Dallas Building and Construction Trades Council v. NLRB

• Decision Date: 23 April 1968
• Docket Number: No. 21057.,21057.
• Citation: 396 F.2d 677
• Parties: DALLAS BUILDING AND CONSTRUCTION TRADES COUNCIL, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Dallas County Construction Employers Association, Inc., Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

396 F.2d 677 (1968)

DALLAS BUILDING AND CONSTRUCTION TRADES COUNCIL, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Dallas County Construction Employers Association, Inc., Intervenor.

No. 21057.

United States Court of Appeals District of Columbia Circuit.

Argued November 17, 1967.

Decided April 23, 1968.

Mr. David R. Richards, Dallas, Tex., for petitioner.

Mr. Allen J. Berk, Attorney, National Labor Relations Board, with whom Messrs. Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Gary Green, Attorney, National Labor Relations Board, were on the brief, for respondent.

Mr. William L. Keller, Dallas, Tex., with whom Mr. George Allen Butler, Dallas, Tex., was on the brief, for intervenor.

Messrs. Louis Sherman and Laurence J. Cohen, Washington, D. C., filed a brief on behalf of Building and Construction Trades Department AFL-CIO, as amicus curiae.

Before PRETTYMAN, Senior Circuit Judge, and McGOWAN and ROBINSON, Circuit Judges.

McGOWAN, Circuit Judge:

This judicial review proceeding under the National Labor Relations Act, 29 U.S.C. § 151 et seq., presents primarily a problem of the relationship between the construction industry proviso of Section 8(e), on the one hand, and Section 8(b) (7) (A), on the other. The former makes valid an agreement in the construction industry relating to the contracting or subcontracting of work, which agreement might otherwise fall afoul of the Section's ban on secondary restraints. Section 8(b) (7) (A) prohibits the picketing of an employer for the purpose of compelling recognition of a labor organization where another union is already lawfully recognized and when representation issues are in a state of statutory repose. The Board here held in effect that the mere lawfulness of a proposed agreement under Section 8(e) does not conclude the question of whether picketing to get it under the circumstances recited in Section 8(b) (7) (A) may be an unfair labor practice. We think that that position comports with the scheme of the Act, and that the Board did not err in finding a violation of Section 8(b) (7) (A) to be shown by this record.

I

Petitioner, Dallas Building and Construction Trades Council Council, is a labor organization whose membership includes some twenty local craft unions in the construction industry in Dallas. Dallas County Construction Employers' Association, Inc. Association, the charging party before the Board and the Intervenor in this court, is a collective bargaining agent for its general contractor and subcontractor members, who include Henry C. Beck Co., George Bock Construction Co., Hyatt Cheek Builders-Engineers, and Robert E. McKee General Contractors, Inc. The Council is not the authorized bargaining agent of any employees. The Association, however, has collective bargaining agreements directly with the local craft unions, which, in turn, are the recognized but not certified representatives of their member employees.

Although the Association had, in its earlier separate negotiations with several of the locals, uniformly and successfully opposed proposals to include subcontracting clauses,¹ the Council proposed to the Association in July, 1966, an agreement restricting subcontracting to employers who had agreements with the appropriate Council-affiliated local. The proposed contract also contained clauses expressly disclaiming any intention on the part of the parties that the Council be recognized as a bargaining representative of the employees, and subordinating the contract to any present or future agreements with the contractors.² The Council threatened to picket if the agreement was not adopted, either singly or collectively, by Association members. When the Association refused to enter into such an agreement, the Council served a similar demand on each of the four general contractors, Beck, Bock, Cheek, and McKee; and, upon their failure to accept the proposals, picketed jobs those contractors had in progress during August, 1966.

A complaint was issued on September 9, 1966, charging the Council with an unfair labor practice in violation of Section 8(b) (7) (A).³ The case was submitted to the Board on a complete stipulation of facts which waived a Trial Examiner's report. The Board concluded that the Council had violated 8(b) (7) (A) by threatening to picket and picketing with a recognitional object at a time when, under the Board's contract bar rules, no question of representation could be raised. Accordingly, it entered, and on cross-petition in this court seeks to enforce, an order requiring the Council to cease and desist from such conduct, and to post notices in customary places indicating its intention not to picket or threaten to picket for recognitional purposes.

