456 U.S. 645 (1982), 80-1798, Woelke & Romero Framing, Inc. v. National Labor Relations Board

Docket Nº:No. 80-1798
Citation:456 U.S. 645, 102 S.Ct. 2071, 72 L.Ed.2d 398
Party Name:Woelke & Romero Framing, Inc. v. National Labor Relations Board
Case Date:May 24, 1982
Court:United States Supreme Court
 
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Page 645

456 U.S. 645 (1982)

102 S.Ct. 2071, 72 L.Ed.2d 398

Woelke & Romero Framing, Inc.

v.

National Labor Relations Board

No. 80-1798

United States Supreme Court

May 24, 1982

        Argued March 3, 1982

        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

        THE NINTH CIRCUIT

        Syllabus

        Section 8(e) of the National Labor Relations Act (Act) proscribes secondary agreements between unions and employers -- that is, agreements that require an employer to cease doing business with another party. However, § 8(e) contains a proviso which exempts from the proscription of § 8(e) agreements between a union and an employer in the construction industry concerning the contracting or subcontracting of work to be performed at a construction jobsite. In No. 80-1798, petitioner Woelke & Romero Framing, Inc. (Woelke), and respondent union, in negotiating a new collective bargaining agreement, reached an impasse over the union's demand for a clause that would prohibit Woelke from subcontracting work at any construction jobsite

except to a person, firm or corporation, party to an appropriate, current labor agreement with the appropriate Union, or subordinate body signatory to this Agreement.

        When Woelke's construction sites were picketed in support of the union's demand for the subcontracting clause, Woelke filed unfair labor practice charges with the National Labor Relations Board, asserting that subcontracting clauses are sheltered by § 8(e)'s construction industry proviso only if they are limited in application to particular jobsites at which both union and nonunion workers are employed. Woelke argued that, because the clause sought by the union violated § 8(e), the picketing violated § 8(b)(4)(A) of the Act, which prohibits coercing an employer "to enter into any agreement which is prohibited by" § 8(e). The Board held that subcontracting clauses are lawful whenever they are sought or negotiated in the context of collective bargaining relationships, and that therefore picketing to obtain such a clause was permitted under § 8(b)(4)(A). In Nos. 80-1808 and 81-91, a labor dispute resulted in unfair labor practice charges' being filed against respondent union by a member (petitioner in No. 80-1808) of an association of construction industry

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employers (petitioner in No. 81-91), challenging the validity under § 8(e) of a subcontracting clause which was substantially similar to the clause involved in No. 80-1798, and which was included in a collective bargaining agreement between the union and the association. The Board held that such clause was protected by the construction industry proviso. The Court of Appeals consolidated the petitioners' requests for review of the Board's orders and ultimately decided to enforce the orders, holding that union signatory subcontracting clauses are protected so long as they are negotiated in the context of a collective bargaining relationship, and that picketing may be used to obtain such a clause.

        Held:

        1. The construction industry proviso to § 8(e) ordinarily shelters union signatory subcontracting clauses that are sought or negotiated in the context of a collective bargaining relationship, even when not limited in application to particular jobsites at which both union and nonunion workers are employed. The subcontracting clauses at issue here are protected by the proviso. Pp. 652-665.

        (a) The plain language and the legislative history of § 8(e) and the construction industry proviso clearly indicate that Congress intended to protect subcontracting clauses like those at issue here. Pp. 652-660.

        (b) The legislative history does not support petitioners' argument that the proviso was intended primarily as a response to the decision in NLRB v. Denver Building & Construction Trades Council, 341 U.S. 675 -- which held that picketing a general contractor's entire project in order to protest the presence of a nonunion subcontractor is an illegal secondary boycott -- and thus should be interpreted as permitting only those subcontracting agreements that are designed to reduce friction at jobsites where union workers are forced to work alongside nonunion workers. The proviso serves a variety of purposes unrelated to that case's holding, and, even as a response to that case, is only partly concerned with jobsite friction. Pp. 661-662.

        (c) While subcontracting clauses like those at issue here create "top-down" pressure for unionization -- requiring subcontractors, in order to obtain work, to force their employees to become union members -- such pressure is implicit in the construction industry proviso, and Congress thus decided to accept whatever top-down pressure such clauses might entail. Moreover, the top-down organizing effect of such clauses is limited by other provisions of the Act. Pp. 662-665.

