Pacific Northwest Chapter of Associated Builders & Contractors, Inc. v. N.L.R.B.
| Decision Date | 26 December 1979 |
| Docket Number | AFL-CIO,78-3487,No. 235,OREGON-COLUMBIA,U,R,No. 944,Nos. 78-3469,78-3619,I,78-3468 and 79-7011,AFL-CI,944,235,s. 78-3469 |
| Citation | 609 F.2d 1341,103 L.R.R.M. 2144 |
| Parties | 103 L.R.R.M. (BNA) 2144, 87 Lab.Cas. P 11,754 PACIFIC NORTHWEST CHAPTER OF the ASSOCIATED BUILDERS & CONTRACTORS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.CHAPTER, the ASSOCIATED GENERAL CONTRACTORS OF AMERICA, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL NO. 701, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. WOELKE & ROMERO FRAMING, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Carpenters Localnited Brotherhood of Carpenters and Joiners ofAmerica,, and Carpenters Localnited Brotherhood ofCarpenters and Joiners of America,, Intervenors. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CARPENTERS LOCAL NO. 944, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OFAMERICA,, and Carpenters Localnited Brotherhood ofCarpenters and Joiners of America,, Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Thomas M. Triplett, Portland, Or., Sara Green, Washington, D. C., argued, for petitioner; Southern, Spaulding, Kinsey, Williamson & Schwabe, Lewis K. Scott, David H. Wilson, Jr., Dezendorf, Spears, Lubersky, Portland, Or., Daniel R. Levinson, Washington, D. C., Vincent J. Apruzzese, Springfield, N. J., Robert J. Hickey, Peter G. Kilgore, Kirlin, Campbell & Keating, Washington, D. C., Jerome B. Buckley, Jr., Richard R. Carney, Portland, Or., John W. Prager, Jr., Musick, Peeler & Garrett, Los Angeles, Cal., Kenneth C. McGuiness, McGuiness & Williams, Washington, D. C., on brief.
John Elligers, N.L.R.B., Washington, D. C., Lawrence J. Cohen, Washington, D. C., John W. Prager, Jr., Los Angeles, Cal., argued, for respondent; Elliott Moore, N.L.R.B., Washington, D. C., Daniel R. Levinson, Robert J. Hickey, Peter G. Kilgore, Washington, D. C., Lawrence Rosenzweig, Los Angeles, Cal., on brief.
Abe F. Levy, Los Angeles, Cal., argued, for intervenor.
Julius Reich, Reich, Adell, Crost & Perry, Los Angeles, Cal., amicus curiae.
On Petition for Review of the Order of the National Labor Relations Board.
Before SNEED and KENNEDY, Circuit Judges, and EAST *, District Judge.
Construction contractors challenge in these cases the legality of a provision in a collective bargaining agreement which prohibits a signatory contractor from assigning work to subcontractors unless the subcontractors have a collective bargaining agreement with the signatory union. The National Labor Relations Board has ruled that such a provision does not violate the prohibition in the National Labor Relations Act (the Act) against "hot cargo" agreements. 1
In deciding these cases we must determine the scope of the Supreme Court's holding in Connell Construction Co. v. Plumbers Local 100, 421 U.S. 616, 95 S.Ct. 1830, 44 L.Ed.2d 418 (1975). We hold that under Connell the clauses before us are not lawful under section 8(e) of the Act, 29 U.S.C. § 158(e) (1976), and are not within the construction industry proviso of section 8(e).
Our jurisdiction rests on 29 U.S.C. § 160(e) and (f) (1976).
Two decisions of the Board are before us for review. The first considered the legality of a collective bargaining agreement between the Oregon-Columbia Chapter of the Associated General Contractors of America, Inc. (AGC), which is an association of approximately 200 employers engaged in construction in Oregon and southwest Washington, and the International Union of Operating Engineers, Local 701 (Engineers). The agreement, effective from June 1, 1975 through May 31, 1980, contains a provision precluding AGC employers from assigning jobsite work covered by the agreement to any subcontractor which does not have a current labor agreement with Engineers. 2 Another provision makes violations of the agreement subject to a grievance and arbitration procedure, and the results of arbitration are enforceable by "such action as they (the parties) deem necessary . . ." This article would thus permit enforcement of the agreement, including the subcontractor clause, through strikes or picketing.
Following a charge filed by another association of construction employers, the General Counsel of the NLRB issued a complaint alleging that the agreement's subcontractor clause and enforcement provision violate section 8(e) of the Act. 3 The case was heard by the Board upon stipulated facts and it held that, while the subcontractor clause fell within the general proscription of section 8(e), the clause was protected by the section's construction industry proviso. However, the Board invalidated the self-help enforcement provision insofar as it authorized economic sanctions in support of the subcontractor clause. All parties petitioned this court for review and modification of the Board's order. The Board, of course, seeks enforcement of its order.
