N.L.R.B. v. Pacific Erectors, Inc.

• Decision Date: 25 October 1983
• Docket Number: No. 82-7767,82-7767
• Citation: 718 F.2d 1459
• Parties: 114 L.R.R.M. (BNA) 3230, 99 Lab.Cas. P 10,522 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PACIFIC ERECTORS, INC., Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1459

718 F.2d 1459

114 L.R.R.M. (BNA) 3230, 99 Lab.Cas. P 10,522

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PACIFIC ERECTORS, INC., Respondent.

No. 82-7767.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 6, 1983.

Decided Oct. 25, 1983.

Thomas I. Kramer, Portland, Or., for respondent.

Susan Williams, Seattle, Wash., for petitioner.

Application for enforcement of an order by the National Labor Relations Board.

Before WRIGHT, CHOY and NELSON, Circuit Judges.

NELSON, Circuit Judge:

The NLRB petitions for enforcement of its order finding that Pacific Erectors, Inc. (the Employer) violated National Labor Relations Act Sec. 8(a)(1), (2), (5), 29 U.S.C. Sec. 158(a)(1), (2), (5) (1976). The Employer had signed a prehire agreement with the The Board found that the Employer violated the National Labor Relations Act by breaching the agreement, refusing to bargain, and making a new agreement with the Sheet Metal Workers Union, and ordered various remedial measures. The Employer argues on appeal that it was not obligated to bargain because the Ironworkers had a voidable prehire agreement. We find that the Ironworkers established a rebuttable presumption of majority representation by virtue of majority membership in that union at the time the job began. This converted a voidable prehire agreement into a binding collective bargaining agreement. The Employer also argues that there was not sufficient evidence to support the Board's findings. We find that there was sufficient evidence to justify the unfair labor practice findings, and grant enforcement to the Board's order.

International Association of Bridge, Structural & Ornamental Ironworkers, Local No. 29 (Ironworkers), and subsequently hired a crew of Ironworkers to work on a roofing project. See National Labor Relations Act Sec. 8(f), 29 U.S.C. Sec. 158(f) (1976). When the work went poorly, the Company laid off three workers, and the remaining seven quit in sympathy. Rather than going to the union for more workers as the collective bargaining agreement required, the Employer signed a new agreement with the Sheet Metal Workers Union and employed its members to finish the job.

FACTS AND PROCEDURAL BACKGROUND

The Employer is a roofing contractor. On November 22, 1974, it signed a prehire agreement with the Ironworkers. This was a "short form" agreement by which the Company agreed to be bound by the terms of the Master Labor Agreement between the Oregon-Columbia Chapter, Associated General Contractors of America, Inc., and the Ironworkers (Agreement), except for dispute settlement provisions. The Agreement included a "hiring hall" provision, stating that a signatory employer may hire from other sources only if the Ironworkers are unable to supply qualified workers within 48 hours. ¹ The Agreement also contained a union security clause requiring covered employees to become members of the union.

This case results from an August 18, 1977 labor dispute at the Tualatin, Oregon jobsite where the Employer had contracted to install a metal roof on a tennis court. From the beginning of the job on June 1 until the date of the dispute, all the Employer's employees on the Tualatin jobsite were Ironworkers. On August 17, some workers left the site without properly securing certain roofing materials. When Abrams, an officer of the Employer, discovered the problem on the following day, he laid off the three responsible employees. The remaining seven then requested final paychecks in sympathy with the three discharged workers. There was conflicting testimony before the Administrative Law Judge as to what further inquiries the workers made about continuing on the job, but Abrams treated their termination as final.

Abrams did not attempt to hire an alternate crew from the Ironworkers. Instead, he signed a collective bargaining agreement with Sheet Metal Workers Local 16 later on August 18, and their workers finished the job.

The Ironworkers filed charges with the NLRB. The ALJ, later affirmed by the

Board, found that the Employer had violated the National Labor Relations Act (Act) in two ways:

1. By withdrawing recognition from the Ironworkers and refusing to honor the conditions of the collective bargaining agreement without first bargaining with the Ironworkers, the Company violated section 8(a)(1) and (5) of the Act.

2. By making and enforcing the collective bargaining agreement with the Sheet Metal Workers, the Employer violated section 8(a)(1) and (2) of the Act.

The Board ordered the Employer to: 1) cease and desist from the unfair labor practices; 2) pay those Ironworkers who would have been referred by the union to replace the terminated workers; and 3) post an appropriate notice. The Board brings this action for enforcement under National Labor Relations Act Sec. 10(e), 29 U.S.C. Sec. 160(e).

ISSUES

I. Did the Employer have a binding collective bargaining agreement with the Ironworkers as of August 18?

II. Was there substantial evidence for the Board to find that the Employer violated section 8(a)(1) and (5) of the Act by refusing to honor the agreement and by refusing to bargain.

