N.L.R.B. v. W.L. Miller Co.

• Decision Date: 29 March 1989
• Docket Number: 87-2420,Nos. 87-2332,s. 87-2332
• Parties: 130 L.R.R.M. (BNA) 3102, 57 USLW 2611, 111 Lab.Cas. P 11,062 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. W.L. MILLER COMPANY, Respondent, Eastern Missouri Laborers District Council, Intervenor/Petitioner. EASTERN MISSOURI LABORERS DISTRICT COUNCIL, Petitioner, v. W.L. MILLER COMPANY, National Labor Relations Board, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 745

871 F.2d 745

130 L.R.R.M. (BNA) 3102, 57 USLW 2611,

111 Lab.Cas. P 11,062

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. W.L. MILLER COMPANY, Respondent, Eastern Missouri Laborers District Council, Intervenor/Petitioner.

EASTERN MISSOURI LABORERS DISTRICT COUNCIL, Petitioner, v. W.L. MILLER COMPANY, National Labor Relations Board, Respondent.

Nos. 87-2332, 87-2420.

United States Court of Appeals Eighth Circuit.

Submitted June 16, 1988.

Decided March 29, 1989.

Laurence Gold, Washington, D.C., for Eastern Missouri Laborers Dist. council.

John Ferguson, Washington, D.C., for N.L.R.B.

Jack L. Whitacre, Kansas City, Mo., for W.L. Miller Co.

Before JOHN R. GIBSON, Circuit Judge, BRIGHT, Senior Circuit Judge, and STUART ^*, Senior District Judge.

JOHN R. GIBSON, Circuit Judge.

The National Labor Relations Board seeks to enforce an order against the W.L. Miller Company for violation of sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act, 29 U.S.C. Secs. 158(a)(1), (5) (1982). The alleged violations involve Miller's repudiation of a labor agreement validly accepted by the Associated General Contractors of Missouri, a multiemployer bargaining unit to which Miller belonged, and Miller's subsequent refusal to bargain with the Eastern Missouri Laborers Council, the Union signatory to the agreement. Miller argued before the Board that the agreement was simply a section 8(f) pre-hire agreement, 29 U.S.C. Sec. 158(f), which it could repudiate at will. The Board rejected this view, and instead retroactively applied a new rule announced in John J. Deklewa & Sons, Inc., 282 N.L.R.B. 184, 124 L.R.R.M. 1185 (1987), enf'd sub nom. International Ass'n of Bridge, Structural and Ornamental Iron Workers v. NLRB, 843 F.2d 770 (3d Cir.1988), that section 8(f) agreements are enforceable during the life of the agreement, but impose no continuing obligation to bargain following the termination of that agreement. Miller argues that Deklewa improperly construed section 8(f), and in any event should not be applied retroactively. The Union intervenes, arguing that the limitation of responsibility to the period of the contract was improper. We decline the invitations of both parties to reexamine the Deklewa rule, and hold that it should be applied retroactively. We believe, however, that manifest injustice would result from holding Miller fully responsible for the interest that would be required by the board's order and modify the order in this respect. We otherwise grant enforcement of the board's order.

I.

Miller began performing work in Missouri in 1972, but did not establish a continuing bargaining relationship with the Union. Its employees did not designate or select the Union or any other labor organization as their representative. Miller joined the Associated General Contractors of Missouri in 1979, but declined to adopt the labor agreements negotiated by that body. Before 1980, individual members of the Association were not bound by these agreements, but instead determined individually whether accepting them was in their own best interests. No provision in the association bylaws bound a member to any labor agreement. Miller advised the association manager that it had previously operated on an open shop basis in Missouri, and desired to continue in this manner.

On February 5, 1980, the association informed its members that the previous labor agreements were due to expire by the end of April, and that a committee was being formed to negotiate new agreements. The association distributed "designation of representative" forms, which when signed by a member gave the committee the power to bind that member to the labor agreement. This form had not been used previously. Miller's President signed the form on February 8, but instructed the company's office manager to not mail the form without first ensuring that the form would not obligate Miller in any way. For some reason these instructions were not followed, and the form was mailed to the association. A tentative labor agreement was reached by May 6, and the association notified all members of a meeting where the final binding vote would take place. The contract was approved at that meeting, and a May 9 bulletin informed all members that a binding contract extending from May 1, 1980 through April 30, 1983 had been concluded.

The Union immediately began trying to persuade Miller to abide by the terms of the contract. The Miller superintendent was contacted several times without success. On July 23 Miller informed the Union that it believed the contract to be a section 8(f) agreement, that the majority of Miller employees were not Union members, and that this gave it a unilateral right to repudiate. Miller then terminated the agreement. The Union responded by filing an unfair labor practice complaint with the Board.

