Donald Schriver, Inc. v. N.L.R.B., 1497
| Decision Date | 20 October 1980 |
| Docket Number | Nos. 78-2177,No. 1497,79-1001,1497,s. 78-2177 |
| Citation | 635 F.2d 859,204 U.S.App.D.C. 4 |
| Parties | 105 L.R.R.M. (BNA) 2818, 204 U.S.App.D.C. 4, 89 Lab.Cas. P 12,289 DONALD SCHRIVER, INC., Sullivan-Kelley & Associates, Topaz Contracting & Development Company, Inc., and Sullivan and Associates, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondents, Los Angeles Building and Construction Trades Council, Carpenters Localet al., Intervenors. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOS ANGELES BUILDING AND CONSTRUCTION TRADES COUNCIL et al., Respondents, Donald Schriver, Inc. et al., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Gerard C. Smetana, Chicago, Ill., with whom William H. DuRoss, III, Washington, D.C., was on the brief for Schriver, Inc., petitioner in No. 78-2177 and intervenor in No. 79-1001.
John H. Ferguson, Atty., N.L.R.B., Washington, D.C., with whom William A. Lubbers Gen. Counsel, John E. Higgins, Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel and William M. Bernstein, Atty., N.L.R.B., Washington, D.C., were on the brief for respondent in No. 78-2177.
Laurence J. Cohen, Washington, D.C., with whom William Chapman, New York City, George Kaufmann, Robert D. Kurnick and Laurence Gold, Washington, D.C., were on the brief for Los Angeles Bldg. and Const. Trades Council, intervenor in No. 78-2177 and respondent in No. 79-1001.
Leo Geffner, Los Angeles, Cal., for Carpenters Local No. 1497, et al., intervenors in 78-2177 and respondents in No. 79-1001.
Vincent J. Apruzzese, Springfield, N.J., Stephen A. Bokat, Lawrence B. Kraus, Washington, D.C., and Francis A. Mastro, Springfield, N.J., were on the brief for the Chamber of Commerce of the United States, amicus curiae in Nos. 78-2177 and 79-1001.
Kenneth C. McGuiness, Robert E. Williams and Daniel R. Levinson, Washington, D.C., were on the brief for Air Conditioning & Refrigeration Institute, et al., amicus curiae in Nos. 78-2177 and 79-1001.
Robert J. Hickey and Peter G. Kilgore, Washington, D.C., were on the brief for Associated Gen. Contractors of America, Inc., amicus curiae in Nos. 78-2177 and 79-1001.
TABLE OF CONTENTS
Page
I. FACTUAL AND PROCEDURAL BACKGROUND .................................. 862
A. The Facts Involving Donald Schriver, Inc....................... 862
B. The Facts Involving Topaz Contracting and Developing Co., Inc.. 865
C. Proceedings Before the Board .................................. 865
II. STATUTORY FRAMEWORK AND THE SUPREME COURT DECISION IN CONNELL ...... 867
A. Statutory Framework ........................................... 867
B. The Supreme Court Decision in Connell ......................... 870
III. SUFFICIENCY OF A Sec. 8(f) RELATIONSHIP TO SATISFY CONNELL ............ 872
IV. THE SCOPE OF THE CONSTRUCTION INDUSTRY PROVISO TO Sec. 8(e) ........... 876
A. Limitation With Respect to Particular Jobsites ................ 876
B. The Relevance of Physical Presence at the Jobsite ............. 883
C. The Legality of Union-Specific Clauses ........................ 884
D. Deference to the Board ........................................ 886
V. THE SELF-ENFORCEMENT FEATURE OF THE AGREEMENTS ..................... 886
VI. CONCLUSION ......................................................... 887
Before McGOWAN and EDWARDS, Circuit Judges, and KASHIWA, * Judge, United States Court of Claims.
Opinion for the Court filed by Circuit Judge EDWARDS.
We are called upon in this case to review a decision and order of the National Labor Relations Board concerning the legality of certain subcontracting agreements in the construction industry, in light of the construction industry proviso to § 8(e) of the National Labor Relations Act. Three principal issues are raised.
