An employer in the construction business made an agreement with
respondent union under § 8(f) of the National Labor Relations Act,
which provides that it shall not be an unfair labor practice for
unions and employers in the construction, industry to enter into
"prehire" agreements before the majority status of the union has
been established. The contract contained no union security clause
requiring employees to become union members within a specified
period of time. After the employer later undertook construction
projects with nonunion labor, the union picketed those projects
(one for more than 30 days) with signs stating that the employer
was violating the agreement with the union, though the union did
not represent a majority of the employees at the jobsites and had
not petitioned for a representation election. The employer then
filed a charge with the National Labor Relations Board alleging
that the union was violating § 8(b)(7)(C) of the Act, which makes
it an unfair labor practice for an uncertified union to picket for
the purpose of forcing an employer to recognize the union as a
bargaining representative of his employees, for more than 30 days,
unless a petition for an election has been filed within that
period. The NLRB issued a cease and desist order in favor of the
employer, concluding that an object of the picketing was to force
the employer to bargain with a union that was not currently
certified as the representative of the employees working for the
employer. The Court of Appeals, denying enforcement of the NLRB's
order, held that the validity of a § 8(f) prehire contract
conferred the right to enforce the contract by picketing as well as
the right, upon a contract breach, to file and prevail on an unfair
labor practice charge against the employer for failure to
bargain.
Held: Respondent's picketing was for recognitional
purposes, and constituted an unfair labor practice under §
8(b)(7)(C). An uncertified union like respondent, which does not
represent a majority of the employees, may not under that provision
engage in picketing in an effort to enforce a prehire agreement
with the employer. Pp.
434 U. S.
341-352.
Page 434 U. S. 336
(a) Section 8(f), which contains a proviso clause that a
"prehire" contract shall not bar a petition for an election under §
9(c), was not intended to relieve a union party to a prehire
agreement from the obligation to achieve majority support before it
can require the employer to honor such an agreement by means of §
8(a)(5), or to accord the union the status of bargaining
representative that would exempt it from the recognitional
picketing prohibition of § 8(b)(7). The NLRB therefore correctly
held that, when the union picketed to enforce its prehire
agreement, the employer could file and prevail on a § 8(b)(7)
charge, because the union lacked majority credentials at the
picketed projects. Picketing to enforce the § 8(f) contract was
tantamount to recognitional picketing, and § 8(b)(7)(C) was
infringed when the union failed to request an election within 30
days. Pp.
434 U. S.
342-346.
(b) Because § 8(b)(7) was adopted to ensure employees the
voluntary, uncoerced selection of a bargaining representative, the
NLRB did not err in holding that that provision applies to a
minority union's picketing to enforce a prehire contract. Nor does
the NLRB's position, which is entitled to considerable deference,
render § 8(f) meaningless, since, but for that provision, neither
party could execute a prehire agreement without committing an
unfair labor practice, and the voluntary observance of an otherwise
valid § 8(f) contract is left unchallenged.
Retail Clerks v.
Lion Dry Goods, Inc., 369 U. S. 17;
Building & Construction Trades Council of Santa Barbara
County (Sullivan Electric Co.), 146 N.L.R.B. 1086,
distinguished. Pp.
434 U. S.
346-352.
175 U.S.App.D.C. 259, 535 F.2d 87, reversed.
WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and BRENNAN, MARSHALL, POWELL, and REHNQUIST, JJ., joined.
STEWART, J., filed a dissenting opinion, in which BLACKMUN and
STEVENS, JJ., joined,
post, p.
434 U. S.
352.
Page 434 U. S. 337
MR. JUSTICE WHITE delivered the opinion of the Court.
Sections 8(b)(7) and 8(f) were added to the National Labor
Relations Act in 1959. [
Footnote
1] Section 8(f), permitting so-called
Page 434 U. S. 338
"prehire" agreements in the construction industry, provides that
it shall not be an unfair labor practice to enter into such an
agreement with a union that has not attained majority status prior
to the execution of the agreement. Under § 8(b)(7)(C), a union that
is not the certified representative of the employees in the
relevant unit commits an unfair labor practice if it pickets an
employer with "an object" of "forcing or requiring an employer to
recognize or bargain with a labor organization as the
representative of his employees" and if it does not within 30 days
file a petition for an election under § 9(c). The National Labor
Relations Board (Board) held that it is an unfair labor practice
within the meaning of § 8(b)(7)(C) for an uncertified union not
representing a majority of the employees to engage in extended
picketing in an effort to enforce a prehire agreement with the
employer. [
Footnote 2] The
issue here is whether this is a misapplication of the section, as
the Court of Appeals held in this case. [
Footnote 3]
Page 434 U. S. 339
I
Higdon Construction Co. and Local 103 of the International
Association of Bridge, Structural & Ornamental Iron Workers,
AFL-CIO (hereinafter Local 103), had a history of collective
bargaining dating back to 1968. A prehire agreement was reached by
Local 103 and Higdon on July 31, 1973, obliging Higdon to abide by
the terms of the multiemployer understanding between Local 103 and
the Tri-State Iron Workers Employers Association, Inc. No union
security clause provision was contained in the Local 103-Higdon
agreement. At about the same time, Higdon Contracting Co. was
formed for the express purpose of carrying on construction work
with nonunion labor. Local 103 picketed two projects subsequently
undertaken by Higdon Contracting Co., in Kentucky and Indiana, with
signs which read: "Higdon Construction Company is in violation of
the agreement of the Iron Workers Local Number 103." Picketing at
one jobsite persisted for more than 30 days, into March, 1974.
