Iron Workers Dist. Council of Pacific Northwest v. N.L.R.B.
| Decision Date | 13 September 1990 |
| Docket Number | 89-70313,Nos. 89-70283,No. 29,29,s. 89-70283 |
| Citation | 913 F.2d 1470 |
| Parties | 135 L.R.R.M. (BNA) 2371, 116 Lab.Cas. P 10,293 IRON WORKERS DISTRICT COUNCIL OF the PACIFIC NORTHWEST; Local Union, of the International Association of Bridge, Structural and Ornamental Iron Workers, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. IRON WORKERS DISTRICT COUNCIL OF the PACIFIC NORTHWEST; Local Union, of the International Association of Bridge, Structural and Ornamental Iron Workers, Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Victor J. Van Bourg and Paul D. Supton, Van Bourg, Weinberg, Roger & Rosenfeld, San Francisco, Cal., for petitioners/cross-respondents.
Frederick C. Havard and John Fawley, N.L.R.B., Washington, D.C., for respondent/cross-petitioner.
Lewis K. Scott, Spears, Lubersky, Bledsoe, Anderson, Young & Hilliard, Portland, Or., for intervenor.
Petition for Review and Application for Enforcement of an Order of the National Labor Relations Board.
Before HALL, THOMPSON and LEAVY, Circuit Judges.
The petitioners have filed a petition for review, and the respondent has filed a cross-application for enforcement, of an Order of the National Labor Relations Board ("Board"). The Order was entered pursuant to the Board's decision that the petitioners, Iron Workers District Council of the Pacific Northwest ("district council") and Local Union No. 29 of the International Association of Bridge, Structural and Ornamental Iron Workers ("Local 29"), committed unfair labor practices in attempting to get the charging party, Hoffman Construction Company of Oregon ("Hoffman"), to agree to a subcontracting agreement. The subcontracting agreement would have required Hoffman, a general contractor, to hire only subcontractors who had a contract with the union. Hoffman was granted leave to intervene. We have jurisdiction under 29 U.S.C. Sec. 160(e), (f). We affirm the decision and enforce the Order.
Between July 1, 1983 and June 30, 1986 the Oregon-Columbia Chapter, Associated General Contractors of America, Inc., an employer's group of general contractors, and Local 29 which is affiliated with the district council, were parties to a collective-bargaining agreement. On May 1, 1985 Hoffman and Local 29 entered into a compliance agreement by which Hoffman agreed to be bound by most terms and conditions of the collective-bargaining agreement. Wayne Thomas, Hoffman's employee relations manager, represented Hoffman during negotiations leading to this compliance agreement.
In mid-1985 Hoffman decided it would no longer employ iron workers and other skilled tradesmen directly. It decided instead to become a construction manager and subcontract to other entities various jobs, including iron work, which for the most part Hoffman employees had theretofore performed. On February 24, 1986 Thomas, on behalf of Hoffman, informed Local 29 by letter that Hoffman would not renew its labor agreement with the union. The agreement was to expire on June 30, 1986.
On February 25, 1986 LeRoy Worley, president of the district council, responded to Thomas' letter. Worley confirmed termination of the agreement effective June 30, 1986, and stated he would contact Thomas regarding a proposed future agreement. On April 2, 1986 Thomas sent another letter to Local 29 reiterating Hoffman's intent to end all labor agreements by July 1, 1986:
It is our present intention and our proposal that after July 1, 1986, we no longer employ any employees performing work of the kind covered by our labor contract with you.
We also propose that effective July 1, 1986, we no longer have any restraints concerning those to whom we subcontract work. It is our strong belief that we must be able to subcontract on a competitive basis, without regard to whether a subcontractor has an agreement with you.
* * * * * *
Under our proposal it would appear to be inappropriate to have any agreement with you after July 1, 1986, since we do not intend to be employing your members after that date; in other words, it is proposed that by July 1, 1986, we will have no employees and there will be no employees in the future. However, we are interested in any ideas or proposals you may have with respect to these matters and would welcome your full input before any final decisions are made.
