N. L. R. B. v. International Union of Operating Engineers
| Decision Date | 07 April 1976 |
| Docket Number | No. 75-1307,75-1307 |
| Parties | 91 L.R.R.M. (BNA) 2976, 39 A.L.R.Fed. 1, 78 Lab.Cas. P 11,356 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCALS 542, et al., Respondents, York County Bridge, Inc., Intervenor. |
| Court | U.S. Court of Appeals — Third Circuit |
Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Alan D. Cirker, Roger T. Brice, Washington, D. C., for petitioner.
Abraham E. Freedman, Martin J. Vigderman, Freedman, Borowsky & Lorry, Philadelphia, Pa., for respondents.
Earle K. Shawe, Carroll Hament, John S. Williamson, III, Warren M. Davison, Shawe & Rosenthal, Baltimore, Md., for intervenor.
Before VAN DUSEN, ADAMS and WEIS, Circuit Judges.
Because the means selected were not tailored to the statutory pattern, the National Labor Relations Board cut off the efforts of a trade union to eliminate what it termed the "double-breasted operation" of a contractor. The Board directed the local union to bargain with a subcontractor without insisting on certain contractual clauses designed to limit the sources from which the employer could obtain construction equipment. An alternate approach, the Local's endeavor to enlarge its representation at the expense of a rival union through improper bargaining with the employer, was also prohibited. We will enforce the Board's order.
York County Bridge, Inc. is a subcontracting firm engaged principally in pile driving and bridge construction and is a wholly-owned subsidiary of G. A. and F. C. Wagman, Inc. Wagman is also in the construction business. For many years its employees have been represented by District 50, Allied Technical and Construction Workers which later merged with the United Steelworkers.
Wagman was unable to secure subcontracts where the general contractor was required under its collective bargaining agreement to sublet only to employers whose workmen were represented by an AFL-CIO building trade union. To meet this situation, in 1960 Wagman incorporated the York Company which adopted the policy of securing labor through building trade union hiring halls.
In 1967, York joined the Contractors Association of Eastern Pennsylvania (CAEP), a multi-employer group, and thereby became a party to a collective bargaining agreement with Local 542 of the International Union of Operating Engineers. 1 When that contract expired in 1971, Local 542 advised CAEP that York and several other contractors would be "carved out" of bargaining for a new agreement because they were "dual companies." 2
The union considered the "dual companies," such as York-Wagman, a threat to job opportunities for Local 542 members and submitted contractual provisions to CAEP which were designed to resolve the problem. The union proposals were designated as Section 11 of a new contract:
"Section 11 Non-Union Equipment:
(a) No operator shall be required to operate equipment belonging to a contractor or supplier with whom this Local Union is not in signed relations, provided, Union equipment is available in the locality. No party to this agreement shall rent or supply equipment unmanned to anyone doing construction work covered by this agreement who is not in signed relations with this Union.
(b) No employee represented by this Union on construction work shall be required to operate equipment of or for any Employer who has any interest in a firm or company doing construction work within the jurisdiction of this Union and which is not in signed relations with this Union."
When no agreement had been reached by May 1, 1971, the union went on strike and its members did not return to work until July 13, 1971. On the next day, representatives of the "carved out" employers, including York, who were still struck, met with the union negotiators. The Local advised that not only would the "carved out" employers have to sign the standard contract but, in addition, they would be required to discuss some additional problems. York was told that it would have to end its dual operation within a period of time to be negotiated, and until agreement was reached, Local 542 would not furnish workers. 3
During September and October of 1971, York stated that it would sign the standard contract but refused to bring Wagman "under the map of the agreement." Upon the union's refusal to accept this condition, a complaint was filed before the N.L.R.B. in which York alleged that it was being coerced to enter into a contract prohibited by Section 8(e) of the National Labor Relations Act, 29 U.S.C. § 158(e).
The administrative law judge found that the union's object was to compel York-Wagman to employ only Local 542 members, a result which he did not believe was in violation of the Act, and dismissed the complaint. The Board reversed, finding that the union's object was to force York's agreement to Section 11 of the standard contract, a provision which was prohibited by Section 8(e). Moreover, the Board held that the union had failed to bargain as required by the Act. One member of the three-man panel dissented.