Local 103 had never represented a majority of the employees at
either site and, although it was free to do so, it did not petition
for a representation election to determine the wishes of the
employees at either location.
On March 6, 1974, Higdon Contracting Co. filed a charge with the
Regional Director of the Board, alleging that Local 103 was
violating § 8(b)(7) of the Labor Act. The Administrative Law Judge
found that Higdon Contracting Co. and Higdon Construction Co. were
legally indistinct for purposes of the proceedings. In an opinion
issued August 23, 1974, he concluded that Local 103's picketing did
not constitute an unfair labor practice. Higdon had entered into a
lawful § 8(f) prehire contract with Local 103 by which it promised
to abide by the multiemployer standard. The picketing was for
purposes of obtaining compliance with an existing contract, rather
than to obtain recognition or bargaining as an initial matter. Only
the latter was a purpose forbidden by § 8(b)(7).
Page 434 U. S. 340
The Board did not agree with the Administrative Law Judge.
Relying on its
R. J. Smith decision, [
Footnote 4] the Board emphasized the fact that
Local 103 had never achieved majority status, and the § 8(f)
agreement thus had no binding force on the employer. For this
reason, Local 103's picketing was not simply for the purpose of
forcing compliance with an existing contract, even though the Board
accepted the finding that only a single employer was involved.
Under the Board's view of the law and the evidence, an object of
the picketing was
"forcing and requiring Higdon Contracting Company, Inc., to
bargain with [Local 103], without being currently certified as the
representative of Higdon Contracting Company, Inc.'s employees and
without a petition under Section 9(c) being filed within a
reasonable period of time. . . ."
Local 103 sought review in the United States Court of Appeals
for the District of Columbia Circuit. That court set aside the
order, as it had set aside the Board's
R. J. Smith order
three years previously. [
Footnote
5] The Court of Appeals ruled that the validity of a § 8(f)
prehire contract carried with it the right to enforce that contract
by picketing, and the right as well, when breach of the agreement
occurs, to file and prevail on an unfair labor practice charge
against the employer for failure to bargain. This elevation of a
nonmajority union to the rights of majority status was acceptable,
in the court's view, because of the second proviso to § 8(f), which
denies the usual contract bar protection to prehire agreements and
permits a representation election to be held at the instance of
either party at any time during the life of the agreement.
The Board's subsequent petition to this Court for a writ of
certiorari was granted. [
Footnote
6] We reverse.
Page 434 U. S. 341
II
It is undisputed that the union was not the certified
representative of Higdon's employees, and that it did not file an
election petition within 30 days of the onset of the picketing. The
issue for the Board was whether, for the purposes of § 8(b)(7)(C),
the union pickets carrying signs asserting that Higdon was
violating an agreement with the union were picketing with the
forbidden purpose of requiring Higdon to recognize or bargain with
the union. Under the Board's view of § 8(f), a prehire agreement
does not entitle a minority union to be treated as the majority
representative of the employees until and unless it attains
majority support in the relevant unit. Until that time, the prehire
agreement is voidable, and does not have the same stature as a
collective bargaining contract entered into with a union actually
representing a majority of the employees and recognized as such by
the employer. Accordingly, the Board holds, as it did here, that
picketing by a minority union to enforce a prehire agreement that
the employer refuses to honor, effectively has the object of
attaining recognition as the bargaining representative with
majority support among the employees, and is consequently violative
of § 8(b)(7)(C). The Board and the Court of Appeals thus differ
principally on the legal questions of how § 8(f) is to be construed
and of what consequences the execution of a prehire agreement has
on the enforcement of other sections of the Act, primarily §§
8(a)(5) and 8(b)(7)(C). We have concluded that the Board's
construction of the Act, although perhaps not the only tenable one,
is an acceptable reading of the statutory language and a reasonable
implementation of the purposes of the relevant statutory sections.
[
Footnote 7]
Page 434 U. S. 342
Although, on its face, § 8(b)(7)() would apply to any extended
picketing by an uncertified union where recognition or bargaining
is an object, the section has at been literally
Page 434 U. S. 343
applied. The Board holds that an employer's refusal to honor a
collective bargaining contract executed with the union having
majority support is a refusal to bargain and an unfair labor
practice under § 8(a)(5). [
Footnote
8] Extended picketing by the union attempting to enforce the
contract thus seeks to require bargaining, but as the Board applies
the Act, § 8(b)(7)(C) does not bar such picketing.
