N.L.R.B. v. Haberman Const. Co.

Decision Date02 June 1980
Docket NumberNo. 79-1120,79-1120
Citation618 F.2d 288
Parties105 L.R.R.M. (BNA) 2059, 105 L.R.R.M. (BNA) 2081, 89 Lab.Cas. P 12,148 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HABERMAN CONSTRUCTION COMPANY, Respondent.
CourtU.S. Court of Appeals — Fifth Circuit

Elliott Moore, Deputy Associate, Gen. Counsel, Charles P. Donnelly, John S. Irving, John E. Higgins, Jr., Robert E. Allen, N.L.R.B., Washington, D. C., for petitioner.

Manitzas, Harris & Padgett, J. Joe Harris, San Antonio, Tex., for respondent.

Louis V. Baldovin, Jr., Director, Region 23, N.L.R.B., Houston, Tex., for other interested party.

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

Before TUTTLE, GOLDBERG and RANDALL, Circuit Judges.

GOLDBERG, Circuit Judge:

At first blush, it appeared that we confronted a labor question of first impression in the courts of appeals: To what extent is a collective bargaining agreement, whose genesis is a pre-hire agreement, enforceable beyond the projects already under way at the time of its repudiation? However, following substantial consultation of authority, and subsequent to a great deal of reflection, we have concluded that this question simply involves the application of a labor law principle of ancient vintage: a union's majority in a unit, once established, is rebuttably presumed to continue.

The dispute in this case derives from the disruption of the relationship between respondent, Haberman Construction Co., a construction firm operating in Austin, Texas, and the union, Local 1266 of the United Brotherhood of Carpenters and Joiners of America. This relationship had its origin in 1973 when respondent hired Jessie Beshears, a union member, to be its carpenter foreman, and began paying Beshears' benefits into the carpenters' welfare, pension and apprentice training fund (the benefits) in accordance with the contract then in effect between the union and the Austin Chapter of the Associated General Contractors (union-AGC contract). Under Beshears' tutelage, this burgeoning relationship grew to significant proportions since Beshears, according to his own testimony, hired "strictly union carpenters." Some of respondent's growing complement of union carpenters were hired by Beshears on the basis of his personal knowledge of their work; others were procured through his use of the union hiring hall.

Although respondent never formally executed a collective bargaining agreement with the union, and despite the fact that respondent was not a member of the AGC, by May, 1973 respondent was remunerating its carpenters at the pay scale provided by the union-AGC contract. Furthermore, when this contract expired on August 31, 1974, and was replaced by a contract effective from September 1, 1974 through March 31, 1977, respondent instituted the new contract's higher wage scale. Respondent also submitted payments for its carpenters' benefits to the union and allowed the employees to maintain a job steward at the worksite.

This amicable relationship ended abruptly on February 14, 1977. On that date, respondent informed its carpenters that it would cease paying for their union benefits, and that it was going "open shop." In response, the carpenters sought the advice of their union business agent. Acting on his advice, at the end of business on February 16, 1977, five of respondent's carpenters relinquished their positions because of respondent's decision to cease payment of their benefits.

The union's charges of unfair labor practices were tried before an administrative law judge. He found that in February, 1977, respondent operated two Austin projects and that the carpenters employed at these two projects constituted the appropriate bargaining unit. He further found that on the date of the discharges, the union represented at least seven of the eleven rank-and-file carpenters in this unit. Hence, it represented a majority of the employees.

The administrative law judge also concluded that respondent had adopted the union-AGC contract. Since the union enjoyed majority status at the time of the breach of the contract, the administrative law judge concluded that respondent's unilateral cessation of paying union benefits constituted a refusal to bargain in violation of section 8(a)(1) and (5) of the National Labor Relations Act (the Act); that respondent's announcement that it was going "open shop" was coercion in violation of section 8(a)(1) of the Act; and that respondent's unilateral changes in terms and conditions of employment constituted a constructive discharge of the five employees who quit their employ, and thus amounted to a discriminatory discharge in violation of section 8(a)(1) and (3) of the Act.

After adopting the administrative law judge's findings as to the violations, the National Labor Relations Board (the Board) ordered respondent to reinstitute the terms and conditions of the union-AGC contract, to reinstate and make whole the five discharged employees, and to bargain with the union. This case appears before us on the Board's petition for enforcement of its order. We enforce.

