Plumbers and Pipefitters Local Union 72 of United Ass'n of Journeymen and Apprentices of Plumbing and Pipefitting Industry of U.S. and Canada v. John Payne Co., Inc.

• Citation: 850 F.2d 1535
• Decision Date: 03 August 1988
• Docket Number: No. 87-8588,87-8588
• Parties: 128 L.R.R.M. (BNA) 3213, 57 USLW 2132, 109 Lab.Cas. P 10,662 PLUMBERS AND PIPEFITTERS LOCAL UNION 72 OF the UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPEFITTING INDUSTRY OF the UNITED STATES AND CANADA, Plaintiff-Appellant, v. JOHN PAYNE CO., INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1535

850 F.2d 1535

128 L.R.R.M. (BNA) 3213, 57 USLW 2132,

109 Lab.Cas. P 10,662

PLUMBERS AND PIPEFITTERS LOCAL UNION 72 OF the UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPEFITTING INDUSTRY OF the UNITED STATES AND CANADA Plaintiff-Appellant, v. JOHN PAYNE CO., INC., Defendant-Appellee.

No. 87-8588.

United States Court of Appeals Eleventh Circuit.

Aug. 3, 1988.

Frank B. Shuster, Blackburn, Shuster, King & King, Atlanta, Ga., for plaintiff-appellant.

Dion Y. Kohler, Powell, Goldstein, Frazer & Murphy, J. Roy Weathersby, Atlanta, Ga., for defendant-appellee.

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

Before JOHNSON and HATCHETT, Circuit Judges, and ESCHBACH ^*, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge:

The Plumbers and Pipefitters Local Union 72 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada ("the Union") brought this action against John Payne Co., Inc. ("the Company") under Sec. 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. Sec. 185. The Union seeks to enforce against the Company the terms of the multi-employer prehire agreement between it and the Association of Mechanical Contractors of Atlanta ("AMCA"). The Union claims that the Company unlawfully breached the agreement by violating certain of its wage, fringe benefit and hiring hall provisions. The district court granted the Company's motion to dismiss for lack of subject matter jurisdiction and denied the Union's motion for summary judgment. The Union appeals.

I

Over the years, the AMCA has executed a series of prehire agreements with the Union on behalf of its member employers. In a document dated March 9, 1976, the Company authorized the AMCA to negotiate collective bargaining agreements on its behalf with the Union. ¹ The Company now claims that it revoked this authorization in 1977 or 1978. On November 5, 1985, the Union filed a grievance against the Company pursuant to the 1984-86 Union-AMCA prehire agreement. The Joint Conference Committee, designated to resolve disputes between the parties to the agreement, found the Company in violation of the contract. In the district court, the Union sought to enforce this decision by the Joint Conference Committee.

The district court cited two reasons why it lacked subject matter jurisdiction. First, it believed that the employer's defense of repudiation raised "representational issues regarding prehire agreements," issues within the primary jurisdiction of the National Labor Relations Board (the "NLRB"). Second, the district court found that "this case most fundamentally involves the validity of a purported agreement between the Union and John Payne Company and not whether John Payne Co. has breached it [the agreement]."

Thus, the issue before us is whether the district court erred in holding that it was without jurisdiction to adjudicate the Union's claims under Sec. 301 of the LMRA. A determination by a district court that it is without subject matter jurisdiction turns on a question of law. Accordingly, our review is de novo. See Rich v. Dollar, 841 F.2d 1558, 1563 (11th Cir.1988); Donaldson v. Clark, 819 F.2d 1551, 1556 (11th Cir.1987); United States v. McKennon, 814 F.2d 1539, 1543 (11th Cir.1987). See also Laborers Health and Welfare Trust Fund for Northern California v. Advanced Lightweight Concrete Company, 779 F.2d 497, 499 (9th Cir.1985), aff'd on other grounds, --- U.S. ----, 108 S.Ct. 830, 98 L.Ed.2d 936 (1988) ("A district court's determination that it is without subject matter jurisdiction is reviewed de novo ").

Our independent analysis leaves us convinced that the disposition of this suit would not require the district court to decide any representational issues, or other LMRA questions, that fall within the primary jurisdiction of the NLRB. Furthermore, we are unable to agree that the primary issue in this case is one of the validity of the AMCA-Union agreement. ² Rather, the Union's suit can most accurately be characterized as an action to enforce the terms of the AMCA-Union prehire agreement against the Company. To the extent this cause of action seeks to enforce any of the Company's monetary obligations that may have accrued under the AMCA-Union agreement, we believe the district court does have subject matter jurisdiction under Sec. 301 of the LMRA. Therefore, we will reverse and remand to the district court.

