United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 17, 2002 Decided March 15, 2002
No. 00-1544
Computer Associates International, Inc.,
Petitioner/Cross-Respondent
v.
National Labor Relations Board,
Respondent/Cross-Petitioner
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
David Bennet Ross argued the cause for the petitioner.
Lori M. Meyers and Ronald A. Lindsay were on brief.
Jill A. Griffin, Attorney, National Labor Relations Board,
argued the cause for the respondent. Arthur F. Rosenfeld,
General Counsel, John H. Ferguson, Associate General Coun-
sel, Aileen A. Armstrong, Deputy Associate General Counsel,
and Frederick C. Havard, Attorney, National Labor Relations
Board, were on brief. Jeffrey L. Horowitz, Attorney, Nation-
al Labor Relations Board, entered an appearance.
Before: Edwards, Henderson and Garland, Circuit
Judges.
Opinion for the court by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge: Computer As-
sociates International, Inc. (CA) seeks review of a National
Labor Relations Board (NLRB or Board) determination that
CA violated section 8(a)(1) and (3) of the National Labor
Relations Act (Act), 29 U.S.C. s 158(a)(1), (a)(3), by terminat-
ing a subcontract with Cushman & Wakefield of Long Island
(Cushman) to provide engineers at CA's Islandia, New York
facility and thereby discharging the engineers in retaliation
for their union activities. See Computer Assocs. Int'l, Inc, 32
N.L.R.B. No. 108, 2000 WL 1699038 (Oct. 31, 2000). Crucial
to the Board's holding was its finding that CA was a "joint
employer" of the engineers. Because the engineers' union,
Local 30 of the International Union of Operating Engineers
(Union), had stipulated that Cushman was its sole employer
and the Board cited no changed circumstances after the
stipulation to support its finding that CA was a joint employ-
er, we conclude the Board's joint employer finding is not
supported by substantial evidence and we therefore grant
CA's petition for review. We also grant the Board's cross-
application insofar as it seeks to enforce the Board's separate
unchallenged finding that CA violated section 8(a)(1) of the
Act by using interrogations, threats and promises to discour-
age the engineers' union activities.1
__________
1 CA's petition for review challenges only the Board's Supplemen-
tal Decision and Order, dated October 31, 2000, which addressed
only the section 8(a)(1) and (3) violation based on CA's termination
of the subcontract. The Board's cross-application, however, also
seeks enforcement of the Board's initial August 19, 1997 Decision
and Order in which it found in addition that CA violated section
8(a)(1) through anti-union interrogation, threats and promises. Be-
cause CA has not contested this finding, we conclude the Board's
cross-application should be granted.
I.
In September 1991 CA, which designs, develops and mar-
kets computer software, entered into a management contract
with Cushman, a real estate management company, to pro-
vide operating engineers to work at the soon-to-be-completed
Islandia facility. The contract was for an initial 18-month
term and month to month thereafter. Cushman staffed the
facility with engineers either from other Cushman sites or
referred by the Union's hiring hall.
The Union filed a petition to represent the engineers on
May 11, 1992 identifying CA as the employer. An amended
petition was filed in late May identifying CA and Cushman as
"Co-employers." Shortly thereafter, however, the Union en-
tered a stipulated election agreement identifying a single
employer: "Cushman & Wakefield of Long Island." JA 364;
see also Computer Assocs. Int'l, 324 N.L.R.B. 285, 288 (1997)
(ALJ finding that "the Union ... entered into a stipulated
election with Cushman as a single employer"); JA 297 (testi-
mony of Cushman's manager that "[t]he parties agreed to a
stipulation that listed Cushman & Wakefield as the sole
employer and allowed them to have an election"). The Union
won the election on a 5-0 vote and on July 1, 1992 the Board
issued a Certification of Representative certifying Cushman
as the employer.
On January 14, 1993 the Union filed a petition to represent
a group of workers directly employed by CA at the Islandia
facility. CA opposed the Union's organization efforts and on
March 25, 1993 the CA employees voted unanimously against
the Union. On April 2, 1993 CA's on-site manager assembled
the engineers, who had supported the unsuccessful effort to
unionize the CA employees, and informed them the Cushman
contract was terminated.
On May 3, 1993 the Union filed an unfair labor practice
charge with the NLRB and on June 30, 1993 the Board's
General Counsel issued a complaint charging CA with violat-
ing the Act by (1) using interrogations, threats and promises
to discourage the engineers' union activities and (2) discharg-
ing the engineers in retaliation for their union activities, on
the theory that CA was, with Cushman, the engineers' joint
employer.
On March 16, 1996, after a hearing, the Administrative Law
Judge (ALJ) issued a decision finding that CA (1) violated
section 8(a)(1) by its interrogations, threats and promises and
(2) violated section 8(a)(1) and (3) by discharging the engi-
neers. See Computer Assocs. Int'l, Inc., 324 N.L.R.B. at 287-
95. As to the second violation, however, the ALJ did not rely
on the General Counsel's theory that CA was a joint employer
that unlawfully discharged the engineers. To the contrary,
the ALJ stated that the fact that the Union entered into a
stipulated election agreement with Cushman as a single em-
ployer meant that "the General Counsel's contention that
such joint-employer relationship exists is questionable."
Computer Assocs. Int'l, Inc., 324 N.L.R.B. at 288. Instead,
relying on the NLRB's decision in Esmark, Inc., 315
N.L.R.B. 763 (1994) (finding unfair labor practice by contract-
ing company that coerced subcontractor into discharging
employees for union activity), the ALJ based the violation on
the fact that CA as contractor terminated the subcontract
based on anti-union animus and thereby caused the engineers
to lose their jobs at CA's Islandia facility.