The second decision of the Board which we review considered challenges to a proposed collective bargaining agreement which locals of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Carpenters), sought to establish with Woelke & Romero Framing, Inc. (Woelke), a framing subcontractor who has performed work for various construction contractors in southern California. Between 1974 and 1977, Woelke was a party to a collective bargaining agreement with Carpenters. This agreement was due to expire on June 15, 1977, and, beginning on June 3, 1977, Woelke commenced negotiations with Carpenters concerning a successor arrangement. Two provisions of the proposed new agreement generated contention. One of these provisions forbade Woelke to subcontract jobsite work except with firms having a current labor agreement with Carpenters. 4
4] The second provision included foremen within the unit of employees whom Carpen ters would represent. According to the parties' stipulations, foremen function as supervisors and also as Woelke's selected representatives for purposes of c ollective bargaining or the adjustment of grievances. Impasse over these provi sions led to the termination of negotiations on August 4, 1977. Thereafter, Ca rpenters picketed Woelke at four jobsites. As a consequence of this picketing, employees of the subcontractors of general contractors at two of the jobsites refused to work.
Upon charges filed by Woelke, the General Counsel of the NLRB issued a complaint against Carpenters. After hearing the case upon stipulated facts, the Board decided that the proposed subcontractor clause was protected by the construction industry proviso. It follows, the Board held, that picketing by Carpenters did not violate the prohibition in section 8(b)(4)(i) and (ii)(A) of the Act, 29 U.S.C. § 158(b)(4)(i) and (ii)(A) (1976). 5 Before reaching this conclusion the Board held that but for the construction industry proviso the proposed subcontractor clauses would violate section 8(e).
In addition, the Board concluded that bargaining to impasse and picketing intended to compel the unionization of Woelke foremen constituted a violation of section 8(b)(1)(B) of the Act, 29 U.S.C. § 158(b)(1)(B) (1976), 6 and ordered Carpenters to desist from this practice.
The Board requests enforcement of this order. Woelke seeks reversal of the Board's decision with respect to the subcontractor clause.
We shall discuss first the critical issue of these cases, Viz. the scope of the construction industry proviso as applied to the subcontractor clauses involved in each case. Thereafter the remaining issues pertinent to each case will be addressed.
Our analysis will proceed as did that of the Board. That is, we shall initially determine
whether these clauses fall within the general proscription of section 8(e) and, inasmuch as we agree with the Board's conclusions that section 8(e) does proscribe these clauses, we shall then determine whether the clauses are, nonetheless, protected by the construction industry proviso. As already indicated, our conclusion with respect to the scope of the proviso differs from that of the Board.
The subcontractor clauses in these cases require that the employer not do business with another employer unless that employer has a labor agreement with the signatory union. Reading section 8(e) literally there is no doubt but that section 8(e) proscribes such clauses. The problem is not that simple, however. In National Woodwork Manufacturers Association v. NLRB,386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967), the Supreme Court read into section 8(e) a distinction between primary and secondary objectives. An agreement which advances only primary objectives of the bargaining employees, such as preserving work opportunities, is not unlawful. Thus, a court must consider:
. . . whether, under all the surrounding circumstances, the Union's objective was preservation of work for (the contracting employer's) employees, or whether the agreements . . . were tactically calculated to satisfy union objectives elsewhere. Were the latter the case (the contracting employer) . . . would be a neutral bystander, and the agreement . . . would, within the intent of Congress, become secondary. There need not be an actual dispute with the boycotted employer . . . for the activity to fall within this category, so long as the tactical object of the agreement and its maintenance is that employer, or benefits to other than the boycotting employees of the primary employer thus making the agreement or boycott secondary in its aim. The touchstone is whether the agreement or its maintenance is addressed to the labor relations of the contracting employer Vis-a-vis his own employees.
Id. at 644-45, 87 S.Ct. at 1268, 1269 (citations omitted).
Applying this standard, this court has recognized that a union signatory clause...
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Pacific Northwest Chapter of Associated Builders & Contractors, Inc. v. N.L.R.B.
...into any agreement which is prohibited by section 8(e)." Both decisions of the Board were reviewed by a panel of this court. 609 F.2d 1341 (9th Cir. 1979). On the authority of Connell Construction Co. v. Plumbers & Steamfitters Local Union No. 100, 421 U.S. 616, 95 S.Ct. 1830, 44 L.Ed.2d 41......
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...& Steamfitters Local Union No. 100, 421 U.S. 616, 95 S.Ct. 1830, 44 L.Ed.2d 418 (1975); Pacific Northwest Chapter of the Associated Builders & Contractors, Inc. v. NLRB, 609 F.2d 1341 (9th Cir. 1979). In our view none of these cases are pertinent to the issue before us, which is the scope o......
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Donald Schriver, Inc. v. N.L.R.B., 1497
...the employers' argument was recently accepted by a panel of the Ninth Circuit in Pacific Northwest Chapter of the Associated Builders & Contractors, Inc. v. NLRB, 609 F.2d 1341 (9th Cir. 1979), rehearing en banc granted, No. 78-3469 (9th Cir. Aug. 19, 1980). In Pacific Northwest, the court ......