Lane-Coos-Curry-Douglas Counties Bldg. & CTC v. NLRB

• Decision Date: 18 August 1969
• Docket Number: No. 22169,22169
• Citation: 415 F.2d 656
• Parties: LANE-COOS-CURRY-DOUGLAS COUNTIES BUILDING AND CONSTRUCTION TRADES COUNCIL, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Jens HORSTRUP, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

415 F.2d 656 (1969)

LANE-COOS-CURRY-DOUGLAS COUNTIES BUILDING AND CONSTRUCTION TRADES COUNCIL, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Jens HORSTRUP, Respondent.

Nos. 22169, 22169-A.

United States Court of Appeals Ninth Circuit.

August 18, 1969.

Paul T. Bailey, Portland, Or. (argued), Laurence J. Cohen, Washington, D. C., and Stephen M. Malm, of Bailey, Swink & Haas, Portland, Or., for petitioner.

Glen M. Bendixsen (argued), Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., Thomas P. Graham, Jr., Regional Director, Seattle, Wash., Robert J. Wiener, Officer-in-Charge, Portland, Or., for respondent.

Riddlesbarger, Pederson, Brownhill & Young, Eugene, Or., for respondent Horstrup.

Louis Sherman, Laurence J. Cohen, of Sherman & Dunn, Washington, D. C., for Building & Construction Trades Dept., AFL-CIO, amicus curiae.

Before BROWNING, DUNIWAY, and CARTER, Circuit Judges.

BROWNING, Circuit Judge:

The Trades Council and Jens Horstrup, its secretary-treasurer, ask us to set aside an order of the National Labor Relations Board based upon a holding that they had violated section 8(b) (7) (A) of the Act, 29 U.S.C. § 158(b) (7) (A), by picketing R. A. Chambers & Associates of Eugene, Oregon. 165 N.L. R.B. No. 86. The Board cross-petitions for enforcement.

Chambers is a general contractor in the construction industry. Subcontractors do approximately 60 per cent of Chambers' work; about 40 per cent is done by his own employees. Chambers' employees are carpenters and laborers who are members of locals of the Laborers' Union and the Carpenters' Union.¹ At the time of the picketing, Chambers was a party to collective bargaining contracts with these unions.²

The Trades Council is an association of local building trade unions, including the Laborers' Union and Carpenters' Union. The Trades Council was not certified as the representative of Chambers' employees — its membership does not include individual employees. The purpose of the picketing was to require Chambers to execute a formal agreement with the Trades Council, the provisions of which are considered below.

The Board concluded that the picketing violated section 8(b) (7) (A) because it had as an object requiring Chambers to recognize or bargain with the Trades Council as the representative of Chambers' employees, at a time when Chambers had lawfully recognized other unions and a question of representation could not appropriately be raised under section 9(c) of the Act, 29 U.S.C. § 159(c).

Except as we will note, the issues and arguments presented to us were considered by the Court of Appeals for the District of Columbia Circuit in Dallas Building & Construction Trades Council v. NLRB, 130 U.S.App.D.C. 28, 396 F.2d 677 (1968). That court enforced the Board's order. We agree with the Dallas opinion, and enforce a similar order of the Board here.

It would serve no useful purpose to deal again with the contentions disposed of in Dallas. With one preliminary observation, we confine our comments to matters not considered in that opinion.

It must be conceded that the primary purpose of section 8(b) (7) (A) is to protect employees' freedom of choice in selecting their bargaining agent from the coercive effect of picketing by a "stranger" union; and that it is not readily apparent that this purpose is served by applying the statute to picketing by an allied or affiliated labor organization rather than one hostile to the lawfully recognized union.³

However, Congress did not choose to rest the applicability of section 8(b) (7) (A) upon such a distinction. On the contrary, if the other conditions specified in the section are present, picketing is barred when the employer has lawfully rocognized "any other labor organization." It cannot be supposed that Congress was unaware of the special problems in the construction industry (see, e. g., section 8(e)); and, as Dallas points out, Congress may well have intended to protect the employer from pressure even from allied or affiliated unions with regard to matters properly subject to settlement by agreement between the employer and the exclusive bargaining agent of his employes. 396 F.2d at 680-681.⁴