III. Was there substantial evidence for the Board to find that the Employer violated section 8(a)(2) and (1) of the Act by executing an agreement with the Sheet Metal Workers during the course of a job for which the Ironworkers had binding agreement?

STANDARD OF REVIEW

A Board finding of fact must be accepted if supported by substantial evidence on the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464-65, 95 L.Ed. 456, 467-468 (1951); 29 U.S.C. Sec. 160(f) (1976). If the Board's application of these findings is rational and consistent with the Act, the order is entitled to enforcement. Beth Israel Hospital v. NLRB, 437 U.S. 483, 501, 98 S.Ct. 2463, 2473-74, 57 L.Ed.2d 370, 386 (1978); Construction Erectors, Inc. v. NLRB, 661 F.2d 801, 803 (9th Cir.1981). Reviewing courts give special weight to the administrative law judge's determinations concerning the credibility of witnesses "[w]hen conflicting testimony is presented at a hearing." Clear Pine Mouldings, Inc. v. NLRB, 632 F.2d 721, 724 (9th Cir.1980), cert. denied, 451 U.S. 984, 101 S.Ct. 2317, 68 L.Ed.2d 841 (1981).

DISCUSSION

I.

The Company Was Bound by the Collective Bargaining Agreement

Once the Job Began

The Employer makes two arguments that it was not bound by the Agreement as of August 18. The first is that the Ironworkers no longer had majority support after all their workers were terminated. The second is that the Ironworkers' unsatisfactory performance constituted a material breach of their common-law duty of good faith and fair dealing, which discharged the Employer's duties under the agreement. We address these contentions in turn.

A. The Ironworkers Had an Enforceable Collective Bargaining Agreement on August 18

It is an unfair labor practice for an employer to sign a collective bargaining agreement recognizing a minority union as an exclusive bargaining representative. International Ladies' Garment Workers Union v. NLRB, 366 U.S. 731, 373-40, 81 S.Ct. 1603, 1607-08, 6 L.Ed.2d 762, 767-69 (1961), Construction Erectors, Inc. v. NLRB, 661 F.2d 801, 803 (9th Cir.1981) (Construction Erectors ). However, to accommodate the fluidity of construction employment, Congress enacted NLRA Sec. 8(f), 29 U.S.C. Sec. 158(f) (1976), which allows a construction employer to execute a prehire agreement for union representation before a majority is established. Jim McNeff, Inc. v. Todd, --- U.S. ----, ----, 103 S.Ct. 1753, 1756-57, 75 L.Ed.2d 830, 836-837 (1983).

Until a union establishes a majority, an employer is free to repudiate an 8(f) agreement at any time. NLRB v. Local This circuit recognizes two methods of demonstrating majority status. If the agreement covers a permanent and stable unit of employees, the contract is converted into a binding agreement covering all employees from the time the union establishes majority support. E.g., Construction Erectors, 661 F.2d at 803-04. Once a majority of the company's employees belong to the union, a rebuttable presumption of the union's majority status is created. Authorized Air Conditioning Co. v. NLRB, 606 F.2d 899, 906 (9th Cir.1979), cert. denied, 445 U.S. 950, 100 S.Ct. 1598, 63 L.Ed.2d 785 (1980); see Precision Striping, 642 F.2d at 1148 (majority membership does not raise an irrebuttable presumption of majority support).

                Union No. 103, International Association of Bridge, Structural & Ornamental Ironworkers, 434 U.S. 335, 345, 98 S.Ct. 651, 657-58, 54 L.Ed.2d 586, 595-96 (1978) (Higdon ).  Once a union achieves majority status, "the prehire agreement attains the status of a collective bargaining agreement executed by the employer with a union representing a majority of the employees in the unit."    434 U.S. at 350, 98 S.Ct. at 660, 54 L.Ed.2d at 598-99.  Majority status thus converts a voidable 8(f) agreement into a binding section 9(a) exclusive representation agreement.  After that time, the employer must require an incumbent union's representation during the term of an agreement up to three years in length.   Precision Striping, Inc. v. NLRB, 642 F.2d 1144, 1147 (9th Cir.1981);  see Pioneer Inn Associates v. NLRB, 578 F.2d 835, 838 (9th Cir.1978)
                

If an employer has no stable work force and hires on a job-to-job basis, "the employer's duty to bargain and honor the contract is contingent on the union's attaining majority support at the various construction sites." Higdon, 434 U.S. at 345, 98 S.Ct. at 657-58, 54 L.Ed.2d at 596. This court has stated: " '[T]he union must demonstrate its majority status at each new jobsite in order to invoke the provisions of section 8(a)(5) of the Act.' " Construction Erectors, 661 F.2d at 804 (citing Hageman Underground Construction, 253 N.L.R.B. 60 (1980)). The Union in this case does not claim that the Employer had a permanent and stable unit of employees. It claims...