N.L.R.B. v. Preston H. Haskell Co.

• Decision Date: 28 April 1980
• Docket Number: No. 79-1051,79-1051
• Citation: 616 F.2d 136
• Parties: 104 L.R.R.M. (BNA) 2235, 89 Lab.Cas. P 12,110 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PRESTON H. HASKELL COMPANY, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 136

616 F.2d 136

104 L.R.R.M. (BNA) 2235, 89 Lab.Cas. P 12,110

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PRESTON H. HASKELL COMPANY, Respondent.

No. 79-1051.

United States Court of Appeals, Fifth Circuit.

April 28, 1980.

Elliott Moore, Deputy Associate, Gen. Counsel, Joseph A. Oertel, Atty., Washington, D. C., for petitioner.

Jones, Corbin & Dickinson, J. P. Jones, John F. Dickinson, Jacksonville, Fla., for respondent.

Application for Enforcement of an Order of the National Labor Relations Board.

Before THORNBERRY, GEE and HATCHETT, Circuit Judges.

GEE, Circuit Judge:

This case comes before us on the petition of the National Labor Relations Board (NLRB) for enforcement of its order against respondent Preston H. Haskell Company (Haskell pursuant to section 10(e) of the National Labor Relations Act (NLRA), as amended, 29 U.S.C. § 160(e). ¹ The NLRB, adopting the opinion of its administrative law judge, found that Haskell had violated sections 8(a)(1) and 8(a)(5) of the NLRA, ² 29 U.S.C. §§ 158(a)(1) and (a)(5) by refusing to execute and apply collective bargaining agreements allegedly negotiated on its behalf by the Negotiating Committee of the Associated General Contractors of America (NGAGC) (Northeastern Florida Chapter). The Negotiating Committee is the multi-employer bargaining unit ³ of the AGC, a trade association composed of general contractors in the Jacksonville, Florida, area construction industry. Because we find that the present action is barred by the six-month statute of limitations contained in section 10(b) of the NLRA, 29 U.S.C. § 160(b), ⁴ we deny enforcement of the Board's order without resolving the issue of whether Haskell did commit an unfair labor practice.

Our holding applying the section 10(b) bar can best be explained by a detailed examination of the events that underlie the filing of the unfair labor practice charges. In 1974 Haskell expressly authorized the NCAGC to bargain on its behalf with construction industry trade unions. The company executed and adhered to the resulting contract, which was to expire on April 30, 1976. In December 1975 the Northeast Florida Building & Construction Trades Council, composed of some but not all of the building trade unions in the area, notified the NCAGC that seven council-affiliated trade unions ⁵ whose contracts were to expire on April 30, 1976, wished to open negotiations aimed at securing a new contract. Shortly thereafter the NCAGC asked each contractor that had subscribed to the expiring 1974-76 agreement, including Haskell, either to renew its membership in the multi-employer bargaining unit by signing and returning an enclosed card authorizing the NCAGC to represent it in collective bargaining or to advise the NCAGC that the company wished to withdraw from the multi-employer bargaining unit. Haskell did not reply. Consequently, in conformity with the NCAGC's traditional treatment of signatory companies that did not expressly deny continuing bargaining authority, Haskell was automatically included in the list given the unions of companies participating in multi-employer negotiations for the 1976 contract.

As a further prelude to negotiations, the NCAGC informed its members, who were concerned over their inability to compete with nonunion employers, that it would attempt to achieve money-saving uniformity in working conditions among the various crafts ⁶ through identical contract terms for all of the trade unions. To this end, the NCAGC requested the Building & Construction Trades Council to engage in "common bargaining" aimed at achieving an all-union agreement on provisions susceptible to common application to the several trades and invited the Council and the building trades to send representatives to a February 6, 1976, meeting to discuss a proposed uniform contract. The "common bargaining" approach represented a change in bargaining tactics by the NCAGC. Previously it had engaged in "individual" or separate negotiations with each trade union and had not attempted to deal with all the trade unions as a group.