The first issue presented is whether subcontracting agreements in the construction industry are lawful if sought as part of a "prehire agreement" authorized by § 8(f) of the Act. The resolution of this issue turns on the meaning to be ascribed to the decision in Connell Construction Co. v. Plumbers & Steamfitters Local 100, 421 U.S. 616, 95 S.Ct. 1830, 44 L.Ed.2d 418 (1975), where the Supreme Court held that a subcontracting agreement may only be sought in the context of a "collective-bargaining relationship." The second issue presented concerns the proper scope of the construction industry proviso to § 8(e). In particular, we are called upon to consider whether subcontracting agreements in the construction industry must be negotiated on a jobsite by jobsite basis or, if not, whether they must at least be limited in application to particular jobsites at which both union and nonunion workers are employed. Also raised as a part of this second issue is the question whether subcontracting agreements lawfully may require subcontractors to be signatory to an agreement with a "particular" union. The third and final issue presented is whether subcontracting agreements may be included in a contract that also authorizes the union to take "any" action to enforce "any" settlement or decision rendered pursuant to a contractual grievance and arbitration procedure.
We hold that subcontracting agreements may be included in a "prehire agreement" between a contractor and a labor organization in the construction industry. In addition, we hold that such agreements need not be renegotiated at each jobsite or limited in application to particular jobsites at which both union and nonunion workers are employed; we also hold that such agreements may be "union-specific." Finally, we hold that a subcontracting agreement may not be included in a contract such as the present that authorizes the union to take "self-help" measures to enforce the agreement.
We turn to consider each of these issues in detail.
On June 20, 1975 and on March 9, 1977, unfair labor practice charges were filed alleging that certain labor organizations had improperly coerced two construction contractors to enter into subcontracting agreements prohibited by § 8(e) of the National Labor Relations Act. 1 The charges filed on June 20, 1975 stemmed from incidents involving Donald Schriver, Inc. ("Schriver"); the charges filed on March 9, 1977, and amended on March 15, 1977, stemmed from incidents involving Topaz Contracting and Developing Co., Inc. ("Topaz"). Complaints were issued by the Regional Director in each case and, on April 28, 1977, the two cases were consolidated. App. 39. 2 The Regional Director issued a consolidated amended complaint on July 6, 1977. App. 41.
The parties waived all proceedings before an Administrative Law Judge, and submitted a motion to transfer the case directly to the National Labor Relations Board. App. 52. At the same time the parties entered into a complete stipulation of facts. App. 55. On November 4, 1977 the Board granted the motion to transfer, and the case was heard on the following stipulated facts.
Donald Schriver, Inc. is a developer and general contractor in the building and construction industry in southern California. App. 57, P 7(a). 3 Schriver falls within the territorial jurisdiction of the Los Angeles Building and Construction Trades Council ("Trades Council") and Local 1497, United Brotherhood of Carpenters and Joiners of America ("Local 1497"). Schriver directly employs only carpenters and one full time laborer. All other jobsite work assumed by Schriver is subcontracted to other contractors. App. 62, P 14.
In June of 1972, Schriver was engaged as owner-builder in the construction of a four-unit apartment complex in Montebello, California. App. 62, P 15. While working on that project, Schriver entered into a standard agreement with the Trades Council. That agreement contained certain general terms and, more importantly, also incorporated by reference the Master Labor Agreement ("MLA") entered into between various employer associations and the Los Angeles County District Council of Carpenters ("District Council"), of which Local 1497 was a member. App. 61, P 11(a).
By its terms, the 1972 agreement between Schriver and the Trades Council was to remain in effect for one year, with automatic yearly renewals thereafter subject to proper notice of cancellation by either party. Schriver has never served the requisite notice of cancellation upon the Trades Council, and at all material times has been signatory to the above contract. App. 61, P 11(b)-(c). At no time have the employees of Schriver specifically designated the Trades Council or any of its affiliated unions as their collective bargaining representative. App. 61, P 11(d).
The parties in the instant dispute appear to be in agreement that the 1972 contract was a "prehire agreement" and that such agreements are recognized by § 8(f) of the National Labor Relations Act. 4 The parties disagree, however, with respect to the legality of certain terms included within the 1972 contract. One such clause is Article IV of the 1972 agreement between Schriver and the Trades Council, which contained the following subcontracting provision:
The Employer, Developer and/or Owner-Builder agrees that he shall contract or subcontract all jobsite work set forth in Article I above to a person, firm, partnership or corporation that is party to an executed, current Agreement with the appropriate Union having work and territorial jurisdiction, affiliated with the Council in which area the work is performed.
App. 61, P 12. Another such clause is Article I, section 103 of the MLA, incorporated by reference into the 1972 contract, which...
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