N.L.R.B. v. Haberman Const. Co.
| Citation | 641 F.2d 351 |
| Decision Date | 03 April 1981 |
| Docket Number | No. 79-1120,79-1120 |
| Parties | 106 L.R.R.M. (BNA) 2998, 91 Lab.Cas. P 12,685 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HABERMAN CONSTRUCTION COMPANY, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Elliott Moore, Deputy Associate Gen. Counsel, Charles Donnelly, N. L. R. B., Washington, D. C., for petitioner.
Manitzas, Harris & Padgett, J. Joe Harris, San Antonio, Tex., for respondent.
Application for Enforcement of an Order of the National Labor Relations Board.
Before GODBOLD, Chief Judge, BROWN, COLEMAN, AINSWORTH, CHARLES CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., GARZA, HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, TATE, SAM D. JOHNSON, THOMAS A. CLARK and WILLIAMS, Circuit Judges.
In this case the National Labor Relations Board (the Board) seeks to enforce its order in Haberman Construction Co., 236 N.L.R.B. 79 (1978). Adopting the findings of the administrative law judge, the Board found that Haberman Construction Co. (the Company) had by its actions adopted a prehire contract in effect between Local 1266 of the United Brotherhood of Carpenters and Joiners of America (the Union) and the Austin Chapter of the Associated General Contractors (the AGC). On this basis, the Board found that the Company had committed unfair labor practices by unilaterally refusing to make further union benefit payments as required by the Union-AGC contract, by announcing to its employees that it intended to go "open shop," and by constructively discharging certain employees who resigned in response to the Company's decision to cease union benefit payments and to go "open shop." Although the Board generally adopted the remedies proposed by the administrative law judge, it rejected his suggestion that, since the projects on which the employees had been working were in all likelihood completed by the time of his decision, the employees should be made whole only for losses incurred until the end of those projects. Rather, the Board ordered that those employees who would have continued in the Company's employment but for the unfair labor practices be reinstated to substantially equivalent positions on new projects and that they be made whole for all losses incurred by them as a result of the unfair labor practices (such losses not being limited to the projects under way at the time of the unfair labor practices).
A panel of this court granted the Board's petition to enforce its order in NLRB v. Haberman Construction Co., 618 F.2d 288 (5th Cir.), vacated and rehearing en banc granted (July 15, 1980). The panel enforced the Board's order in all respects. In so doing, the panel interpreted the Board's opinion as having adopted the rule that a prehire contract between a project-by-project employer in the construction industry and a union, entered into pursuant to section 8(f) of the National Labor Relations Act (the Act), becomes and continues thereafter to be an ordinary section 9(a) collective bargaining agreement once the union has achieved majority status in the relevant bargaining unit. As a section 9(a) agreement, the panel reasoned, a presumption of continuing union majority applies, and the union is not required to establish its majority status at each succeeding job site in order to enforce its contract with the employer. Accordingly, the panel concluded that the Board's remedy approximately extended to projects not yet begun at the time of the unfair labor practices.
We have reheard this case en banc primarily to consider whether the panel misinterpreted the remedial portion of the order and opinion of the Board in this case. For the reasons set forth below, we have decided that the panel did misinterpret the order and opinion of the Board. Further, reading the Board's order in the context of the explanation provided in its opinion and of its own prior precedents, we conclude that we cannot enforce that portion of the Board's remedial order which extends to projects not yet begun at the time of the unfair labor practices at issue.
The dispute in this case derives from the disruption of the relationship between the Company, a construction firm operating in Austin, Texas, and the Union. This relationship had its origin in 1973 when the Company hired Jessie Beshears, a union member, to be its carpenter foreman, and began paying Beshears' benefits into the carpenters' welfare, pension and apprentice training fund in accordance with the contract then in effect between the Union and the AGC. Under Beshears' tutelage, this burgeoning relationship grew to significant proportions since Beshears, according to his own testimony, hired "strictly union carpenters." Some of the Company's growing complement of union carpenters were hired by Beshears on the basis of his personal knowledge of their work; others were procured through his use of the union hiring hall.