In an administrative hearing, the Administrative Law Judge found the relevant facts to be essentially as we have recited. In rejecting Miller's claim that it was not a party to the contract, the ALJ found that Miller and the seventy-nine other signatories had unequivocally intended to be bound as a group, and that therefore a valid multiemployer bargaining unit had been established. The ALJ further determined that the Union enjoyed majority status in the multiemployer unit as a whole, even though Miller's employees were not themselves Union members. As a result, a full relationship was established between the multiemployer unit and the Union. Under section 9(a) of the NLRA, 29 U.S.C. Sec. 159(a), this imposed a continuing obligation to bargain between the two parties. Miller's employees were in effect merged with the employees of the other signatories, with the resultant conversion from a section 8(f) relationship to a section 9(a) relationship. The ALJ ultimately found Miller to be in violation of sections 8(a)(5) and (1). On August 19, 1981, he ordered Miller to sign and implement the 1980-83 contract, apply its terms retroactively to May 1, 1980, and recognize and bargain with the Union as the sole legitimate representative of the workers.

Miller filed exceptions with the Board on September 8, 1981, and both parties submitted briefs to that body. The Board did not issue a decision until July 23, 1987, almost six years after the ALJ's original order. Earlier in 1987 the Board had decided that the conversion doctrine relied on by the ALJ, which held section 8(f) agreements to be fully enforceable only if the Union enjoyed majority status in the appropriate unit of workers, would no longer be applied to section 8(f) agreements. See Deklewa, 282 N.L.R.B. at ----, 124 L.R.R.M. at 1194-95. Instead, it had held that a Union signatory to an agreement permitted under section 8(f) acquires only a limited section 9(a) representative status, to the extent that the section 8(f) agreement may not be unilaterally repudiated during its term. Id. In reviewing the ALJ's decision with regard to Miller, the Board abandoned the ALJ's conversion approach in favor of the new Deklewa rule. Under this analysis, the Board found Miller fully liable for the 1980-83 contract, but also found no presumption of Union majority status following the expiration of that contract. Thus, the Board found that Miller violated sections 8(a)(5) and (1) only during the life of the 1980-83 contract, and ordered only damages for breach of that contract, along with the interest on any amount due. The Board then applied for enforcement of the order, and both Miller and the Union petitioned for review.

II.

Both Miller and the Union ask us to evaluate the Deklewa rule itself. Miller argues that any rule mandating the enforcement of pre-hire agreements is contrary to Congressional intent in enacting section 8(f), and is therefore an impermissible construction of that statute. Similarly, the Union argues that although the Board's new interpretation is correct in enforcing section 8(f) agreements during their lifetime, it exceeded its power in deciding that such agreements produce no continuing obligation to bargain following the expiration of the initial agreement.

The Third Circuit has recently enforced Deklewa in International Ass'n of Bridge, Structural and Ornamental Iron Workers v. NLRB, 843 F.2d 770 (3d Cir.1988). While this appeal was pending, the Ninth Circuit reached a similar result. See Mesa Verde Constr. Co. v. Northern Cal. Dist. Council of Laborers, 861 F.2d 1124 (9th Cir.1988) (en banc). We believe that the Third Circuit's reasoning concerning the propriety of the Deklewa rule is correct, and we decline the invitation to examine it anew.

Contrary to Miller's assertions, the Supreme Court decisions of NLRB v. Iron Workers Local 103 (Higdon Constr. Co.), 434 U.S. 335, 98 S.Ct. 651, 54 L.Ed.2d 586 (1980) and Jim McNeff, Inc. v. Todd, 461 U.S. 260, 103 S.Ct. 1753, 75 L.Ed.2d 830 (1983) do not mandate the old conversion rule as the only possible interpretation of section 8(f). Higdon could not reject that proposition any more plainly: "We have concluded that the Board's construction of the Act, although perhaps not the only tenable one, is an acceptable reading of the statutory language and a reasonable implementation of the purposes of the relevant statutory sections." Higdon, 434 U.S. at 341, 98 S.Ct. at 656 (emphasis added). As the Third Circuit noted, McNeff relied heavily on Higdon's language concerning section 8(f). See Iron Workers (Deklewa), 843 F.2d at 776. We agree with the Third Circuit that the Supreme Court had not issued a definitive statement on this issue and that the Board was therefore free to change its interpretation to be more consistent with the objectives of the statute. ¹ In Iron Workers (Deklewa), the Third Circuit quoted at length from the Board opinion to demonstrate the careful thought and planning behind the new rule. We feel no need to repeat this discussion. Suffice it to say that we agree with the Third Circuit in finding the Deklewa rule a...