United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 14, 2002 Decided December 13, 2002
No. 01-1401
Commonwealth Communications, Inc.,
Petitioner
v.
National Labor Relations Board,
Respondent
International Brotherhood of Electrical Workers
Local Union No. 98,
Intervenor
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
Matthew Lee Wiener argued the cause for petitioner. With
him on the briefs was Jerome A. Hoffman.
Joan E. Hoyte, Attorney, National Labor Relations Board,
argued the cause for respondent. With her on the brief were
Arthur F. Rosenfeld, General Counsel, John H. Ferguson,
Associate General Counsel, Aileen A. Armstrong, Deputy
Associate General Counsel, and Robert J. Englehart, Supervi-
sory Attorney. Charles P. Donnelly, Supervisory Attorney,
entered an appearance.
Richard B. Sigmond was on the brief for intervenor in
support of respondent.
Before: Ginsburg, Chief Judge, Edwards, Circuit Judge,
and Silberman, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Edwards.
Edwards, Circuit Judge: Commonwealth Communications,
Inc. ("CCI") petitions for review of a National Labor Rela-
tions Board ("NLRB" or "Board") decision, and the Board
cross-applies for enforcement. The NLRB held that the
petitioner violated sections 8(a)(5) and (1) of the National
Labor Relations Act ("NLRA"), 29 U.S.C. s 158(a)(5), (1), by
failing to comply with a request from Local 98, International
Brotherhood of Electrical Workers ("Union" or "Local 98")
for specified information concerning any work performed by
CCI's employees within the Union's jurisdiction in the area of
Philadelphia, Pennsylvania. See Commonwealth Communi-
cations, Inc. and Int'l Bhd. of Elec. Workers Local Union 98,
AFL-CIO-CLC, 335 N.L.R.B. No. 62, 2001 WL 1039901, at 6
(2001). In reaching this conclusion, the Board found that
CCI and the Union were signatories to a collective bargaining
agreement covering all CCI jobsites within the jurisdiction of
the Union. Id. at 5. On this basis, the Board held that CCI
was obliged to furnish the information sought by the Union,
because it was relevant to unit employees represented by
Local 98. Id. at 6.
The Board rejected CCI's claim that the parties' contract
was a single-project agreement limited to work done by CCI
employees at the Philadelphia airport, because, in the Board's
view, the parties' written agreement unambiguously covers
multiple sites. The NLRB therefore refused to consider
parol evidence indicating that the parties orally agreed to
limit the scope of the agreement to one specific job. Id. at 1,
6.
We find the parties' collective bargaining agreement ambig-
uous on the question of its scope. Accordingly, we must look
to parol evidence to determine the parties' intent. Upon
review of the parol evidence, we find that the Board erred in
concluding that the agreement covers multiple sites. We
grant CCI's petition and deny the Board's cross-application
for enforcement.
I. Background
In May 1995, petitioner CCI, a Pennsylvania company in
the business of installing and servicing local telephone and
telecommunications services, was awarded a subcontract by
Lombardo and Lipe, a Philadelphia electrical contractor, to
perform telephone cabling work at the Philadelphia airport.
Lombardo and Lipe was a signatory to the Union's area
collective bargaining agreement, which required signatory
employers to subcontract electrical work within Local 98's
jurisdiction only to other employer signatories. The petition-
er had no relationship with Local 98, because, since 1981,
CCI's employees had been represented by the Communica-
tions Workers of America ("CWA"). Lombardo and Lipe
strongly encouraged the petitioner to work with Local 98 on
the airport project. The petitioner received CWA's consent
to use Local 98 members on the airport subcontract to
perform the less-skilled work, while CWA members would
perform the skilled work.
On July 20, 1995, CCI's vice president and director of
employee relations met with Local 98's business manager and
business agent. At the meeting, the Union presented CCI
with two copies of Local 98's preprinted "Letter of Assent," a
form through which employers become signatories to Local
98's area bargaining agreement ("Commercial Agreement").
One copy was a one-page document, and the other copy was
attached to the Commercial Agreement as a signature page.
In the blank space calling for an indication of the work to be
covered by the agreement, Local 98 had typed the words
"Inside Commercial." The collective bargaining agreement
contained no recognition clause; however, Union and CCI
officials agreed orally that the agreement covered only the
airport job. The parties reviewed the Commercial Agree-
ment and signed the Letter of Assent.
On January 20, 1997, Local 98 sent the petitioner a written
request for information concerning any and all work per-
formed by CCI's employees in Local 98's jurisdiction after
July 20, 1995, including the employees assigned to the work.
