N. L. R. B. v. Local 264, Laborers' Intern. Union of North America

• Decision Date: 22 January 1976
• Docket Number: No. 75--1259,75--1259
• Citation: 529 F.2d 778
• Parties: 91 L.R.R.M. (BNA) 2209, 78 Lab.Cas. P 11,223 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 264, LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 778

529 F.2d 778

91 L.R.R.M. (BNA) 2209, 78 Lab.Cas. P 11,223

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 264, LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, Respondent.

No. 75--1259.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 10, 1975.

Decided Jan. 22, 1976.

Paul J. Spielberg, Atty., N.L.R.B., Washington, D.C., for petitioner; Peter G. Nash, Gen. Counsel, John C. Miller, Acting Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Grant Morris, Atty., N.L.R.B., Washington, D.C., on brief.

Charles A. Werner, St. Louis, Mo., for respondent.

James G. Baker, Kansas City, Mo., for intervenor, Missouri Builders' Association of Kansas City.

Before GIBSON, Chief Judge, and LAY and STEPHENSON, Circuit Judges.

GIBSON, Chief Judge.

The National Labor Relations Board petitions for enforcement of its order reported at 216 N.L.R.B. No. 4 (1975) requiring respondent, Local 264, Laborers' International Union of North America, to cease and desist from engaging in certain unfair labor practice and to take other affirmative action. The Board found that the Union had violated § 8(b)(1)(B) and § 8(b)(3) of the National Labor Relations Act (NLRA) ¹ by forcing D & G Construction Co. (the Company) to become a signatory to a multi-employer collective bargaining agreement containing nonmandatory subjects of bargaining.

The Company, a concrete subcontractor, had been engaged to work on the Willow Creek Construction Project in Kansas City, Missouri. This project involved the construction of an apartment complex by Price Brothers Mortgage Company, the general contractor. At the time construction was undertaken, Price Brothers was a signatory to a multi-employer collective bargaining agreement which had been negotiated and executed by the Union and the Builders Association of Kansas City, an organization representing construction firms in the area. As signatory, Price Brothers was bound by the agreement, including the provision requiring subcontractors on its jobsite to become signatories to the collective bargaining agreement. When the Company commenced work on Price Brothers' project, it had not become a party to the agreement.

On October 16, 1973, the Company employed four members of the Union as laborers at the construction site. Columbus Sumpter, field representative for the Union, requested a partner in the Company, Joseph Dalton, to sign a stipulation binding the Company to the collective bargaining agreement. Since Sumpter did not have a copy of the agreement in his possession at that time, he agreed to meet with Dalton the following day to further discuss the agreement.

On October 17, Sumpter met with Dalton and representatives of Price Brothers to encourage Dalton to sign the stipulation presented by the Union. Dalton had discussed the agreement with his attorney and voiced objections to three provisions contained in it. First, the contract required a contribution of one cent for each employee hour of work into a Laborers Administrative Expense Account. This account was to be used to defray management's cost of administering employees' fringe benefit programs and maintaining records required by the agreement. Second, a signatory was required to pay two cents for each employee hour of work into a Laborers Industry Advancement Fund. This fund was to supply financial support to programs aimed at training employees and improving conditions in the construction industry as a whole. Third, a deposit of $1,000 was required to be paid into a Laborers Security Account to guarantee 'payment of wages and fringe benefit contributions * * $ under the agreement.

Despite Dalton's objections, the Union remained adamant in its demands that the stipulation be signed 'as is' except for a reduction in the performance deposit to $500; otherwise the construction site would be picketed. Price Brothers, of course, not wanting the project 'shut down', informed the Company that it would either have to sign the stipulation or be fired from the job. Dalton then signed the stipulation under protest. The Company thereafter filed a § 8(b)(1)(B) and § 8(b)(3) unfair labor practice charge against the Union. The Board found adequate evidence to support these allegations, issued a cease and desist order against the Union and ordered the Union to reimburse the Company for all contributions made to the accounts.

I. Timeliness of Filing the Charges.

The preliminary issue raised on this appeal is whether the Company's charge was filed with the Board and served upon the Union within six months of the occurrence of the unfair labor practices as required by § 10(b) of the NLRA. ² The activities which gave rise to the unfair labor practices occurred on October 17, 1973. The charge was filed with the Board on April 16, 1974, and was sent to the Union by registered mail ³ on April 17. The charge was received by the Union on April 18. The statute is clear in providing that a charge must not only be filed, it must also be served within the prescribed six month period. Old Colony Box Co., 81 N.L.R.B. 1025, 1027 (1949). It is conceded by the parties that the six month period in this case expired on April 17. We are therefore confronted with an issue of first impression in the federal courts--is service pursuant to § 10(b) effective upon mailing the charge by registered mail or is actual receipt of the charge by the respondent necessary.

