Cedar Valley Corp. v. N.L.R.B.

• Decision Date: 27 November 1992
• Docket Number: No. 91-2160,91-2160
• Citation: 977 F.2d 1211
• Parties: 141 L.R.R.M. (BNA) 2153, 61 USLW 2188, 123 Lab.Cas. P 10,338 CEDAR VALLEY CORPORATION, Appellant, v. NATIONAL LABOR RELATIONS BOARD, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1211

977 F.2d 1211

141 L.R.R.M. (BNA) 2153, 61 USLW 2188,

123 Lab.Cas. P 10,338

CEDAR VALLEY CORPORATION, Appellant, v. NATIONAL LABOR RELATIONS BOARD, Appellee.

No. 91-2160.

United States Court of Appeals,

Eighth Circuit.

Submitted March 9, 1992.

Decided Aug. 26, 1992.

Rehearing and Rehearing En Banc Denied, Nov. 27, 1992.

Kevin James Visser, Cedar Rapids, Iowa, argued (Kevin J. Visser, Robert E. Konchar and Mark J. Herzberger, on the brief), for appellant.

Robert Herman, Washington, D.C., argued (Charles Donnelly, Robert N. Herman, Jerry M. Hunter, D. Randall Frye and Aileen A. Armstrong, Washington, D.C., on the brief), for appellee.

Before, FAGG, Circuit Judge, BEAM, Circuit Judge, and GAITAN, ^* District Judge.

GAITAN, District Judge.

The focus of this appeal is a decision by the National Labor Relations Board (hereafter NLRB) adverse to petitioner, Cedar Valley Corporation (hereafter Cedar Valley). Citing John Deklewa & Sons, 282 N.L.R.B. 184 (1987), enfd. sub nom., Iron Workers Local 3 v. N.L.R.B., 843 F.2d 770 (3d Cir.), cert. denied, 488 U.S. 889, 109 S.Ct. 222, 102 L.Ed.2d 213 (1988), the NLRB rendered a Decision and Order holding that Cedar Valley violated Section 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1988), by unilaterally repudiating Section 8(f) agreements with the charging labor unions before the agreements' expiration. Cedar Valley petitions for review of the NLRB's Decision and Order arguing that it is invalid and therefore enforcement should be denied.

I. FACTUAL SUMMARY

Cedar Valley is a corporation headquartered in Waterloo, Iowa and is engaged in the business of road construction. During the 1970s and through 1982, Cedar Valley's employees were represented by four labor unions in the Waterloo area: Operating Engineers Local 234, Cement Masons Local 818, the Iowa Laborers' District Council, and Teamsters' Local 844. In October of 1984, the employees represented by Operating Engineers Local 234 and Iowa Laborers' District Council voted to terminate this representation through decertification of these unions. At approximately the same time, Cement Masons Local 818 and Teamsters' Local 844 disclaimed interest in representing Cedar Valley employees in Waterloo.

Cedar Valley's relationship with the complaining unions began in 1978 (during the pendency of the collective bargaining agreements with the Waterloo labor unions) when Cedar Valley was awarded a road construction contract near Davenport, Iowa. Also during 1978, agents for Cedar Valley signed collective bargaining agreements (hereafter Quad City Agreements) already in existence between Illinois construction unions in the Quad City area and a local multi-employer association of construction employers (hereafter Associated Contractors). Among the Illinois construction unions party to the Quad City Agreements signed by Cedar Valley were Laborers Local 309, Operating Engineers Local 537, Cement Masons 544, and Teamsters 371 (hereafter Complaining Unions). The complaining unions are labor organizations based in Rock Island, Illinois, with jurisdiction in Rock Island, Moline, and East Moline, Illinois, and Davenport, Iowa, and their environs, an area known as the "Quad Cities".

Pursuant to the Quad City Agreements signed by Cedar Valley in 1978, the 1978 project was completed using roughly one-half existing Cedar Valley employees and one-half locally referred workers. In 1981, Cedar Valley was awarded a second road construction contract in the Davenport area. Cedar Valley honored the Quad City Agreements signed in 1978 and again local workers comprised approximately one-half of the workforce. ¹

In 1985, Cedar Valley's bid on a third project in the Davenport area was accepted. To complete this project Cedar Valley used Cedar Valley employees to the exclusion of any employees from Laborers Local 309, Operating Engineers Local 537 or Cement Masons 544. However, before the project commenced a Teamsters' Business Agent confronted Cedar Valley about apparent violations of the Quad City Agreements signed in 1978. In response, Cedar Valley's Vice President stated that Cedar Valley had severed its relationship with the Teamsters in the previous two years. No action was taken against Cedar Valley by the complaining unions as a result of its actions in the 1985 project. ²

In April of 1989, Cedar Valley was awarded a 4.2 million dollar contract to pave eight miles of interstate highway near Davenport. Prior to, or immediately after, commencement of work on this project, three of the complaining unions (excluding Teamsters) approached Cedar Valley concerning "pre-job conferences" pursuant to the 1978 Quad City Agreements. ³ Cedar Valley refused to recognize the complaining unions and expressed its belief that it was no longer bound by the 1978 agreements. As a basis for this refusal, Cedar Valley cited the 1984 decertification proceedings by the Waterloo unions and the lack of contact between Cedar Valley and the complaining unions since 1981. The interstate highway project was completed without employees of the complaining unions. The complaining unions brought this action in an effort to enforce their rights under the 1978 Quad City Agreements.

