Mesa Verde Const. Co. v. Northern California Dist. Council of Laborers

• Decision Date: 23 June 1987
• Docket Number: Nos. 85-1665,85-2074,s. 85-1665
• Citation: 820 F.2d 1006
• Parties: 125 L.R.R.M. (BNA) 2849, 56 USLW 2043, 106 Lab.Cas. P 12,429 MESA VERDE CONSTRUCTION CO., Plaintiff-Appellee, v. NORTHERN CALIFORNIA DISTRICT COUNCIL OF LABORERS, Defendant-Appellant. MESA VERDE CONSTRUCTION COMPANY, Plaintiff-Appellee, v. CARPENTERS 46 NORTHERN CALIFORNIA COUNTIES CONFERENCE BOARD, Defendant- Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1006

820 F.2d 1006

125 L.R.R.M. (BNA) 2849, 56 USLW 2043,

106 Lab.Cas. P 12,429

MESA VERDE CONSTRUCTION CO., Plaintiff-Appellee, v. NORTHERN CALIFORNIA DISTRICT COUNCIL OF LABORERS,

Defendant-Appellant.

MESA VERDE CONSTRUCTION COMPANY, Plaintiff-Appellee, v. CARPENTERS 46 NORTHERN CALIFORNIA COUNTIES CONFERENCE BOARD,

Defendant- Appellant.

Nos. 85-1665, 85-2074.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 14, 1986.

Decided June 23, 1987.

Mark R. Thierman and Paul V. Simpson, San Francisco, Cal., for plaintiff-appellee.

Victor J. Van Bourg and Sandra Rae Benson, San Francisco, Cal., for defendants-appellants.

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

Before NELSON, WIGGINS and NOONAN, Circuit Judges.

WIGGINS, Circuit Judge:

Mesa Verde Construction Company (Mesa Verde) brought actions against the Northern California District Council of Laborers (Laborers) and the Carpenters 46 Northern California Counties Conference Board (Carpenters) seeking a declaration that it was not obligated to arbitrate grievances under the terms of its respective collective bargaining agreements with the unions. Mesa Verde also sought a stay of arbitration proceedings initiated by the Laborers pending resolution of the declaratory judgment action. The district court stayed the arbitration proceeding and ultimately granted Mesa Verde summary judgment in both actions. We affirm.

BACKGROUND

Mesa Verde is a general contractor, specializing primarily in constructing shopping centers in Arizona, California, and Colorado. Mesa Verde typically subcontracts out most of its work except for some carpentry and odd jobs. In 1979 it reached its first agreement with the Laborers, and on June 26, 1980 it signed the contract with the Laborers that is here in dispute. The contract was to remain in effect until June 15, 1983 and would continue thereafter from year to year absent written notice by either party. By the contract's terms Mesa Verde agreed to "comply with all wages, hours, and working conditions set forth in the Laborers' Master Agreement for Northern California." That agreement is a sixty-seven-page contract between the Laborers, the Associated General Contractors of California, Inc. and the Bay Counties General Contractors Association. It sets wage rates for numerous jobs and provides Mesa Verde first entered into a collective bargaining agreement with the Carpenters in August 1979. Through a memorandum agreement Mesa Verde and the Carpenters accepted the Carpenters Master Agreement for Northern California, a forty-nine-page contract between the Carpenters, the Building Industry Association of Northern California, the California Contractors Council, Inc. and the Millwright Employers Association. That agreement sets rates for numerous jobs and provides for arbitration of "[a]ny dispute concerning the relationship of the parties, any application or interpretation of this Agreement." Through a subsequent memorandum agreement executed in June 1980 the parties accepted the new June 16, 1980 to June 15, 1983 Carpenters Master Agreement. On September 8, 1982 Mesa Verde and the Carpenters early extended the master agreement to June 15, 1986, with certain modifications limiting wage increases and providing more flexible working conditions for Mesa Verde.

                for arbitration, with certain exceptions, of "any dispute concerning the interpretation or application of the agreement."    On November 17, 1982 Mesa Verde and the Laborers agreed in writing that their 1980 contract would continue in effect until June 15, 1986
                

Mesa Verde informed the unions of its intent to abrogate its agreements with them in May of 1984. At the time Mesa Verde was working on a project in Hercules, California, at which it employed members of both unions. Mesa Verde notified the Carpenters of its repudiation through a May 8, 1984 letter and notified the Laborers through a May 15, 1984 letter. In late May or early June of 1984, after its notice to the unions, Mesa Verde started another project in Orland, California without union workers, in contravention of the collective bargaining agreements, if they were still in effect. Both unions gave Mesa Verde notice of grievance and requested arbitration regarding Mesa Verde's contractual obligations for the Orland project. Mesa Verde then brought suit against both unions seeking a declaration that it need not comply with the agreements with regard to projects begun after its repudiations in May 1984. Mesa Verde did not seek a declaration of its obligations to the unions at the ongoing Hercules project.

