Pacific Northwest Chapter of Associated Builders & Contractors, Inc. v. N.L.R.B.

• Decision Date: 05 October 1981
• Docket Number: AFL-CIO,U,I,R,78-3487,Nos. 78-3469,No. 235,OREGON-COLUMBIA,78-3468 and 79-7011,78-3619,AFL-CI,235,s. 78-3469
• Citation: 654 F.2d 1301
• Parties: 107 L.R.R.M. (BNA) 2065, 91 Lab.Cas. P 12,712 PACIFIC NORTHWEST CHAPTER OF the ASSOCIATED BUILDERS & CONTRACTORS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL NO. 701, Intervenor.CHAPTER, the Associated General Contractors of America, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL NO. 701, Intervenor. 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, v. CARPENTERS LOCAL NO. 944 and Carpenters Localntervenors. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CARPENTERS LOCAL NO. 944, United Brotherhood of Carpenters & Joiners of America,, and Carpenters Localnited Brotherhood of Carpenters & Joiners of America,, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1301

654 F.2d 1301

107 L.R.R.M. (BNA) 2065, 91 Lab.Cas. P 12,712

PACIFIC NORTHWEST CHAPTER OF the ASSOCIATED BUILDERS &

CONTRACTORS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL NO. 701,

Intervenor.

OREGON-COLUMBIA CHAPTER, the Associated General Contractors

of America, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL NO. 701,

Intervenor.

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, v. CARPENTERS LOCAL NO. 944 and Carpenters Local No. 235, Intervenors.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CARPENTERS LOCAL NO. 944, United Brotherhood of Carpenters &

Joiners of America, AFL-CIO, and Carpenters Local

No. 235, United Brotherhood of

Carpenters & Joiners of

America, AFL-CIO, Respondent.

Nos. 78-3469, 78-3487, 78-3619, 78-3468 and 79-7011.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 16, 1980.

Decided April 17, 1981.

Certiorari Granted Oct. 5, 1981.

See 102 S.Ct. 90.

Thomas M. Triplett, Portland, Or., John W. Prager, Jr., Newport Beach, Cal., Lewis K. Scott, Portland, Or., argued for petitioners; Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland, Or., on brief.

Vincent J. Apruzzese, Springfield, N. J., for Chamber of Commerce, amicus curiae.

Lewis K. Scott, David H. Wilson, Jr., Dezendorf, Spears & Lubersky, Portland, Or., on brief for Oregon-Columbia Chapters et al.

Daniel R. Levinson, McGuiness & Williams, Washington, D. C., Julius Reich, Reich, Adell, Crost & Perry, Los Angeles, Cal., for Air Cond. et al., amicus curiae.

Jerome B. Buckley, Jr., Portland, Or., argued for International Union of Operating Engineers, Local 701; Carney, Probst & Cornelius, Richard R. Carney, Portland, Or., on brief.

John W. Prager, Jr., Musick, Peeler & Garrett, Newport Beach, Cal., Kenneth C. McGuiness, McGuiness & Williams, Washington, D. C., on brief for Woelke & Romero Framing, Inc.

Abe Levy, Levy, Koszdin, Goldschmid & Sroloff, Los Angeles, Cal., argued for Carpenters Local No. 944; Lawrence Rosenzweig, Los Angeles, Cal., on brief.

John G. Elligers, John H. Ferguson, Washington, D. C., Jerome B. Buckley, Jr., Carney, Probst & Cornelius, Portland, Or., Laurence J. Cohen, Sherman, Dunn, Cohen & Leifer, Sara Green, Washington, D. C., argued for N.L.R.B.; Elliott Moore, Washington, D. C., on brief.

Petitions for Review of Orders of the National Labor Relations Board.

Before BROWNING, Chief Judge, CHOY, WALLACE, SNEED, ANDERSON, SCHROEDER, FLETCHER, FARRIS, NELSON, CANBY and NORRIS, Circuit Judges.

CANBY, Circuit Judge.

These cases raise important questions concerning the scope of § 8(e) of the National Labor Relations Act, 29 U.S.C. § 158(e), which prohibits "hot cargo" agreements. The primary issue is whether the construction industry proviso to § 8(e) renders lawful clauses in collective bargaining contracts forbidding the employers to subcontract work at any construction site to a firm not having a contract with the signatory union. Additional issues are whether unions may picket or strike to induce an employer to enter these agreements and whether the agreements, once entered, may be enforced by picketing or strikes. We conclude that the subcontracting clauses fall within the construction industry proviso and consequently do not violate § 8(e). We also conclude that unions may picket or strike to obtain such agreements, but not to enforce them. The orders of the National Labor Relations Board are accordingly enforced.