I. Existence of a Collective Bargaining Agreement

It is well settled that a union and employer's adoption of a labor contract 1 is not dependent on the reduction to writing of their intention to be bound. See, e. g., Certified Corp. v. Hawaii Teamsters Local 996, 597 F.2d 1269, 1272 (9th Cir. 1979); Warrior Constructors, Inc. v. Operating Engineers Local 926, 383 F.2d 700, 708 (5th Cir. 1967); Rabouin v. NLRB, 195 F.2d 906, 910 (2d Cir. 1952). Instead, what is required is conduct manifesting an intention to abide by the terms of an agreement. See, e. g., Warrior Constructors, Inc., supra, 383 F.2d at 708-09; NLRB v. George E. Light Boat Storage, Inc., 373 F.2d 762, 766 (5th Cir. 1967); Rabouin, supra, 195 F.2d at 909-10.

The conclusion that respondent manifested an intent to abide by the union-AGC contract, by enjoying its benefits and abiding by its provisions, see id. at 910, is well supported by the findings of the administrative law judge:

(T)he evidence in the instant case of Respondent's adoption of the Union-AGC agreement must be regarded as substantial. Respondent's contributions to the Union's trust funds from May 1973 through February 1977, its use of union members exclusively as far as the record shows, it (sic ) observations of the Union-AGC holidays, its use of the union for referrals, its payment of the union wage scale, its allowance through Beshears of the appointment of a union job steward, and the undisputed testimony of Beshears, whom I credit, to the effect that on some but not all occasions when he wanted to start work at an earlier hour than called for in the union agreement he will check with business agent Rosentritt, all reflects (sic ) an intention to adhere to the terms of the Union-AGC agreement.

Since these findings are supported by substantial evidence on the record as a whole, see Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), we conclude that respondent had adopted the union-AGC contract. 2 Respondent asserted below that it was free to repudiate the union-AGC contract because its adoption of that agreement did not create a collective bargaining agreement, but created instead a pre-hire contract authorized by section 8(f) of the Act. Even were we to assume that only a pre-hire contract came into existence at the time of the adoption of the union-AGC contract, 3 we must still reject this assertion. In light of the administrative law judge's finding that the union commanded majority support by the time of repudiation, a finding which we uphold, the alleged pre-hire agreement had matured into a valid collective bargaining agreement. As stated by the Supreme Court, "when the union successfully seeks majority support, the pre-hire 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." NLRB v. Local 103, International Association of Bridge Workers (Higdon Construction Co.), 434 U.S. 335, 98 S.Ct. 651, 660, 54 L.Ed.2d 586 (1978). As a result, respondent's actions of February 14, 1977, were taken in the face of a valid collective bargaining agreement.

II. The Unfair Labor Practices
A. Cessation of Benefit Payments

It is well settled that an employer violates section 8(a)(1) and (5) of the Act, 29 U.S.C.A. § 158(a)(1), (5) (West 1973), 4 by unilaterally changing the terms and conditions of employment without first granting its employees' exclusive bargaining representative the opportunity to bargain about "mandatory" subjects. See, e. g., NLRB v. Katz, 369 U.S. 736, 747-48, 82 S.Ct. 1107, 1114, 8 L.Ed.2d 230 (1962). It is equally well established that contributions to a health, welfare, and pension fund constitute mandatory subjects of collective bargaining. See, e. g., NLRB v. SAC Construction Co., 603 F.2d 1155, 1156 (5th Cir. 1979); Winn-Dixie Stores, Inc. v. NLRB, 567 F.2d 1343, 1349 (5th Cir.), cert. denied, 439 U.S. 985, 99 S.Ct. 576, 58 L.Ed.2d 656 (1978); United Brick & Clay Workers v. District 50, UMW, 439 F.2d 311, 314 (8th Cir. 1971); Hinson v. NLRB, 428 F.2d 133, 137 (8th Cir. 1970).

Given the existence of these two principles, we have no difficulty in affirming the Board's finding of an unfair labor practice here, for respondent does not dispute that it ceased payments of the benefits without bargaining with the union. Since that action accomplished a unilateral alteration in terms and conditions of employment which are mandatory subjects of bargaining, respondent violated section 8(a)(1) and (5) of the Act.

B. "Open Shop" Announcement

The Board found that respondent's communication of its intention to go "open shop" coerced its employees in violation of section 8(a)(1) of the Act, 29 U.S.C.A. § 158(a)(1) (West 1973), 5 because "such announcement by Respondent conveyed to employees...

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