Local Union No. 103, Intern. Ass'n of Bridge, Structural and Ornamental Iron Workers, AFL-CIO v. N.L.R.B., AFL-CI

• Decision Date: 25 June 1976
• Docket Number: No. 75-1060,P,AFL-CI,75-1060
• Parties: 91 L.R.R.M. (BNA) 2986, 175 U.S.App.D.C. 259, 78 Lab.Cas. P 11,416 LOCAL UNION NO. 103, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 87

535 F.2d 87

91 L.R.R.M. (BNA) 2986, 175 U.S.App.D.C. 259,

78 Lab.Cas. P 11,416

LOCAL UNION NO. 103, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 75-1060.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 21, 1975.

Decided March 31, 1976.

Rehearing Denied June 25, 1976.

Sydney L. Berger, Evansville, Ind., with whom Charles L. Berger, Evansville, Ind., was on the brief, for petitioner.

Aileen A. Armstrong, Atty., N. L. R. B., Washington, D. C., with whom John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Robert A. Giannasi, Asst. Gen. Counsel, N. L. R. B Before DANAHER, Senior Circuit Judge, LEVENTHAL, Circuit Judge, and VAN PELT, ^* United States Senior District Judge for the District of Nebraska.

Washington, D. C., were on the brief, for respondent.

Opinion for the Court filed by Senior Circuit Judge DANAHER.

DANAHER, Senior Circuit Judge:

Local Union No. 103 filed its petition stating the issue thus:

Whether an employer can abrogate unilaterally and breach a validly executed collective bargaining pre-hire agreement merely because the agreement was a pre-hire agreement in the construction industry validly entered into pursuant to Section 8(f) of the National Labor Relations Act. ¹

The Board by way of counterstatement suggests that we consider:

Whether the Board properly found that the Union violated Section 8(b)(7)(C) of the Act by conducting recognitional picketing at the Company's jobsites for more than 30 days without filing a representational petition.

It is clear enough that the Board was and is unhappy with this court's opinion in Local No. 150 v. National Labor Relations Board, footnote 1, supra, although the Board had never appealed, nor did it seek rehearing en banc, it now asks us to reconsider and overrule our Local 150 decision.

BACKGROUND

The Board in its Decision and Order noted that the material facts are essentially undisputed, with Higdon Construction Company, an employer engaged primarily in the building and construction industry within Section 8(f) of the Act, and Local 103, by the same token, a labor organization of building and construction employees. Higdon Construction Company (herein Higdon Construction) and the Local had had a collective-bargaining relationship since 1968. Their initial contract, which expired in December 1972, had been negotiated under Section 8(f).

In July 1973 Higdon Construction was engaged in the performance of a construction contract at Glenmore Distillery. Local 103 refused to furnish employees unless Higdon Construction were to execute a contract. After the job had twice been shut down, Higdon Construction on July 31, 1973, signed an acceptance of agreement covering Local 103 Ironworkers. Higdon Construction agreed to abide by an existing agreement, which by its terms expires on March 31, 1976, between Tri-State Iron Workers Employers Association, Inc. and Local 103. ²

The Union did not then or thereafter represent or claim to represent a majority of Higdon Construction's employees. Some employees were supplied by the Union at the Glenmore site, and wages and contributions to the welfare fund were paid for them in accordance with the contract.

Gerald J. Higdon ³ in July 1973 caused to be created the Higdon Contracting Company (hereinafter, Higdon Contracting) which had bid successfully on nonunion iron work of W. R. Grace Co. at Owensboro, Kentucky, and of Barmet Industries, Inc. at Rockport, Indiana. Higdon Contracting was the charging party in the proceedings under consideration.

In January 1974 after construction was commenced at the W. R. Grace jobsite, the Union began, and from time to time thereafter until March 1974 continued, to picket with picket signs carrying the legend:

Higdon Construction Company is in violation of the agreement of the Iron Workers Local No. 103.

Although Higdon could have filed a petition seeking an election, it did not do so, and neither did Local 103. Instead, it seemed clear enough to the Administrative Law Judge, that Higdon had sought to proceed at the Grace jobsite with nonunion labor and in disregard of the pre-hire agreement with the Local. The Board noted that when the Local's business representative sought to sign up the Company, Gerald J. Higdon took the position that so to act "would defeat the purpose I had started out to do . . . ." The Board in its Decision and Order specifically recognized that Higdon Contracting had been formed in July 1973 to perform nonunion ironwork jobs.

So it was that the Local commenced its picketing at the Grace jobsite on January 29, 1974, and continued off and on until March 1, 1974. A similar situation developed at the Barmet jobsite about February 20, 1974, and continued on various days up to March 20, 1974. In both locations the picket signs read as above set out.

Rejecting the views of the ALJ, the Board concluded that the Local's picketing had for its object the forcing of the Company to bargain with it without being currently certified and without having filed a petition for an election within a reasonable period of time. The Board's order directed the Local to cease and desist from picketing as a means of forcing or requiring the Company to recognize or bargain with the Local as the representative of its employees in violation of Section 8(b)(7)(C) of the Act.

I

The Board's Decision and Order here reverted to its own position in Local No. 150, supra note 1, involving R. J. Smith Construction Co., Inc., 191 NLRB 693 (1971). The Board there had ruled that Section 8(f) does not protect the Union from inquiry into its majority status during the contract term. The Board here went on to reaffirm its previous holding, despite our opinion in Local No. 150, even as it noted as undisputed that the instant July 31, 1973, contract was a "prehire agreement lawfully executed under Section 8(f) of the Act prior to the establishment of the Respondent's majority status."

The Board declined to accept the appraisal by the ALJ who sought to give effect to this court's ruling in Local No. 150. The Board read the record here as containing evidence

that the Employer sought to adhere to the contract for union work, such as the Glenmore contract, and to avoid it as to nonunion work by the creation of a second corporation.

Correctly identifying the position taken by the ALJ that the picket legend had published the truth, the Board continued:

. . . He found that the target of Respondent's picketing was not to force or require the Employer to initially accept the Union as the bargaining representative since that had already been accomplished, but instead was to secure compliance with an existing contract, a permissible objective. We disagree.

II

No substantial advantage will be achieved by further analysis of the details of the Board's effort here to justify its rejection of the holding of this court in Local No. 150, (R. J. Smith), or the post-hoc efforts of the Board's appellate counsel to distinguish the instant case. Rather, we may simply and summarily demonstrate the adamant position of the Board by setting forth its own explanation thus:

For the Board to allow the Respondent to picket to enforce an 8(f) agreement if an employer decides to ignore it, as the Employer herein has done with respect to nonunion jobs, which Respondent could not enforce by means of obtaining an 8(a)(5) bargaining order, is to permit it to do by indirection what it could not do directly and in effect nullify our decisions in R. J. Smith and its progeny that such contracts...