CONTRACTORS, LABORERS, ETC. v. ASSOCIATED WRECKING, Civ. No. 77-0-248.

• Court: United States District Courts. 8th Circuit. United States District Court of Nebraska
• Writing for the Court: DENNEY
• Citation: 484 F. Supp. 582
• Parties: CONTRACTORS, LABORERS, TEAMSTERS AND ENGINEERS HEALTH & WELFARE PLAN; Contractors, Laborers, Teamsters and Engineers Pension Plan; Omaha-Council Bluffs Laborers Local # 1140 Holiday Trust; Laborers Training Fund; and Construction and General Laborers Union, Local No. 1140, Plaintiffs, v. ASSOCIATED WRECKING COMPANY, a Nebraska Corporation, Defendant.
• Docket Number: Civ. No. 77-0-248.
• Decision Date: 15 February 1980

484 F. Supp. 582

CONTRACTORS, LABORERS, TEAMSTERS AND ENGINEERS HEALTH & WELFARE PLAN; Contractors, Laborers, Teamsters and Engineers Pension Plan; Omaha-Council Bluffs Laborers Local # 1140 Holiday Trust; Laborers Training Fund; and Construction and General Laborers Union, Local No. 1140, Plaintiffs,
v.
ASSOCIATED WRECKING COMPANY, a Nebraska Corporation, Defendant.

Civ. No. 77-0-248.

United States District Court, D. Nebraska.

February 15, 1980.

484 F. Supp. 583

David D. Weinberg, Omaha, Neb., for plaintiffs.

Michael W. Heavey, Omaha, Neb., for defendant.

MEMORANDUM

DENNEY, District Judge.

This matter comes before the Court upon the defendant's motion for summary judgment, and defendant's alternative motion to compel answers to interrogatories Filing # 8. Briefs have been submitted and on February 4, 1980, a hearing was held before the Court.

This is an action brought under § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, to recover certain sums allegedly owed by the defendant to various trust funds, pursuant to an agreement dated June 9, 1975. The parties agree that the agreement in question is a "prehire agreement" authorized by § 8(f) of the Act, 29 U.S.C. § 158(f), which provides in pertinent part as follows:

It shall not be an unfair labor practice under subsections (a) and (b) of this section for an employer engaged primarily in the building and construction industry to make an agreement covering employees engaged (or who, upon their employment, will be engaged) in the building and construction industry with a labor organization of which building and construction employees are members . . because (1) the majority status of such labor organization has not been established under the provisions of section 159 of this title prior to the making of such agreement . . . Provided further, That any agreement which would be invalid, but for clause (1) of this subsection, shall not be a bar to a petition filed pursuant to section 159(c) or 159(e) of this title.

29 U.S.C. § 158(f).

The defendant's primary contention is that, since the plaintiff union never achieved majority support among the defendant's employees, the § 8(f) agreement sued upon is unenforceable. In support of this contention, the defendant relies heavily on the recent Supreme Court decision in NLRB v. Iron Workers Local 103, 434 U.S. 335, 98 S.Ct. 651, 54 L.Ed.2d 586 (1978).

In Local 103, Higdon Construction Co. and Local 103 entered into a pre-hire agreement, obliging Higdon to abide by the terms of the multi-employer understanding between Local 103 and the Tri-State Iron Workers Employers Association, Inc. At about the same time, Higdon Contracting Company was formed for the express purpose of permitting the sole stockholder of both corporations, Gerald J. Higdon to continue to operate in disregard of the § 8(f) agreement and the multi-employer agreement. When the union was informed of this, it picketed two projects undertaken by Higdon Contracting Company. Local 103 had never represented a majority of the workers at either jobsite and, although it was free to do so, it did not petition for a representation election.

After thirty days of picketing, Higdon Contracting Company filed an unfair labor practice charge with the Regional Director of the National Labor Relations Board Board alleging that Local 103 was violating § 8(b)(7) of the Act, 29 U.S.C. § 158(b)(7). Section 8(b)(7) makes it an

484 F. Supp. 584

unlawful labor practice for an uncertified union to picket for more than thirty days for the purpose of forcing an employer to recognize the union as a bargaining representative of his employers, unless a petition for an election has been filed within that period

At the outset, the Administrative Law Judge determined that Higdon Contracting Company was the alter ego of Higdon Construction Company and was thus bound by the pre-hire agreement. He then concluded that Local 103's picketing did not constitute an unfair labor practice. The purpose of the picketing was not to obtain recognition in violation of § 8(b)(7), but rather it was to secure compliance with an existing contract, the § 8(f) agreement.

This finding was appealed to the Board and was reversed. In so doing, the Board wrote:

In R. J. Smith Construction Co., Inc., the Board found that, although Section 8(f) of the Act clearly exempts a company and union from unfair labor practice liability for entering into a contract prior to establishment of the union as a majority representative, Section 8(f) does not protect the union from inquiry into its majority status during the contract term. The Board thus concluded that Section 8(f) only protects from illegality the preliminary contractual steps of a pre-hire agreement and that, where a union never thereafter obtains majority status, the company does not violate Section 8(a)(5) and (d) of the Act by refusing to continue the bargaining relationship established and by unilaterally changing terms and conditions of employment set forth in the contract. Since the Board found that the union had admittedly never attained majority status, it dismissed the refusal-to-bargain complaint.

. . . . .

From the foregoing, we conclude that the contract herein is an 8(f) contract and that no presumption of majority status attaches to it in the circumstances of this case. Accordingly, the duty of Higdon Construction and its alter ego, Higdon Contracting, to honor the Employer's collective-bargaining agreement with Local 103 is limited by the nature of 8(f) agreements. Under the doctrine set out in the cases cited above, the Employer could have

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