Building
& Construction Trades Council of Santa Barbara County (Sullivan
Electric Co.), 146 N.L.R.B. 1086 (1964);
Bay Counties
District Council of Carpenters (Disney Roofing & Material
Co.), 154 N.L.R.B. 1598, 1605 (1965). The prohibition of §
8(b)(7)(C) against picketing with an object of forcing an employer
"to recognize or bargain with a labor organization" should not be
read as encompassing two separate and unrelated terms, but was
"intended to proscribe picketing having as its target forcing or
requiring an employer's initial acceptance of the union as the
bargaining representative of his employees."
Sullivan Electric,
supra at 1087.
As the present case demonstrates, however, the
Sullivan
Electric rule does not protect picketing to enforce a
contract
Page 434 U. S. 344
entered into pursuant to § 8(f) where the union is not and has
never been the chosen representative of a majority of the employees
in a relevant unit. Neither will the Board issue a § 8(a)(5)
bargaining order against an employee refusing to abide by a § 8(f)
contract unless the complaining union can demonstrate its majority
status in the unit.
R. J. Smith Construction Co., 191
N.L.R.B. 693 (1971).
The Board's position is rooted in the generally prevailing
statutory policy that a union should not purport to act as the
collective bargaining agent for all unit employees, and may not be
recognized as such, unless it is the voice of the majority of the
employees in the unit. Section 7 of the Act, 61 Stat. 140, 29
U.S.C. § 157, guarantees the employees the right to bargain
collectively with representatives of their own choosing. Section
9(a), 29 U.S.C. § 159(a), provides that the bargaining agent for
all of the employees in the appropriate unit must be the
representative "designated or selected for the purposes of
collective bargaining by the majority of the employees. . . ."
It is thus an unfair practice for an employer under §§ 8(a)(1)
and (2) and for a union under § 8(b)(1)(A) to interfere with,
restrain, or coerce employees in the exercise of their right to
select their representative. The Court has held that both union and
employer commit unfair practices when they sign a collective
bargaining agreement recognizing the union as the exclusive
bargaining representative when, in fact, only a minority of the
employees have authorized the union to represent their
interests.
"There could be no clearer abridgment of § 7 of the Act,
assuring employees the right 'to bargain collectively through
representatives of their own choosing' or 'to refrain from' such
activity"
than to grant "exclusive bargaining status to an agency selected
by a minority of its employees, thereby impressing that agent upon
the nonconsenting majority."
Garment Workers v. NLRB,
366 U. S. 731,
366 U. S. 737
(1961). This is true even though the employer and the union believe
in good faith, but mistakenly, that the union
Page 434 U. S. 345
has obtained majority support.
"To countenance such an excuse would place in permissibly
careless employer and union hands the power to completely frustrate
employee realization of the premise of the Act -- that its
prohibitions will go far to assure freedom of choice and majority
rule in employee selection of representatives."
Id. at
366 U. S.
738-739.
Section 8(f) is an exception to this rule. The execution of an
agreement with a minority union, an act normally an unfair practice
by both employer and union, is legitimated by § 8(f) when the
employer is in the construction industry. The exception is
nevertheless of limited scope, for the usual rule protecting the
union from inquiry into its majority status during the terms of a
collective bargaining contract does not apply to prehire
agreements. A proviso to the section declares that a § 8(f)
contract, which would be invalid absent the section, "shall not be
a bar to a petition filed pursuant to section 9(c) or 9(e)." The
employer and its employees -- and the union itself, for that matter
-- may call for a bargaining representative election at any
time.
The proviso exposing unions with prehire agreements to inquiry
into their majority standing by elections under § 9(c) led the
Board to its decision in
R. J. Smith: An employer does not
commit an unfair practice under § 8(a)(5) when he refuses to honor
the contract and bargain with the union and the union fails to
establish in the unfair labor practice proceeding that it has ever
had majority support. As viewed by the Board, a "prehire agreement
is merely a preliminary step that contemplates further action for
the development of a full bargaining relationship."
Ruttmann
Construction Co., 191 N.L.R.B. 701, 702 (1971). The employer's
duty to bargain and honor the contract is contingent on the union's
attaining majority support at the various construction sites. In
NLRB v. Irvin, 475 F.2d 1265 (CA3 1973), for example, the
prehire contract was deemed binding on those projects at which the
union had secured a majority, but not with respect to those
Page 434 U. S. 346
projects not yet begun before the union had terminated the
contract.
Applying this view of § 8(f) in the § 8(b)(7)(C) context, the
Board held in this case that, when the union picketed to enforce
its prehire agreement, Higdon could challenge the union's majority
standing by filing a § 8(b)(7) charge, and could prevail, as Higdon
did here, because the union admittedly lacked majority credentials
at the picketed projects. Absent these qualifications, the
collective bargaining relationship and the union's entitlement to
act as the exclusive bargaining agent had never matured. Picketing
to enforce the § 8(f) contract was the legal equivalent of
picketing to require recognition as the exclusive agent, and §
8(b)(7)(C) was infringed when the union failed to request an
election within 30 days.
