424 F.3d 980 (9th Cir. 2005), 03-73064, Recon Refractory & Const., Inc. v. N.L.R.B.

Docket Nº:03-73064.
Citation:424 F.3d 980
Party Name:RECON REFRACTORY & CONSTRUCTION, Inc., Petitioner, Industrial Professional & Technical Workers International Union, Suina, AFL-CIO, Petitioner-Intervenor, v. NATIONAL LABOR RELATIONS BOARD, Respondent, International Union, International Union of Bricklayers and Allied Craftworkers, and the International Union of Bricklayers and Allied Craftsworkers
Case Date:September 13, 2005
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 980

424 F.3d 980 (9th Cir. 2005)


Industrial Professional & Technical Workers International Union, Suina, AFL-CIO, Petitioner-Intervenor,



International Union, International Union of Bricklayers and Allied Craftworkers, and the International Union of Bricklayers and Allied Craftsworkers, Local 4, Respondent-Intervenor.

No. 03-73064.

United States Court of Appeals, Ninth Circuit.

Sept. 13, 2005

Argued and Submitted March 7, 2005

Page 981

On Petition for Review of an Order of the National Labor Relations Board NLRB Nos. 21-CD-635, 21-CD-637


Steven D. Atkinson, Thomas A.Lenz, and Scott K. Dauscher, Cerritos, California, for the petitioner.

Howard Z. Rosen, Los Angeles,California, for petitioner-intervenor Industrial, Professional and Technical Workers International Union.

Margery E. Lieber, Eric G. Moskowitz, and Corrine E. Your-man, Washington, DC, for the respondent.

Daniel T. Purtell and JeffreyB. Demain, San Francisco, California, for respondent-intervenor International Union of Bricklayers and Allied Craftworkers, Local 4.

Before: Cynthia Holcomb Hall,Kim McLane Wardlaw, and Richard A. Paez, Circuit Judges.


PAEZ, Circuit Judge:

We are called upon to resolve a dispute between Recon Refractory & Construction, Inc. ("Recon") and the International Union of Bricklayers & Allied Craftworkers, Local 4 ("Bricklayers" or "Local 4"). To decrease its labor costs, Recon reassigned work previously performed by Bricklayers members, and protected by the Bricklayers'

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collective bargaining agreement ("CBA"), to employees represented by the Industrial, Professional and Technical Workers International Union ("IPTW"). The dispute at issue is fundamentally a work-preservation dispute between Recon and the Bricklayers, not an inter-union jurisdictional dispute between the Bricklayers and the IPTW. Because Recon itself precipitated the dispute in an attempt to avoid its obligations to the Bricklayers, we deny Recon's petition for review of the National Labor Relations Board's ("Board") decision quashing notice of hearing under section 10(k) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 160(k).Indus., Prof'l & Technical Workers Int'l Union (Recon Refractory), 339 N.L.R.B. 825 (2003).


Dan Bellamy founded Recon, a refractory installation company,2 in 1990. Shortly thereafter, the company signed on to the National Refractory Agreement ("NRA"), the Bricklayers' CBA, with the International Union of Bricklayers & Allied Craftworkers ("International"). Recon used Local 4 members to perform all refractory work for the next decade. Specifically, pursuant to the explicit terms of the NRA, Local 4 Bricklayers installed not just refractory brick, but "all refractory materials" including ceramic fiber (also known as Kao Wool), plastics, and spray insulation (or gunite). The NRA also included a clause preserving the Bricklayers' right to perform "all work which has been historically or traditionally assigned" to Bricklayers.3

In early 1995, the Bricklayers eliminated its class of unskilled members, or "bricklayers' helpers." Recon, however, needed a union to represent those unskilled employees for a job at US Borax Company, which required that its contractors use union labor. Rather than using more expensive journeyman Bricklayers to do the unskilled work, Recon sought another union. On November 1, 1996, Recon entered into a site-specific "project deal" with the IPTW to provide unskilled laborers who would work with Bricklayers on the US Borax job. The IPTW-represented laborers performed only unskilled support tasks, and did not install brick or non-brick refractory materials. Furthermore, Recon's contract with the IPTW did not include

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a thorough work assignment or preservation clause. To the contrary, the IPTW contract simply stated: "Work assignments shall be entirely at the discretion of the Company without regard to seniority or classification." For the first several years of this arrangement, Recon assigned IPTW laborers support tasks, such as demolition, cleanup, and supply of refractory materials to Bricklayers for installation.