The Board ordered the union to bargain with York and to desist from requiring the employer to enter into a prohibited agreement or insisting that the agreement cover the Wagman employees currently represented by another labor organization. We are asked to enforce the order.
The union asserts, inter alia, that the case is moot because the standard contract which incorporated Section 11 expired on April 30, 1973 and the succeeding agreements did not contain that language. The union had indicated its willingness to re-negotiate the controversial section so that it would be in compliance with Section 8(e). With the "allegedly objectionable" language no longer present, the union submits that the necessity for enforcing the order no longer exists and the case is moot.
It is firmly established that an N.L.R.B. order does not become moot by the mere compliance of the offending party. There remains a continuing obligation upon the party, and the Board is entitled to prevent the resumption of an unfair practice by the use of an enforcement decree. An order, lawful when made, does not become moot solely because changing circumstances may lessen its need. C-B Buick v. N. L. R. B., 506 F.2d 1086, 1092 (3d Cir. 1974). The possibilities of repetition of the offending conduct in the context of a continuing relationship between the parties is a relevant consideration. N.L.R.B. v. Raytheon Co., 398 U.S. 25, 90 S.Ct. 1547, 26 L.Ed.2d 21 (1970); N.L.R.B. v. Mexia Textile Mills, Inc., 339 U.S. 563, 70 S.Ct. 833, 94 L.Ed. 1067 (1950); C-B Buick v. N.L.R.B., supra.
The exclusion of Section 11 from the master contract now in effect does not make the issue moot. Despite the union's concession, no agreement on the precise wording has been reached with York and, absent a judicial determination that the clauses under review are proscribed, the negotiators would remain uncertain.
Moreover, the Board's decision was not limited to the legality of the contested contract language but necessarily included the refusal to bargain. An order directed toward that phase of an existing dispute cannot be considered moot.
Section 8(b)(4)(ii)(A) 4 of the National Labor Relations Act provides that it is an unfair labor practice for a union to threaten or coerce an employer where an object is to force him into an agreement prohibited by subsection (e). Proscribed agreements generally are those which prohibit the employer from using or handling the products of another employer or require the employer to cease doing business with any other person so-called "hot cargo" clauses. 5 The prohibition, however, does not extend to an agreement between a labor organization and an employer in the construction industry relating to contracting of work "to be done at the site of the construction . . . ."
In the Board's view, Section 11 ran afoul of the statutory prohibition because it constituted an agreement by York to cease doing business with a non-signatory company in situations not involving loss of work by Local 542 members. Thus, if York had been awarded a contract and wished to employ Local 542 members, they would not have been permitted to use equipment rented from a company which did not have a bargaining agreement with Local 542. The Board concluded that the construction industry exception in Section 8(e) did not apply because the boycotted supplier of unmanned equipment did not have employees on the jobsite and the offending section of the agreement "reach(es) beyond the performance of work at the jobsite."
The union's position is that Section 8(e) was intended to apply only to products which would be incorporated into the structure itself rather than to tools which were used in the building operation. Further, the union argues that the exempting proviso applies here because the equipment was to be used on the jobsite.
The issue is whether Section 11 is aimed at the labor relations of York vis-a-vis its own employees or whether it is "tactically calculated to satisfy union objectives elsewhere," National Woodwork Manufacturing Association v. N. L. R. B., 386 U.S. 612, 644, 87 S.Ct. 1250, 1268, 18 L.Ed.2d 357, 378 (1967), that is, whether the activity of the union was primary or secondary. See A. Duie Pyle, Inc. v. N. L. R. B., 383 F.2d 772 (3d Cir. 1967); Retail Clerks International Association, Local 1288 v. N. L. R. B., 129 U.S.App.D.C. 92, 390 F.2d 858 (1968).
In general, secondary activities for organizational purposes are prohibited. In recognition of the special problems of the construction industry, however, Congress enacted the proviso to Section 8(e). It is not a broad exemption as the Court explained in Connell Construction Co. v. Plumbers & Steamfitters...
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