Nothing in the language or purposes of either § 8(f) or §
8(b)(7) forecloses this application of the statute. Because of §
8(f), the making of prehire agreements with minority unions is not
an unfair practice, as it would be in other industries. But § 8(f)
itself does not purport to authorize picketing to enforce prehire
agreements where the union has not achieved majority support.
Neither does it expand the duty of an employer under § 8(a)(5),
which is to bargain with a
majority representative, to
require the employer to bargain with a union with which he has
executed a prehire agreement but which has failed to win majority
support in the covered unit.
As for § 8(b)(7), which, along with § 8(f), was added in 1959,
its major purpose was to implement one of the Act's principal goals
-- to ensure that employees were free to make an uncoerced choice
of bargaining agent. As we recognized in
Connell Construction
Co. v. Plumbers & Steamfitters, 421 U.
S. 616 (1975),
"[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
Page 434 U. S. 347
regardless of the wishes of his employees."
Id. at
421 U. S. 632,
and references cited therein. The use of picketing was of
particular concern as a method of coercion in three specific
contexts: where employees had already selected another union
representative, where employees had recently voted against a labor
union, and where employees had not been given a chance to vote on
the question of representation. Picketing in these circumstances
was thought impermissibly to interfere with the employees' freedom
of choice. [
Footnote 9]
Congressional concern about coerced designations of bargaining
agents did not evaporate as the focus turned to the
Page 434 U. S. 348
construction industry. [
Footnote 10] Section 8(f) was, of course, motivated by an
awareness of the unique situation in that industry. Because the
Board had not asserted jurisdiction over the construction industry
before 1947, the House Committee Report observed that concepts
evoked by the Board had been "developed without reference to the
construction industry." H.R.Rep. No. 741, 86th Cong., 1st Sess., 19
(1959), 1 Leg.Hist. 777. There were two aspects peculiar to the
building trades that Congress apparently thought justified the use
of prehire agreements with unions that did not then represent a
majority of the employees:
"One reason for this practice is that it is necessary for the
employer to know his labor costs before making the estimate upon
which his bid will be based. A second reason is that the employer
must be able to have available a supply of skilled craftsmen ready
for quick referral."
Ibid.
Page 434 U. S. 349
The Senate Report also noted that
"[r]epresentation elections in a large segment of the industry
are not feasible to demonstrate . . . majority status due to the
short periods of actual employment by specific employers."
S.Rep. No. 187, 86th Cong., 1st Sess., 55 (1959), 1 Leg.Hist.
541-542. Privileging unions and employers to execute and observe
prehire agreements in an effort to accommodate the special
circumstances in the construction industry may have greatly
convenienced unions and employers, but in no sense can it be
portrayed as an expression of the employees' organizational wishes.
Hence the proviso that an election could be demanded despite the
prehire agreement. By the same token, because § 8(b)(7) was adopted
to ensure voluntary, uncoerced selection of a bargaining
representative by employees, we cannot fault the Board for holding
that § 8(b)(7) applies to a minority union picketing to enforce a
prehire contract.
The Board's position does not, as respondents claim, render §
8(f) meaningless. [
Footnote
11] Except for § 8(f), neither the employer nor the union could
execute prehire agreements without committing unfair labor
practices. Neither has the Board challenged the voluntary
observance of otherwise valid § 8(f) contracts, which is the normal
course of events. It is also
Page 434 U. S. 350
undisputed that, when the union successfully seeks majority
support, the prehire 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.
The Board's resolution of the conflicting claims in this case
represents a defensible construction of the statute, and is
entitled to considerable deference. Courts may prefer a different
application of the relevant sections, but
"[t]he function of striking that balance to effectuate national
labor policy is often a difficult and delicate responsibility,
which the Congress committed primarily to the National Labor
Relations Board, subject to limited judicial review."
NLRB v. Truck Drivers, 353 U. S.
87,
353 U. S. 96
(1957);
NLRB v. Insurance Agents, 361 U.
S. 477,
361 U. S. 499
(1960). Of course, "recognition of the appropriate sphere of the
administrative power . . . obviously cannot exclude all judicial
review of the Board's actions."
Ibid. But we cannot say
that the Board has here "[moved] into a new area of regulation
which Congress [has] not committed to it."
Ibid. In
American Ship Building Co. v. NLRB, 380 U.
S. 300,
380 U. S. 318
(1965), the Court was
"unable to find that any fair construction of the provisions
relied on by the Board . . . can support its finding of an unfair
labor practice. . . . [T]he role assumed by the Board . . . [was]
fundamentally inconsistent with the structure of the Act and the
function of the sections relied upon."
As we have explained, this is not the case here.
The union suggests that the Board's construction of § 8(f)
deserves little or no deference, because it is merely an
application in the § 8(b)(7) context of the decision in
R. J.
Smith Construction Co., 191 N.L.R.B. 693 (1971), which itself
was inconsistent with a prior decision,
Oilfield Maintenance
Co., 142 N.L.R.B. 1384 (1963). It is not at all clear from the
latter case, however, that the union involved there had never had
majority status. The issue received only passing attention at the
time, and the case was distinguished by the Board
Page 434 U. S. 351
in
Ruttmann Construction Co., 191 N.L.R.B. at 701 n. 5,
decided the same day as
R. J. Smith, supra, as being
"primarily concerned" with
"the right of a successor employer to disavow contracts made by
a predecessor with five different unions and substitute the terms
of a contract it had with another union."
