International Broth. of Elec. Workers, Local 532 v. Brink Const. Co.

• Decision Date: 17 August 1987
• Docket Number: No. 85-3926,85-3926
• Citation: 825 F.2d 207
• Parties: 126 L.R.R.M. (BNA) 2252, 107 Lab.Cas. P 10,112 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 532, Plaintiff-Appellee, v. BRINK CONSTRUCTION COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 207

825 F.2d 207

126 L.R.R.M. (BNA) 2252, 107 Lab.Cas. P 10,112

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 532, Plaintiff-Appellee, v. BRINK CONSTRUCTION COMPANY, Defendant-Appellant.

No. 85-3926.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 6, 1986.

Decided August 17, 1987.

Emilie Loring and Benjamin Hilley, Great Falls, Mont., for plaintiff-appellee.

Kelvin C. Berens, Omaha, Neb., for defendant-appellant.

Appeal from the United States District Court for the District of Montana.

Before FLETCHER, ALARCON and WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

The International Brotherhood of Electrical Workers, Local 532 (Union) filed suit in district court under Labor Management Relations Act (LMRA) Sec. 301(a), 29 U.S.C. Sec. 185(a), against Brink Construction Company (Brink) for its alleged failure to comply with the dispute resolution provisions of a collective bargaining agreement between the two parties. The district court entered summary judgment for the Union ordering Brink to submit to dispute resolution. On appeal Brink argues that (1) the district court was without jurisdiction to determine the existence of an agreement, (2) a pending action between the parties before the National Labor Relations Board (NLRB) required the court to stay its proceedings, and (3) the court erroneously found that Brink had not terminated its obligations under the agreement.

I. BACKGROUND

Brink is a South Dakota corporation that does business as an electrical contractor. Brink operates primarily in the Dakotas but occasionally performs work in other states. At the time of filing of this suit Brink had no collective bargaining agreement with any labor organization in the Dakotas.

Brink was awarded a contract for electrical work on a power line substation in Miles City, Montana. To facilitate completion of the work, Brink signed a "Letter of Assent-A" on August 25, 1980 designating the Western Line Constructors chapter of the National Electrical Contractors Association (WLC) as its collective bargaining agent with the Union. ¹ WLC is a multi-employer bargaining unit representing electrical contractors in negotiations with the Union. WLC regularly negotiates and executes multi-employer collective bargaining agreements ("master" agreements) with the Union on behalf of the contractors. See generally NLRB v. Hayden Elec., Inc., 693 F.2d 1358, 1359-60 (11th Cir.1982).

Brink completed work at the Miles City site in 1982. During performance of the job two master agreements negotiated and executed by WLC were in effect. The first terminated on May 31, 1981. It was replaced by an agreement running from June 1, 1981 through May 31, 1983. The 1981-83 agreement provided for automatic year-to-year renewal after the 1983 date absent written notification by "either party" of termination or desire to change at least ninety days prior to the May 31 anniversary date. ² It appears that Brink complied with the terms of the master agreements during the job.

On December 14, 1982 Brink notified the Union and WLC by letter that it had completed the Miles City job and was revoking WLC's authority to bargain on its behalf. ³ Thereafter, the Union and WLC negotiated another master agreement effective from June 1, 1983 through May 31, 1985. Neither the Union nor WLC notified Brink of the negotiations or of the terms of the new agreement.

In August 1983 Brink was awarded another contract for work at the Miles City substation. Brink brought out-of-state non-Union workers onto the job. This action would have violated the terms of both the 1981-83 and 1983-85 agreements if either were in force between Brink and the Union at that time. Shortly thereafter the Union contacted Brink to negotiate the signing of a new letter of assent or, if Brink desired, an individual agreement. Negotiations proved unsuccessful. On October 24, 1983 counsel for the Union informed Brink's counsel that the Union considered Brink to be bound by the 1983-85 master agreement. On December 2, 1983 the Union, pursuant to the agreement's dispute resolution procedure, ⁴ requested that Brink meet with it in a "Labor-Management Committee" to resolve their disputes over contract violations at the second Miles City substation job. Brink refused, stating that it had no labor agreement with the Union.

