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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 21, 2003 Decided April 25, 2003
No. 01-1353
RC ALUMINUM INDUSTRIES, INC. AND
RC ERECTORS, INC.,
PETITIONERS
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
On Petition for Review and Cross–Application
for Enforcement of an Order of the
National Labor Relations Board
Harry N. Turk argued the cause and filed the briefs for
petitioners.
Meredith L. Jason, Attorney, National Labor Relations
Board, argued the cause for respondent. On the brief were
Arthur F. Rosenfeld, General Counsel, John H. Ferguson,
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Associate General Counsel, Aileen A. Armstrong, Deputy
Associate General Counsel, and Sharon I. Block, Attorney.
Before: GINSBURG, Chief Judge, and SENTELLE and
RANDOLPH, Circuit Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: This petition for review raises
several issues arising from an attempt by two local chapters
of a union—Local Union No. 272 and Shopmen’s Local Union
No. 698 of the International Association of Bridge, Structural,
Ornamental, and Reinforcing Iron Workers, AFL–CIO—to
represent employees at the companies in a double-breasted
operation.1
One of the companies, RC Aluminum Industries, Inc.
(‘‘RCA’’), incorporated in 1990, is headquartered in Miami.
RCA fabricates windows, doors, and handrails at production
facilities in Miami, transports them to high-rise construction
projects throughout Florida, and installs them at the sites.
Among the workers at RCA are about 80 production and
maintenance employees working in the Miami facilities and
about 140 installers working throughout the State.
The other company, RC Erectors, Inc. (‘‘RCE’’), incorpo-
rated in 1998, has the same Miami headquarters and is
managed by the same officers as RCA. RCE was created
after RCA’s president, Raul Casares, learned of an installa-
tion job for which only signatories to union collective bargain-
ing agreements could bid. RCA had no such agreement.
Once, in 1993, it had entered into a prehire agreement2 with
1 A double-breasted operation consists of affiliated union and
nonunion firms that allow a contractor to compete for both union
and nonunion work. See Rd. Sprinkler Fitters Local Union No.
669, United Ass’n of Journeymen & Apprentices of the Plumbing &
Pipefitting Indus. of the United States & Canada, AFL–CIO v.
NLRB, 789 F.2d 9, 12 n.2 (D.C. Cir. 1986); Local 627, Int’l Union
of Operating Eng’rs, AFL–CIO v. NLRB, 595 F.2d 844, 845 n.1
(D.C. Cir. 1979).
2A prehire agreement results from an employer’s voluntary
bargaining with a union without an initial election or other showing
3
Local 272, but that agreement covered only installers at a
particular site and expired by its terms later the same year.
Thereafter, Local 272 occasionally referred workers to RCA,
and RCA gave those workers the wages and benefits specified
in the expired agreement.
After its incorporation, RCE signed a comprehensive pre-
hire agreement3 with the union (Local 272 and another local
not involved in this case), bid, and got the job. RCE employs
about 80 installers at scattered Florida sites. It does not
produce or transport its own products; it installs products
made and transported to its sites by RCA and other compa-
nies.
The events precipitating this litigation began on May 10,
2000, when Locals 272 and 6984 petitioned the National Labor
Relations Board to certify them as the joint representative of
RCA and RCE employees. The proposed bargaining unit5
consisted of RCA’s production and maintenance employees,
RCA’s installers, and RCE’s installers. After a hearing, the
Board’s regional director (1) determined that RCA and RCE,
though formally separate, were a single employer for pur-
poses of the National Labor Relations Act, and (2) rejected
the locals’ proposed unit, deciding instead that two units—one
of majority support. See Bentson Contracting Co. v. NLRB, 941
F.2d 1262, 1268–69 (D.C. Cir. 1991). Such bargaining would be an
unfair labor practice but for 29 U.S.C. § 158(f), which permits
prehire agreements in the construction industry. See Bentson, 941
F.2d at 1268–69.
3The agreement was not limited to any particular project, al-
though it was set to expire on September 30, 2000.
4 Local 272 is an ‘‘outside shop,’’ meaning that it traditionally
represents workers in the field. Local 698 is an ‘‘inside shop,’’
traditionally representing workers in plants.
