting regret and certainly to ours, these employers formed a multi-employer bargaining group, the Independent Association of Steel Fabricators, Inc. (the Association), primarily for the purpose of prevailing upon Shopmen's Local Union No. 455, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Local 455), to accept, on behalf of its members, the same terms and conditions of employment that the union granted another multi-employer association, Allied Building Metal Industries, Inc. The employers sought to extricate themselves from the Association when it became evident that its purpose would not be achieved, although Local 455 never advanced any reason why it should not be. In an opinion by the late Judge Gurfein, N.L.R.B. v. Independent Association of Steel Fabricators, Inc., 582 F.2d 135 (2 Cir. 1978), cert. denied, 439 U.S. 1130 (1979), familiarity with which is assumed, dealing with a 1977 decision of the National Labor Relations Board (the Board) relating to this dispute, 231 N.L.R.B. 264, we granted enforcement in part and denied it in part. We said, in a concluding footnote, 582 F.2d at 153 n.37:
We would normally remand in this case for further development of facts based on this opinion. Since so much time has now elasped, however, we must assume that there may presently be continuing relationships of which we are unaware. We shall, accordingly, not formally remand but leave it to the parties to petition the NLRB for such evidentiary hearings, if any, that they desire under the principles outlined in this opinion.
The invitation was enthusiastically accepted, as hereafter detailed. In 1980 the Board rendered two further decisions, 252 N.L.R.B. 922 and 904, of which it seeks enforcement. Before the case was reached for argument in this court the Supreme Court, on January 12, 1982, decided Charles D. Bonanno Linen Service, Inc. v. N.L.R.B., 50 U.S.L.W. 4087, in which it expressly disapproved our holding, 582 F.2d at 148, along with similar decisions by two other courts of appeals, that the Association members were entitled to withdraw from the multi-employer bargaining unit because an impasse in negotiations had been reached. 50 U.S.L.W. at 4089-90. By motion dated February 4, 1982, Local 455, which had intervened in the Independent Association case as well as in the Board's present proceedings for enforcement, sought to have us reopen and reconsider our previous decision; this was opposed both by the Board and by the respondents. We find it convenient first to consider the case as we would have done apart from Bonanno and then to discuss what modifications, if any, in that result should be made in light of the Court's recent pronouncement.
I. Summary of our Previous Decision
The Board's original decision issued bargaining orders against 16 members of the Association. In light of our holding that all these employers were entitled to withdraw from multi-employer bargaining because an impasse had been reached, we divided the employers into three classes as follows, 582 F.2d at 149-50:
Class I -- 6 employers who signed collective bargaining agreements with a rival union, Sheet Metal, Alloys and Hardware Fabricators and Warehousemen, Local 810, International Brotherhood of Teamsters (Local 810), before giving Local 455 notice of their intention to withdraw from the Association.*fn1
Class II -- 3 employers who signed with Local 810 after giving Local 455 notice of withdrawal from the Association.*fn2
Class III -- 7 employers who gave notice of withdrawal from the Association, but signed with neither Local 455 nor Local 810.*fn3
We adopted a different analysis for each of these classes. As to Class I, we held, 582 F.2d at 149, that the employers violated § 8(a) (5) by failing to give notice of their withdrawal from the Association prior to signing with Local 810.*fn4 As to Class II, we refused to affirm the Board's findings of § 8(a) (5) violations, 582 F.2d at 151. We held that the Class II employers had not violated § 8(a) (5) by withdrawing from the Association and that the employers had given timely notice of their withdrawal. We also held, however, that these employers "were under a duty to seek bargaining with Local 455 on an individual basis before negotiating with Local 810", 582 F.2d at 151. We held further that if an employer could show either that it entertained a rational, good faith doubt as to Local 455's majority status or that the union actually had lost its majority status, then no § 8(a) (5) violation could be found. Since the Board had refused to consider evidence of the employers' rational, good faith doubts as to Local 455's majority status, no § 8(a) (5) violation could be found on the record before us. After indicating that further evidence might be taken on the question, 582 F.2d at 153 n.37, we said that "[i]n the absence of evidence as to good faith doubt or actual loss of majority status, the Board may find respondents in class two guilty of a refusal to bargain." 582 F.2d at 151.
As to Class III, we held, 582 F.2d at 151, that there had been no § 8(a) (5) violations. We reasoned that Local 455's failure to have requested bargaining with the Class III employers on an individual basis following their notices of withdrawal from the multi-employer unit prevented a finding that the individual employers had refused to bargain. Noting that the unfair labor practices of the respondents did not taint election machinery and the "lapse of time and our lack of information concerning current labor relations in the industry", we left it to the Board to consider whether an election or a bargaining order would be a more appropriate sanction against the respondents in Class I and against any respondents in Class II who might be found guilty of § 8(a) (5) violations, 582 F.2d at 152.
We later turned to portions of the Board's order which had required the reinstatement of striking employees as unfair labor practice strikers. Stating that in view of our holdings with respect to Classes II and III, "not all respondents' employees became unfair labor practice strikers", 582 F.2d at 152, we said that we would nevertheless "have enforced the Board's reinstatement order against those employers guilty of §§ 8(a) (1), (2) and (5) violations, . . . if the record had reflected an unconditional offer to return to work." We found, however, 582 F.2d at 152, that there was no such offer since the letters requesting reinstatement by Local 445 sent in February and March 1976, were accompanied by letters demanding that the employers implement a stipulation negotiated by five members who had remained in the Association, which we held to be not binding on those who had withdrawn, whether lawfully or not, 582 F.2d at 149.
