Before: Wald, Williams and Ginsburg, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
Opinion for the Court filed by Circuit Judge Wald.
Trident Seafoods, Inc. ("Trident") appeals from a decision of the National Labor Relations Board ("the Board") ordering the company to cease and desist from refusing to bargain with three unions that had been the collective bargaining units representing the employees of Trident's predecessor employers for more than twenty years. An Administrative Law Judge ("ALJ") found that two of the bargaining units were not appropriate and that Trident only had a successor obligation to bargain with the one appropriate unit under sections 8(a)(1) and (a)(5) of the National Labor Relations Act ("the Act" or "the NLRA"). The Board reversed the ALJ's findings with regard to the purportedly "inappropriate" units and determined that Trident had a successor obligation to bargain with all three of the incumbent unions. We grant the petition to review with regard to one of the bargaining units but deny the petition and grant the Board's cross-application to enforce the decision as it pertains to the other two units.
Trident runs a seafood processing operation in the states of Washington and Alaska. In 1992, Trident purchased Farwest Fisheries, Inc. ("Farwest"), including the salmon canning facilities at North Naknek ("Naknek") and Ketchikan, Alaska. After the purchase, Trident operated the two facilities in a manner substantially similar to its predecessor. Independent harvesters catch the salmon and transfer them to Trident's tender boats, which convey the salmon to canning stations, where they are processed and then shipped to Seattle for distribution.
Farwest had collective bargaining contracts with (1) Alaska Fishermen's Union, Seafarers International Union, AFL-CIO ("AFU") covering tendermen, beach gang, and culinary employees at Naknek; (2) District Lodge 160, International Association of Machinists and Aerospace Workers, AFL-CIO ("IAM") covering machinists and cannery operation mechanics at both plants; and (3) Inlandboatmen's Union of the Pacific, Region 37, ILWU, AFL-CIO ("IBU") covering "non-resident" processing employees at Ketchikan who are hired in Seattle rather than in Alaska. All three unions had been the collective bargaining agents for employees of Farwest and its predecessors for at least 20 years, but none of the three had been officially certified by the Board. In June-July 1992, each of the three unions requested recognition from Trident based on the fact that a majority of employees hired by Trident in each unit previously had been employed by its predecessor Farwest. Trident refused to recognize the unions.
For over 20 years, the AFU labor contract had been in effect with Farwest and its predecessors. AFU's most recent agreement was a multiemployer contract lasting from 1991 to 1994, and covering beach gang, culinary, and tendermen employees at the Naknek facility. When Trident succeeded Farwest, 34 of the 64 beach gang, culinary and tendermen employees it hired at Naknek were from Farwest's roster.
IAM, whose collective bargaining status vis-a-vis Farwest was also based on a multiemployer contract, had been the exclusive bargaining agent of a comprehensively defined group of machinists, cannery mechanics, and related positions since at least 1970. Its most recent contract with Farwest was also to be effective from 1991 to 1994, but it covered both canning locations (Naknek and Ketchikan). When Trident succeeded Farwest, 12 of its 14 Naknek hires and 12 of its 13 Ketchikan hires in the machinist category had been employees of Farwest.
IBU represented a unit of nonresident processing employees (i.e., those hired in Seattle out of the 48 contiguous states without domicile in Alaska) since at least 1970. *fn1 Processing employees prepared seafood at the Ketchikan facility for cooking, freezing, canning, and packing. IBU's most recent contract with Farwest, negotiated on Farwest's behalf by Alaska Employers (a multiemployer group), covered the years 1989 to 1992. When Trident bought out Farwest, 27 of 45 "non-resident" processors that it hired had been Farwest employees.
In the proceedings below, the unions contended that the three historical units were appropriate and that Trident's decision not to bargain with them violated sections 8(a)(1) and (a)(5) of the Act. *fn2 Trident conceded that there was indeed "substantial continuity" between Farwest and Trident so as to make Trident a "successor employer" within the meaning of Fall River Dyeing Corp. v. NLRB, 482 U.S. 27 (1987), but it asserted that the three ...