In any event, if
Oilfield Maintenance represents a view
that the majority status of the union executing a prehire agreement
may not be challenged in unfair labor practice proceedings, the
Board has plainly not adhered to that approach. Its contrary view
has been expressed on more than one occasion. [
Footnote 12] An administrative agency is not
disqualified from changing its mind; and when it does, the courts
still sit in review of the administrative decision, and should not
approach the statutory construction issue
de novo and
without regard to the administrative understanding of the
statutes.
The union argues that the Board's position permitting an
employer to repudiate a prehire agreement until the union attains
majority support renders the contract, for all practical purposes,
unenforceable, assertedly contrary to this Court's decision in
Retail Clerks v. Lion Dry Goods, Inc., 369 U. S.
17 (1962). There, the Court's opinion recognized that §
301 of the Labor Management Relations Act confers jurisdiction on
the federal courts to entertain suits on contracts between an
employer and a minority union, as well as those with
majority-designated collective bargaining agents. Section 8(f)
contracts were noted as being in this category. The Court was
nevertheless speaking to an issue of jurisdiction. That a court has
jurisdiction to consider a suit on a particular contract does not
suggest that the contract is enforceable. It would not be
inconsistent with
Lion Dry Goods for a court to hold that
the
Page 434 U. S. 352
union's majority standing is subject to litigation in a § 301
suit to enforce a § 8(f) contract, just as it is in a § 8(a)(5)
unfair labor practice proceeding, and that, absent a showing that
the union is the majority's chosen instrument, the contract is
unenforceable.
It is also clear from what has already been said that the
decision here is not inconsistent with
Building &
Construction Trades Council of Santa Barbara County (Sullivan
Electric Co.), 146 N.L.R.B. 1086 (1964). That case merely
permits picketing to enforce contracts with a union actually
representing a majority of the employees in the unit. Here, the
union did not represent the majority, and in picketing to enforce
the prehire agreement, it sought the privileges of a majority
representative. The conclusion that § 8(b)(7) was violated is
legally defensible and factually acceptable.
The judgment of the Court of Appeals is reversed.
So ordered.
[
Footnote 1]
Section 8(b)(7), 73 Stat. 544, 29 U.S.C. § 158(b)(7),
provides:
"It shall be an unfair labor practice for a labor organization
or its agents . . . to picket or cause to be picketed, or threaten
to picket or cause to be picketed, any employer where an object
thereof is forcing or requiring an employer to recognize or bargain
with a labor organization as the representative of his employees,
or forcing or requiring the employees of an employer to accept or
select such labor organization as their collective bargaining
representative, unless such labor organization is currently
certified as the representative of such employees:"
"(A) where the employer has lawfully recognized in accordance
with this Act any other labor organization and a question
concerning representation may not appropriately be raised under
section 9(c) of this Act,"
"(B) where within the preceding twelve months a valid election
under section 9(c) of this Act has been conducted, or"
"(C) where such picketing has been conducted without a petition
under section 9(c) being filed within a reasonable period of time
not to exceed thirty days from the commencement of such picketing:
Provided, That when such a petition has been filed the
Board shall forthwith, without regard to the provisions of section
9(c)(1) or the absence of a showing of a substantial interest on
the part of the labor organization, direct an election in such unit
as the Board finds to be appropriate and shall certify the results
thereof:
Provided further, That nothing in this
subparagraph (C) shall be construed to prohibit any picketing or
other publicity for the purpose of truthfully advising the public
(including consumers) that an employer does not employ members of,
or have a contract with, a labor organization, unless an effect of
such picketing is to induce any individual employed by any other
person in the course of his employment, not to pick up, deliver or
transport any goods or not to perform any services."
"Nothing in this paragraph (7) shall be construed to permit any
act which would otherwise be an unfair labor practice under this
section 8(b)."
Section 8(f), 73 Stat. 545, 29 U.S.C. § 158(f), provides:
"It shall not be an unfair labor practice under subsections (a)
and (b) of this section for an employer engaged primarily in the
building and construction industry to make an agreement covering
employees engaged (or who, upon their employment, will be engaged)
in the building and construction industry with a labor organization
of which building and construction employees are members (not
established, maintained, or assisted by any action defined in
section 8(a) of this Act as an unfair labor practice) because (1)
the majority status of such labor organization has not been
established under the provisions of section 9 of this Act prior to
the making of such agreements, or (2) such agreement requires as a
condition of employment, membership in such labor organization
after the seventh day following the beginning of such employment or
the effective date of the agreement, whichever is later, or (3)
such agreement requires the employer to notify such labor
organization of opportunities for employment with such employer, or
gives such labor organization an opportunity to refer qualified
applicants for such employment, or (4) such agreement specifies
minimum training or experience qualifications for employment or
provides for priority in opportunities for employment based upon
length of service with such employer, in the industry or in the
particular geographical area:
Provided, That nothing in
this subsection shall set aside the final proviso to section
8(a)(3) of this Act:
Provided further, That any agreement
which would be invalid, but for clause (1) of this subsection,
shall not be a bar to a petition filed pursuant to section 9(c) or
9(e)."
