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National Labor Relations Board v. Irvin and McKelvy

decided: March 22, 1973.

NATIONAL LABOR RELATIONS BOARD, PETITIONER,
v.
DAVID F. IRVIN AND JAMES B. MCKELVY, PARTNERS, D/B/A THE IRVIN-MCKELVY COMPANY, RESPONDENTS



ON APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.

Biggs, Gibbons, Circuit Judges, and Huyett, District Judge.

Author: Gibbons

Opinion OF THE COURT GIBBONS, Circuit Judge.

This case is before us on the application of the National Labor Relations Board (the Board) filed pursuant to Section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e), for enforcement of the November 8, 1971 order against the respondents David F. Irvin and James B. McKelvy, partners doing business as The Irvin-McKelvy Company (the Employer).*fn1 The Employer is engaged in construction work for coal mine operators in the bituminous coal fields. The charging party in the proceedings before the Board was International Union of District 50, Allied and Technical Workers of the United States (District 50). United Mine Workers of America (UMW), though not a respondent here, participated in the proceedings before the Board as a party to a contract with the Employer, and has filed an amicus curiae brief with this court. The case involves the application of Section 8(f)*fn2 of the National Labor Relations Act, 29 U.S.C. § 158(f), to prehire collective bargaining agreements in the construction industry made successively with rival labor organizations.

Section 8(f) was enacted as Section 705 of the Labor-Management Reporting and Disclosure Act of 1959, Pub. L. No. 86-257, 73 Stat. 519. It amended Section 8 of the National Labor Relations Act by adding a new subsection, applicable to the construction industry, providing among other things that it would not be, as it would otherwise have been, an unfair labor practice for an employer engaged primarily in that industry, to make a collective bargaining agreement with a labor organization covering its employees prior to the time the majority status of that labor organization had been established in a manner authorized by Section 9 of the Act, 29 U.S.C. § 159. The amendment was adopted to meet specific problems which had arisen in the construction industry under the prior law because of the transitory nature of the employer-employee relationship in that industry. During the Wagner Act period the Board had declined to exercise jurisdiction over the industry. In 1947, after passage of the Taft-Hartley amendments, the Board applied the provisions of the Act to the industry with consequent difficulties. These difficulties are discussed in Senate Report No. 187, House Report No. 741, and Conference Report No. 1147, 86th Cong., 1st Sess. (1959). 1959 U.S. Code Cong. & Ad. News, 86th Cong., 1st Sess. 2318, 2344, 2441, 2513. In summary, prehire agreements which would otherwise be invalid were authorized in the construction industry because of the dual necessities (1) that construction bidders know in advance of bid what their labor costs would be, and (2) that construction employers have access to an available pool of skilled craftsmen for quick reference.

The Employer here falls within § 8(f). It employs a more or less stable work force of approximately eighteen employees. Prior to June, 1964, the employees were not represented for collective bargaining. At that time, in order to obtain work from bituminous coal operators needing construction, the Employer signed a collective bargaining agreement with District 50. This agreement was supplanted, on June 27, 1967, by an industrywide contract between the Coal Mine Construction Contractors Association, Inc. (CMCCA) and District 50, by its terms effective from June 1, 1967 to May 31, 1970.

Both the original June, 1964 contract and the June, 1967 contract contained a union security clause and a dues checkoff clause. The June, 1967 contract contained a "most favored nations" clause to the effect that if District 50 executed any contract with a construction contractor in the coal fields and that contract contained more favorable provisions than the CMCCA-District 50 contract, any employer signatory to the latter could immediately have the benefit of identical provisions. On October 29, 1968, District 50 entered into a contract with Zeni-McKinney-Williams Corporation identical with the CMCCA agreement, except that it was a "project only" agreement rather than one for the term June 1, 1967 to May 31, 1970. Shortly thereafter the general counsel of CMCCA advised District 50 that CMCCA considered the Zeni-McKinney-Williams contract to be more favorable than the fixed-term agreement, and that all members of CMCCA were thereafter bound to District 50 only for the period of time required for the completion of those construction projects then being worked on. District 50 has always disputed this construction of the "most favored nations" clause, but the Board found that after it entered into a "project only" agreement with a competitor, District 50's contract with the Employer was converted to a project agreement. That finding is not in dispute in this enforcement proceeding.

In late 1968 the Employer joined the Association of Bituminous Contractors (ABC) in order to avail itself of an agreement which on December 10, 1968, ABC had signed with UMW. By this time the Employer's customers were advising that to get their construction business the work would have to be done by UMW labor. The Employer continued to recognize the District 50 contract on three or four existing projects. It concluded that as of April 1, 1969, all projects to which the District 50 contract applied were substantially complete. Beginning on April 1, 1969, therefore, it applied to all its employees the provisions of the ABC-UMW contract.*fn3 The employees joined the UMW. District 50 filed with the Board a charge that the Employer violated Sections 8(a)(1), (2), (3) and (5) of the Act by withdrawing recognition from it and recognizing the UMW.

The Board concluded that as of April 1, 1969, all of the Employer's employees working on projects still not completed on March 31 were members of District 50, and that on those projects District 50 had majority status. It ruled, therefore, that in ceasing to recognize District 50 as of April 1, 1969, the Employer violated Sections 8(a)(5) and (2) of the Act, and that in requiring employees on projects still in progress on March 31, 1969, to join the UMW the Employer violated Sections 8(a)(3) and (1) of the Act. The Board recognized that the conversion of the District 50 contract from a term to a project agreement left the Employer free to make a § 8(f) prehire agreement with the UMW covering subsequent projects, but it qualified that recognition by the language "so long as it did not employ at such projects a work force of which a majority were District 50 members." Irvin-McKelvy Co., 194 NLRB No. 8, 194 N.L.R.B. 52, 78 LRRM 1516, 1518. As shall be developed hereafter, the qualifying language introduced a serious ambiguity, which was not clarified by those parts of the Board's cease and desist order dealing with the status of the UMW. The Board ordered the Employer to cease and desist from:

"(d) Requiring membership in the Mine Workers as a condition of employment on any projects covered by Respondent's contract with District 50. . . ."

In its brief in support of the application for enforcement, the General Counsel takes the position that the Board intended the quoted cease and desist provision to apply not only to pre-March 31, 1969 projects, but also to post-March, 1969 projects on which the Employer's regular work force, members of District 50 by virtue of the union security clause in the § 8(f) contract with that union, may be employed. That position, the General Counsel urges, is consistent with the further provision in the Board order that the Employer:

"2. (a) Withdraw and withhold recognition from the Mine Workers as the collective-bargaining representative of Respondent's employees who are working on projects covered by the District 50 contract unless and until such labor organization shall have been certified by the National Labor Relations Board." (emphasis supplied)

The Employer moved before the Board for a clarification of this order. On June 1, 1972, the Board ruled:

"By its Decision and Order, the Board intended that when the Respondent, on any project, new or old, continues to use a work complement constituting an appropriate unit of which a majority continues to consist of members of District 50, the Respondent is not free to sign a contract with the United ...


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