Mesa Verde Const. Co. v. Northern California Dist. Council of Laborers

• Decision Date: 26 January 1990
• Docket Number: 85-2074,Nos. 85-1665,s. 85-1665
• Citation: 895 F.2d 516
• Parties: 133 L.R.R.M. (BNA) 2672, 114 Lab.Cas. P 11,870, 114 Lab.Cas. P 12,054 MESA VERDE CONSTRUCTION CO., Plaintiff-Appellee, v. NORTHERN CALIFORNIA DISTRICT COUNCIL OF LABORERS, Defendant-Appellant. MESA VERDE CONSTRUCTION COMPANY, Plaintiff-Appellee, v. CARPENTERS 46 NORTHERN CALIFORNIA COUNTIES CONFERENCE BOARD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 516

895 F.2d 516

133 L.R.R.M. (BNA) 2672, 114 Lab.Cas. P 11,870,

114 Lab.Cas. P 12,054

MESA VERDE CONSTRUCTION CO., Plaintiff-Appellee, v. NORTHERN CALIFORNIA DISTRICT COUNCIL OF LABORERS,

Defendant-Appellant.

MESA VERDE CONSTRUCTION COMPANY, Plaintiff-Appellee, v. CARPENTERS 46 NORTHERN CALIFORNIA COUNTIES CONFERENCE BOARD,

Defendant-Appellant.

Nos. 85-1665, 85-2074.

United States Court of Appeals, Ninth Circuit.

Argued En Banc and Submitted March 16, 1988.

Remanded by Opinion of Nov. 15, 1988.

Decided Sept. 13, 1989.

As Amended on Denial of Rehearing and Rehearing En Banc Jan. 26, 1990.

Victor J. Van Bourg, Van Bourg, Weinberg, Roger & Rosenfeld, San Francisco, Cal., for defendant/appellant.

Mark R. Thierman, Thierman, Cook, Brown & Mason, San Francisco, Cal., for plaintiff/appellee.

Patrick J. Syzmanski, Washington, D.C., for amicus curiae N.L.R.B.

Lawrence Gold, Washington, D.C., for amicus curiae Dist. Council of Carpenters of Seattle, King County & Vicinity, and Local 3 Intern. Union of Operating Engineers.

G. Brockwell Heylin, Washington, D.C., for amicus curiae Associated Gen. Contractors of America, Inc.

Douglas N. Friefield, San Francisco, Cal., for amicus curiae W.B. Skinner, Inc.

Judd H. Lees, Williams, Kastner & Gibbs, Bellevue, Washington, for amicus curiae Ken Hash Const.

Appeal from the United States District Court for the Northern District of California.

Before NELSON, WIGGINS and NOONAN, Jr., Circuit Judges.

WIGGINS, Circuit Judge:

The Northern California District Council of Laborers and the Carpenters 46 Northern California Counties Conference Board (collectively Laborers) appeal from the district court's declaratory judgment that Mesa Verde Construction Company (Mesa Verde) effectively repudiated pre-hire collective bargaining agreements between the parties. This panel affirmed, but the Laborers suggestion for rehearing en banc was subsequently granted. The en banc panel adopted as the law of this circuit the decision of the National Labor Relation Board (NLRB or Board) in Deklewa v. International Ass'n of Bridge, Structural and Ornamental Ironworkers, Local 3, 282 N.L.R.B. No. 184, 1986-87 NLRB Dec. (CCH) p 18,549 (Feb. 20 1987), enforced, 843 F.2d 770 (3d Cir.1988), that pre-hire collective bargaining agreements may not be unilaterally repudiated prior to a Board-certified election or termination of the contracts. The en banc panel remanded the case to this panel to determine whether to apply Deklewa retroactively. We hold that Deklewa should not be applied retroactively and affirm the judgment below.

