National Labor Relations Board v. Local Union No 103, International Association of Bridge, Structural and Ornamental Iron Workers

• Decision Date: 17 January 1978
• Docket Number: AFL-CIO,No. 76-719,76-719
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL UNION NO. 103, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS,et al
• Court: U.S. Supreme Court

434 U.S. 335

98 S.Ct. 651

54 L.Ed.2d 586

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v LOCAL UNION NO. 103, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL-CIO et al.

No. 76-719.

Argued Oct. 31, 1977.

Decided Jan. 17, 1978.

Syllabus by the Court.

An employer in the construction business made an agreement with respondent union under § 8(f) of the National Labor Relations Act, which provides that it shall not be an unfair labor practice for unions and employers in the construction industry to enter into "prehire" agreements before the majority status of the union has been established. The contract contained no union security clause requiring employees to become union members within a specified period of time. After the employer later undertook construction projects with nonunion labor the union picketed those projects (one for more than 30 days) with signs stating that the employer was violating the agreement with the union, though the union did not represent a majority of the employees at the jobsites and had not petitioned for a representation election. The employer then filed a charge with the National Labor Relations Board alleging that the union was violating § 8(b)(7)(C) of the Act, which makes it an unfair labor practice for an uncertified union to picket for the purpose of forcing an employer to recognize the union as a bargaining representative of his employees, for more than 30 days, unless a petition for an election has been filed within that period. The NLRB issued a cease-and-desist order in favor of the employer, concluding that an object of the picketing was to force the employer to bargain with a union that was not currently certified as the representative of the employees working for the employer. The Court of Appeals, denying enforcement of the NLRB's order, held that the validity of a § 8(f) prehire contract conferred the right to enforce the contract by picketing as well as the right, upon a contract breach, to file and prevail on an unfair labor practice charge against the employer for failure to bargain. Held : Respondent's picketing was for recognitional purposes and constituted an unfair labor practice under § 8(b)(7)(C). An uncertified union like respondent, which does not represent a majority of the employees, may not under that provision engage in picketing in an effort to enforce a prehire agreement with the employer. Pp. 341-352.

(a) Section 8(f), which contains a proviso clause that a "prehire" contract shall not bar a petition for an election under § 9(c), was not intended to relieve a union party to a prehire agreement from the obligation to achieve majority support before it can require the employer to honor such an agreement by means of § 8(a)(5), or to accord the union the status of bargaining representative that would exempt it from the recognitional picketing prohibition of § 8(b)(7). The NLRB therefore correctly held that when the union picketed to enforce its prehire agreement the employer could file and prevail on a § 8(b)(7) charge, because the union lacked majority credentials at the picketed projects. Picketing to enforce the § 8(f) contract was tantamount to recognitional picketing and § 8(b)(7)(C) was infringed when the union failed to request an election within 30 days. Pp. 342-346.

(b) Because § 8(b)(7) was adopted to ensure employees the voluntary, uncoerced selection of a bargaining representative, the NLRB did not err in holding that the provision applies to a minority union's picketing to enforce a prehire contract. Nor does the NLRB's position, which is entitled to considerable deference, render § 8(f) meaningless, since but for that provision neither party could execute a prehire agreement without committing an unfair labor practice and the voluntary observance of an otherwise valid § 8(f) contract is left unchallenged. Retail Clerks v. Lion Dry Goods, Inc., 369 U.S. 17, 82 S.Ct. 541, 7 L.Ed.2d 503; Building & Construction Trades Council of Santa Barbara County (Sullivan Electric Co.), 146 N.L.R.B. 1086, distinguished. Pp. 346-352.

175 U.S.App.D.C. 259, 535 F.2d 87, reversed.

Norton J. Come, Washington, D. C., for petitioner.

Sydney L. Berger, Evansville, Ind., for respondents.

Mr. Justice WHITE delivered the opinion of the Court.

