Brown & Root, Inc. v. Louisiana State AFL-CIO
| Citation | 10 F.3d 316 |
| Decision Date | 04 January 1994 |
| Docket Number | AFL-CIO and B,No. 91-3606,91-3606 |
| Parties | 145 L.R.R.M. (BNA) 2156, 62 USLW 2444, 127 Lab.Cas. P 10,971 BROWN & ROOT, INC., Plaintiff-Appellant, v. LOUISIANA STATEaton Rouge Building & Construction Trades Council, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
G. Michael Pharis, Taylor, Porter, Brooks & Phillips, Baton Rouge, LA, Ronald B. Natalie, Verner, Liipfert, Bernhard, McPherson & Hand, Washington, DC, August T. White, Keck, Mahin & Cate, Houston, TX, for Brown & Root.
John Lewis Avant, Avant & Falcon, Baton Rouge, LA, for AFL-CIO.
William Lurve, Jerry Louis Gardner, Jr., Robein, Urann & Lurye, Metairie, LA, for Baton Rouge Bldg.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before GARWOOD and DeMOSS, Circuit Judges, and DUPLANTIER, * District Judge.
Plaintiff-appellant Brown & Root (Brown & Root) sued the Louisiana AFL-CIO and the Baton Rouge Building and Construction Trades Council (together hereinafter Unions) for violations of 29 U.S.C. Secs. 158(b)(4)(ii) and 187. Following a bench trial, the district court entered judgment in favor of the Unions. Brown & Root now appeals.
Cajun Electric Power Cooperative (Cajun) is a Louisiana corporation that generates electrical power. Cajun operates two generating facilities, Big Cajun One and Big Cajun Two, both located in Pointe Coupee Parish, Louisiana. Big Cajun One has two natural gas generating units, while Big Cajun Two has three large coal-fired units. Big Cajun One's employees are represented by the International Brotherhood of Electric Workers, while the Big Cajun Two employees are represented by the Steelworkers Union. Both unions are part of the Louisiana AFL-CIO.
In 1981, Cajun sought the services of a supplemental maintenance contractor at its facilities in Pointe Coupee Parish. In August 1981, after interviewing an equal number of open shop and union contractors, Cajun awarded Brown & Root, an open shop company, the supplemental maintenance contract at Big Cajun Two. The Unions have a long-standing dispute with Brown & Root because Brown & Root has no collective bargaining agreement with the Unions, and its employees have never voted for union representation.
Shortly thereafter, on the morning of August 24, 1981, union representatives appeared at the site of a Cajun Board of Director's meeting and asked to be placed on the agenda. Cajun President James Randall, Executive Vice President James R. Smith, and John Schwab, Cajun's counsel, met with the group. The union representatives were concerned that Cajun was hiring "nonunion people" to do the maintenance work. During the meeting, the Vice President of the Baton Rouge Building and Construction Trades Council identified himself as representing the Teamsters Local Union and said "[W]e cannot permit a [non]union contractor coming in and doing this thing, and we're going to do whatever is necessary to do to see that this doesn't happen." At the directors' meeting, Randall reported on the meeting with the union representatives, indicating that the unions were upset about Brown & Root, but the directors voted to continue the contract with Brown & Root.
On September 1, 1981, union representatives packed the hall at a meeting of the Pointe Coupee Parish Police Jury. The Police Jury passed a resolution requesting that Cajun reconsider its contract with Brown & Root and sent Cajun a copy of the resolution.
In the fall of 1981, Victor Bussie, President of Louisiana AFL-CIO, called two Cajun vice-presidents and expressed concern over Cajun's hiring of Brown & Root. The Cajun officers indicated that no Louisiana company had the requisite experience with coal-fired boilers. Bussie suggested that Cajun hire Mid-Valley Construction Company, a Brown & Root subsidiary whose employees were represented by a union. After being informed that Mid-Valley would not accept maintenance work, Bussie suggested that Cajun contract for the services of an experienced Brown & Root superintendent and hire union laborers to do the work. The vice-presidents informed Bussie that Brown & Root was unwilling to work under that type of arrangement. Bussie apparently ended the conversation by stating "Well, you guys do what you will do and I will talk to my people and they will do what they will do."
In July 1983, Cajun told Brown & Root it would rebid the supplemental maintenance contract. However, a few days later, Cajun suffered a turbine failure in a unit at Big Cajun Two and decided it was not an appropriate time to bring in a new contractor. In January 1984, after repairs were completed, Cajun requested new bids on the supplemental maintenance contract. The contract was reawarded to Brown & Root, the low bidder, in February 1984. The contract was to remain in effect until June 30, 1985, although Cajun could terminate on 30 days' written notice.