BACKGROUND

In our original opinion we summarized the facts as follows:

Mesa Verde is a general contractor, specializing primarily in constructing shopping centers in Arizona, California, and Colorado. Mesa Verde typically subcontracts out most of its work except for some carpentry and odd jobs. In 1979 it reached its first agreement with the Laborers, and on June 26, 1980 it signed the contract with the Laborers that is here in dispute. The contract was to remain in effect until June 15, 1983 and would continue thereafter from year to year absent written notice by either party. By the contract's terms Mesa Verde agreed to "comply with all wages, hours, and working conditions set forth in the Laborers' Master Agreement for Northern California."

                That agreement is a sixty-seven-page contract between the Laborers, the Associated General Contractors of California, Inc. and the Bay Counties General Contractors Association.  It sets wage rates for numerous jobs and provides for arbitration, with certain exceptions, of "any dispute concerning the interpretation or application of the agreement."    On November 17, 1982 Mesa Verde and the Laborers agreed in writing that their 1980 contract would continue in effect until June 15, 1986
                

Mesa Verde first entered into a collective bargaining agreement with the Carpenters in August 1979. Through a memorandum agreement Mesa Verde and the Carpenters accepted the Carpenters Master Agreement for Northern California, a forty-nine-page contract between the Carpenters, the Building Industry Association of Northern California, the California Contractors Council, Inc. and the Millwright Employers Association. That agreement sets rates for numerous jobs and provides for arbitration of "[a]ny dispute concerning the relationship of the parties, any application or interpretation of this Agreement." Through a subsequent memorandum agreement executed in June 1980 the parties accepted the new June 16, 1980 to June 15, 1983 Carpenters Master Agreement. On September 8, 1982 Mesa Verde and the Carpenters early extended the master agreement to June 15, 1986, with certain modifications limiting wage increases and providing more flexible working conditions for Mesa Verde.

Mesa Verde informed the unions of its intent to abrogate its agreements with them in May of 1984. At the time Mesa Verde was working on a project in Hercules, California, at which it employed members of both unions. Mesa Verde notified the Carpenters of its repudiation through a May 8, 1984 letter and notified the Laborers through a May 15, 1984 letter. In late May or early June of 1984, after its notice to the unions, Mesa Verde started another project in Orland, California without union workers, in contravention of the collective bargaining agreements, if they were still in effect. Both unions gave Mesa Verde notice of grievance and requested arbitration regarding Mesa Verde's contractual obligations for the Orland project. Mesa Verde then brought suit against both unions seeking a declaration that it need not comply with the agreements with regard to projects begun after its repudiations in May 1984.

Mesa Verde Constr. Co. v. Northern Cal. Dist. Council of Laborers,, 820 F.2d 1006, 1007-08 (9th Cir.1987), withdrawn, 832 F.2d 1164 (9th Cir.1987).

The district court granted Mesa Verde summary judgment against both unions, holding that the collective bargaining agreements at issue were construction industry "pre-hire" agreements and that under section 8(f) of the National Labor Relations Act (NLRA), 29 U.S.C. Sec. 158(f) (1982), Mesa Verde's May 1984 letters were sufficient to repudiate their agreements with respect to future projects. 598 F.Supp. 1092, 1101 (N.D.Cal.1984). This panel affirmed, finding that circuit precedent permitted an employer to repudiate unilaterally a pre-hire collective bargaining agreement. 820 F.2d at 1012. Upon rehearing, the en banc panel adopted Deklewa as the law of this circuit, holding that a "pre-hire agreement[ ] may not be unilaterally repudiated by either a union or an employer prior to its termination or absent an election among the appropriate bargaining unit's employees to reject the union." 861 F.2d 1124, 1137 (9th Cir.1988) (en banc). The en banc panel, however, remanded the case to this panel to determine whether Deklewa should be applied retroactively. Id.

DISCUSSION

The en banc panel directed that our retroactivity analysis be governed by Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). In Chevron the Supreme Court articulated three factors applicable to the analysis: (1) whether the decision to be applied retroactively established a new principle of law, either by overruling clear past precedent on which The en banc panel noted that "Deklewa overrules clear precedent that the employer in Mesa Verde obviously relied on in repudiating the pre-hire agreements." 861 F.2d at...