[
Footnote 2]
Iron Workers Local 10 (Higdon Contracting Co.), 216
N.L.R.B. 45 (1975)
[
Footnote 3]
Iron Workers Local 103 v. NLRB, 175 U.S.App.D.C. 259,
535 F.2d 87 (1976).
[
Footnote 4]
R. J. Smith Construction Co., 191 N.L.R.B. 693 (1971),
enf. denied sub nom. Engineers Local 150 v. NLRB, 156
U.S.App.D.C. 294, 480 F.2d 1186 (1973).
[
Footnote 5]
Engineers Local 150 v. NLRB, supra.
[
Footnote 6]
429 U.S. 1089 (1977).
[
Footnote 7]
As will appear, the Board's conclusion that an object of the
picketing was to obtain recognition even though Local 103 sought
only to enforce the § 8(f) contract, flows from the Board's view
that a prehire contract is not the equivalent of recognizing the
union as the majority representative of the employees, and that an
attempt to enforce the prehire agreement by picketing to require
the employer to treat with the union is recognitional
picketing.
Determining the object, or objects, of labor union picketing is
a recurring and necessary function of the Board. Its resolution of
these mixed factual and legal questions normally survives judicial
review. A type of activity frequently found to violate § 8(b)(7) is
picketing ostensibly for the purpose of forcing an employer to
abide by terms incorporated into agreements between the union and
other employers. Even in cases where the union expressly disavows
any recognitional intent, acceptance of the uniform terms proposed
by the union can have the "net effect" of establishing the union
"as the negotiator of wage rates and benefits."
Centralia
Building & Construction Trades Council v. NLRB, 124
U.S.App.D.C. 212, 214, 363 F.2d 699, 701 (1966).
"The Board has held that informing the public that an employer
does not employ members of a labor organization indicates an
organizational object, and that stating that an employer does not
have a contract with a labor organization similarly implies an
object of recognition and bargaining."
Carpenters Local 906, 204 N.L.R.B. 138, 139 (1973).
Hence, picketing to enforce area standards, where an employer had
been assured by notice from the union that,
"while we expect you to observe the wages, hours, and other
benefits set forth in these documents, we do not expect or seek any
collective bargaining relationship with your firm,"
has been held to violate § 8(b)(7).
Hotel & Restaurant
Employees (Holiday Inns of America, Inc.), 169 N.L.R.B. 683,
684 (1968).
The Courts of Appeals have upheld the Board in these
inferences.
"Though this legend ['Non-Union Conditions'] could be
interpreted as merely a protest of the restaurant's working
conditions, it was reasonable for the NLRB to conclude that the
message . . . was at least in part that the union desired to alter
a non-union working situation by obtaining recognition. In the
absence of any countervailing evidence, the NLRB could thus
determine that the purpose of the picketing was recognitional."
San Francisco Local Joint Board v. NLRB, 163
U.S.App.D.C. 234, 239, 501 F.2d 794, 799 (1974).
See also NLRB
v. Carpenters, 450 F.2d 1255 (CA9 1971), and cases cited
therein.
In the present case, the Local's business agent contacted Higdon
Contracting's general manager, asking "if
we' were going to use
union people on the job." The general manager answered in the
negative; the business agent replied, "I'll get right on it," and
the pickets materialized. The message on the picket signs announced
that Higdon was not in compliance with the terms of its agreement
with Local 103. The inference is certainly sustainable that Local
103 wished Higdon to abide by those terms.
Hence, if the Board is correct in its view of the interaction of
§§ 8(f) and 8(b)(7)(C), the Board's decision here was within
settled precedent in concluding that a purpose of the picketing was
to force Higdon Contracting to recognize or bargain with the union.
The picketing carried on in this case, unless § 8(f) required a
contrary conclusion as a matter of law, was in clear violation of
8(b)(7)(C).
[
Footnote 8]
See NLRB v. Hyde, 339 F.2d 568, 571-573 (CA9 1965). A
contract with a majority representative also carries with it the
presumption that the union's majority status still obtains.
Dayton Motels, Inc., 192 N.L.R.B. 674, 678 (1971),
remanded, 474 F.2d 328 (CA6 1973),
enf'd, 525
F.2d 476 (CA6 1976).
[
Footnote 9]
"The total effect of these proposals in the administration bill
would be to regulate picketing so that employers and their
employees will not be subject to the continuous coercion of an
organizational picket line."
105 Cong.Rec. 1731 (1959) (remarks of Sen. Dirksen), 2 NLRB,
Legislative History of the Labor-Management Reporting and
Disclosure Act of 1959, p. 994 (hereinafter cited as
Leg.Hist.).