In a decision issued August 19, 1997 the Board upheld the
first violation but rejected the second, concluding the ALJ
misapplied Esmark, and remanded for a determination
whether CA was, as the General Counsel contended, a "joint
employer." Computer Assocs. Int'l, Inc., 324 N.L.R.B. at
285-87.
On remand, in a supplemental decision dated June 4, 1998,
the ALJ determined CA was a joint employer and therefore
liable for retaliatory discharge. See Computer Assocs. Int'l,
Inc., 332 N.L.R.B. No. 108, slip op. at 2-6. His recommended
order required CA to offer to reinstate its subcontract with
Cushman and to make the engineers whole. The decision did
not explain why the ALJ changed his view that the Union's
stipulation cast doubt on the existence of a joint-employer
relationship.
In its Supplemental Decision and Order of October 31, 2000
the Board "decided to affirm the judge's rulings, findings, and
conclusions and to adopt the judge's recommended Order, as
modified." 332 N.L.R.B. No. 108, slip op. at 1 (footnotes
omitted). The Board modified the ALJ's order to require
CA, in the event Cushman declined to reinstate the subcon-
tract, to hire the engineers itself.
CA petitioned for review of the Board's finding in the
Supplemental Decision that CA, in its capacity as joint em-
ployer, violated section 8(a)(1) and (3) by terminating the
subcontract. CA also sought review of the ordered remedy.
The NLRB cross-applied for enforcement.
II.
CA first, and foremost, challenges the Board's conclusion
that CA was a joint employer of the engineers, arguing inter
alia that the Union's May 1992 stipulation that Cushman was
the sole employer decides the issue. We agree.
The Board's regulations require that "[a] petition for certi-
fication, when filed by an employee or group of employees or
an individual or labor organization acting in their behalf, shall
contain the following: ... The name of the employer." 29
C.F.R. s 102.61(a)(1). When, as here, the parties stipulate to
the employer, the stipulation is binding on the parties absent
a showing of "changed or unusual circumstances entitling [a
party] to withdraw its stipulation." Micro Pac. Dev. Inc. v.
NLRB, 178 F.3d 1325, 1335 (D.C. Cir. 1999) (citing NLRB v.
Unifemme, Inc., 570 F.2d 230 (8th Cir. 1978); Sunnyvale
Med. Clinic, 241 N.L.R.B. 1156 (1979); NLRB v. Local
Union No. 74, Int'l Ass'n of Marble, Slate & Stone Polishers,
471 F.2d 43, 45-46 (7th Cir. 1973)); see also Dynair Servs.,
Inc., 314 N.L.R.B. 161, 162 (1994) ("With regard to the
Employer's motion to withdraw from the Stipulated Election
Agreement, it is well established that the Board will allow a
party to withdraw from an Election Agreement only on a
showing of unusual circumstances or by agreement of all the
parties.") (citing Sunnyvale). The Union offered no changed
circumstances below and the Board found none. Accordingly,
the Board had no ground to deviate from the Union's stipula-
tion of Cushman as the sole employer.
Relying on Central Transport, Inc. v. NLRB, 997 F.2d
1180, 1184-88 (7th Cir. 1993),2 the Board now argues that
there is a distinction between refusals to bargain and non-
bargaining violations of the Act. Regarding the latter it
maintains that CA can be a "joint employer in fact," notwith-
standing the contrary stipulation and no changed circum-
stances. This was not, however, the theory on which the
Board or the ALJ relied below and hence cannot be relied
upon here. See SEC v. Chenery Corp., 318 U.S. 80 (1943).
Both the Board and the ALJ concluded that CA was a joint
employer--period. They offered no explanation of how that
could be so in light of the undisputed, unambiguous stipula-
tion of employer; indeed, neither the Board nor the ALJ (in
his second decision) mentioned the stipulation at all.
Because the Board neither identified changed circum-
stances to support its finding that CA was a joint employer in
the face of a stipulation and certification establishing CA was
not nor offered an alternative theory to overcome the pre-
sumptive validity of the designation of employer in the Certi-
fication of Representative, the Board's finding of the section
8(a)(1) and (3) violation based on joint employer status cannot
stand.3 Accordingly, the petition for review is granted and
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2 In Central Transport the court rejected the Board's finding that
Central had a joint employer duty to bargain with employees it
leased from Big John Inc. because the union's representation
petition and the Board's representation certification named only Big
John Inc. as the employer. 997 F.2d at 1184-88. The court
nevertheless upheld the finding that Central violated the Act by
threatening and interrogating employees, stating, summarily, that
"Central's lack of formal status as a joint employer does not excuse
the threats to, and interrogations of its employees, nor the retaliato-
ry layoffs." Id. at 1189. Central is distinguishable because the
company there stipulated to joint employer status. See Central
Transport, Inc. 306 N.L.R.B. 306, 306 (1992); 997 F.2d at 1186.
3 In light of this holding we need not address CA's other objec-
tions to the finding of violation or to the remedy imposed therefor.
the cross-application for enforcement is denied as to the
Board's Supplemental Decision and Order. The cross-
application for enforcement is granted as to the Board's
August 19, 1997 Decision and Order in which it concluded
that CA violated section 8(a)(1) by its anti-union interroga-
tions, threats and promises.
So ordered.