A series of "common bargaining" sessions began with the February 6 meeting and continued until April 6, 1976. There were a total of four formal and five or six informal bargaining meetings, at least two of which were attended by representatives of Haskell. The ultimate goal of including common provisions in all building trades contracts proved elusive, however, and many of the trades not faced with imminent expiration of their contracts eventually lost interest and ceased attending the meetings. Finally, on April 6, 1976, what proved to be the last common "bargaining" meeting broke up in acrimonious confusion. The representatives of the buildings trades departed without scheduling a date for further meetings, ⁷ and the NCAGC concluded that it was futile to pursue the objective of uniform contract provisions by negotiating with the unions as a group. That same day Haskell wrote the AGC and announced its immediate revocation of bargaining authority. It also sent letters to the council and to the five charging trade unions that had expiring contracts, advising them of its withdrawal from group negotiations.

A hiatus in bargaining followed the abandonment of "common negotiations." Within a few days, however, the AGC contacted the seven crafts whose contracts were to expire on April 30 and scheduled "individual" bargaining sessions with each of them. Without replying to Haskell's putative withdrawal, each of the seven unions entered into "individual" negotiations with the AGC. This "individual" bargaining culminated in agreement on separate contracts with each union by April 30. The NCAGC then notified authorizing contractors that the agreements were available for execution at its office and circulated them for signing at a general meeting. All employers listed as represented by the AGC at the beginning of contract negotiations, with the exception of Haskell, ⁸ executed the contracts. On October 29, 1976, five of the unions that had negotiated new contracts filed unfair labor practice charges against Haskell, alleging that the company had refused to bargain collectively with them "on or about April 30, 1976." Copies of the charges were served on Haskell by registered mail ⁹ on November 1, 1976.

Section 10(b) provides in relevant part that "no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of a charge with the Board and the service of a copy thereof upon the person against whom such charge is made . . . ." 29 U.S.C. § 160(b). Haskell contends that the timing of the recounted events establishes that the section 10(b) statute of limitations forecloses this proceeding against it. Since we find the statute of limitations argument dispositive, we do not examine Haskell's other grounds for resisting enforcement of the Board's order. ¹⁰

Haskell asserts section 10(b) limitations on the basis of principles established in Local Lodge No. 1424 v. NLRB, 362 U.S. 411, 80 S.Ct. 822, 4 L.Ed.2d 832 (1960) (Bryan Manufacturing ). There the Supreme Court noted that section 10(b) does not bar an action "where occurrences within the six-month limitations period in and of themselves may constitute, as a substantive matter, unfair labor practices." Id. at 416 & n. 6, 80 S.Ct. at 826 & n. 6. In this situation, relevant evidence of events outside the 10(b) period can be employed "to shed light on the true character of matters occurring within the the limitations period . . . ." Id. On the other hand, the Court held, the section 10(b) proviso does bar an action "where conduct occurring within the limitations period can be charged to be an unfair labor practice only through reliance on an earlier unfair labor practice." Id. In this second situation, the use of the earlier unfair labor practice "does not simply lay bare a putative current unfair labor practice. Rather, it serves to cloak with illegality that which was otherwise lawful," id. at 417, 80 S.Ct. at 827, and in so doing impermissibly attempts to revive a legally defunct unfair labor practice.

The distinction between the situation in which section 10(b) bars an unfair labor practice proceeding and that in which legal action is allowable is well illustrated in the case law. In Bryan Manufacturing itself the Court ruled that section 10(b) barred an action challenging enforcement of a union security clause during the limitations period. The charges alleged that continued enforcement was illegal because the union had lacked majority status when the collective bargaining agreement containing the clause was first adopted. ¹¹ However, the charges initiating the legal action had been filed 10 and 12 months after the collective bargaining agreement had been executed. The Court reasoned that enforcement of the union security clause was by itself permissible and could be deemed an unfair labor practice only if the union had not represented a majority of the employees covered by it at the time the collective bargaining agreement was instituted. The Court concluded, however, that section 10(b) clearly prevented adjudicating the validity of the initial adoption of the union security clause. Therefore, the case fell within the category of actions not maintainable under the section 10(b) proviso because "the entire foundation of the unfair labor practice charge was the union's time-barred lack of majority status when the original collective bargaining agreement was signed." 362 U.S. at 417, 80 S.Ct. at 827.

This court has applied the Bryan Manufacturing rule to hold that section 10(b) forecloses a challenge to the continued enforcement of a collective bargaining contract provision that granted shop stewards superseniority not only for layoff and recall but also for all other terms and conditions of employment. NLRB v. Auto Warehousers, Inc., 571 F.2d 860 (5th Cir. 1978). According shop stewards superseniority for purposes...