NVE Constructors, Inc. v. N.L.R.B.

• Decision Date: 06 June 1991
• Docket Number: No. 89-70477,I,No. 1184,1184,89-70477
• Parties: 137 L.R.R.M. (BNA) 2604, 60 USLW 2007, 119 Lab.Cas. P 10,774 NVE CONSTRUCTORS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Laborers' International Union of North America, Localntervenor.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1084

934 F.2d 1084

137 L.R.R.M. (BNA) 2604, 60 USLW 2007,

119 Lab.Cas. P 10,774

NVE CONSTRUCTORS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Laborers' International Union of North America, Local No.

1184, Intervenor.

No. 89-70477.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 8, 1991.

Decided June 6, 1991.

John W. Prager, Jr., Thierman, Cook, Brown & Prager, Santa Ana, Cal., for petitioner.

Margaret G. Bezour and Laurence S. Zakson, N.L.R.B., Washington, D.C., for respondent.

Walter Kamiat, Laurence Cohen, Sherman, Dunn, Chen, Leifer & Yellig, Washington, D.C., and Anthony Segall, Reich, Adell & Crost, Los Angeles, Cal., for intervenor.

On Petition for Review of an Order of the National Labor Relations Board.

Before CHAMBERS, BEEZER and KOZINSKI, Circuit Judges.

BEEZER, Circuit Judge:

NVE Constructors petitions for review of a NLRB decision dismissing its complaint against Laborers' Local Union No. 1184. The Board held that section 8(b)(7)(C) of the National Labor Relations Act was not violated where the union, which was not certified, picketed for less than thirty days to force NVE to enter into a prehire agreement. We deny the petition for review and affirm the Board's decision.

I

From January 5 to January 14, 1988, Laborers' International Union of North America, Local No. 1184 (the Union) picketed the construction site where NVE Constructors, Inc. (NVE) was a general contractor on a state prison project. At the gate reserved for NVE employees, the Union displayed picket signs that stated: "NVE, No Contracts, Laborers' Local 1184, AFL-CIO." As a result of the picketing, NVE did not receive deliveries of concrete scheduled for January 5-7, 1988.

At the time of the picketing, NVE was not a party to a collective-bargaining agreement with the Union. There were 20 NVE employees at the jobsite, but those employees had not designated the Union as their bargaining representative. According to the Union's business agent, the purpose of the picketing was "to obtain a contract either by authorization from the people through authorization cards or the contractor or contractors signing a prehire agreement voluntarily."

The picketing stopped on January 13, 1988, after NVE filed an unfair labor practice charge, alleging a violation of section 8(b)(7)(C) of the National Labor Relations Act, (the Act), 29 U.S.C. Sec. 158(b)(7)(C) (1988). The Board's General Counsel issued a complaint based on the charges filed by NVE. After a brief hearing, the parties submitted the case directly to the Board, to be decided on the basis of the facts contained in the transcripts of the hearing. The Board dismissed the complaint, concluding that "at least with respect to an employer, which has employees, we do not believe that recognitional and organizational picketing by a minority union in the construction industry is prohibited by Section 8(b)(7)(C) of the Act if the picketing meets the time limitations set forth in that section." Laborers Local 1184 (NVE Constructors), 296 NLRB No. 165, 132 LRRM 1273, 1278 (1989). NVE petitioned for review.

II

The National Labor Relations Board "has the primary responsibility for developing and applying national labor policy," and its rules are accorded "considerable deference." NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 110 S.Ct. 1542, 1549, 108 L.Ed.2d 801 (1990) (citations omitted). We must uphold a Board rule "as long as it is rational and consistent with the Act, even if we would have formulated a different rule had we sat on the Board." Id. (citations omitted). "Furthermore, a Board rule is entitled to deference even if it represents a departure from the Board's prior policy." Id. (citing NLRB v. J. Weingarten, Inc., 420 U.S. 251, 265-66, 95 S.Ct. 959, 967-68, 43 L.Ed.2d 171 (1975) ("The use by an administrative agency of the evolutional approach is particularly fitting. To hold that the Board's earlier decisions froze the development of this important aspect of the national labor law would misconceive the nature of administrative decisionmaking.")).

III

Section 8(b)(7) of the Act makes it an unfair labor practice for a union to picket to force an employer to recognize or bargain with it if the employer has already recognized another union or if there has been a representation election within the preceding twelve months. 29 U.S.C. Sec. 158(b)(7)(A), (B) (1988). ¹ If neither of these situations exist, such picketing may be conducted for "a reasonable period not to exceed thirty days from the commencement of such picketing to gain recognition." Id. Sec. 158(b)(7)(C). The union may not picket beyond this time without filing a petition for a representation election. Id.