In early June, Local 29 and the district council, acting through Worley, sent Thomas an application for membership in the Northwest Iron Workers Employers Association, Inc. Worley included a copy of the current labor agreement between Northwest Iron Workers Employers Association, Inc. and the district council. This form of agreement included a subcontracting clause. The clause required Hoffman to do business only with subcontractors who had a contract with the union. On June 19 While Hoffman, Local 29, and the district council were exchanging letters and communicating as set forth above, Hoffman was performing work at three job sites in Portland, Oregon: Performing Arts Center, One Financial Center, and the Good Samaritan Hospital. When Hoffman failed to sign a labor agreement that included the proffered subcontracting clause, picketing began at these job sites on July 1, 1986.
1986 Daniel Kealy, Local 29's business manager, sent Hoffman a new, independent short form agreement which contained a similar subcontracting clause. On June 23, 1986 Kealy told Thomas that he only really wanted to tie Hoffman to the subcontracting clause--Kealy did not care whether Hoffman discontinued direct hiring of iron workers. On June 24, 1986 Thomas once again informed Worley that Hoffman did not intend "to employ any employees performing work of the kind covered by [its] expiring labor contract."
Hoffman filed unfair labor charges with the Board. The Board sought an injunction in the district court to stop the picketing. The district court found reasonable cause to believe that Local 29 and the district council were violating sections 8(b)(4)(A) and (B) of the Act by picketing the job sites. The district court granted a temporary injunction on July 17, 1989 pursuant to section 10(1) of the Act, 29 U.S.C. Sec. 160(1). This injunction precluded picketing pending final resolution of the underlying unfair labor practice charges which were then before the Board. 1
The picketing stopped, but then resumed in August 1986. Both Local 29 and the district council were later held in civil contempt for violating the temporary injunction. We affirmed the district court's finding of contempt and imposition of sanctions in NLRB v. Ironworkers Dist. Council, 884 F.2d 1395 (9th Cir.1989) (unpublished disposition). In that decision we noted that the only question then before us was the validity of the district court's contempt order, and whether Local 29 and the district council had violated that order. The contempt order was based on the district court's temporary injunction, for which the district court had only to find "reasonable cause to believe" that the conduct enjoined violated sections 8(b)(4)(A) and (B) of the Act. Review of whether the picketing actually violated these sections of the Act was expressly left for future consideration by this court in any petition for review that might be filed following the decision by the NLRB in the unfair labor practice case. That decision was made and the Board issued its order. It is that decision and order which are now before us.
Section 8(b)(4)(A) of the Act makes it unlawful for a union to coerce an employer to enter into an agreement prohibited by section 8(e). 29 U.S.C. Sec. 158(b)(4)(A). 2 Section 8(e) makes it an unfair labor practice for an employer and a union to enter into an agreement whereby the employer agrees to "refrain from ... doing business with any other person." Section 8(e) provides in part:
It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer ....
or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible and void....
29 U.S.C. Sec. 158(e).
Local 29 and the district council concede that the subcontracting clause to which they sought to tie Hoffman is prohibited by the general proscription of section 8(e). However, they contend that the picketing and picketing-related activity, by which an attempt was made to get Hoffman to accept the clause, falls within the exception to section 8(e) known as the construction industry proviso. This proviso states:
... Provided, That nothing in this subsection [ (e) ] shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work....
29 U.S.C. Sec. 158(e).
Facially, the proviso allows unions and employers in the construction industry to make agreements which the general proscription of section 8(e) condemns. See National Woodwork Mfrs. Ass'n v. NLRB, 386 U.S. 612, 637-39, 87 S.Ct. 1250, 1264-66, 18 L.Ed.2d 357 (1967). The Supreme Court, however, has interpreted the proviso narrowly. The proviso only applies to agreements which are "sought or obtained in the context of a collective-bargaining relationship." Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 653, 102 S.Ct. 2071, 2076, 72 L.Ed.2d 398 (1982); see Connell Constr. Co. v. Plumbers & Steamfitters Local Union No. 100, 421 U.S. 616, 633, 95 S.Ct. 1830, 1840, 44 L.Ed.2d...
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