5 ‘‘Representatives designated or selected for the purposes of
collective bargaining by the majority of the employees in a unit
appropriate for such purposes, shall be the exclusive representa-
tives of all the employees in such unit for the purposes of collective
bargaining in respect to rates of pay, wages, hours of employment,
or other conditions of employmentTTTT’’ 29 U.S.C. § 159(a).
4
of RCA’s production and maintenance employees (Unit A),
and the other of both RCA’s and RCE’s installers (Unit B)—
were appropriate. The regional director ordered an election
in each unit in which employees could vote for or against joint
representation by the two locals. The companies requested
review of the decision, but the Board rejected their request in
a brief order, stating that there were ‘‘no substantial issues
warranting review.’’ The elections went forward and the
locals won both. On November 9, 2000, the regional director
certified them jointly as the exclusive collective bargaining
representative of each unit. The locals requested bargaining
on behalf of both units; the companies refused to bargain;
the locals filed an unfair labor practice charge; and the Board
ordered the companies to bargain on the grounds that their
refusal violated § 8(a)(1) and (5) of the Act, 29 U.S.C.
§ 158(a)(1), (5). The companies then sought judicial review.
The Board cross-petitioned for enforcement.
As to the representation proceeding, RCA and RCE com-
plain that the regional director’s single employer finding was
unnecessary; that in any event they are not a single employ-
er; and that their installers do not belong in a single bargain-
ing unit.
Contrary to the companies’ argument, the single employer
determination was necessary. Section 9(b) of the Act autho-
rizes the Board to ‘‘decide in each case whether, in order to
assure to employees the fullest freedom in exercising the
rights guaranteed by this subchapter, the unit appropriate for
the purposes of collective bargaining shall be the employer
unit, craft unit, plant unit, or subdivision thereof.’’ 29
U.S.C. § 159(b) (emphasis added). This language does not
expressly sanction bargaining units composed of employees of
multiple employers. If anything, it suggests that such units
are impermissible. See NLRB v. L.B. Priester & Son, Inc.,
669 F.2d 355, 359 (5th Cir. 1982). Nevertheless the Board
has long construed ‘‘employer unit’’ to allow them, Int’l Bhd.
of Elec. Workers, Local Union No. 68, AFL–CIO v. NLRB,
448 F.2d 1127, 1128 n.3 (D.C. Cir. 1971), and multi-employer
bargaining is well-established, Brown v. Pro Football, Inc.,
518 U.S. 231, 240 (1996).
5
The Board, however, approves multi-employer bargaining
only when employers participate voluntarily. See Charles D.
Bonanno Linen Serv., Inc. v. NLRB, 454 U.S. 404, 412
(1982); Int’l Union of Elec., Radio & Mach. Workers, AFL–
CIO–CLC v. NLRB, 604 F.2d 689, 695 n.14 (D.C. Cir. 1979).
RCA and RCE certainly have not agreed, explicitly or implic-
itly, to participate in multi-employer bargaining. Therefore
the regional director could approve a bargaining unit includ-
ing both companies’ employees only after determining that
the companies constituted a single employer.
In deciding whether RCA and RCE were integrated
enough to be considered a single enterprise, the Board exam-
ined several indicia: (1) common management; (2) centralized
control of labor relations; (3) interrelation of operations; and
(4) common ownership or financial control. Naperville Ready
Mix, Inc., 329 N.L.R.B. 174, 179 (1999). See also Radio &
Television Broad. Technicians Local Union 1264 v. Broad.
Serv. of Mobile, Inc., 380 U.S. 255, 256 (1965). Not all four
criteria must be satisfied for the Board to find a single
employer. See Local No. 627, Int’l Union of Operating
Eng’rs, AFL–CIO v. NLRB, 518 F.2d 1040, 1045–46 (D.C.
Cir. 1975), aff’d in relevant part sub nom. South Prairie
Constr. Co. v. Local No. 627, Int’l Union of Operating Eng’rs,
AFL–CIO, 425 U.S. 800, 806 (1976). Here, the regional
director found, among other things, that RCA and RCE share
the same officers; that President Casares was in charge of
dealing with the union on behalf of both RCA and RCE; that
RCA manufactured products for RCE’s primary project to
date and transported them there; and that RCA made some
fringe benefit payments on behalf of RCE. The record
supports all of these findings. The companies’ only signifi-
cant contrary argument is that there was insufficient evidence
to establish central control of labor relations. But the busi-
ness manager of Local 272 testified at the representation
hearing that he had dealt exclusively with President Casares
on matters relating to collective bargaining agreements with
both RCA and RCE. The regional director’s conclusion that
RCA and RCE were a single employer therefore rested on
substantial evidence.