Recon's agreement with the IPTW was, as the Bricklayers describe it, "unusual." Bellamy testified that the company itself "pursued" the union to represent its unskilled laborers. Executives at Recon "made several phone calls, talked to some other contractors that were covered by collective bargaining agreements and eventually ended up with the IPTW." The IPTW-represented laborers were required to join the union and required to sign withdrawal cards to "deactivate" themselves from membership at the end of each job. Recon essentially paid those employees' union dues, increasing their pay to offset the added cost. Through these maneuvers, Recon ensured that its laborers were not represented by any union on any job other than US Borax.

Prompted by its customer Arco Refinery's demand for wage caps, Recon began negotiating with the Bricklayers in 1999 to decrease wage rates. On March 30, 1999, Bellamy requested that the Bricklayers International freeze the $0.75 per hour annual wage increase. The Bricklayers would not agree to concessions and would not do the work at the rates Recon proposed. In August, Recon again sought concessions, this time in the form of a 20% wage reduction, which the Bricklayers similarly refused. On August 16, Bellamy notified the Bricklayers of his intent to terminate the CBA effective November 14, 1999, or "as soon as permitted by law or contract." After negotiations reached an impasse on October 14, Bellamy reaffirmed his intent to terminate the CBA the following month. The NRA expired on November 14, 1999. On December 7, Frank Collins, president of Bricklayers Local 4, notified the union membership that Recon had refused to sign the current NRA and therefore left "no choice but to regard Recon as a non-signatory contractor."

While these negotiations were in process and before the NRA expired, Bellamy mentioned to David Bohannan, who worked with him at Recon, that he wanted to "giv[e] somebody else some of the Bricklayers work," and specifically mentioned the work in dispute.4 "[Bellamy] figured if [the Bricklayers] are not going to give him a freeze he would just go ahead and get somebody else to do the work." Bohannan testified that Bellamy "personally told me he was going to stick it to the International and the Bricklayers especially Frank Collins. . . . [b]ecause they will not go his way, they will not help Recon out by taking a freeze on the wages." Mauro Romagnoli, a Bricklayers officer, testified that Bellamy told him that another union was claiming the Bricklayers work. When Romagnoli told Bellamy that would probably force a jurisdictional dispute, "he told me that is where he wanted it to go." "He assured me that this was just the tool to try and force Frank [Collins] and the International to do something in order to meet his demands of a lesser wage or special agreement, whatever he wanted at the time. And he assured me he could break it off at any time[—the] use of these other people to do the Bricklayers work." After the NRA expired in November, Recon expanded the scope of

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its agreement with the IPTW to include nine job sites in addition to the US Borax site, including Arco Refinery.5

On December 20, 1999, Recon signed a new contract with the Bricklayers, effective retroactively to November 14, 1999, which included the same scope of work provision as the 1990 agreement. In January 2000, however, the Bricklayers discovered that Recon was performing nonbrick refractory installation work—the work in dispute—at the Arco job site with non-Bricklayer employees,6 without informing Local 4 as the NRA required. This was the first time since Recon's founding that employees other than Bricklayers had performed this type of refractory work.Recon Refractory, 339 N.L.R.B. at 828. The Bricklayers filed a grievance on January 28, 2000, alleging that the assignment of work to non-Bricklayers employees violated their contract with Recon.

Recon took the position that the scope of the Bricklayers' work included only refractory brick installation, and not installation of other refractory materials such as ceramic fiber. On February 1, Recon informed the IPTW of the Bricklayers' grievance and solicited the IPTW's response. The next day, the IPTW formally claimed jurisdiction over the disputed work and threatened "immediate economic action against Recon" should the Bricklayers perform the work. At a meeting on February 4, 2000, Recon informed the Bricklayers that it was assigning all nonbrick refractory installation work at its Arco Refinery job to the IPTW, and only brick work to the Bricklayers. At this meeting, the Bricklayers learned that Recon was signatory with the IPTW at jobs beyond the US Borax site, and that the employees performing the work in dispute were represented by the IPTW. The Bricklayers' representatives at that meeting disputed Recon's interpretation of the NRA's work assignment clause, and asserted their right to the work in dispute.

The Bricklayers filed a complaint in the district court against Recon on June 21, 2000, for breach of the CBA under 29 U.S.C. § 185(a).7 When Recon informed the IPTW on July 31, 2000, of the Bricklayers' federal lawsuit, the IPTW again threatened to "take economic action, including picketing" to preserve its claim to the work should Recon reassign the work to the Bricklayers. The IPTW claimed that Kao Wool installation was the historic work of its union and continued to assert jurisdiction over the disputed work. The IPTW position echoed Recon's: "Bricklaying belongs to the...

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