On March 22, 1984, the Pointe Coupee Parish Police Jury met to consider Cajun's request for the issuance of $30 million in pollution control revenue bonds. The Police Jury had approved similar bonds in the past without question. Several union officials attended the meeting and complained that local people were not being employed at Cajun. The Police Jury met again on March 27 and April 10 to consider the bonds. At one point, a committee appointed by the Police Jury informed Cajun that it wanted seventy-five percent of Brown & Root employees to be local residents who had lived in the parish at least five years. At the April 10 meeting, Cajun submitted a letter to the Police Jury acceding to these demands and assuring the Police Jury that Cajun "will require that its maintenance work be substantially performed by local personnel." The Police Jury approved the bonds at the April 10 meeting, and Cajun informed Brown & Root of the residency requirement the next day. Brown & Root agreed to make every effort to meet the requirements within ninety days. 1 The district court specifically found that Cajun agreed to the residency requirement to secure the issuance of the bonds from the Police Jury.
Around May 1984, Louisiana State Senator Campbell introduced Senate Bill 361, which proposed giving the Public Service Commission the authority to regulate the rates of electric cooperatives in Louisiana, including Cajun. 2 Cajun immediately sought lobbying support against the bill. When the Louisiana Association of Business and Industry, a lobbying organization that Cajun frequently turned to, did not help, Cajun asked the Louisiana AFL-CIO for assistance in defeating the legislation. The district court found that "Cajun sought the involvement of the AFL-CIO in the legislative process as a lobbyist on Cajun's behalf to defeat Senate Bill 361."
At Cajun's request, several meetings were arranged between Paul Wood and Alice Howard, members of ALEC, a trade group closely aligned with Cajun, and Bussie and Bourg, Bussie's assistant. At the first meeting, Bussie stated that because "there were no members of the union working in Cajun's operation, ... he had no need to be involved in any of [Cajun's] legislation." About a week later, a second meeting was held that several of Cajun's officers also attended. The procedures Cajun used in evaluating and awarding job bids were discussed, but the Unions still maintained that they had no reason to be involved in the legislation.
The third meeting took place after the Senate Committee reported SB 361 favorably to the state Senate. Again present were several Cajun officers, Wood, Bussie, and Bourg. At this meeting, Cajun promised to reopen the bidding process at Big Cajun Two and allow union contractors to bid on the contracts. In exchange, Bussie agreed to help Cajun in the legislature, saying "If you work with me, I'll work with you." The district court found that "[d]ue to the lobbying of the AFL-CIO, Senator Campbell's bill was defeated in the Senate by a vote of 26-12."
At a special meeting of the Cajun Board of Directors held May 21, 1984, the Board approved a resolution directing that the supplementary maintenance contract be rebid and that future contracts be bid to utilize union labor. Immediately thereafter, Cajun informed Brown & Root that its contract would be terminated. Cajun sent two letters exercising its option to terminate the contract upon thirty days notice. The contract was terminated, and Brown & Root ceased to work for Cajun on August 31, 1984.
The contract was rebid in June 1984, but Cajun did not allow any open shop companies to submit bids. The contract was awarded to International Maintenance Company, a signatory to a collective bargaining agreement.
In late July 1984, Brown & Root brought this suit against the Louisiana AFL-CIO and the Baton Rouge Building and Construction Trades Council for violations of 29 U.S.C. Secs. 158(b)(4)(A) and 187(a). A bench trial was held, and the district court entered judgment in favor of the Unions. The district court found that the AFL-CIO reached an agreement with Cajun that the AFL-CIO would lobby the Louisiana legislature on behalf of Cajun only if Cajun ceased doing business with Brown & Root and replaced Brown & Root with a union contractor. The district court further found that no threats of labor turmoil or strife were made at any meetings to secure this agreement. The court determined that any statements made by the Unions were ambiguous and did not constitute threats or coercion. The district court also held that "[l]obbying is conduct that is protected under Noerr- Pennington and its progeny" and thus that the Unions' "reluctance to lobby is non-coercive for purposes of Sec. 8(b)(4)." Brown & Root now appeals.
Section 8(b)(4) of the National Labor Relations Act (NLRA) provides in relevant part that:
"It shall be an unfair labor practice for a labor organization or its agents--
. . . . .
(ii) to threaten,...
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