Local 98 representatives apparently had seen CCI's trucks at
Philadelphia area jobsites other than the airport, and had
heard that CCI was hiring non-union workers. On February
5, 1997, CCI responded to Local 98's request by sending only
information pertaining to the airport job and declining to
furnish any information pertaining to any other job.
The Union then filed an unfair labor practice charge,
alleging violations of s 8(a)(1) and (5) of the NLRA, and a
complaint was issued. During the hearings before the Ad-
ministrative Law Judge ("ALJ"), the Board claimed that,
pursuant to the July 20, 1995 agreement, Local 98 represent-
ed all CCI employees who were working at jobsites within
Local 98's geographical jurisdiction, and thus had a right to
information about all of CCI's jobs in the area. CCI main-
tained that the disputed collective bargaining agreement ap-
plied only to the single airport job. On July 13, 1999, the
ALJ dismissed the complaint. 335 N.L.R.B. No. 62, at 21.
The ALJ first found that the Letter of Assent and the
Commercial Agreement were ambiguous as to the scope of
the unit. Id. at 19. The ALJ then considered parol evidence,
which she found to indicate clearly that the parties had
understood their agreement to be limited to the airport job.
Id. at 19-20. Based on that evidence, the ALJ concluded that
the agreement covers only the airport job, and that Local 98
had no basis for requesting information about the company's
other jobs. Id. at 20-21.
On August 27, 2001, the NLRB reversed, holding that CCI
engaged in an unfair labor practice by failing to comply with
Local 98's request for information. Id. at 6. The NLRB
found the parties' collective bargaining agreement "unambig-
uously multisite in scope," and, consequently, did not consider
extrinsic evidence. Id. at 1. Having found that the agree-
ment covers all jobs within Local 98's jurisdiction, the Board
ordered CCI to comply with Local 98's request for informa-
tion. Id. at 6. Chairman Hurtgen dissented. He found that
the Commercial Agreement and the Letter of Assent together
were ambiguous as to the scope of the unit, and that consider-
ation of parol evidence was appropriate. Id. at 9. Based on
the clear and unambiguous parol evidence, Chairman Hurt-
gen found that the contract was limited to the airport site,
and that the company was justified in not complying with
Local 98's request for information about other sites. Id.
CCI filed a petition for review in this court.
II. Analysis
This court owes no deference to the Board's interpretation
of a disputed collective bargaining agreement. BP Amoco
Corp. v. NLRB, 217 F.3d 869, 873 (D.C. Cir. 2000); Wilson &
Sons Heating & Plumbing, Inc. v. NLRB, 971 F.2d 758, 760
(D.C. Cir. 1992). Therefore, we construe the language of the
agreement at issue de novo to determine whether the agree-
ment covers one site or multiple sites.
The first issue to be resolved in this case is whether the
agreement between CCI and Local 98 is ambiguous with
respect to the scope of the unit. In particular, does the
agreement cover multiple jobsites or just the single airport
job? The parol evidence in this case, confirmed by the clear
findings of the ALJ, which the NLRB did not disturb, indi-
cates that the parties intended to restrict the agreement to
the airport site. Resort to parol evidence is only appropriate
when the written contract is ambiguous. Am. Postal Work-
ers Union, AFL-CIO v. U.S. Postal Serv., 940 F.2d 704, 707-
08 (D.C. Cir. 1991); Appalachian Power Co. v. Fed. Power
Comm'n, 529 F.2d 342, 347-48 (D.C. Cir. 1976); News Union
of Baltimore v. NLRB, 393 F.2d 673, 678 (D.C. Cir. 1968).
"In the absence of ambiguity in the collective bargaining
agreement, however, we have no cause to examine extrinsic
evidence of the parties' intent." Am. Postal Workers Union,
AFL-CIO, 940 F.2d at 708. The petitioner claims that the
written agreement is "entirely silent" on whether it covers
multiple sites or only the airport job, because the agreement
contains no union recognition clause, description of the bar-
gaining unit, or definition of the work it covers. The Board,
in turn, contends that, although the agreement lacks a recog-
nition clause, the Letter of Assent and the Commercial
Agreement contain language that makes clear that the con-
tract is multisite in scope. The petitioner is right and the
Board is wrong.
There are a number of factors that militate in favor of the
petitioner's position regarding the meaning of the contract.
First, as both parties acknowledge, the contract contains no
recognition clause, which would traditionally indicate the
agreement's scope. Therefore, nothing in the agreement
explicitly demarcates a multisite bargaining unit covering the
petitioner's employees.