II

The Union does not claim to have ever achieved majority representative status among the Company's employees. Accordingly, with regard to the John Payne Company, the AMCA-Union agreement can only be viewed as a prehire agreement, as contemplated by Sec. 8(f) of the LMRA, 29 U.S.C. Sec. 158(f), and not as a fully enforceable collective bargaining agreement. See Orange Belt District Council of Painters v. Kashak, 774 F.2d 985, 988 (9th Cir.1985) ("A section 8(f) agreement is a labor contract negotiated between a construction employer and a 'union [that] does not represent a majority [of the employees] at the time of contract execution' " (quoting Construction Erectors, Inc. v. NLRB, 661 F.2d 801, 804 (9th Cir.1981)). See also National Labor Relations Board v. Local Union No. 103, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Higdon), 434 U.S. 335, 349-50, 98 S.Ct. 651, 660, 54 L.Ed.2d 586 (1978) (when a union that is a party to a prehire agreement becomes a majority representative within the bargaining unit, "the prehire agreement attains the status of a collective bargaining agreement executed by the employer with a union representing a majority of the employees in the unit."); Painters Local Union No. 164 of the Brotherhood of Painters v. Epley, 764 F.2d 1509, 1514 (11th Cir.1985), cert. denied 475 U.S. 1120, 106 S.Ct. 1636, 90 L.Ed.2d 182 (1986); Carpenters Local Union No. 1846 of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO v. Pratt-Farnsworth, Inc., 690 F.2d 489, 522 (5th Cir.1982), cert. denied, 464 U.S. 932, 104 S.Ct. 335, 78 L.Ed.2d 305 (1983) ("[prehire] agreements ripen into fully enforceable collective bargaining agreements upon demonstration of a union majority").

It is true that the Union's complaint seeks enforcement of the "arbitral award" made by the Joint Conference Committee designated to resolve all disputes between the parties to the AMCA-Union agreement. Nevertheless, the dispositive questions as to the Company's obligations under the agreement go to (i) whether the Company has made an effective repudiation of that prehire agreement, and if so, (ii) the date its repudiation of the agreement became effective. Unless the Company is determined to have been a party to the prehire agreement during all, or a portion of the period of time the Union alleges it to have been in violation of the agreement's provisions, the Company cannot be said to be bound in any fashion by the arbitral award of the Joint Conference Committee. See John S. Griffith Construction Co. v. United Brotherhood of Carpenters & Joiners, 785 F.2d 706, 712 n. 5 (9th Cir.1986) ("if the Court finds that the employer's repudiation [of a prehire agreement] was effective, there is no longer any agreement to arbitrate disputes between the parties").

Thus, it is clear that the issues on the merits of the Union's complaint center on the question of whether the Company has made an effective repudiation of the AMCA-Union agreement, and the extent, if any, of the Company's accrued but unsatisfied monetary obligations under the agreement. The Company claims that it ceased to be a party to the agreement sometime in 1978 or 1979. The Union contends the Company has not repudiated and seeks judicial enforcement of the agreement against the Company, both retroactively and prospectively. Therefore, we must conclude that the underlying cause of action of the Union's complaint seeks to enforce the AMCA-Union prehire agreement against the Company.

III

The standards pertaining to judicial enforcement of Sec. 8(f) prehire agreements are different from the standards for enforcement of collective bargaining agreements between majority representative unions and employers. See Kashak, 774 F.2d at 988 ("a section 8(f) agreement does not have the same status as a collective bargaining agreement"). The genesis of the special status accorded Sec. 8(f) prehire agreements, and the reason for their treatment separate and apart from collective bargaining agreements negotiated between employers and majority representative unions under Sec. 301, is found in the fact that Sec. 8(f) grants to employers and unions in the building and construction industry an exemption from the general rule barring employers from according recognition to unions that have not achieved majority representative status. Jim McNeff, Inc. v. Todd, 461 U.S. 260, 265, 103 S.Ct. 1753, 1756, 75 L.Ed.2d 830 (1983). Thus, Sec. 8(f) permits construction industry employers and unions to enter into agreements setting wages, hours and conditions of employment, without requiring the union to have secured majority status through the Sec. 9 LMRA representation procedures. Epley, 764 F.2d at 1513.

The case law relevant to the enforcement of Sec. 8(f) prehire agreements centers on the Supreme Court's decisions in Higdon, supra and McNeff, supra. Higdon was not a Sec. 301 enforcement action. Rather, it arose in the context of an unfair labor practice proceeding prompted by the attempt of a non-majority union to force an employer to comply with the terms of a prehire agreement. The employer filed an unfair labor practice charge averring that, by picketing the employer for more than thirty days without filing a petition for a representation election with the National Labor Relations Board, the union had violated Sec. 8(b)(7)(C) of the LMRA, 29 U.S.C. Sec. 158(b)(7)(C). ³ In affirming the NLRB's finding of a Sec. 8(b)(7...