WASHINGTON, ETC. v. OVERHEAD DOOR CO., ETC., Civ. A. No. 79-0097.

• Court: United States District Courts. United States District Court (Columbia)
• Writing for the Court: Joseph Semo, Washington, D. C., for plaintiffs
• Citation: 488 F. Supp. 816
• Parties: WASHINGTON AREA CARPENTERS' WELFARE FUND et al., Plaintiffs, v. OVERHEAD DOOR CO., OF METROPOLITAN WASHINGTON, Defendant.
• Decision Date: 22 April 1980
• Docket Number: Civ. A. No. 79-0097.

488 F. Supp. 816

WASHINGTON AREA CARPENTERS' WELFARE FUND et al., Plaintiffs,
v.
OVERHEAD DOOR CO., OF METROPOLITAN WASHINGTON, Defendant.

Civ. A. No. 79-0097.

United States District Court, District of Columbia.

April 22, 1980.

Joseph Semo, Washington, D. C., for plaintiffs.

Carl L. Taylor, William T. Torgerson, Washington, D. C., for defendant.

MEMORANDUM OPINION

JOYCE HENS GREEN, District Judge.

This case comes before the Court on cross-motions for summary judgment. Plaintiffs Funds are various pension, welfare, and trust funds for a local carpenters' union. They bring this action under § 502(f) of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1132, and § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, to compel defendant, Overhead Door Co. of Metropolitan Washington Overhead to allow Funds to audit its records relating to employee contributions and to recover unpaid contributions that Overhead allegedly was required to make pursuant to an agreement with the carpenters' union. Funds also seek auditor's fees, attorney fees, costs and liquidated damages provided for in the agreement. The union itself is not a party to this action.

The original collective bargaining agreement between Overhead and the Carpenters' District Council of Washington, D.C. in October 1969 was executed at a job site where two of Overhead's employees were working. According to Overhead, the union's representative told Overhead's president that he had to sign the agreement if the employees were to finish the job. Overhead

488 F. Supp. 817

acknowledges that these employees soon after joined the union, and that one of its thirteen other employees at the time was already a member of the union. Pursuant to that agreement, since October 1969 Overhead has deducted union dues from the wages of these three employees and has paid contributions on their hours. Overhead's president states that he currently has 21 employees doing carpentry work, and that of the three employees referred to above, two have not worked as carpenters in over 10 years. He does, however, admit to re-signing the agreement in 1972 and 1976

Funds have commissioned an audit of the payroll records of the three employees for whom contributions were made; this audit concludes that Overhead owes contributions approximating $14,000. Overhead disputes the accuracy of the audit in that it included hours worked by the employees but not as carpenters. It has refused to allow Funds to audit its records relating to other employees.

The parties have treated this contract as a "pre-hire" agreement, a type of agreement peculiar to the construction industry that may be entered into before all employees to be subject to it are hired, and before the union's membership encompasses a majority of the employees. Labor-Management Relations Act § 8(f), 29 U.S.C. § 158(f). This exception to the typical requirement that a union demonstrate majority support before it may bargain with management is an accommodation to the "transitory nature of the employer-employee relationship in the construction industry." N.L.R.B. v. Irvin, 475 F.2d 1265 (3rd Cir. 1973). In time the union must gain majority support if it expects to represent the employees, because only representatives of the majority may bargain with the employer. Act § 9(a), 29 U.S.C. § 159(a). Here, neither the union nor Overhead have petitioned for a representation election under 29 U.S.C. § 159(c), or taken any other steps to determine whether the union has achieved majority support.

Overhead contends that since Funds have not demonstrated majority support, the pre-hire agreement and the agreement within it to make contributions are not enforceable. Funds argue that the pre-hire agreement is enforceable as long as majority support has not been disproven, and that even if the pre-hire agreement is found to be unenforceable, Overhead still must make contributions for all employees to the trust funds, under the rule that an employer may not assert any defenses it has to a union contract against a trust fund.

I. Enforceability of the Pre-Hire Agreement

The parties agree that resolution of this issue turns on the proper application and interpretation of N.L.R.B. v. Iron Workers Local 103, 434 U.S. 335, 98 S.Ct. 651, 54 L.Ed.2d 586 (1978). In that case, the Supreme Court held that where a union which admittedly lacked majority support attempted to enforce its pre-hire agreement by picketing, it was guilty of the unfair labor practice of picketing for recognitional purposes, a violation of 29 U.S.C. § 158(b)(7). In arriving at this result, the Court affirmed the decision of the National Labor Relations Board, noting that

* * * Under the Board's view of § 8(f), a pre-hire agreement does not entitle a minority union to be treated as

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