II

Petitioner first tenders a statutory construction argument unaided by reference to Section 8(e) and deriving from the seeming lack of adverse interest between the Council and the local unions.⁴ The evil to be cured was, so it is said, blackmail picketing by one union attempting to wrest the representation of the employees from another weak, but recognized, union. But in this case, the Council's argument continues, there was no purpose to impair the representative status of the local unions.⁵ Not only did the proposed agreement expressly disclaim any such result and subordinate itself to conflicting agreements between the Association and the locals, but the local unions did not consider the Council's conduct to interfere with their exclusive representation.

The Board's answer to this line of argument is that, while the legislation was initially motivated by blackmail picketing and inter-union warfare, the proscriptions of Section 8(b) (7) are not confined to that context. Congress in terms outlawed any picketing which sought to compel the employer to recognize and deal with a non-representative labor organization on the subjects which could substantially affect the working conditions of the employees. And the agreement proposed by the Council would have a significant impact upon some of the general contractors' employees. The Supreme Court has recognized that subcontracting is a mandatory bargaining subject;⁶ and the Board has found in this case that the adoption of the proposed agreement might vitally affect the number of employees hired by the general contractors. This is so because there are some types of work, laboring and millwrights' work, for example, which the general contractors sometimes subcontract and sometimes perform with their own employees. Without a union signatory agreement as proposed by the Council, the general contractors are likely to send out such work to relatively cheaper, non-unionized subcontractors rather than to perform it with their own higher-cost union employees.

It might be argued that, to the extent the Council's proposed agreement affects the job security of the general contractors' employees, that security is enhanced rather than undermined; and that, therefore, the agreement cannot be said to be contrary to the interest the employees have in choosing their own bargaining representative. The answer is, of course, that Section 8(b) (7) is not aimed solely at picketing by labor organizations which would, if recognized, act in a manner contrary to the interest of the employees. Whether or not the employees would be benefitted by the proposal of the outsider union is irrelevant if that proposal would bind the employer with respect to a matter about which the recognized union may bargain as exclusive representative of the employees.

Nor is it so clear that the Council's proposal would invariably operate to the benefit of the general contractors' employees. The Board pointed out that those locals whose subcontracting proposals had been rejected by the Association had "accepted contracts with other economic benefits." If the Council's agreement were adopted, it would "take away an opportunity for the recognized unions to either bargain for or trade off subcontracting controls." This loss of leverage could substantially weaken the local unions at the bargaining table, an outcome which would be repugnant to the policy behind Section 8(b) (7).

Moreover, the Board's decision recognized that, while Section 8(b) (7) was primarily motivated by concern for the employees, it also reflects a solicitude for the predicament of the employer caught between two labor organizations, whether or not they are rivals. In the Board's words:

Employers are entitled to the protection of Section 8(b) (7) (A) against actions which tend to erode or even destroy their right to operate, unimpeded by outsiders\' threats and picketing, under the collective-bargaining terms lawfully negotiated with their employees\' representatives.

The Association has already bargained with several of the local craft unions for the omission of subcontracting clauses from their agreements. Its members should be shielded from coercion on a second front by an organization with which they have no obligation to bargain. Because of the actual impact which the picketing and the Council's proposed agreement could have on the general contractors and some of their employees, the Council's disclaimer of intention to seek recognition is unavailing. Nor is the agreement saved by the subordination clause, for while it is true that the locals and employers remain free to adopt conflicting provisions or even to override the Council's agreement, that ability does not mitigate the immediate consequences which would flow from adoption of the agreement.

The Council argues that, even assuming the interests of some of the general contractors' employees are affected, such a primary effect is only incidental, and the principal thrust of the proposed agreement is secondary,⁷ that is to say, the Council's concern is not for the employees of the generals but solely for those of the subs. Such a test — whether the...