NLRB v. Southwestern Colorado Contractors Ass'n

• Decision Date: 15 June 1967
• Docket Number: No. 8810.,8810.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SOUTHWESTERN COLORADO CONTRACTORS ASSOCIATION and its Members et al., Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

379 F.2d 360 (1967)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SOUTHWESTERN COLORADO CONTRACTORS ASSOCIATION and its Members et al., Respondents.

No. 8810.

United States Court of Appeals Tenth Circuit.

June 15, 1967.

Herman Levy, Washington, D. C., (Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel and Anthony J. Obadal, Washington, D. C., on the brief), for petitioner.

Harold B. Wagner, Denver, Colo., for respondents.

Before MURRAH, Chief Judge, LEWIS, Circuit Judge, and CHRISTENSEN, District Judge.

DAVID T. LEWIS, Circuit Judge.

Pursuant to section 10(e) of the National Labor Relations Act,¹ the National Labor Relations Board petitions for enforcement of its order entered upon findings that respondents, Southwestern Colorado Contractors Association and its members, committed unfair labor practices in violation of section 8(a) (5) and (1) of the Act² by refusing to engage in joint and collective bargaining with the Colorado State Council of Carpenters and the Carpenters District Council of Southern Colorado,³ the certified representative of respondents' carpenter-employees. The violation is premised on a determination that the respondent Association was dissolved as a multiemployer bargaining unit at an inappropriate time and with the manifest purpose of avoiding its statutory bargaining obligations. The subject order, among other things, requires the individual respondent members to recognize and, upon request, bargain jointly and collectively with the Council and to post customary notices. The order does not require formal reconstitution of the Association.

Jurisdiction of the Board is based on treatment of all members of the Association as a single employer, NLRB v. Sightseeing Guides & Lecturers Union Local 20076, 2 Cir., 310 F.2d 40; NLRB v. Cascade Employers Ass'n, Inc., 9 Cir., 296 F.2d 42, and on the finding that two of the members, McGechie Construction Company and Burnett Construction Company, met the Board's dollar-amount jurisdictional standards in the calendar year of the alleged unfair labor practices. See NLRB v. Reliance Fuel Oil Corp., 371 U.S. 224, 83 S.Ct. 312, 9 L.Ed.2d 279; NLRB v. Burnett Construction Co., 10 Cir., 350 F.2d 57. Respondents urge that there can be no jurisdiction without a showing that McGechie and Burnett employed carpenters and that their dealings with the carpenters' bargaining representative would affect interstate commerce. We find no merit to the argument. First, we would take judicial notice of the fact that pre-hire agreements are quite common in the construction industry and that contractors generally participate in joint collective bargaining over wages and conditions for potential, as well as actual, employees. See section 8(f) of the Act, 29 U.S.C. § 158(f). Second, as stated in Reliance Fuel, supra, "Congress intended to and did vest in the Board the fullest jurisdictional breadth constitutionally permissible under the Commerce Clause." 371 U.S. at 226, 83 S.Ct. at 313. (Emphasis by the Court.) The statutory test for jurisdiction is whether a labor dispute will tend to obstruct the free flow of commerce, not whether the particular dispute under consideration will do so. Under this test, once jurisdiction is established as it clearly has been here, it is a matter of Board discretion to determine whether and to what extent that jurisdiction will be exercised. See NLRB v. F. M. Reeves & Sons, Inc., 10 Cir., 273 F.2d 710, 711-712,

According to the evidence relied upon by the Board, respondent Association had engaged in collective bargaining and had signed labor contracts on behalf of its members since its organization in 1958. From September 1, 1960 to July 1, 1963, the wages and working conditions of all carpenters, millwrights, and apprentices employed by Association members were covered by two successive bargaining agreements between the Association and those employees' duly certified bargaining representative, Local 2243 of the United Brotherhood of Carpenters and Joiners of America.⁴ In June 1962, during the term of first agreement, the Local attempted to have its certification amended by deleting its name and inserting the name of the Council, but officers and members of the Association took the position that they wanted to negotiate with the "Durango Local only" and refused to participate in collective bargaining while a Council representative was present. In July 1962, the Local's request to amend the certification was denied by the Board.

In January 1963, the Association mailed to prospective members a letter and questionnaire which contained the following paragraph:

"As you know our association was organized a few years ago for the primary purpose of conducting labor negotiations with the various crafts of the building and construction trades and to assist members with various problems. During the ensuing period we have conducted several negotiations with most satisfactory results. To continue to do so successfully we must have the support and cooperation of the contractors and subcontractors engaged in building and construction in Southwestern Colorado. Since several contracts are due to be opened for negotiations this year we are endeavoring, at this time, to increase our strength and support so that we can sit at the negotiating table secure in the knowledge that the men we are facing across the table realize that we represent a strong, united and responsible organization with whom they must bargain and work."⁵

Thereafter, between January and April 1963, each of the individual named respondents became members of or maintained membership in the Association by payment of $5 for annual dues.

On April 17, the Local and the Council requested the Association to begin negotiations on a new contract, but there was no response. On July 17, however, the secretary of the Association, accompanied by an attorney, met with union officials at the Board's Regional Office and signed an agreement consenting to an election which would determine the representative status of the Council. The secretary secured from each Association member and turned over to the Board a list of employees in the designated unit eligible to vote. According to the secretary's testimony, this list was given by the members with an understanding of the purpose for which it would be used. The election was held on August 7 with the Council receiving a majority of the votes cast. A tally of the ballots was immediately served upon the Association and each of its members. On August 15, having received no objections to the conduct of the election, the Regional Director certified the Council as the bargaining representative for the carpenters and apprentices employed by members of the Association. On the same day, six members of the Association met and voted unanimously to dissolve the Association as a joint bargaining entity. When the Council wrote the Association on September 7 requesting new contract negotiations, it received from the secretary a reply that the Association "no longer exists as a bargaining unit."

The Board found that for purposes of collective bargaining, the Association was an appropriate, viable multiemployer unit up until the time of its dissolution; that by virtue of the consent given by the Association to the holding of an election the individual respondent members were obligated to bargain in this unit with the Council for the period of the Council's certification; and that such obligation was in no way changed by the decision to do away with the...