The Union and the Intervenor, Builders Association of Kansas City, contend that the purpose of the 'service' provision is to impart 'actual notice' to the respondent. Therefore, it is alleged that the date of service is the date the charges are received by the respondent. This approach would obviously compel a dismissal of the charge in the present case as being untimely served.

The Board alleges that service is effective on the date the charge is mailed to the respondent. Its support for this proposition is derived primarily from its own rules of practice which provide that '(t)he date of service shall be the day when the matter served is deposited in the United States mail or is delivered in person, as the case may be.' 29 C.F.R. § 102.113(a) (1975). Although the Board initially deferred ruling on the issue of whether service was effective on the date of mailing or date of receipt, Luzerne Hide and Tallow Co., 89 N.L.R.B. 989, 990 (1950), it has recently committed itself in adjudicatory proceedings to the principle that service is effective upon mailing as embodied in § 102.113(a) of its rules of practice. Dow Chemical Co., 215 N.L.R.B. No. 139 (1974). The central point of dispute between the parties is whether § 102.113(a) is valid and is to be given effect.

The Board is vested with authority to promulgate rules and regulations which 'may be necessary to carry out the provisions of (the NLRA).' 29 U.S.C. § 156. When a party assumes the burden of attempting to nullify a Board rule, he must illustrate that the rule fails to comport with the statutory language and congressional policy of the NLRA. See Wallace Corp. v. N.L.R.B., 323 U.S. 248, 254--55, 65 S.Ct. 238, 89 L.Ed. 216 (1944); N.L.R.B. v. May Department Stores Co., 154 F.2d 533, 536 (8th Cir.), cert. denied, 329 U.S. 725, 67 S.Ct. 72, 91 L.Ed. 627 (1946). The Board's broad discretion to establish procedures and safeguards is not to be disturbed unless a rule instituted pursuant to this authority is shown to be 'without justification in law or in reason.' N.L.R.B. v. A. J. Tower Co., 329 U.S. 324, 332, 67 S.Ct. 324, 329, 91 L.Ed. 322 (1946). We review the rule in question, in light of the clear and implicit intendment of the statutory provisions, and assess whether the Board's action in promulgating the rule extended beyond the parameters of permissible administrative latitude.

The legislative history of § 10(b) is relatively unenlightening on the issue of when service is effective. The NLRA, popularly characterized as the Wagner Act, was approved by Congress in 1935. Act of July 5, 1935, ch. 372, 49 Stat. 449. The Wagner Act created the National Labor Relations Board and § 10(b) of the Act empowered the Board to issue complaints and conduct hearings upon receiving a charge that a person had committed an unfair labor practice. The major infirmity in this particular provision of the Act was its failure to specify a time limitation within which a charge must be filed. Consequently, inordinate delays between the occurrence of an unfair labor practice and the filing of the charge were often condoned. Phelps Dodge Corp. v. N.L.R.B., 113 F.2d 202, 206 (2d Cir. 1940), modified on other grounds, 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271 (1941). This procedural deficiency was recognized and corrected by Congress with the passage in 1947 of the Taft-Hartley Act. Act of June 23, 1947, ch. 120, 61 Stat. 136. Section 10(b) of the Wagner Act was amended to add the following proviso:

Provided, That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made * * *.

This amendment was deemed necessary by Congress due to the realization that, as a practical matter, '(t)here must be a limitation as to time' in filing unfair labor practice charges. 93 Cong.Rec. 4411 (1947) (remarks of Senator Smith). The six month statute of limitation is intended 'to bar litigation over past events 'after records have been destroyed, witnesses have gone elsewhere, and recollections of the events in question have become dim and confused." Local 1424, International Association of Machinists v. N.L.R.B., 362 U.S. 411, 419, 80 S.Ct. 822, 828, 4 L.Ed.2d 832, 839 (1960), quoting H.R.Rep.No.245, 80th Cong., 1st Sess. 40 (1947); accord, N.L.R.B. v. Colonial Press, Inc., 509 F.2d 850, 854 (8th Cir.), cert. denied, 423 U.S....