6
It does not necessarily follow that an employer-wide bar-
gaining unit of installers was appropriate. See South Prairie,
425 U.S. at 805. In making such determinations pursuant to
§ 9(b), the Board considers whether the employees share a
‘‘community of interest.’’ A host of factors influence the
Board’s judgment in this regard. See Deferiet Paper Co. v.
NLRB, 235 F.3d 581, 583 (D.C. Cir. 2000); Bentson Contract-
ing Co. v. NLRB, 941 F.2d 1262, 1265 (D.C. Cir. 1991).
When the proposed bargaining unit covers multiple worksites,
as here, the Board pays some extra attention to the consisten-
cy of employees’ interests across different sites. The Board
thus considers skills and duties; wages and benefits; inter-
change between sites; functional integration; geographic
proximity; centralized control of management, supervision,
and labor relations; and bargaining history. See Cleveland
Constr., Inc. v. NLRB, 44 F.3d 1010, 1013 (D.C. Cir. 1995);
Alley Drywall, Inc., 333 N.L.R.B. No. 132, 2001 WL 400276,
at *4 (Apr. 17, 2001); Alamo Rent–A–Car, 330 N.L.R.B. 897,
897 (2000); P.J. Dick Contracting, Inc., 290 N.L.R.B. 150, 151
(1988). Once again, no particular factor controls. See Bent-
son, 941 F.2d at 1265.
Given the fact-intensive nature of these decisions, the
Board has wide latitude in determining an appropriate bar-
gaining unit. See, e.g., NLRB v. Action Automotive, Inc., 469
U.S. 490, 494 (1985). As is frequently observed, the Board
need not choose the most appropriate unit, but simply an
appropriate unit. See, e.g., Cleveland Constr., 44 F.3d at
1013. Nonetheless, the Board’s decision must be consistent
with its precedent, and its factual findings must be supported
by substantial evidence. See id. at 1014.
Here the regional director acknowledged that one factor—
bargaining history (RCE’s sustained history of operating
under a comprehensive prehire agreement, in contrast with
RCA’s limited adoption of a single, project-specific agreement
and occasional application of its terms after expiration)—cut
against combining the companies’ installers in a single unit.
But she decided that other factors—the companies’ installers
did the same kind of work, and all the installers worked
7
under centralized management—outweighed the bargaining
history.
RCA and RCE believe the regional director should have
approved separate units of each company’s installers. They
rely largely on Cleveland Construction, in which we rejected
a unit determination because of lack of substantial evidence
and because the Board had not explained how its decision
could be squared with its precedents. Id. at 1014–16. Nei-
ther of the companies objects to the regional director’s find-
ing that installers at RCA and RCE did the same type of
work. This contrasts with Cleveland, in which the evidence
supported none of the community-of-interest factors. Id. at
1014. The companies believe the regional director’s finding
on another factor—centralized management—is unfounded.
It is true, as we explained in Cleveland, that the centrality-of-
control test requires more than merely some ‘‘joining of
corporate lines of responsibility at some point higher than the
immediate supervisors’’ at various sites. Id. If nothing more
were required, the test would be meaningless; local supervi-
sors are ultimately responsible to top management. Id.
What is required is some evidence that day-to-day labor
decisions such as hiring, firing, and grievance handling were
centrally controlled.
In this case, each site (both RCA’s and RCE’s) had one or
more foremen with authority to hire, fire, and discipline
installers. All the foremen (both RCA’s and RCE’s) reported
to a general installation superintendent, Juan Encinosa, who
visited the jobsites on a daily basis, had hiring and firing
authority, and coordinated installer hiring with a personnel
director. This evidence adequately supports the centralized
supervision finding.
