John S. Griffith Const. Co. v. United Broth. of Carpenters & Joiners of Southern California

• Decision Date: 20 March 1986
• Docket Number: No. 84-6501,84-6501
• Citation: 785 F.2d 706
• Parties: 121 L.R.R.M. (BNA) 3385, 54 USLW 2513, 104 Lab.Cas. P 11,868 JOHN S. GRIFFITH CONSTRUCTION CO., Plaintiff-Appellant, v. UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF SOUTHERN CALIFORNIA, Carpenters Local Union # 563 and Southern California Conference of Carpenters & Joiners, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 706

785 F.2d 706

121 L.R.R.M. (BNA) 3385, 54 USLW 2513,

104 Lab.Cas. P 11,868

JOHN S. GRIFFITH CONSTRUCTION CO., Plaintiff-Appellant, v. UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF SOUTHERN CALIFORNIA, Carpenters Local Union # 563 and Southern California Conference of Carpenters & Joiners Defendants-Appellees.

No. 84-6501.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 10, 1985.

Decided March 20, 1986.

Alan J. Saxe, Hersh & Stoll, Newport Beach, Cal., for plaintiff-appellant.

John T. DeCarlo, DeCarlo & Connor, Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before SNEED, SCHROEDER, and BRUNETTI, Circuit Judges.

SNEED, Circuit Judge:

John S. Griffith Construction Co. appeals from the district court's dismissal of its complaint for lack of subject matter jurisdiction. Griffith sought a declaratory judgment to ascertain whether it had repudiated a section 8(f) prehire agreement before the signatory unions had attained majority status. We hold that the court below had jurisdiction in the case; therefore, we reverse and remand.

I. FACTS AND PROCEEDINGS BELOW

From January through October 1983, appellant John S. Griffith Construction Co. (Griffith) was the owner-builder of a shopping center in Glendale, California. Griffith's initial general contractor for the project was Stolte, Inc. (Stolte). In July 1983, several construction unions, including appellee Carpenters Local Union No. 563 (Carpenters) and Cement Masons Local Union No. 893 (Cement Masons), picketed the Glendale construction site in an effort to improve their bargaining position in a collective bargaining negotiation with Stolte. As a result of the picketing, construction at that site came to a halt.

On July 14, 1983, Griffith signed an interim agreement with the unions and removed Stolte as general contractor after determining that doing so would achieve a resumption of construction at the site. The interim agreement was a section 8(f) agreement, see 29 U.S.C. Sec. 158(f) (1982). Section 8(f) agreements, also known as "prehire" agreements, enable employees in the construction industry to obtain some of the benefits of union representation before the union has come to represent a majority of the employees. See Todd v. Jim McNeff, Inc., 667 F.2d 800, 802 (9th Cir.1982), aff'd, 461 U.S. 260, 103 S.Ct. 1753, 75 L.Ed.2d 830 (1983). At the time that Griffith signed the agreement, it had no employees. After the signing, Griffith hired union workers for the pay periods of July 17, July 24, and July 31, 1983. Meanwhile, Stolte negotiated with the union and executed a prehire agreement of its own, allowing it to return to its position as general contractor. Stolte then hired union workers to complete the job, which ended around November 1, 1983.

Griffith, in a November 4 letter to Carpenters and in a November 11 letter to Cement Masons, attempted to repudiate the interim agreement. Appellees disputed the effect of this act. On November 23, 1983, Griffith petitioned the National Labor Relations Board, Region 21, for an election to determine the status of the interim agreement by determining whether a majority of the employees either belonged to or supported the unions. The NLRB, on December 14, 1983, dismissed the petition because "the Employer does not currently employ any employees, nor has it employed employees during a representative period of time." Griffith appealed to the Executive Secretary, and the NLRB affirmed the dismissal on March 13, 1984.

On April 6, 1984, Griffith filed a complaint in district court for declaratory relief against Carpenters, seeking a determination that its repudiation had been effective and that therefore it was under no obligation to Carpenters. It also sought costs and attorneys' fees. Carpenters filed an answer on May 7, 1984, and Griffith moved for summary judgment on May 14, 1984. The district court granted Griffith's motion for summary judgment on June 4, 1984, concluding that the November 4, 1983 repudiation was valid and that Griffith was not obligated to Carpenters. The court found that it had jurisdiction pursuant to 29 U.S.C. Sec. 185, 28 U.S.C. Sec. 1337, and 29 U.S.C. Sec. 301(a). Excerpt of Record (E.R.) at 144.