The administration bill had added the provisions that would
become § 8(b)(7). The Department of Labor's explanatory statement
grouped together the ways in which unfair picketing pressure could
be exerted, and noted that the bill would make it
"an unfair labor practice, subject to mandatory injunction, for
a union to picket in order to coerce an employer to recognize it as
bargaining representative of his employees. . . ."
105 Cong.Rec. 1281 (1959), 2 Leg.Hist. 977.
The President's transmittal letter had stated:
"I recommend legislation . . . [t]o make it illegal for a union,
by picketing, to coerce an employer to recognize it as the
bargaining representative of his employees or his employees to
accept or designate it as their representative where the employer
has recognized in accordance with law another labor organization,
or where a representation election has been conducted within the
last preceding 12 months, or where it cannot be demonstrated that
there is a sufficient showing of interest on the part of the
employees in being represented by the picketing union
or where
the picketing has continued for a reasonable period of time without
the desires of the employees being determined by a representation
election; and to provide speedy and effective enforcement
measures."
S.Doc. No. 10, 86th Cong., 1st Sess., 2-3 (1959), 1 Leg.Hist.
81-82 (emphasis added).
[
Footnote 10]
Congress was careful to make its intention clear that prehire
agreements were to be arrived at voluntarily, and no element of
coercion was to be admitted into the narrow exception being
established to the majority principle. Representative Barden, an
important House floor leader on the bill and a conferee, introduced
as an expression of legislative intent Senator Kennedy's
explanation the year before of the voluntary nature of the prehire
provision:
"Mr. Kennedy: I shall answer the Senator from Florida as follows
-- and it is my intention, by so answering, to establish the
legislative history on this question: it was not the intention of
the committee to require by section 604(a) the making of prehire
agreements, but, rather, to permit them; nor was it the intention
of the committee to authorize a labor organization to strike,
picket, or otherwise coerce an employer to sign a prehire agreement
where the majority status of the union had not been established.
The purpose of this section is to permit voluntary prehire
agreements."
105 Cong.Rec. 18128 (1959), 2 Leg.Hist. 1715.
The House Conference Report similarly stressed that "[n]othing
in such provision is intended . . . to authorize the use of force,
coercion, strikes, or picketing to compel any person to enter into
such prehire agreements." H.R.Rep. No. 1147, 86th Cong., 1st Sess.,
42 (1959), 1 Leg.Hist. . 946.
[
Footnote 11]
A comparable situation obtains concerning hot cargo clauses,
which are permitted in the construction industry by § 8(e), 29
U.S.C. § 158(e), but which cannot be enforced by picketing. Before
the enactment of the proviso, this Court held that it was a
violation of the secondary boycott provisions of the Act, §
8(b)(4)(A), 61 Stat. 136, to enforce a lawful hot cargo clause in a
contract by refusing to work.
Carpenters v. NLRB,
357 U. S. 93
(1958). After the adoption of § 8(e), it has remained the Board's
position that a hot cargo clause in the construction industry,
which is exempted from the ban of § 8(e), may not be enforced by
conduct forbidden by § 8(b)(4).
Northeastern Indiana Building
& Construction Trades Council, 148 N.L.R.B. 854 (1964),
remanded on other grounds, 122 U.S.App.D.C. 220, 352 F.2d
696 (1965).
Cf. NLRB v. Pipefitters, 429 U.
S. 507 (1977) (valid work preservation agreement does
not privilege secondary boycott picketing).
[
Footnote 12]
In
R. J. Smith, the Board expressly limited any such
implication from
Oilfield Maintenance to cases where a
rebuttable presumption of majority status, or majority status in
fact, existed. One-time majority status, coupled with a union
security clause that has been enforced, gives rise to a rebuttable
presumption of continued majority status, in the Board's view.
See R. J. Smith, 191 N.L.R.B. at 695.
MR. JUSTICE STEWART, with whom MR. JUSTICE BLACKMUN and MR.
JUSTICE STEVENS join, dissenting.
An employer in the construction industry, like any other
employer, is under no obligation to bargain with a labor
organization that does not represent a majority of his employees.
[
Footnote 2/1]
See NLRB v.
Philamon Laboratories, Inc., 298 F.2d 176, 179 (CA2). But
unlike other employers, he is free to do so, and may, under § 8(f),
sign a contract with a union whose majority status has not been
established without risking liability under
Page 434 U. S. 353
§ 8(a)(1) for interfering with the organizational rights of
employees by recognizing a minority union. [
Footnote 2/2]
Cf. Garment Workers v. NLRB,
366 U. S. 731.
When an employer in the construction industry does choose to enter
a § 8(f) prehire agreement, there is nothing in the provisions or
policies of national labor law that allows the employer, or the
Board, to dismiss the agreement as a nullity. Yet, in this case,
the Court holds that both the Board and the employer may do
precisely that.
