National Labor Relations Board v. Viola Industries-Elevator Division, Inc.

ON APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD (No. 5-CA-15990) HOLLOWAY, Circuit Judge. This case arises from two separate proceedings which have been consolidated here. The petitioner National Labor Relations Board (the Board) has brought the first of these proceedings (No. 88-1837) to enforce its order based on the finding that the respondents Viola Industries-Elevator Division, Inc. and Viola Industries, Inc. (collectively, Viola Industries) violated sections of the National Labor Relations Act (the Act) by not honoring a Section 8(f) prehire agreement entered into with the International Union of Elevator Constructors (the I.U.E.C. or the Union). The Union was the charging party and is a party in this enforcement proceeding as an intervenor. The National Elevator Industry Welfare Plan, the National Elevator Industry Pension Plan, and the National Elevator Industry Education Plan (the Plans) were the plaintiffs in a related district court suit brought to recover contributions alleged to be owed to the Plans by Viola Industries under the repudiated agreement with the Union. The district court found for the Plans, 684 F.Supp. 1548, 684 F.Supp. 1560, and an appeal by Viola Industries to this court followed (No. 89-3024). The cases have been consolidated for argument, and oral arguments were made to a panel of this court. Because we felt that the cases raised important questions implicating previous decisions of the Supreme Court and of this court, we requested briefing and argument before the court en banc in both No. 88-1837 and No. 89-3024. The primary issues in both cases have been disposed of by the en banc opinion filed today. In this opinion we resolve the remaining. issues. The facts and the proceedings below have been well summarized in the en banc opinion. There the court determined that the Deklewa doctrine prevents Viola Industries from unilaterally repudiating its pre-hire agreement. with the Union. The en banc court did not, however, rule on Viola’s claim that it cannot be bound by the contract because it was improperly coerced into signing it. Nor did the en banc court rule on Viola’s challenges to the auditor’s report on which the district court based its [1387] findings of the amount of money owed to the Plans. It is these issues which we address here. I In the enforcement proceeding, Viola Industries contends that the Union coerced it into making the prehire agreement and that therefore the agreement should not be enforced in any event. The core of the claim is that the Union pressured two subcontractors into refusing to work for the firm until it signed the prehire agreement with the Union. As the Administrative Law Judge found, we need not reach the merits of this claim because it is time barred under Section 10(b) of the Act. See 29 U.S.C. § 160(b). Section 10(b) requires that any unfair labor practice claim be asserted within six months after it arises. The time bar has been interpreted to apply to affirmative defenses such as coercion as well. See Land Equip. Inc., 248 N.L.R.B. 685, 685 n. 2 (1980), enforced, 649 F.2d 867 (9th Cir.1981); N.L.R.B. v. Marin Operating, Inc., 822 F.2d 890, 893 (9th Cir.1987). The unfair labor practice charge in this case was filed on November 14, 1983. The alleged coercion must have occurred before the prehire agreement was signed on December 14, 1982. Thus the affirmative defense to enforcement based on the alleged unfair labor practice of coercion is time-barred. II In its appeal from the district court, Viola Industries makes four basic objections to the damage calculations used by the auditor and accepted by the district judge. Viola Industries maintains that the auditor improperly included hours worked by employees who only worked inside plant and so were not elevator constructors under the agreement. Second, it argues that some employees who were actual elevator constructors occasionally worked at the Viola Industries plant and that these “shop hours” were not covered by the contribution requirement of the agreement. Third, Viola Industries claims that the auditor failed to exclude the inexperienced mechanics’ “probationary hours” for which contributions were not owed according to. the agreement. Lastly, Viola Industries objects to the inclusion of hours spent installing elevator doors and manlifts. It says that these are tasks traditionally done by ironworkers and millwrights and so are not within the work jurisdiction of the union. Insofar as Viola Industries challenges findings of fact by the district court, the question for this court under Rule 52(a) “is not whether it would have made the findings the trial court did, but whether ‘on the entire evidence [the appellate court] is left with the definite and firm conviction that a mistake has been committed.’ ” Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 (1969) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). We can overturn the district court’s factual findings only if we hold them clearly erroneous. Salve Regina College v. Russell, — U.S. -, -, 111 S.Ct. 1217, 1222, 113 L.Ed.2d 190 (1991). The challenge to the inclusion by the auditor of hours of five alleged “plant workers” is strong. A serious argument is made by Viola Industries that these workers (Moon, Bertelson, Stultz, Mclntire and Wood) never did work in the field and that they worked only in the plant. Work in the field was covered by the agreement. Work, in the plant was not. Viola’s attack is based on affidavits of two of the workers, Bertelson and Wood, and on time records and testimony of Mrs. Viola, the company bookkeeper. Ill R. 58. Mrs. Viola testified that the five men punched in daily and had time records therefor, and her direct testimony was that she saw those individuals every day. Id. at 58-60. The only testimony contradictory to that of Mrs. Viola and to the affidavits and records was the auditor’s testimony. His assumption was that because' he had requested that Viola Industries send him printouts which only included reportable hours, and the printouts he received listed [1388] the five workers’ hours, he should include the workers in his report of liability to the Plans. The trial judge made no independent finding concerning this liability and instead made -a general adoption of the conclusions of the auditor. He did inquire whether the testimony and records would cause the auditor to make any substantial changes in his report. The auditor replied in the negative. The judge then adopted the auditor’s report without any detailed findings and conclusions otherwise. Considering all the evidence on this issue, we have a definite and firm conviction that a mistake was made in the imposition of liability respecting these five workers. The direct, specific and corroborated testimony of Mrs. Viola is not contradicted by any direct proof. Accordingly we must hold that the awards respecting these five plant employees should be vacated. Next, Viola Industries contends that there was error in that “[some] work performed was not covered work as defined in the I.U.E.C. Agreement” yet- that work was included in the auditor’s report of hours for which contributions were owed. Specifically Viola alleges that employees “such as James Van Horn and L. Mark Fiske” did some covered work in the field but were brought “into the plant for short periods” when there was no more work in the field. Brief of Appellants at 26. We have already noted the auditor’s testimony that he made his determinations on the basis of records furnished by Viola Industries. Insofar as the records themselves were deficient, in such litigation “[a]n employer cannot escape liability for his failure to pay his employees the wages and benefits due to them under the law by hiding behind his failure to keep records as statutorily required.” Brick Masons Pension Trust v. Industrial Fence & Supply, 839 F.2d 1333, 1338 (9th Cir.1988). The court’s findings concerning these “shop hours” are not shown to be clearly erroneous. Further, Viola Industries claims error in the auditor’s failure to allow deductions for probationary periods for four employees. Brief of Appellants at 27-28. We disagree. Probationary hours are the first hundred hours worked by an elevator constructor novice. The auditor testified that he requested information specifically relating to probationary employees and that he had not received the detailed reports necessary for determining which hours were probationary. Ill R. 32. The auditor testified that Viola Industries designated certain people as being I.U.E.C. probationary for the year 1982 and that he excluded those people without further explanation in later years. Id. at 32. All other hours were assumed to be not probationary. At the hearing there were contradictory affidavits and testimony supporting the company’s claim for deductions for additional probationary employees. The court weighed this evidence and entered its ruling. The findings on this aspect of the audit are not shown to be clearly erroneous. Finally, there remains the issue of the inclusion of hours spent installing manual doors and cage and belt lifts. There was conflicting testimony as to whether such work was traditionally within the work jurisdiction of the union. See Tr. at 90 (Testimony of Bob Viola); Doc. 134, Ex. 1 (Deposition of Jerome Mullett). The issue is thus a controverted question of fact. The resolution of such conflicts is exclusively the province of the district court. Raydon Exploration, Inc. v. Ladd, 902 F.2d 1496, 1499 (10th Cir.1990). We cannot say that the findings on this matter are clearly erroneous. Ill On the basis of the determinations made in this panel opinion respecting both the enforcement proceeding (No. 88-1837) and the appeal from the United States District Court for the District of Kansas (No. 89-3024), and in light of the conclusions reached in our en banc opinion, the judgments in both of said proceedings are announced and entered by the en banc opinion filed herewith.