II. STANDARD OF REVIEW

The appropriate standard of review is somewhat in dispute. The NLRB argues that, in light of this Court's acceptance of Deklewa, the issues presented by this appeal are primarily factual. "Thus, the Board's findings that the Company (Cedar Valley) was bound to current Section 8(f) pre-hire agreements with the Union in 1989 must be upheld if supported by substantial evidence." Respondent's Brief, p. 12 (citing Universal Cameral Corp. v. N.L.R.B., 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951)). Cedar Valley argues that the proper standard of review is multifaceted and in addition to factual findings the NLRB's decision incorporated interpretation of the controlling statutes and contracts. ⁴

In due consideration of these arguments, the Court finds the standard of review stated in GSX Corp. of Missouri v. N.L.R.B., 918 F.2d 1351 (8th Cir.1990), controlling. "This court must enforce the Board's order if the Board has correctly applied the law and if its findings rest upon substantial evidence." Id. at 1356. This standard of review is controlling of all arguments presented by Cedar Valley except the argument concerning the Board's misinterpretation of the collective bargaining agreement between Teamsters' 371 and Associated Contractors. As to that argument, the Court will conduct a de novo review of any contract interpretation engaged in by the Board. See Litton Fin. Printing v. N.L.R.B., --- U.S. ----, 111 S.Ct. 2215, 2223, 115 L.Ed.2d 177 (1991) (In finding that the Board's interpretation of a collective bargaining agreement should be reviewed without deference to the Board's finding, the Court held that "the Board is neither the sole nor the primary source of authority in such matters ...").

Therefore, as to all findings except contract interpretation, the NLRB must be sustained if: (1) it started with the currently controlling law; (2) it correctly applied this law; and (3) substantial evidence supports its finding that Cedar Valley's actions violated Section 8(a)(1) and (5) of the National Labor Relations Act.

III. ANALYSIS

There is no dispute that the NLRB's interpretation of Section 8(f) in John Deklewa & Sons, 282 N.L.R.B. 184 (1987), enfd. sub nom., Iron Workers Local 3 v. N.L.R.B., 843 F.2d 770 (3d Cir.1988), governs this action. Deklewa has recently been adopted by this Court as the proper and controlling interpretation of Section 8(f). N.L.R.B. v. W.L. Miller Co., 871 F.2d 745, 747-48 (8th Cir.1989). In Deklewa, the NLRB broke from the previous interpretation of Section 8(f) as stated in R.J. Smith Constr. Co., 191 N.L.R.B. 693 (1971), enf. denied sub nom., Operating Engineers Local 150 v. N.L.R.B., 480 F.2d 1186 (D.C.Cir.1973), overruled by N.L.R.B. v. Local Union No. 103, International Association of Bridge, Structural and Ornamental Iron Workers, 434 U.S. 335, 98 S.Ct. 651, 54 L.Ed.2d 586 (1978), and held that "pre-hire" agreements made pursuant to Section 8(f) are "binding, enforceable, and not subject to unilateral repudiation" throughout their term. Deklewa, 282 N.L.R.B. 184, at 1389 & n. 62. This conclusion was derived from four interpretive principles stated by the Board:

We shall apply the following principles in 8(f) cases: (1) a collective bargaining agreement permitted by Section 8(f) shall be enforceable through the mechanisms of Section 8(a)(5) and Section 8(b)(3); (2) such agreements will not bar the processing of valid petitions filed pursuant to Section 9(c) and Section 9(e); (3) in processing such petitions, the appropriate unit normally will be the single employer's employees covered by the agreement; and (4) upon the expiration of such agreements, the signatory union will enjoy no presumption of majority status, and either party may repudiate the 8(f) bargaining relationship.

Deklewa, 282 N.L.R.B. 184 at 1377-78. The Board went on to further expand these principles within the context of effectuating the organic statute.

Taken together, the four basic principles we advance today provide an overall framework for the interpretation and application of Section 8(f) which will enable parties to 8(f) agreements and employees to know their respective rights, privileges, and obligations at all stages in their relationship. When parties enter into an 8(f) agreement, they will be required, by virtue of Section 8(a)(5) and Section 8(b)(3), to comply with that agreement unless the employees vote, in a Board-conducted election, to reject (decertify) or change their bargaining representative. Neither employers nor unions who are party to 8(f) agreements will be free unilaterally to repudiate such agreements. During its term, an 8(f) contract will not act as a bar to petitions pursuant to Section 9(c) or (...