The Union then brought suit in federal district court to compel Brink to submit to the agreement's dispute resolution procedure. Pending the court's resolution of the matter, Brink filed unfair labor practice charges against the Union with the NLRB. An NLRB administrative law judge (ALJ) concluded that (1) Brink was not bound to any agreement with the Union during the time of the second Miles City job, (2) the Union's lawsuit was therefore "baseless," (3) the Union brought the suit to coerce Brink to select a collective bargaining representative, and (4) the Union's actions accordingly constituted an unfair labor practice under 29 U.S.C. Sec. 158(b)(1)(B). The ALJ ordered the Union to cease and desist from maintaining its lawsuit in federal district court. The Union appealed the ALJ's decision to the NLRB.

Pending the Union's appeal to the NLRB, the district court ruled on the parties' motions for summary judgment. The court held that Brink's withdrawal of WLC's bargaining authority did not terminate its obligations under the master agreement. Finding a contract existed between Brink and the Union during the time of Brink's second Miles City job, the court denied Brink's motion for summary judgment and granted the Union's motion for summary judgment ordering Brink to comply with the master agreement's dispute resolution procedure. In reaching its decision the court specifically declined to address two issues. First, the court did not decide whether the Union represented a majority of employees at the second Miles City job transforming the parties' repudiable "prehire" agreement into a fully binding collective bargaining agreement with respect to the project. ⁵ Rather, the court found Brink's letter insufficient either to repudiate the prehire agreement (if it were such) or to terminate the agreement by its terms (if it had matured into a nonrepudiable collective bargaining agreement). Second, the court did not decide which master agreement was in effect between Brink and the Union at the second Miles City job. Instead, the court noted the identity of the 1981-83 and 1983-85 agreements' dispute resolution procedures and left the issue of which of the two agreements controlled for dispute resolution.

II. JURISDICTION

The district court held that it had jurisdiction to compel Brink to comply with the dispute resolution procedure. We review the district court's determination of subject matter jurisdiction de novo. Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 549 (9th Cir.1984).

The district courts have jurisdiction of "[s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce." LMRA Sec. 301(a), 29 U.S.C. Sec. 185(a). This jurisdictional mandate authorizes the district courts to compel a contracting party to comply with a labor agreement's arbitration provision. Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). Section 301(a)'s "strong policy favoring judicial enforcement of collective-bargaining contracts ... sustain[s] the jurisdiction of the district courts over enforcement suits even though the conduct involved was arguably or would amount to an unfair labor practice within the jurisdiction of the National Labor Relations Board." Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 562, 96 S.Ct. 1048, 1055, 47 L.Ed.2d 231 (1976). ⁶

Although the district courts ordinarily have jurisdiction of actions to compel compliance with a labor agreement's dispute resolution procedure, the NLRB, and not the district courts, has "initial authority to consider and pass upon questions of representation and determination of appropriate bargaining units." Local No. 3-193 Int'l Woodworkers v. Ketchikan Pulp Co., 611 F.2d 1295, 1301 (9th Cir.1980). Brink contends that the court's decision necessarily involved resolution of a number of "representational" issues within the NLRB's primary jurisdiction. Brink argues that the existence of these issues required the dismissal of the Union's suit. We examine each of these issues and conclude that the court had jurisdiction of this action. ⁷

First, Brink argues that while the court has jurisdiction to resolve breach of contract disputes, it must leave the issue of the contract's existence and validity to the NLRB. We have recently rejected this approach, which forecloses jurisdiction merely on the basis of a dispute over the contract's validity. See John S. Griffith Constr. Co. v. United Bhd. of Carpenters & Joiners, 785 F.2d 706, 712 (9th Cir.1986) (in LMRA Sec. 301 action district court may determine contract's existence unless that determination requires resolution of issue within NLRB's exclusive jurisdiction).

Second, Brink contends that the district court's decision that Brink was bound to either the 1981-83 or 1983-85 master agreements necessarily involved a determination that it was still a member of WLC in 1983 despite its 1982 letter withdrawing WLC's authority. This determination, argues Brink, involved the "identification of an appropriate bargaining unit," an issue within the NLRB's primary jurisdiction. The Ninth Circuit, however, has recently held that resolution of the effectiveness of an employer's withdrawal from a multi-employer bargaining unit does not fall within the NLRB's primary jurisdiction. See Hawaii Carpenters Trust Funds v. Waiola Carpenter Shop, Inc., 823 F.2d 2895 (9th Cir.1987). Moreover, the district court, by leaving for dispute resolution the question of which of the 1981-83 or 1983-85 master agreements was in force between the parties...