I.

Facts.

Two orders of the Board are under review here pursuant to 29 U.S.C. § 160(e) and (f). The first concerns a collective bargaining agreement between Oregon-Columbia Chapter of the Associated General Contractors of America, Inc. (AGC) and Local 701 of the International Union of Operating Engineers (Engineers). AGC is an association of some 200 employers engaged in construction in Oregon and southwest Washington. These employers have delegated their collective bargaining authority to AGC. AGC and Engineers entered into a collective bargaining agreement effective from June 1, 1975, through May 31, 1980, which contained the following clause:

Article VIII

Subcontractors and Other Employers.

Section 1. Employers shall not contract any work covered by this Agreement to be done at the site of the construction, alteration, painting or repair of a building, structure or other work to any person, firm or company who does not have an existing labor agreement with the Union covering such work.

Subsequent clauses ¹ provide for a grievance procedure leading to arbitration and further provide that should the parties fail to comply with the arbitrator's decision, then "(e)ither party may take such action as they deem necessary to enforce the findings...." The effect of the latter provision is to permit either party to employ self-help, such as strikes or lockouts, that would otherwise be prohibited by another article of the agreement.

Upon complaint by Pacific Northwest Chapter of the Associated Builders & Contractors, Inc., Engineers and AGC were charged with violating § 8(e) ² of the National Labor Relations Act, which prohibits agreements between a labor organization and an employer in which the employer agrees to refrain from using the products of another employer or to cease doing business with any other person. The case was submitted to the Board upon stipulated facts and the Board found that, while the agreement fell within the prohibition of § 8(e), it was exempted from the coverage of that provision by the construction industry proviso applicable to agreements "between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work...." The Board also ruled that the clause authorizing enforcement of the subcontracting provision by self-help was invalid. All parties petitioned for review and the Board sought enforcement of its order.

The second decision of the Board concerns Woelke Romero Framing, Inc., (Woelke), a framing subcontractor in the construction industry in Southern California. Woelke was a party to a collective bargaining agreement entered on July 5, 1974, with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Carpenters), a group which included Locals Number 235 and 944 involved in this litigation. That agreement expired on June 15, 1977. From about June 3, 1977, to August 4, 1977, Carpenters and Woelke engaged in collective bargaining for the purpose of negotiating a successor agreement. They broke off negotiations when they reached an impasse over several issues. ³ One such issue was the union's demand for a clause in The case was submitted to the Board upon stipulation and the Board found that the proposed subcontracting agreement was not prohibited by § 8(e) because it fell within the construction industry proviso, and that picketing to obtain such a clause therefor did not violate § 8(b)(4). Woelke petitions for review of the Board's order, and the Board seeks enforcement. ⁶

the contract that prohibited 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." ⁴ In support of Carpenters' demand for this contract provision, Locals 235 and 944 picketed Woelke's construction sites, causing some work stoppages. The two locals were charged with violation of § 8(b)(4)(i) and (ii)(A) of the Act ⁵ for picketing to require an employer "to enter 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 418 (1975), the panel held that the subcontractor clauses were prohibited by § 8(e) and did not fall within the protection of the construction industry proviso because their applicability was not limited to jobsites where members of the signatory union were employed at some time during the construction project. Having found the present clauses unenforceable, the panel did not reach the questions whether picketing or striking either to obtain or enforce a lawful subcontractor clause would violate § 8(e). 609 F.2d at 1351. This court subsequently ordered rehearing before a limited en banc panel as provided by Public Law 95-486, 92 Stat. 1629, 1633 and Rule 25 of this court.

II.

Issues.

Four issues are presented for determination in these cases:

(1) Are the subcontracting clauses "secondary" and therefore within the scope of § 8(e)?

(2) If the clauses are within the scope of § 8(e), are they exempted from its proscription by the construction industry proviso?

(3) If the subcontracting clauses are lawful, does it nevertheless violate § 8(b)(4) for a union to picket or strike to induce an employer to agree to one?

(4) If the subcontracting clauses are lawful, does it nevertheless violate § 8(b)(4) to enforce them by picketing or strikes?

III.

Applicability of § 8(e).

The subcontractor clauses in the present case clearly require the signatory employer to cease or refrain from using the products of another employer or to cease doing business with another person. The clauses consequently fall within the literal language of § 8(e). In National Woodwork Manufacturers Association v. NLRB, 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967), however, the Supreme Court held that § 8(e) is not to be read as expansively as its language seems to indicate. The...