Although the Company never formally executed a collective bargaining agreement with the Union, and despite the fact that respondent was not a member of the AGC, by May 1973 respondent was remunerating its carpenters at the pay scale provided by the Union-AGC contract. Furthermore, when this contract expired on August 31, 1974, and was replaced by a contract effective from September 1, 1974, through March 31, 1977, the Company instituted the new contract's higher wage scale. The Company also submitted payments for its carpenters' benefits to the Union and allowed the employees to maintain a job steward at the worksite.
This amicable relationship ended abruptly on February 14, 1977. On that date, the Company informed its carpenters that it would cease paying for their union benefits, and that it was going "open shop." In response, the carpenters sought the advice of their union business agent. Acting on his advice, at the end of business on February 16, 1977, five of the Company's carpenters relinquished their positions because of the Company's actions.
The Union's charges of unfair labor practices were tried before an administrative law judge. He found that in February, 1977, the Company operated two Austin projects and that the carpenters employed at these two projects constituted one bargaining unit because the employees were freely shifted by the Company between the two projects. He further found that on the date of the discharges, the Union represented at least seven of the eleven rank-and-file carpenters in this unit. Hence, it represented a majority of the employees.
The administrative law judge found that the Company was a project-by-project employer, having no regular complement of workers but rather hiring as the need arose. The Company's two Austin projects were almost completed at the time of the unfair labor practices and were considered by the administrative law judge to have been completed by the time of the administrative hearing.
The administrative law judge also found that the Company had adopted the Union-AGC contract. Since the Union enjoyed majority status at the time of the breach of this contract, the administrative law judge concluded that the Company's unilateral cessation of paying union benefits constituted a refusal to bargain in violation of section 8(a)(1) and (5) of the Act; that the Company's announcement that it was going "open shop" was coercion in violation of section 8(a)(1) of the Act; and that the Company's unilateral changes in terms and conditions of employment constituted a constructive discharge of the five employees who quit their employ, and thus amounted to a discriminatory discharge in violation of section 8(a)(1) and (3) of the Act.
After adopting the administrative law judge's findings as to the violations, the Board ordered the Company to reinstitute the terms and conditions of the Union-AGC contract, to reinstate the five discharged employees and to make them whole for the projects under way at the time of the violations and for new projects on which they would have been hired but for the violations, and to bargain with the union.
It is well settled that a union and employer's adoption of a labor contract 1 is not dependent on the reduction to writing of their intention to be bound. See, e. g., Certified Corp. v. Hawaii Teamsters Local 996, 597 F.2d 1269, 1272 (9th Cir. 1979); Warrior Constructors, Inc. v. Operating Engineers Local 926, 383 F.2d 700, 708 (5th Cir. 1967); Rabouin v. NLRB, 195 F.2d 906, 910 (2d Cir. 1952). Instead, what is required is conduct manifesting an intention to abide by the terms of an agreement. See, e. g., Warrior Constructors, Inc., supra, 383 F.2d at 708-09; NLRB v. George E. Light Boat Storage, Inc., 373 F.2d 762, 766 (5th Cir. 1967); Rabouin, supra, 195 F.2d at 909-10.
The conclusion that the Company manifested an intent to abide by the Union-AGC contract, by enjoying its benefits and abiding by its provisions, see id. at 910, is well supported by the findings of the administrative law judge:
(T)he evidence in the instant case of Respondent's adoption of the Union-AGC agreement must be regarded as substantial. Respondent's contributions to the Union's trust funds from May 1973 through February 1977, its use of union members exclusively as far as the record shows, it (sic) observations of the Union-AGC holidays, its use of the union for referrals, its payment of the union wage scale, its allowance through Beshears of the appointment of a union job steward, and the undisputed testimony of Beshears, whom I credit, to the effect that on some but not all occasions when he wanted to start work at an earlier hour than called for in the union agreement he will check with business agent Rosentritt, all reflects (sic) an intention to adhere to the terms of the Union-AGC agreement.
Since these findings are supported by substantial evidence on the record as a whole, see Universal Camera Corp. v. NLRB, 340 U.S. 474, 71...
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