N.L.R.B. v. Wachter Const., Inc.
| Decision Date | 05 May 1994 |
| Docket Number | No. 93-2982,93-2982 |
| Citation | 23 F.3d 1378 |
| Parties | 146 L.R.R.M. (BNA) 2193, 62 USLW 2733, 127 Lab.Cas. P 11,082 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WACHTER CONSTRUCTION, INC.; BSI Constructors; Woermann Construction Company; Don C. Musick Construction Company, Respondents. |
| Court | U.S. Court of Appeals — Eighth Circuit |
David G. Millar, St. Louis, MO, argued, for appellant.
Vincent J. Falvo, Washington, DC, argued, for appellee.
Before BEAM and MORRIS S. ARNOLD, Circuit Judges and WELLFORD *, Senior Circuit Judge.
National Labor Relations Board ("the Board") seeks to enforce its order against respondents, Wachter Construction, Inc., BSI Constructors, Woermann Construction Company, and Don C. Musick Construction Company, who were parties to a master collective bargaining agreement between the St. Louis area Associated General Contractors ("AGC") and the Local 513 of the International Union of Operating Engineers ("the union"). The labor agreement covered the three year period beginning May 1, 1989, and included employees of the party companies, including respondents, who work on heavy construction projects in the covered area. Portions of Sec. 1.08 of the agreement form the basis of this dispute:
Nothing in this Article shall be construed to limit or restrict, in any way, the Employer's right to determine which portions of the work, if any, the Employer may perform with the Employer's own employees or may subcontract to others.
The Employer shall not undermine the wage and fringe benefit standards established by this agreement by subcontracting work that would be otherwise done by bargaining unit employees at a construction job site for performance except by subcontractors who agree in writing to pay wages and fringe benefits of monetary value in aggregate equal to or greater than those provided in this agreement.
In the event the subcontractor does not pay wages and finger benefits in the aggregate as provided in this Agreement, the Employer shall terminate the subcontract and remove the subcontractor from the job site.
It is understood and agreed that this subcontractor clause requires said subcontractor to abide by and be bound by the terms and provisions of this collective bargaining agreement only for the period and on the project where the subcontractor relationship exists.
The Board's general counsel charged in February and March, 1991, that respondents violated Secs. 8(a)(1) and (d) 1 of the National Labor Relations Act ("the Act") by refusing to furnish the union with certain information.
The Board charged that respondents' failure to furnish this information constituted unfair labor practices under the Act. The respondents contested the unfair labor practice charges at a hearing before Administrative Law Judge ("ALJ") Wolfe, who made detailed findings and conclusions on October 17, 1991. The ALJ determined that "by refusing to furnish the Union with requested information that is relevant to administering the Union's collective bargaining agreement with Respondents, the Respondents have each violated Section 8(a)(5) and (1) of the Act." The ALJ ordered that respondents cease and desist from continued refusals and take affirmative action to furnish the union with the specified information. Respondents denied that they committed unfair labor practices as charged and appealed to the Board, which affirmed the decision by a divided vote. The dissenter would have denied much of the relief afforded by the ALJ and the Board majority. We find the union's predominant purpose in making its request was to harass the employers and force them to cease a practice permitted under the collective bargaining agreement. Accordingly, we REVERSE and DENY enforcement of the Board's order.
I. FACTUAL BACKGROUND
Respondents are general construction contractors operating in St. Louis, Missouri. They have a multi-employer collective bargaining agreement not only with the operators local, but also with the laborers union. The petitioner does not dispute that the respondents had the right to subcontract work to non-union forces so long as they adhered to contract terms and paid wages and fringe benefits equivalent to union scales. The collective bargaining agreement required the respondents to obtain the non-union subcontractor's written commitment to pay, in the aggregate, the union scale involved according to work classification. Prior to the period in controversy, a number of St. Louis area paving contractors became non-union entities. Paving work was subcontracted to some of these non-union firms by the respondents (and other collective bargaining agreement signatories). 2 This paving work related to both operating engineers and general laborer categories. Thus, the laborers and operating engineers had similar and closely related interests in dealing with paving contractors like the respondents.
