Cm Comm Inc v. NLRB, No. 01-1401 (D.C. Cir. 2002)

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.