        2. The Court of Appeals was without jurisdiction to decide that unions do not violate § 8(b)(4)(A) when they picket to obtain a subcontracting clause sheltered by the construction industry proviso. Neither Woelke nor the Board's General Counsel raised that issue during the proceedings before the Board in No. 80-1798, and thus judicial review is barred by § 10(e) of the Act, which provides that "[n]o objection that has not been

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urged before the Board . . . shall be considered by the court." The § 10(e) bar applies even though [102 S.Ct. 2074] the Board held that the picketing was not banned by § 8(b)(4)(A). Woelke's failure to object to the Board's decision in a petition for reconsideration or rehearing prevents consideration of the question by the courts. Pp. 665-666.

        654 F.2d 1301, affirmed in part, vacated in part, and remanded.

        MARSHALL, J., delivered the opinion for a unanimous Court.

        MARSHALL, J., lead opinion

        JUSTICE MARSHALL delivered the opinion of the Court.

        In these consolidated cases, petitioners ask us to decide whether union signatory subcontracting clauses that are sought or negotiated in the context of a collective bargaining

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relationship are protected by the construction industry proviso to § 8(e) of the National Labor Relations Act (Act), 29 U.S.C. § 158(e). Such clauses bar subcontracting except to subcontractors who are signatories to agreements with particular unions. Petitioners also ask us to decide whether a union violates § 8(b)(4)(A) of the Act, 29 U.S.C. § 158 (b)(4)(A), when it pickets to obtain a lawful subcontracting clause.

        The United States Court of Appeals for the Ninth Circuit held that subcontracting clauses sought or negotiated in the context of a collective bargaining relationship are protected by the construction industry proviso even when not limited in application to particular jobsites at which both union and nonunion workers are employed. It further held that picketing to obtain such clauses does not violate § 8(b)(4)(A). See 654 F.2d 1301 (1981) (en banc). We affirm the holding that the subcontracting clauses at issue here are protected by the construction industry proviso. Because we conclude that the Court of Appeals did not have jurisdiction to consider the picketing question, we do not review that portion of its decision.

        I

        A

        These cases arise out of two separate labor disputes. The first involves petitioner Woelke & Romero Framing, Inc. (Woelke), a framing subcontractor in the construction industry in southern California. From July, 1974, to June, 1977, Woelke was party to a collective bargaining agreement with respondent United Brotherhood of Carpenters and Joiners of America (Carpenters). Shortly before this agreement was to expire, Woelke and Carpenters commenced bargaining for the purpose of negotiating a successor agreement. In August, 1977, however, the parties reached an impasse over Carpenters' demand for a union signatory subcontracting clause. This clause would have prohibited Woelke from subcontracting work at any construction jobsite

except to a person, firm or corporation, party to an appropriate, current

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labor agreement with the appropriate Union, or subordinate body signatory to this Agreement.

        1 App. 86.1

       In support of Carpenters' demand for a subcontracting clause, two Carpenters locals picketed Woelke's construction sites, causing some work stoppages. Woelke filed unfair labor practice charges with the National Labor Relations Board, asserting that the subcontracting clause violated [102 S.Ct. 2075] § 8(e) of the Act, which proscribes secondary agreements between unions and employers -- that is, agreements that require an employer to cease doing business with another party, in order to influence the labor relations of that party. Woelke argued that, because the clause violated § 8(e), Carpenters' picketing in support of that restriction violated § 8(b)(4)(A), 29 U.S.C. § 158(b)(4)(A).2

        The Board agreed that the union signatory subcontracting clauses at issue were secondary in thrust. It ruled, however, that they were saved by the construction industry proviso to § 8(e), which exempts agreements between a union and employer concerning work to be performed at a construction jobsite. The Board rejected Woelke's contention that subcontracting clauses are sheltered by the proviso only if they are limited in application to particular jobsites at which both union and nonunion workers are employed. According

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to the Board, such clauses are lawful whenever they are sought or negotiated "in the context of a collective bargaining relationship." Carpenters Local No. 944 (Woelke & Romero Framing, Inc.), 239 N.L.R.B. 241, 250 (1978), citing Connell Construction Co. v. Plumbers & Steamfitters, 421 U.S. 616 (1975). The Board further indicated...

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