Had all matters stopped there, perhaps we would not have this case before us. They did not, however. While Griffith pursued a declaratory judgment against Carpenters, it also filed a complaint for declaratory relief against Cement Masons. Again, Griffith sought a declaration that it had validly repudiated the interim agreement, that it bore no obligation to Cement Masons, and that it was entitled to costs and attorneys' fees. Instead of duplicating Carpenters' answer, Cement Masons filed a motion to dismiss, claiming that the district court lacked subject matter jurisdiction. In a memorandum decision issued on September 24, 1984, the court granted Cement Masons' motion to dismiss on the basis of a lack of subject matter jurisdiction.

Prompted by Cement Masons' arguments on subject matter jurisdiction, the court, now acting consistently, also notified Griffith and Carpenters on August 30, 1984, that it would reconsider the June 4, 1984 judgment in favor of Griffith. Carpenters filed a motion for relief from judgment on October 10, 1984, which Griffith opposed. On November 7, 1984, the court dismissed the case for lack of subject matter jurisdiction. ¹ Griffith filed its notice of appeal on November 16, 1984.

The Cement Masons case is not before us, however. After Griffith filed its opening brief in this court, the Cement Masons Trust Funds filed an action against Griffith, seeking specific performance of the interim agreement between Griffith and Cement Masons. In this separate case, Griffith moved for summary judgment. The district court ruled that Griffith's repudiation of the interim agreement was effective as of November 1983. Griffith and Cement Masons have stipulated to a dismissal of that appeal for mootness. Thus, only the question of whether the interim agreement with Carpenters is still binding remains. Further discussion is focused on the case involving that issue.

II. THE PRIMARY JURISDICTION DOCTRINE

This case is concerned with the doctrine of primary jurisdiction. The question is whether that doctrine bars a district court from hearing a case when the Board has refused to make the initial determination as to representational status. What follows is an explanation of why the district court is not so barred under the circumstances of this case.

A. Doctrine's Application to Majority Status Questions.

When Congress added subsection (f) to 29 U.S.C. Sec. 158, Pub.L. No. 86-257, Sec. 705(a), 73 Stat. 519, 545 (1959), it created an exception to the general policy prohibiting binding collective bargaining agreements between employers and employee bargaining units that have not received majority support. Section 8(f) permits employers and unions in the construction industry to enter into "prehire" agreements--agreements that allow employees in an industry characterized by constant fluctuations in the work force to acquire some of the benefits of union representation while giving an employer the option to repudiate the agreement until the minority bargaining unit with whom it negotiated attains majority status. See Jim McNeff, Inc. v. Todd, 461 U.S. 260, 265-66, 103 S.Ct. 1753, 1756, 75 L.Ed.2d 830 (1983); NLRB v. Local Union No. 103, International Association of Bridge, Structural & Ornamental Iron Workers (Higdon), 434 U.S. 335, 344-45, 98 S.Ct. 651, 657-58, 54 L.Ed.2d 586 (1978); Orange Belt District Council of Painters No. 48 v. Kashak, 774 F.2d 985, 988 (9th Cir.1985). When the union does attain majority status, the section 8(f) agreement becomes a binding collective bargaining agreement between the employer and the union. The majority status issue, then, is pivotal; it determines whether employees are entitled to the full protection of a collective bargaining agreement or whether they receive only the partial protection of a prehire agreement.

Because of both the agency's expertise and its mandate from Congress, the NLRB has the initial responsibility of deciding issues involving representation. See, e.g., Local No. 3-193 International Woodworkers of America v. Ketchikan Pulp Co., 611 F.2d 1295, 1298, 1301 (9th Cir.1980). Courts have jurisdiction to decide cases involving breaches of prehire or collective bargaining agreements, Labor Management Relations (Taft-Hartley) Act Sec. 301, 29 U.S.C. Sec. 185 (1982), but they have no jurisdiction to determine the representational status of the bargaining unit. ² This is the nub of the primary jurisdiction doctrine. Once the Board decides the issue of majority status, however, a district court (or a state court, as the case may be) may proceed to rule on the section 301 breach of contract claim. See, e.g., Brotherhood of Teamsters, Local No. 70 v. California Consolidators, Inc., 693 F.2d 81, 83 (9th Cir.1982), cert. denied, --- U.S. ---, 105 S.Ct. 263, 83 L.Ed.2d 199 (1984).

B. Effect of the NLRB's Dismissal of the Petition for Election.

In two letters, both dated December 14, 1983, the Region 21 Acting Regional Director of the NLRB dismissed the petitions for election in both the Carpenters case and the Cement Masons case by stating:

The above-captioned case, petitioning for an investigation and determination of representative [sic] under Section 9(c) of the National Labor Relations Act, as amended, has been carefully investigated and considered.

As a result of the investigation, it appears, that because the employer does not currently employ any employees, nor has it employed employees during a representative period of time, further proceedings are not warranted at this time. I am, therefore, dismissing the petition in this matter.

Letter from Michael J. Fogerty, Region 21 Acting Regional Director, to Wayne A....