UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-2109

TECNOCAP, LLC,

Petitioner,

v. NATIONAL LABOR RELATIONS BOARD,

Respondent, UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION, AFL-CIO, CLC,

Intervenor.

No. 19-2191

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v. TECNOCAP, LLC,

Respondent, UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION, AFL-CIO, CLC,

Intervenor.

On Petition for Review of an Order of the National Labor Relations Board. (1:06-CA- 216499)

Submitted: December 11, 2020 Decided: June 17, 2021

Before WILKINSON, AGEE and RICHARDSON, Circuit Judges.

Petition for review granted in part and denied in part, cross-application for enforcement granted in part and denied in part, and remanded by published opinion. Judge Agee wrote the opinion, in which Judge Wilkinson and Judge Richardson joined.

Bradley K. Shafer, MINTZER SAROWITZ ZERIS LEDVA & MEYERS, Wheeling, West Virginia, for Petitioner/Cross-Respondent. Peter B. Robb, General Counsel, Alice B. Stock, Deputy General Counsel, Meredith Jason, Acting Deputy Associate General Counsel, David Habenstreit, Assistant General Counsel, Julie Brock Broido, Supervisory Attorney, Milakshmi V. Rajapakse, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner. Maneesh Sharma, Associate General Counsel, Washington, D.C., for Intervenor.

2 AGEE, Circuit Judge:

Tecnocap, LLC, petitioned for review of an order of the National Labor Relations Board (“the NLRB” or “the Board”) affirming the decision of an administrative law judge (“ALJ”) finding that Tecnocap engaged in several unfair labor practices, in violation of the National Labor Relations Act (“NLRA” or “the Act”). The Board cross-applied for enforcement of the order. For the reasons set forth below, we grant Tecnocap’s petition for review in part and deny it in part, grant the Board’s cross-petition for enforcement in part and deny it in part, and remand this case to the NLRB for entry of a remedial order consistent with this opinion.

I.

Tecnocap is a West Virginia employer in the business of manufacturing metal bottle and jar lids for non-retail sale. During the relevant period, Tecnocap employed individuals belonging to two unions who were subject to two different collective bargaining agreements (“CBAs”) with two separate end dates. The main events at issue in this case relate to Tecnocap’s negotiation of a new CBA with one of the unions: the Glass, Molders, Pottery, Plastics & Allied Workers International Union AFL-CIO, CLC and Local Union No. 152 (“the GMP”). 1 The GMP bargained on behalf of “all hourly production and maintenance employees, including warehousemen, except employees on jobs covered by

1 The GMP subsequently merged with the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL- CIO, CLC. The merger does not materially impact the underlying events or parties’ responsibilities, so for ease of reference, the opinion will refer simply to “the GMP.” 3 other contracts with other unions, salaried supervisors, office clerical and other employees excluded by law.” J.A. 120. Other Tecnocap employees are represented by the International Association of Machinists and Aerospace Workers (“the IAM”). The IAM bargained on behalf of “all Tool & Die Makers, Machinists, Electricians, Die Setters, Millwrights, and their Apprentices.” J.A. 181.

In the months leading up to the expiration of the