The NLRB points to s 2.03(h) of the Commercial Agree-
ment in support of its contention that the contract is unam-
biguously multisite in scope. Section 2.03(h) provides:
[I]n order to protect and preserve, for the Employ-
ees covered by this Agreement, all work heretofore
performed by them, ... it is hereby agreed as
follows: If and when the employer shall perform any
work of the type covered by this Agreement, ... the
terms and conditions of this Agreement shall be
applicable to all such work.
Commercial Agreement s 2.03(h), reprinted in Appendix
("App.") 271. This provision refers to "any work of the type
covered by this Agreement," and "all such work." But this
section does not actually specify the type of work covered by
the agreement, which is at issue here. The NLRB contends
that this section clearly indicates that the agreement unam-
biguously covers multiple sites, and that any ambiguity that
may exist in this language is only as to the type of work
covered (i.e., electrical or other work), not as to the scope of
the agreement (i.e., one site or multiple sites). This argu-
ment is hard to fathom. If, as the NLRB concedes, the
agreement is ambiguous as to the type of work covered, this
undisputed ambiguity creates ambiguity as to the scope of the
unit. Work at different jobsites does not necessarily involve
the same type of work at each jobsite. If it is unclear
whether one or multiple types of work are covered, it can be
unclear whether one or multiple sites are covered. Therefore
s 2.03(h) does not unambiguously indicate a multisite bar-
gaining unit.
Likewise, the Board's reliance on s 2.03(c) of the Commer-
cial Agreement, which provides that the "Employer agrees to
notify ... the Union ... of the receipt of all contracts
secured within its jurisdiction," is misplaced. See id.
s 2.03(c), App. 270. An employer's agreement to notify a
union of all contracts received does not answer the question
whether the agreement covers one site or multiple sites. For
example, even in the context of a one-site bargaining unit, the
Union might want an employer to notify it of all contracts
received in anticipation of future contracts with respect to the
same site, namely the airport.
Furthermore, s 2.09 of the Commercial Agreement pro-
vides that the employer "will recognize the Union as the
exclusive collective bargaining agent for all employees per-
forming electrical work within the jurisdiction of the Union on
all present and future job sites, if and when a majority of the
Employer's employees authorized the Union to represent
them in collective bargaining." Id. s 2.09, App. 272-73. The
Letter of Assent provides that,
if a majority of [the Employer's] employees autho-
rize the Local Union to represent them in collective
bargaining, the Employer will recognize the Local
Union as the NLRA Section 9(a) collective bargain-
ing agent for all employees performing electrical
construction work within the jurisdiction of the Lo-
cal Union on all present and future jobsites.
Letter of Assent, App. 314. Chairman Hurtgen's dissent
convincingly demonstrates the ambiguity arising from s 2.09:
My colleagues interpret the contract as covering
multiple sites, with the proviso that some sites would
remain under Section 8(f) and others (where majori-
ty is shown) would be under Section 9. I shall
assume arguendo that this is a reasonable reading of
the contract. However, another reasonable reading
of the contract is that the Respondent recognized
the Union as the 8(f) representative for the airport
project, but it was unwilling to recognize the Union
at all for other sites unless majority status was
shown. That status has not been shown.
335 N.L.R.B. No. 62, at 9 (emphasis omitted). We agree that
both readings are reasonable. Because there is more than
one reasonable reading of the parties' agreement, we find
that the agreement is ambiguous on the question of the scope
of the unit.
We must therefore look beyond the written agreement, and
consider extrinsic evidence on the question. The extrinsic
evidence in this case, confirmed by the clear findings of the
ALJ, which were not disturbed by the Board, indicates that
the parties understood the agreement to cover only the
airport site. The ALJ credited testimony that the petitioner
made clear that CWA represented the petitioner's employees,
and that any agreement with Local 98 would cover only the
airport subcontract. Id. at 20. The ALJ also credited testi-
mony that, absent CWA's consent, the petitioner would not
have entered into the subcontract for the airport job, and that
CWA's consent was limited to the airport job. Id. Local 98
assured the petitioner that the agreement was limited to the
airport project. Id. at 13.
We find that this extrinsic evidence makes clear that the
parties understood the scope of the agreement to be limited
to the airport job. Therefore, we hold that the Board erred
in concluding that the bargaining unit covered by the disput-
ed agreement is multisite in scope.
III. Conclusion
For the foregoing reasons, we grant the petition for review
and deny the Board's cross-application for enforcement.