Whether or not it has the "same stature as a collective
bargaining contract" with a majority union,
ante at
434 U. S. 341,
or may be the subject of a § 8(a)(5) bargaining order,
R. J.
Smith Construction Co., 191 N.L.R.B. 693,
enf. denied sub
nom. Engineers Local 150 v. NLRB, 156 U.S.App.D.C. 294, 480
F.2d 1186, a 8(f) prehire agreement is a contract embodying
correlative obligations between two parties. The Board in this case
concedes that the employer could lawfully have chosen to adhere to
the agreement even though the union had not attained majority
status. Thus, even if Higdon was under no legal duty to abide by
the terms of the prehire agreement, that fact does not establish
that Higdon was immune from economic pressure aimed at encouraging
it to do so.
Peaceful primary picketing in pursuit of lawful objectives, even
by a minority union, is not forbidden by the National Labor
Relations Act unless it falls within an express statutory
prohibition.
NLRB v. Teamsters, 362 U.
S. 274,
362 U. S. 282.
The
Page 434 U. S. 354
only such statutory provision that the Board believes to be
applicable to this case is § 8(b)(7), which prohibits most
organizational and recognitional picketing. [
Footnote 2/3] But the Board's contention that § 8(b)(7)
prohibits picketing to compel compliance with an existing prehire
agreement is not supported by the language of that section or by
the Board's prior interpretations of it.
Section 8(b)(7) prohibits "picketing to force an employer
to
recognize or bargain with a labor organization as
the representative of his employees.'" Building &
Construction Trades Council of Santa Barbara County (Sullivan
Electric Co.), 146 N.L.R.B. 1086, 1087 (quoting statute,
emphasis in Board's opinion). As interpreted by the Board, this
section does not prohibit picketing to enforce an existing
collective bargaining contract, even though enforcement would
require actual bargaining, since it was intended to proscribe
only
"picketing having as its target forcing or requiring an
employer's
initial acceptance of the union as the
bargaining representative of his employees."
Ibid. (Emphasis supplied.)
However one may view the relationship established by a § 8(f)
agreement, it is established when the agreement is signed. Only by
the most strained interpretation of the terms can picketing to
enforce the agreement be said to be for the
Page 434 U. S. 355
purpose of gaining "initial acceptance" or recognition.
[
Footnote 2/4] And such a tortured
construction would be patently inconsistent with § 13 of the Act,
29 U.S.C. § 163, which
"is a command of Congress to the courts to resolve doubts and
ambiguities in favor of an interpretation . . . which safeguards
the right to strike as understood prior to the passage of the
Taft-Hartley Act."
NLRB v. Teamsters, supra at
362 U. S.
282.
Since I think neither § 8(b)(7) nor any other provision of the
Act rendered illegal the union's peaceful primary picket protesting
Higdon's unilateral and total breach of its prehire agreement, I
would affirm the judgment of the Court of Appeals.
[
Footnote 2/1]
Section 8(a)(5) of the National Labor Relations Act, as set
forth in 29 U.S.C. § 158(a)(5), provides that it is an unfair labor
practice for an employer "to refuse to bargain collectively with
the representatives of his employees, subject to the provisions of
section 159(a) of this title." Section 9(a), 29 U.S.C. § 159(a),
provides in pertinent part that
"[r]epresentatives designated or selected for the purposes of
collective bargaining by the majority of the employees in a unit
appropriate for such purposes, shall be the exclusive
representatives of all the employees in such unit for the purposes
of collective bargaining. . . ."
[
Footnote 2/2]
Section 8(f) of the National Labor Relations Act, as set forth
in 29 U.S.C. § 158(f), provides in pertinent part:
"It shall not be an unfair labor practice under subsections (a)
and (b) of this section for an employer engaged primarily in the
building and construction industry to make an agreement covering
employees engaged (or who, upon their employment, will be engaged)
in the building and construction industry with a labor organization
of which building and construction employees are members . . .
because (1) the majority status of such labor organization has not
been established under the provisions of section 159 of this title
prior to the making of such agreement. . . ."
[
Footnote 2/3]
Section 8(b)(7) of the National Labor Relations Act, as set
forth in 29 U.S.C. § 158(b)(7), provides in pertinent part that it
shall be an unfair labor practice for a labor organization
"to picket or cause to be picketed, or threaten to picket or
cause to be picketed, any employer where an object thereof is
forcing or requiring an employer to recognize or bargain with a
labor organization as the representative of his employees, or
forcing or requiring the employees of an employer to accept or
select such labor organization as their collective bargaining
representative, unless such labor organization is currently
certified as the representative of such employees:"
"
* * * *"
"(C) where such picketing has been conducted without a petition
under section 159(c) of this title being filed within a reasonable
period of time not to exceed thirty days from the commencement of
such picketing. . . ."
[
Footnote 2/4]
The Board and the Court rely on cases holding that "picketing
ostensibly for the purpose of forcing an employer to abide by terms
incorporated into agreements between the union and other employers"
may, in fact, have a recognitional purpose in violation of §
8(b)(7).
Ante at
434 U. S. 342
n. 7.
See, e.g., Carpenters Local 906, 204 N.L.R.B. 138;
Hotel & Restaurant Employees (Holiday Inns of America,
Inc.), 169 N.L.R.B. 683. But in none of these cases did the
union and the employer have a preexisting relationship under a §
8(f) agreement.