II. The Supplemental Proceeding
On August 18, 1978, Local 455 filed with the Board a motion to reopen the hearing in the proceeding that had been the subject of our Independent Association decision for the purpose of taking evidence with respect to the imposition of bargaining orders upon the employers in Classes I and II. Four months later the General Counsel moved for the issuance of bargaining orders with respect to those in Class II. Orders for a hearing before an administrative law judge (ALJ) were issued on February 1, and April 9, 1979. On February 22, 1980, the ALJ recommended that bargaining orders issue against all Class I employers. Turning to the three Class II employers, he concluded that, at the time when they entered into contracts with Local 810, Koenig did not have, but Cervenka and Master did have good faith doubts that Local 455 represented a majority of their employees; he recommended a bargaining order solely as to Koenig. The Board disagreed with the ALJ's ruling with respect to Master and entered a bargaining order against it, 252 N.L.R.B. 922; it left his conclusion as to Cervenka standing. The Board now seeks enforcement of the bargaining orders against the Class I employers, as well as Koenig and Master.
III. The Separate Proceeding
The Separate Proceeding arises largely out of actions taken by Local 455 after our 1978 decision. In an effort to meet our holding in Independent Association that the 1976 offers to return to work were not unconditional, Local 455, on August 9, 1978, sent each of the employers a letter on behalf of the company's striking employees containing an offer to return to work. The complaint in the Separate Proceeding, in which Local 455 appeared as the charging party, alleged that the employers failed to comply with the offer and that even those striking employees who had been given positions had not received rates of pay and other employment benefits equal to those they had received prior to the commencement of Local 455's strike.
Earlier, on July 13, 1978, in another effort to meet our holding in Independent Association, Local 455 made written requests for separate bargaining to four Class III employers -- Zaffino, Achilles, Kuno and Peelle. Local 455's complaint in the Separate Proceeding set forth these requests and alleged that the employers had unlawfully refused to bargain.
The ALJ recommended that the complaint against Kuno should be dismissed. He found that when Local 455 made its request for bargaining on July 13, 1978, Kuno had only one employee -- Ogey Eretzian -- and that Kuno had reasonable grounds to believe that he did not wish Local 455 to represent him. He found also that Eretzian and the only other employee at the time of the commencement of the strike, Vogt, had received, since their return to work, the same or greater pay than that they had been receiving under Kuno's 1975 contract with Local 455.
With respect to the three other Class III employers named in the complaint, the ALJ found that in July 1978, Achilles and Peelle entertained rational, good faith doubts concerning Local 455's majority status; he found otherwise with respect to Zaffino and recommended that a bargaining order be entered against it.
The ALJ also concluded that Zaffino and two Class I employers named in the complaint, Mohawk and Roman, had violated §§ 8(a) (1) and (3) in refusing to reinstate employees who had made an unconditional offer to return to work on August 9, 1978, and directed their reinstatement to their former or equivalent positions and backpay to compensate them for any losses.*fn5 He also held the three employers liable for backpay to strikers returning before August 9, 1978; he left to the compliance phases of these proceedings determination of the amount of backpay, which is to be calculated based upon the difference, if any, between compensation that strikers received upon their return to work and that which they received prior to Local 455's strike.
Exceptions having been filed by respondents, the General Counsel and the charging party, the Board modified that ALJ's decision in a number of respects, see also note 5, supra. It rejected his conclusion that Achilles had not unlawfully refused to bargain in July, 1978. Accordingly, it subjected Achilles to a bargaining order, as well as to one for the reinstatement of strikers and payment of backpay for the period after Local 455's August 9, 1978, offers for strikers to return to work.*fn6 The Board also reversed the ALJ's conclusion that in July, 1978, Peelle had a good faith doubt as to Local 455's continued majority status and subjected it to a bargaining order. However, it held that Peelle had not violated §§ 8(a) (1) and (3) by refusing to reinstate employees in August, 1978, since, subsequent to the commencement of the strike, Peelle transferred its fabricating operations to Toronto, Canada, reinstated striking employees who offered to return, and hired permanent replacements for the remaining positions available in the warehousing and distribution work left in New York. As to economic strikers who had returned prior to Local 455's August 9, 1978, offer, the Board found Peelle liable for backpay for any differences in compensation between the employees' new jobs and those they held at the commencement of Local 455's strike. The Board reached similar conclusions as to employees who returned to work at Achilles, Master, Roman, Zaffino and Mohawk prior to August 9, 1978. The calculation of the exact amount of the employers' liability was left to the compliance phases of these proceedings. 252 N.L.R.B. at 906 n.5.*fn7 The Board adopted the ALJ's recommendations regarding the reinstatement of the unfair labor practice striker employees of Mohawk and Roman and issued a similar order against Master.
The Board sustained the ALJ's recommendation that the complaint against Kuno be dismissed but upon a different ground. This was that "[t]he Board had long held that it will not certify a union as representative for a one-person unit, and will not find that an employer unlawfully refused to bargain in such a unit."
IV. The Present Proceedings in this Court
On October, 23, 1981, the Board petitioned this court to enforce its orders in the Supplemental Proceeding, 252 N.L.R.B. 922, and the Separate Proceeding, 252 N.L.R.B. 904. The respondents filed an opposing brief.*fn8 The charging party, Local 455, filed no petition to review portions of the Board's decision unfavorable to it, e.g., the refusal to enter bargaining orders against Kuno and Cervenka, to treat employees to Class III respondents as unfair labor practice strikers, and to enter a full reinstatement order against Peelle. However, on February 4, 1982, Local 455 submitted a motion and supporting brief requesting this court "pursuant to its traditional equitable powers and Federal Rule of Civil Procedure 60(b) to reopen and reconsider its prior ...