explaining the purpose of the second proviso by noting that although “[pjrivi-leging unions and employers to execute and observe pre-hire agreements in an effort to accommodate the special circumstances in the construction industry may have greatly convenienced unions and employers, ... in no sense can it be portrayed as an expression of the employees’ organizational wishes”
How later courts described this case
- explaining the purpose of the second proviso by noting that although “[pjrivi-leging unions and employers to execute and observe pre-hire agreements in an effort to accommodate the special circumstances in the construction industry may have greatly convenienced unions and employers, ... in no sense can it be portrayed as an expression of the employees’ organizational wishes”
- explaining the purpose of the second proviso by noting that although "[p]rivileging unions and employers to execute and observe pre-hire agreements in an effort to accommodate the special circumstances in the construction industry may have greatly convenienced unions and employers, ... in no sense can it be portrayed as an expression of the employees' organizational wishes"
- stating that when an administrative agency "chang[es] its mind[,] 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”
- stating that "[i]t is ... 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"
Written by the judges who cited it.
The opinion
Me. 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. 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 *353 §8 (a)(1) for interfering with the organizational rights of employees by recognizing a minority union. 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 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, 282 . The *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. 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 *355 purpose of gaining “initial acceptance” or recognition. 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 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.
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 “[representatives 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 . . . .”
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 . . .
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 . . . .”
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 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 pre-existing relationship under a § 8 (f) agreement.