Petition to review an order of the National Labor Relations Board dismissing an unfair labor practice complaint against intervenor Wells Fargo Armored Service Corporation. Petition dismissed. Judge Mansfield dissents in a separate opinion.
Mansfield and Kearse, Circuit Judges, and Metzner, Senior District Judge.*fn*
METZNER, Senior District Judge:
Petitioner Truck Drivers Local Union No. 807, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("Local 807") seeks review of a decision and order of the National Labor Relations Board ("the Board") dismissing an unfair labor practice complaint against intervenor Wells Fargo Armored Services Corporation ("Wells Fargo"). 270 N.L.R.B. No. 106 (May 18, 1984).
At issue is the validity of the Board's determination that under Section 9(b) (3) of the Labor Management Relations Act ("Act"), 29 U.S.C. § 159 (b) 3), Wells Fargo was privileged, following the expiration of its collective bargaining agreement with Local 807, to withdraw voluntary recognition of Local 807 because of that union's status as a mixed guard union.
We find that the Board's interpretation of Section 9 (b) (3) was reasonable. The petition for review of the Board's decision is dismissed.
Wells Fargo, an armored car service incorporated in Delaware, transports and delivers money, securities and other valuables for banks and commercial customers. The company operates two facilities in the New York area which employ approximately 93 persons as guards on a full or part-time basis. From 1948 until June 18, 1979, the two New York facilities maintained a collective bargaining relationship with Local 820 of the Teamsters. Local 820's membership and leadership consisted exclusively of guards employed in the armored car industry. Local 820 was nonetheless a nonqualified union under Section 9(b)(3) because although it did not admit any nonguards to membership, it was affiliated directly with the Teamsters, who do admit to membership employees other than guards. Such a union will hereinafter be referred to as a mixed guard union. The last collective bargaining agreement between Local 820 and Wells Fargo was effective through March 16, 1980.
On June 18, 1979, Local 807, a much larger Teamsters local that admitted both guards and nonguards to its membership, notified Wells Fargo that by directive of the Teamsters' general executive board Local 820 had been merged into Local 807. Wells Fargo recognized the union pursuant to a successorship clause in the bargaining agreement with Local 820. Over the course of the remaining months of that agreement, Wells Fargo and Local 807 both proceeded in a manner consistent with full recognition.
As the expiration of the bargaining agreement drew near, Local 807 and Wells Fargo held numerous bargaining sessions in an effort to reach a new agreement. The existing agreement was twice extended to facilitate further negotiations. Wells Fargo, however, was unable to obtain certain economic and security-related concessions which it considered to be essential, and therefore made a final offer which was forthwith rejected by Local 807's membership. A strike commenced on April 14, 1980. Several further negotiating sessions proved unsuccessful in breaking the impasse. There is no evidence that Wells Fargo bargained in bad faith.
On June 2, 1980, while the strike was still in progress, Wells Fargo sent a letter to Local 807 which stated that as of that date Wells Fargo was "withdrawing the voluntary recognition accorded Local 807 IBT as collective bargaining representative of the armored car guard employees" at the New York area facilities. Wells Fargo gave no notice prior to this letter of its intention to withdraw recognition.
Local 807 and one of its members, Fred Caputo, each subsequently filed unfair labor practice complaints against Wells Fargo charging violation of Section 8 (a)(5) of the Act because of the refusal of Wells Fargo to bargain collectively with a representative of its employees. After the Board issued a consolidated complaint on the charges of Local 807 and Caputo, an administrative law judge ("ALJ") held hearings on the matter and issued an opinion in which he concluded that Wells Fargo's withdrawal of recognition was in derogation of its obligation under Section 8(a) of the Act to bargain with the union. He reasoned that the voluntary recognition of Local 807 by Wells Fargo estopped it from withdrawing that recognition under the existing circumstances. The ALJ also found that Wells Fargo's decision to withdraw recognition was based solely on economic considerations and that any concerns about potential conflicts of interest testified to at the hearing were mere afterthoughts. Finally, the ALJ found that although Section 9(b) (3) of the Act precluded certification of Local 807, it did not bar the Board from issuing an order compelling the maintenance of a bargaining relationship voluntarily established.
The Board, by a vote of 3-1, reversed the ALJ and dismissed the consolidated complaint. It held that the congressional purpose in enacting Section 9(b) (3) was so overarching as to privilege Wells Fargo in the circumstances of this case to withdraw recognition from the union regardless of whether its present motivation was merely economic.
This is a case of first impression involving the effect of a prior voluntary recognition on an employer's privilege under Section 9(b) (3) of the Act to refuse to recognize and bargain with a mixed guard union. We decide it within a well-established framework of case law and Board decisions on related issues.
At the outset we note the limited review of Board decisions provided for by Section 10(f) of the Act. Under this provision courts have generally accorded great respect to the expertise of the Board when its conclusions are rationally based. NLRB v. Yeshiva University, 444 U.S. 672, 63 L. Ed. 2d 115, 100 S. Ct. 856 (1980). Indeed, the Supreme Court has made it clear that if the Board's construction of a statute is reasonably defensible, it should not be rejected merely because a court might prefer another construction. Ford Motor Co. v. NLRB, 441 U.S. 488, 497, 60 L. Ed. 2d 420, 99 S. Ct. 1842 (1979). The Board's interpretation should be disturbed only if it is "'fundamentally inconsistent with the structure of the Act' and an attempt to usurp 'major policy decisions properly made by Congress.'" Id. (quoting American Shipbuilding Co. v. NLRB, 380 U.S. 300, 318, 13 L. Ed. 2d 855, 85 S. Ct. 955 (1965)).
Section 9(b) (3) of the Act was passed by Congress in 1947 as part of the Taft-Hartley Act. The section provides, in relevant part, that
(3) decide that any unit is appropriate for such purposes [collective bargaining] if it includes, together with other employees, any individual employed as a guard to enforce against employees and other persons rules to protect of the employer or to protect the safety of persons on the employer's premises; but no labor organization shall be certified as the representative of employees in a bargaining unit of guards if such organization admits to membership, ...