Sections 8(b)(7) and 8(f) were added to the National Labor Relations Act in 1959.¹ Section 8(f), permitting so- called "prehire" agreements in the construction industry, provides that it shall not be an unfair labor practice to enter into such an agreement with a union that has not attained majority status prior to the execution of the agreement. Under § 8(b)(7)(C), a union that is not the certified representative of the employees in the relevant unit commits an unfair practice if it pickets an employer with "an object" of "forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees" and if it does not within 30 days file a petition for an election under § 9(c). The National Labor Relations Board (Board) held that it is an unfair labor practice within the meaning of § 8(b)(7)(C) for an uncertified union not representing a majority of the employees to engage in extended picketing in an effort to enforce a prehire agreement with the employer.² The issue here is whether this is a misapplication of the section, as the Court of Appeals held in this case.³

I

Higdon Construction Co. and Local 103 of the International Association of Bridge, Structural & Ornamental Iron Workers, AFL-CIO (hereinafter Local 103), had a history of collective bargaining dating back to 1968. A prehire agreement was reached by Local 103 and Higdon on July 31, 1973, obliging Higdon to abide by the terms of the multiemployer understanding between Local 103 and the Tri-State Iron Workers Employers Association, Inc. No union security clause provision was contained in the Local 103-Higdon agreement. At about the same time, Higdon Contracting Co. was formed for the express pur ose of carrying on construction work with nonunion labor. Local 103 picketed two projects subsequently undertaken by Higdon Contracting Co., in Kentucky and Indiana, with signs which read: "Higdon Construction Company is in violation of the agreement of the Iron Workers Local Number 103." Picketing at one jobsite persisted for more than 30 days, into March 1974. Local 103 had never represented a majority of the employees at either site and, although it was free to do so, it did not petition for a representation election to determine the wishes of the employees at either location.

On March 6, 1974, Higdon Contracting Co. filed a charge with the Regional Director of the Board, alleging that Local 103 was violating § 8(b)(7) of the Labor Act. The Administrative Law Judge found that Higdon Contracting Co. and Higdon Construction Co. were legally indistinct for purposes of the proceedings. In an opinion issued August 23, 1974, he concluded that Local 103's picketing did not constitute an unfair labor practice. Higdon had entered into a lawful § 8(f) prehire contract with Local 103 by which it promised to abide by the multiemployer standard. The picketing was for purposes of obtaining compliance with an existing contract, rather than to obtain recognition or bargaining as an initial matter. Only the latter was a purpose forbidden by § 8(b)(7).

The Board did not agree with the Administrative Law Judge. Relying on its R. J. Smith decision,⁴ the Board emphasized the fact that Local 103 had never achieved majority status, and the § 8(f) agreement thus had no binding force on the employer. For this reason, Local 103's picketing was not simply for the purpose of forcing compliance with an existing contract, even though the Board accepted the finding that only a single employer was involved. Under the Board's view of the law and the evidence, an object of the picketing was "forcing and requiring Higdon Contracting Company, Inc., to bargain with [Local 103], without being currently certified as the representative of Higdon Contracting Company, Inc.'s employees and without a petition under Section 9(c) being filed within a reasonable period of time . . . ."

Local 103 sought review in the United States Court of Appeals for the District of Columbia Circuit. That court set aside the order, as it had set aside the Board's R. J. Smith order three years previously.⁵ The Court of Appeals ruled that the validity of a § 8(f) prehire contract carried with it the right to enforce that contract by picketing, and the right as well, when breach of the agreement occurs, to file and prevail on an unfair labor practice charge against the employer for failure to bargain. This elevation of a nonmajority union to the rights of majority status was acceptable, in the court's view, because of the second proviso to § 8(f), which denies the usual contract bar protection to prehire agreements and permits a representation election to be held at the instance of either party at any time during the life of the agreement.

The Board's subsequent petition to this Court for a writ of certiorari was granted.⁶ We reverse.

II

It is undisputed that the union was not the certified representative of Higdon's employees and that it did not file an election petition within 30 days of the onset of the picketing. The issue for the Board was whether for the purposes of § 8(b)(7)(C), the union pickets carrying signs asserting that Higdon was violating an agreement with the union were picketing with the forbidden purpose of requiring Higdon to recognize or bargain with the union. Under the Board's view of § 8(f), a prehire agreement does not entitle a minority union to be treated as the majority represe tative of the employees until and unless it attains majority support in the relevant unit. Until that time the prehire agreement is voidable and does not have the same stature as a collective-bargaining contract entered into with a union actually...