According to the ALJ, in the fall of 1990, concerned about the growth in non-union activity, Myrl Taylor, head of the laborers union, "embarked on a course of action designed to force the AGC members to subcontract only to unionized employers." Taylor's "real concern was asphalt paving contracting." Taylor "prepared model [information] request letters, and mailed copies to all 31 unions in the Building Trades Council," including the union in controversy here. The operators union used Taylor's model; all of the other union recipients did not.
The union's business manager, Jack Sawyer, sent the following identical letters to the respondents, as suggested by Taylor, in the latter part of 1990:
RE: Enforcement of Section 1.08 of the Collective Bargaining Agreement between the Associated General Contractors of St. Louis and the International Union of Operating Engineers Local No. 513.
As you know, you are a party to the above collective bargaining agreement.
Section 1.08 of the agreement permits subcontracting of operators work provided certain conditions are met by the subcontractor. In order to ensure compliance and properly enforce Section 1.08, this is to request that you provide me with a copy of all agreements in which you have subcontracted covered on-site construction work to any other contractor within the geographic area covered by the contract since May 1, 1989. You may delete any confidential financial information from the information provided.
Also, please provide a list of each job for which you have provided a subcontract as requested. As to each subcontract: 1) identify the location, 2) state the name of the subcontractor, the nature of the project and of work subcontracted, and 3) state the date the subcontracted work began and was completed or is to be completed.
Finally, as to each subcontractor during the period covered by this information request, please provide us with copies of the subcontractors' payroll records for the employees performing covered operators work. This request includes all records needed to verify all wages, fringe benefit contributions, or other payments of any kind to employees to ensure compliance with section 1.08. If you so desire, you may make arrangements for us to independently audit such records ourselves rather than obtaining and forwarding the records to us.
Please provide the requested copies of subcontract agreements and payroll records within ten (10) days. If you need additional time, or have any questions about the information requested, please feel free to contact me. Otherwise, I will expect the information within the requested time. Thank you for your cooperation in this matter.
Sawyer sent this same letter again to the respondent Wachter on January 18, 1991, together with a new letter, and also sent these two documents to the other respondents. The second letter again made reference to Sec. 1.08 and requested promptly a copy of each subcontract on a continuing basis (deleting confidential financial information). In addition, Sawyer requested notice "as to each job site on which you are performing work" with "verification that all laborers work is either performed by your company or properly subcontracted." (emphasis added). Any failure to provide the requested information was to be deemed a waiver by the respondent of an arbitration provision under Sec. 10.01. Conformance to this request, or demand, was sought within a week "indicting [sic] your agreement to providing the requested documents and information," or "appropriate legal steps" would be taken.
The ALJ found that "there is reason to believe that Taylor's efforts were really directed at harassing employers into giving their paving work to unionized contractors," and that "Sawyer, like Taylor, was concerned about the subcontracting of asphalt paving." The respondents, or most of them, responded to Sawyer's communications indicating that they did not possess information about, or have access to, their subcontractors' payrolls. They took exception to the union's "open-ended request" for continuing future information about "every construction contract ... irrespective of whether any Operating Engineer's work is involved ..., or whether any work is subcontracted." 3 The ALJ found that after exchanges of communications, the respondents gave the union only "some information" but rejected requests for:
(1) information covering a period more than 30 days prior to said requests, (2) subcontractors' payroll records not in the Respondents' possession, (3) the actual subcontracts, and (4) the furnishing of subcontracting information on a continuing basis.
(footnote omitted).
The respondents contended before the Board and argue on this appeal that the union was demanding voluminous, irrelevant, oppressive amounts of materials in bad faith to harass them into contracting only with unionized asphalt paving contractors. 4 The laborers union had earlier demanded this same or similar information from them, and the respondents point to...
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