The purpose of section 8(b)(7) is "to ensure that employees [are] free to make an uncoerced choice of bargaining agent." NLRB v. Iron Workers' Local 103, 434 U.S. 335, 346, 98 S.Ct. 651, 658, 54 L.Ed.2d 586 (1978). This was accomplished in section 8(b)(7)(C) by encouraging "prompt resort to the Board's election machinery, rather than protracted picketing, as the method for resolving questions concerning representation." Retail Clerk's Local 1407, 215 NLRB 410, 1974-75 CCH NLRB p 15304 (1974) (citing Dayton Typographical Union v. NLRB, 326 F.2d 634, 636-37 (D.C.Cir.1963)).

Section 8(f) of the Act provides that it is not an unfair labor practice for unions and employers in the construction industry to enter into collective-bargaining agreements even though the employees of that employer have not designated the union as their lawful bargaining representative. ² These agreements are known as "prehire agreements."

Under section 13 of the Act, a labor statute must not be interpreted to restrict the right to picket "unless the congressional purpose to give it that meaning persuasively appears either from the structure or history of the statute." NLRB v. Drivers, Chauffeurs, Helpers, Local Union No. 639 (Curtis Bros.), 362 U.S. 274, 282, 80 S.Ct. 706, 711, 4 L.Ed.2d 710 (1960). ³ Neither section 8(b)(7) nor section 8(f) explicitly prohibits picketing to obtain a prehire agreement. Furthermore, because Congress has "dealt explicitly with isolated evils which experience has established flow from such picketing," see, e.g., Sec. 8(b)(7)(A), (B), 29 U.S.C. Sec. 158(b)(7)(A), (B) (1988), we may infer limitations not explicitly provided for in the statute only if there is "the clearest indication in the legislative history" of Congress' intent to create a limitation. See Curtis Bros., 362 U.S. at 284, 80 S.Ct. at 712.

The failure to authorize the use of picketing does not necessarily imply a prohibition against picketing. ⁴ See Donald Schriver, Inc. v. NLRB, 635 F.2d 859, 868 n. 11 (D.C.Cir.1980) (That Congress "did not intend to authorize minority construction unions to strike, picket or otherwise coerce employers to sign Sec. 8(f) agreements ... can mean no more than that a union may not picket in excess of 30 days without filing a petition for an election ... [t]hus the coercion employed to secure the Sec. 8(f) agreements (such as the 10 day picketing of [the employer] did not violate the Act." (Quotation omitted.)). Other evidence relevant to an implicit prohibition against picketing to obtain a prehire agreement is ambiguous. ⁵ Therefore, we must defer to the Board's interpretation of the statute if it is rational and consistent with the Act. Curtin Matheson, 110 S.Ct. at 1549.

The Board's interpretation does not violate the intention of the Act to leave " 'the discussion between the employer and the employee, and the agreements which they may or may not make, voluntary.' " See H.K. Porter Co. v. NLRB, 397 U.S. 99, 103-04 & n. 2, 90 S.Ct. 821, 823-24 & n. 2, 25 L.Ed.2d 146 (1970) (quoting 79 Cong.Rec. 7659). Economic pressure is often used in the context of labor disputes to reach what are often termed "voluntary" agreements. The Supreme Court recognized this in H.K. Porter, where, after reiterating the purpose of the Act to facilitate voluntary agreements, it stated that "[i]t cannot be said that the Act forbids an employer or a union to rely ultimately on its economic strength to try to secure what it cannot obtain through bargaining." Id. at 109, 90 S.Ct. at 826. See also NLRB v. American Nat. Ins. Co., 343 U.S. 395, 402, 72 S.Ct. 824, 828, 96 L.Ed. 1027 (1952) (The basic "theory of the Act is that the making of voluntary labor agreements is encouraged by protecting employees' rights to organize for collective bargaining."). ⁶

Furthermore, at the same time it enacted section 8(f), Congress included a provision protecting employers from being pressured to enter into agreements with minority unions. If the picketed employer doubts that the union enjoys the support of a majority of its employees, the employer may file an election petition. See NLRA Sec. 8(b)(7)(C), 29 U.S.C. Sec. 158(b)(7)(C) (1988). When an election petition is filed in a situation in which a non-certified union is picketing, the Board must direct an expedited representation election, without first investigating the petition to determine whether a question of representation exists. See id. Secs. 8(b)(7)(C), 9(c), 29 U.S.C. Secs. 158(b)(7)(C), 159(c) (1988). If the election demonstrates that a majority of the employees do not support the union, section 8(b)(7)(B) bars the union from picketing for twelve months. 29 U.S.C. Sec. 158

(b)(7)(B) (1988).

NVE argues that the effect of the Board's decision is to legalize the "very top-down organizing weapon Congress condemned in enacting" section 8(b)(7)(C). The Supreme Court has recognized that

"[o]ne of the major aims of the 1959 Act was to limit 'top-down' organizing campaigns, in which unions used economic weapons to force recognition from an employer regardless of the wishes of his employees." The use of picketing was of particular concern as a method of coercion in three specific contexts: where employees had already selected another...