The district court stayed the Laborer's arbitration proceeding pending resolution of the declaratory judgment action and later granted Mesa Verde summary judgment. Mesa Verde Constr. Co. v. Northern Cal. Dist. Council of Laborers, 598 F.Supp. 1092 (N.D.Cal.1984). The court, in an unpublished opinion, also granted Mesa Verde summary judgment against the Carpenters. The court held that the collective bargaining agreements at issue were construction industry "prehire" agreements and that therefore, under 29 U.S.C. Sec. 158(f), Mesa Verde's May 1984 letters were sufficient to effectively repudiate the agreements with respect to future projects. The court denied a subsequent motion of the Laborers to vacate its judgment and grant the Laborers additional discovery to demonstrate the existence of a core group of employees. 602 F.Supp. 327 (N.D.Cal.1985).

The unions in this consolidated appeal contest the following: (1) the district court's jurisdiction; (2) the court's stay of arbitration proceedings; and (3) the court's holding that Mesa Verde effectively repudiated its agreements with the unions as to future projects.

ANALYSIS

I. JURISDICTION

We review the district court's determination of its subject matter jurisdiction de novo. Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 549 (9th Cir.1984). The unions first argue that the resolution of this case requires determinations of issues within the primary jurisdiction of the National Labor Relations Board (NLRB). However, the determination of repudiation of a pre-hire agreement is not within the NLRB's primary jurisdiction, and the district court had jurisdiction to declare whether Mesa Verde repudiated. Northwest Adm'rs, Inc. v. Con Iverson Trucking, Inc., 749 F.2d 1338, 1340 (9th Cir.1984); accord John S. Griffith Constr.

                Co. v. United Bhd. of Carpenters & Joiners, 785 F.2d 706, 710 (9th Cir.1986).  The court also had jurisdiction to determine the effectiveness of the repudiations.  Although this determination involved an employee representational issue usually within the primary jurisdiction of the NLRB--whether Mesa Verde had a "permanent and stable" work force, the majority of which supported the unions, see infra section III--the district courts have jurisdiction to determine "a union's past representational status."   United Bhd. of Carpenters & Jointers Local 2247 v. Endicott Enters., 806 F.2d 918, 921 (9th Cir.1986).  The district court in this case determined Mesa Verde's work force status for the period prior to its May 1984 repudiations;  its jurisdiction thus falls within the past representational status exception recognized by Endicott
                

The unions also argue that their respective collective bargaining agreements with Mesa Verde required that the issue of Mesa Verde's repudiation be resolved through arbitration and not by the district court. ¹ This court in Ion Construction Co. v. District Council of Painters No. 16, 803 F.2d 1050, 1051 (9th Cir.1986), recently stated the rule "that, as between the court and an arbitrator, it is the former that should determine the effectiveness of an employer's alleged repudiation of a prehire agreement." The rationale for this rule is that "[i]f the Court finds that the employer's repudiation was effective, then there is no longer any agreement to arbitrate disputes between the parties." Griffith Constr., 785 F.2d at 712 n. 5 (quoting Ion Constr. Co. v. District Council of Painters No. 16, 593 F.Supp. 233, 238 (N.D.Cal.1984), aff'd, 803 F.2d 1050 (9th Cir.1986)). Ion Construction and Griffith Construction control this case. ²

The district court had jurisdiction to determine both whether Mesa Verde repudiated its collective bargaining agreements with the unions and whether, based on the union's representational status during the period before the repudiations, the repudiations were effective.

II. STAY OF ARBITRATION PROCEEDINGS

The Laborers argue that the district court's stay of arbitration proceedings pending final disposition of the declaratory judgment action constituted a restraining order of a labor dispute in violation of the Norris-LaGuardia Act, 29 U.S.C. Sec. 101. The Laborers do not say, and we cannot see, how the stay, even if erroneous, affected the final judgment of the district court. Even if the district court had permitted arbitration to continue and the Laborers obtained a favorable arbitration award prior to summary judgment, an award resolving issues properly within the district court's jurisdiction would have had no preclusive effect on the district court. See Ion Constr. Co., 803 F.2d 1050 (vacating arbitration award resolving issue within district court's and not arbiter's jurisdiction). Because the stay by its own terms was lifted upon final disposition of the declaratory judgment action, this court has available no effective relief to redress the alleged error. We therefore sua sponte reject the Laborer's argument as moot. See AcGuirre v. S.S. Sohio Intrepid, 801 F.2d 1185, 1189 (9th Cir.1986).

III. REPUDIATION

Pre-hire agreements are specially recognized collective bargaining agreements in the construction industry. These agreements provide an exception to the general rule that an employer may not This circuit recognizes two methods of demonstrating majority status. If the agreement covers a permanent and...