The companies also argue, again on the basis of Cleveland,
44 F.3d at 1014–16, that the wages and benefits of RCA’s and
RCE’s installers were not similar; that installers were rarely,
if ever, transferred between RCA’s and RCE’s sites; and that
these considerations defeat any possible community of inter-
est between RCA’s and RCE’s installers. RCA did pay most
of its installers (with the exception of a few installers referred
8
to RCA by the union) lower wages than RCE paid its workers
under the prehire agreement, and RCA’s installers received
fewer benefits than RCE’s installers received under the
agreement. It is also correct that the evidence of installer
transfer between RCA and RCE is scant. All the record
shows is that five RCE employees were employed by RCA
before they worked for RCE. These facts may establish that
separate units of RCA installers and RCE installers, or
separate units of the installers at each jobsite, would have
been appropriate. But that does not undermine the regional
director’s conclusion, in light of the similarity of the installers’
work and their common supervision, that a unit of all the
installers was appropriate.
The companies believe the regional director did not suffi-
ciently explain why she accorded little weight to RCA’s and
RCE’s disparate bargaining histories. In Cleveland we noted
that Board precedent conflicts on how much weight bargain-
ing history should carry in the decision whether to certify a
multi-site bargaining unit. Id. at 1016. The Board at one
time had ruled that in processing representation petitions the
appropriate unit ‘‘normally will be the single employer’s em-
ployees covered by [a preexisting prehire] agreement.’’ P.J.
Dick Contracting, 290 N.L.R.B. at 151 (quoting John Dekle-
wa & Sons, Inc., 282 N.L.R.B. 1375, 1377 (1987)). But later
it qualified this position, stating that the ‘‘Board’s remarks on
unit scope in Deklewa should not be interpreted so as to rob
construction industry employees of meaningful choice, simply
because an employer has unilaterally decided to limit its
relations with craft unions to project agreements.’’ Dezcon,
Inc., 295 N.L.R.B. 109, 112 (1989). In Cleveland we faulted
the Board for its silence regarding how these precedents
affected its decision. 44 F.3d at 1016. Here the regional
director’s discussion of the Board’s precedents was sufficient,
although cursory. The regional director quoted Dezcon’s
discussion of Deklewa and relied on it for the proposition that
bargaining history was not conclusive in determining the
scope of the unit—in other words, other community-of-
interest factors could outweigh bargaining history.
9
In short, the regional director chose an appropriate unit.
The possibility that separate units of installers at RCA and at
RCE might also have been appropriate does not render the
decision erroneous.
The companies’ last contention is that the local unions
failed to make a valid demand for joint bargaining, and thus
the companies did not ‘‘refuse to bargain’’ within the meaning
of § 158(a)(5). See AT Sys. West, Inc. v. NLRB, 294 F.3d
136, 139–40 (D.C. Cir. 2002). The contention rests on the
following post-election events. On November 9, 2000, the
regional director (1) certified both locals as the joint repre-
sentative of the production and maintenance employees (Unit
A) and (2) certified both locals as the joint representative of
the installers (Unit B). Shortly thereafter, the locals sent
several letters to RCA’s officials (and thus RCE officials) and
the companies’ attorney.
Local 698, in a November 20 letter on its letterhead,
claimed to be the ‘‘sole collective bargaining agent’’ of Unit A
and requested information (regarding wages and other mat-
ters, needed to prepare a negotiating position) about those
particular employees. Local 272, in a separate November 20
letter on its own letterhead, claimed to be the ‘‘sole collective
bargaining agent’’ of Unit B and requested necessary infor-
mation about those employees. The locals repeated their
requests the next month, using similar language. In its letter
of December 15, 2000, Local 698 referred to itself as ‘‘the sole
collective bargaining agent of your production and mainte-
nance employees’’ and requested information regarding those
employees. In its letter of December 19, 2000, Local 272
referred to itself as ‘‘the sole collective bargaining agent of
your erector employees’’ and requested information regarding
those employees.
The companies responded in a December 21 letter to the
President of Local 272, stating: ‘‘We believe that the Region-
al Director’s unit determination TTT and the finding of single
employer status were incorrect TTT and RC Aluminum in-
tends to exercise its right to seek judicial review of that
ruling. Accordingly, TTT we must respectfully decline to
10
engage in any collective bargaining.’’ The letter mentioned
neither Local 698 nor any objection to the validity of either
local union’s bargaining requests.
