National Labor Relations Board v. Local Union No. 46

OAKES, Circuit Judge

(concurring in part and dissenting in part):

I concur with that part of the majority’s opinion which enforces the Board’s order against the respondent Local Union 46. I believe, however, that we should also have enforced that part of the Board’s ordér which found the successor International Union (the Carpenters) guilty of an unfair labor practice and which therefore made the Carpenters secondarily liable to the injured foreman. Though the practical effect of such a ruling is probably insignificant in *239this case, important principles of successor liability and deference to the Board’s fact-finding are at stake, and therefore I must respectfully dissent in part.

The majority begins its discussion of the Carpenters’ liability for the unfair labor practice committed by its predecessor by correctly stating that a successor union is not responsible for the unfair labor practices of its predecessor unless it has knowledge of the charges. Cf. Golden State Bottling Co. v. NLRB, 414 U.S. 168, 185, 94 S.Ct. 414, 425, 38 L.Ed.2d 388 (1973) (acknowledging this standard for liability of a successor employer). The majority, however, then applies an incorrect test to determine whether such knowledge can be imputed to the successor International, and compounds this error by failing to give the proper deference to the Board’s findings of facts on this question.

The majority utilizes as the standard for imposing successor liability “common law agency” principles. But I believe that the cases cited are not particularly useful in analyzing successor liability in a labor law context. In particular, Solow v. General Motors Truck Co., 64 F.2d 105, 107 (2d Cir.), cert. denied, 290 U.S. 629, 54 S.Ct. 48, 78 L.Ed. 547 (1933), stands for the proposition that an agent’s knowledge is not to be imputed to a principal when the agent acts outside his or her authority, a holding of dubious relevance to this unfair labor practice charge. Otsego Aviation Service, Inc. v. Glens Falls Insurance Co., 277 App.Div. 612, 102 N.Y.S.2d 344 (1951), and Drilling v. New York Life Insurance Co., 234 N.Y. 234, 137 N.E. 314 (1922), stand for the proposition that when an agent acts in a transaction for two parties with potentially adverse interests, any knowledge gained by the agent cannot be attributed to either principal to his or her detriment. The principle appears to me irrelevant to the case before us.

What I believe is the correct relevant principle of law in this context, perhaps sui generis to labor law, is that it is assumed that the successor has knowledge of any unfair labor practice charges against the predecessor, and it is up to the successor to rebut this presumption of knowledge. Am-Del-Co., Inc., 234 NLRB 1040, 1041 (1978); Mansion House Center Management Corp., 208 NLRB 684, 686 (1974); see also Thomas Engine Corp., 179 NLRB 1029, 1042 (1970) (appropriate to impute knowledge of predecessor’s unfair labor practices when holdover employee had knowledge), aff’d on other grounds sub nom. United Automobile, Aerospace and Agricultural Implement Workers v. NLRB, 442 F.2d 1180 (9th Cir.1971). Given that the best evidence of the knowledge generally rests with the successor and with the predecessor, which usually, as here, have a commonality of interest, this rule makes much sense.

The Board correctly applied this principle, and also marshaled enough evidence from the record to support its conclusion that the Carpenters produced insufficient believable evidence to rebut the presumption that it had knowledge of the charges. The Board and the ALJ did not find, as the majority suggests, that no Carpenters’ official testified at the administrative hearing. Rather, the ALJ found and credited the Carpenters’ Vice President Campbell’s testimony that he had no knowledge of the charges. The AU and the Board did draw a negative inference from the fact that no other Carpenters’ official testified at the hearing. The ALJ was justified in placing some weight on the fact that only one Carpenters’ official testified at the hearing, and in drawing from the silence of the Carpenters’ President, First Vice President, and all other members of the negotiating committee and staff the inference that at least some of them had knowledge of the charges. The Supreme Court has approved the Board practice of inferring knowledge from a failure to testify. Golden State, 414 U.S. at 174, 94 S.Ct. at 420.

The ALJ and the Board also found incredible the predecessor International President Brodeur’s testimony that he never told any Carpenters’ official of the charges against him and his International, especially since (a) he was largely responsible for committing the unfair labor practice of the *240International and (b) it was contemplated, and it turned out to be the case, that Brod-eur would head up the Lather’s Subdivision for the Carpenters. Given the fact that the affiliation agreement was negotiated by, among others, Brodeur and his attorney, both of whom were almost at the same time working on the unfair labor practice charges, the ALJ’s credibility finding as to Brodeur is more than reasonable, especially when we realize that counsel for the International and for the Carpenters were in contact approximately ten days after the charges against the International were filed.

Given the strong circumstantial evidence indicating that the Carpenters had knowledge of the charges (the refusal of all but one Carpenters’ official to testify; Brod-eur’s role in the affiliation negotiations and his knowledge of his future role as head of the Lather’s Subdivision of the Carpenters; the timing of the affiliation negotiations and the unfair labor practice charges), and given the fact that it was, as a matter of law, up to the Carpenters to disprove its knowledge of the charges, the Board’s finding that the Carpenters failed to carry this burden seems well supported by the evidence. Of course, if the Board’s findings and conclusions are supported by substantial evidence on the record considered as a whole, its order is entitled to enforcement. See, e.g., Universal Camera Corp. v. NLRB, 340 U.S. 474, 493, 71 S.Ct. 456, 467, 95 L.Ed. 456 (1951). The fact that we may have evaluated the evidence on the record differently should have been irrelevant.