The exact language of section 8(b) (7) (A) is the product of intense legislative conflict and compromise (NLRB v. Suffolk County District Council of Carpenters, 387 F.2d. 170, 174 (2d Cir. 1967)); and, to an unusual degree, the words of the statute provide the only safe measure of the actual agreement between contending purposes and points of view. Cf. A. Cox, The Landrum-Griffin Amendments to the National Labor Relations Act, 44 Minn.L.Rev. 257, 266 (1959). Nonetheless, we agree, of course, that it would be proper to read a condition into the statutory language if the legislative history affirmatively supported the Trades Council's thesis that Congress did not intend to bar picketing by an allied or affiliated labor organization in the construction industry. But it does not.⁵

The Board's position, in this case and in Dallas, is that "an object of picketing is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees," if a purpose of the picketing is to establish a continuing contractual relationship with the employer with regard to matters which could substantially affect the working conditions of his employees, and which are the proper subject of bargaining by a lawfully recognized exclusive representative of those employees. See 396 F.2d at 680-81.⁶

The Board found that the Trades Council picketed to require Chambers to execute a formal contract to remain in force from year to year unless either party gave notice of termination 60 days prior to an anniversary date. The proposed contract was to replace a similar agreement executed by the parties nine or ten years earlier.⁷

The Board further found that several of the provisions of the proposed contract related to subjects already covered by the collective bargaining agreements between Chambers and locals of the Laborers' and the Carpenters' Unions, and would have modified the terms of the latter agreements.

Certain of these proposed provisions would have imposed greater restrictions upon the subcontracting of work by Chambers than were imposed by Chambers' existing collective bargaining agreements with the locals. For the reasons stated in Dallas, picketing to secure a continuing agreement with respect to this subject matter intruded upon the area reserved to collective bargaining between Chambers and the craft unions representing Chambers' employees.⁸

The Examiner held, and the Board agreed, that several other proposed provisions not involved in Dallas, fell in the same category.

The first of these was a provision that the Trades Council would not be bound by the no-strike and arbitration clauses in the agreements with the Laborers' Union and the Carpenters' Union. A second provision would have freed the Carpenters' and Laborers' Unions of the obligation to furnish workmen imposed by hiring-hall provisions of their agreements with Chambers during the time of any violation by Chambers of the proposed agreement with the Trades Council. The Trades Council's argument in support of these two provisions is premised upon the validity of the central provisions restricting subcontracting which these two provisions were designed principally to enforce. The argument falls with its premise.

This is equally true of the Trades Council's defense of a final provision to the effect that the craft unions could not modify, amend or alter the proposed agreement without the approval of the Trades Council. The Board interpreted this proposed provision as requiring prior agreement by the Trades Council to the negotiation by Chambers and the craft unions of any change in the terms and conditions of employment of Chambers' employees. The Trades Council argues that this provision applied only to the modification of its proposed agreement. Assuming the latter interpretation to be correct, the provision would require prior Trades Council approval of any changes in the subcontracting articles which were the heart of the proposed agreement. Since, as we have held, restrictions on subcontracting are matters solely for negotiation between Chambers and the lawful representatives of his employees, any provision concerning modification of those restrictions would also be reserved for negotiation between those parties.

We enforce the Board's order.

JAMES M. CARTER, Circuit Judge (dissenting).

I respectfully dissent. The Board's order should not be enforced and the case should be remanded to the Board for further consideration. The decision of the majority erroneously interprets the contract proposed by the Council in order to reach the conclusion that the Council seeks to be the exclusive bargaining representative of the craft unions; and rejects the validity of subcontractor-oriented contracts customarily entered into between Building Trades Councils and general contractors; and emasculates the provisions in Sec. 8(e) and (f), 29 U.S.C. § 158(e) and (f), concerning the construction industry.

The problems of the Building Trades unions, acting through their Councils, are entirely different problems than those confronting unions operating in industry generally. There the employees generally continue in their employment.

In the construction industry on the other hand, the craft worker is usually on the job for a short time and then goes to another job. Hiring halls are usually maintained by the craft unions for a supply of labor. Thus it has been impractical in the past to apply all the rules of the National Labor Relations Act to the building construction industry. The craft union members have suffered in securing their rights under the Act.

Congress saw the problem and...