Apparently apprised of the companies’ refusal to bargain
with Local 272, Local 698, in a letter dated January 19, 2001,
referring to itself as ‘‘the representative’’ of Unit A, asked
whether the refusal applied to it as well, and requested that
negotiations begin immediately. The companies’ attorney
replied in a February 2 letter, addressed only to Local 698,
reiterating RCA’s intent ‘‘to seek judicial review of the Re-
gional Director’s determination.’’ The letter also raised the
sufficiency of the request for the first time by stating that
Local 698’s ‘‘letter [did] not appear to be a valid request to
commence negotiations.’’
The local unions filed an unfair labor practice charge with
the regional director on February 14, alleging that RCA and
RCE, as ‘‘a Single Employer,’’ had ‘‘refus[ed] to bargain TTT
with the Union.’’ The charge listed the charging party as
‘‘L.U. #272 and #698 Int’l Assoc. of Bridge, Structural,
Ornamental & Reinforcing Ironworkers, AFL–CIO.’’ Kevin
Wallace, President of Local 272 and District Representative
of Local 698, signed the charge on behalf of both locals. The
charge was served on President Casares the day after it was
filed. Later that month (on February 26), the companies sent
a letter to the Board stating that they were ‘‘challeng[ing] the
underlying certification of the labor organizations involved.’’
The letter said nothing about the bargaining request issue.
The next month (on March 8), the regional director issued a
complaint. The complaint alleged in part that ‘‘the Union’’
(meaning both locals collectively) had requested bargaining
‘‘as the exclusive collective-bargaining representative’’ of Unit
A, and made the same allegation regarding Unit B. The
companies denied these allegations in their answer, filed
March 23. In further proceedings before the Board, the
companies contended that the locals intended to bargain
separately on behalf of the units, so that the complaint should
be dismissed and the unit determination overturned.
11
In sustaining the refusal-to-bargain charge, the Board as-
sumed that the letters alone would not have been sufficient
bargaining demands. But the Board held that the February
14 charge, filed jointly by the local unions and signed by a
person acting on behalf of both locals, dispelled any confusion
the letters might have created. Together, the earlier letters
and the charge, according to the Board, constituted a valid
demand.
We see no basis for upsetting the Board’s judgment. The
letters raised doubts about the local unions’ intent to bargain
jointly.6 See Suburban Newspaper Publ’ns, Inc., 230
N.L.R.B. 1215, 1217 (1977); Automatic Heating & Serv. Co.,
194 N.L.R.B. 1065, 1065 (1972). But the joint charge cleared
up these doubts. The Board’s ruling is consistent with its
precedent. A line of Board cases holds that the filing of an
unfair labor practice charge may cure an inadequate request
and give rise to a valid bargaining demand. See, e.g., Park-
view Manor, 321 N.L.R.B. 477, 477 (1996), overruled in part
on other grounds by Grancare, Inc., 331 N.L.R.B. 123 (2000).
See also NLRB v. Williams Enters., Inc., 50 F.3d 1280, 1286–
87 (4th Cir. 1995) (citing Fall River Dyeing & Finishing
Corp. v. NLRB, 482 U.S. 27, 53 (1987)). Cf. Patent Office
Prof’l Ass’n v. FLRA, 872 F.2d 451, 455–56 (D.C. Cir. 1989).
We do not go so far as saying that a charge alone could
constitute a valid demand. As the Board noted, the compa-
nies repeatedly indicated that they intended to trigger the
charge in order to contest the unit determination. No matter
how clear the bargaining demand, it would have been futile.
See Regal Cinemas, Inc. v. NLRB, 317 F.3d 300, 314 (D.C.
Cir. 2003).
6 The companies also argue that the letters were defective de-
mands in other respects—that they failed to propose a specific time
and place or particular topics for bargaining. We decline to reach
this argument because the companies raised it neither before the
Board, see 29 U.S.C. § 160(e), nor before us until their reply brief,
see, e.g., Rollins Envtl. Servs. (NJ) Inc. v. EPA, 937 F.2d 649, 652
n.2 (D.C. Cir. 1991).
12
The petition for review is denied and the Board’s cross-
petition for enforcement is granted.
So ordered.