Petition for Writ of Certiorari — Deklewa v. National Labor Relations Board

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88 -3 06 = Suprema Gout

No. ee :

AUG

JOSEPH F.

IN THE

Suprenwe Court of the United States

OCTOBER TERM, 1988

INTERNATIONAL ASSOCIATION OF BRIDGE,

STRUCTURAL AND ORNAMENTAL IRON

WORKERS, ETC., LOCAL 3, AFL-CIO,

i Petitioner,

NATIONAL LABOR RELATIONS BOARD

and

JOHN DEKLEWA, THEODORE DEKLEWA and

ROBERT DEKLEWA, d/b/a JOHN DEKLEWA & SONS

and/or JOHN DEKLEWA & SONS, INC.,

Respondents.

CROSS-PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

STANFORD A. SEGAL

1708 Law & Finance Building

Pittsburgh, PA 15219

LAURENCE J. COHEN

1125 15th Street, N.W.

Washington, DC 20005

Of Counsel: LAURENCE GOLD

VICTOR VAN BOURG (Counsel of Record)

875 Battery Place 815 16th Street, N.W.

Third Floor Washington, DC 20006

San Francisco, CA 94111 (202) 637-5390

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

® giz Ss 60

QUESTION PRESENTED

Congress determined in enacting § 8(f) of the National

Labor Relations Act, as amended, that National Labor

Relations Board conducted representational elections “are

not feasible” in a “large segment” of the construction

industry and that in the normal case the signatory union

to a § 8(f) pre-hire agreement permitted by § 8(f) will

be the majority representative of the employees who work

under the agreement. The question presented by this

cross-petition is:

Whether, in the face of these congressional determina-

tions, the NLRB’s adoption of a per se rule requiring a

construction industry union which is signatory to a

§8(f) agreement to prevail in a Board-conducted rep-

resentation election (or as an equivalent to secure volun-

tary employer recognition as the majority representative

of the employer’s current employees) in order to enjoy

full exclusive bargaining representative status, is con-

trary to law? *

* The parties to this proceeding are International Association

of Bridge, Structural and Ornamental Iron Workers, etc., Local 3,

AFL-CIO, John Deklewa, Theodore Deklewa and Robert Deklewa,

d/b/a John Deklewa & Sons and/or John Deklewa & Sons, Inc.,

and the National Labor Relations Board.

(i)

TABLE OF CONTENTS

Page

a) yy ty lpg 1) aes i

STATEMENT OF THE CASE ..........................20:.--..---000 2

REASONS FOR GRANTING THE WRIT .................. 5

SPIO, eincécnckenseoatesascsssannacsamrnsasscneincncineisienapsanansantis 12

(iii)

iv

TABLE OF AUTHORITIES

CASES: Page

Bricklayers Local 3, 162 NLRB 476 (1966) ............ 11

First National Maintenance Co. v. NLRB, 452 US.

ae ceaptnenintions 9

International Ass’n of Bridge, Etc. Local 3 v.

NLRB, 843 F.2d 770 (3d Cir. 1988) ...................... 1

John Deklewa, et al. v. NLRB, et al., Supreme

RI I sera circ cent iceconbicielks dcnbntinesaniicuededanss 1,2,6,12

Labor Board v. Insurance Agents, 361 U.S. 477

I Sci clin absaathalebioacesuanhashics dest eoslenltaahasaieinckensimmnioniaphenine 11

Motor Vehicle Mfrs. Assn. v. State Farm Mut., 463

I i 7

NLRB v. City Disposal Systems, Inc., 465 U.S. 822

(TARR aS en tii csi Re al Cae RAE 9

NLRB v. Iron Workers, 434 U.S. 355 (1978)

(Higdon Construction Co.) .............................------ 10

STATUTES:

National Labor Relations Act, as amended, 29

U.S.C.

SII ILTT ED - ni isisih aasensearhasdaestdadabieidadseeaiiansenabeniihiedaialiais 10

SII Cinsi tau teiaceedncent casas shi shat inet aadecaebeaiaansentaes passim

MISCELLANEOUS:

Legislative History of the Labor-Management Re-

porting & Disclosure Act of 1959 (GPO 1960) ....7, 8, 11

S. Rep. No. 187, 86th Cong., Ist Sess. (1959).......... 7,8

IN THE

Supreme Cmut of the United States

OCTOBER TERM, 1988

No.

INTERNATIONAL ASSOCIATION OF BRIDGE,

STRUCTURAL AND ORNAMENTAL IRON

WORKERS, ETC., LOCAL 3, AFL-CIO,

e Petitioner,

NATIONAL LABOR RELATIONS BOARD

and

JOHN DEKLEWA, THEODORE DEKLEWA and

ROBERT DEKLEWA, d/b/a JOHN DEKLEWA & SONS

and/or JOHN DEKLEWA & SONS, INC.,

Respondents.

CROSS-PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

International Association of Bridge, Structural and

Ornamental Iron Workers, etc., Local 3, AFL-CIO, (“the

Union’), petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Third Circuit in International Ass’n. of Bridge, Etc.,

Local 3 v. NLRB, 843 F.2d 770 (3d Cir. Nos. 87-3121,

87-3192 & 87-3231; April 12, 1988). This cross-petition

is conditioned on the granting in whole or in part of the

petition for a writ of certiorari in John Deklewa, et al.

v. NLRB et al., Supreme Court No. 88-70, which seeks

Z

review Of the same judgment and which was served on

monmee! for the Union on July 11, 19%%.' The Union is

filing contemporaneously herewith a brief in) opposition

lo the cerhiorart petition in No. #K-70; in the event that

petition ia denied, the Union requests the Court to deny

thie petition as well

STATEMENT OF THE CASE?

This case proceeded on a stipulation of facts (Pet. App.

ln thar’ whieh the National Labor Relations Board

fairly summarized in ita decision herein. We therefore

state the facta by reprinting that summary (omitting

oily the facts relevant to establishing the Board's juris-

lietion and oo diseussion of a grievance filed under the

collective: bargaining agreement here that is no longer

relevant)

John Deklewa & Sens, Inc., a Pennsylvania

corporation, has oan office in’ Bridgeville, Pennsyl-

vania, where it is engaged in the business of heavy

construction... . John Deklewa & Sons, a partner-

ahip with an offlee at the same loeation as the .

Corporation, is engaged in the construction of com-

mereial and industrial buildings.

The Tron Workers Employer Association of West-

ern Pennsylvania, Ine. (the Association) is an or-

RanMization composed of approximately 35) construe-

fion industry employers. The Association represents

' The citations to the opmiens below, the basis of this Court's

urisdietion and the pertinent statutory Provisions are set out at

Pp. 1-2 of the eerfionan: petition in Ne. 88-70, and are therefore not

popoated here

"With a miner change in the first paragraph, this statement of

he ease is taken verbatim from the statement in the Brief In

ppasition For Respondent Unien in the connected case of John

Dehleow ‘ r ; National labor Ne lations Roard, etal > No SS i)

. Pet App” refers to the appendix to the certiorari petition im

“¢

he . 7 . " , 2 ? ? > r ; > = . > =

hc em Vio CANE ot ef 4 he ar Siew. «7 a ’ \ i RR, ‘ f i... No SS 40,

3

its employer-members in negotiating and adminis-

tering collective bargaining agreements with the

(International Association of Bridge, Structural and

Ornamental Iron Workers, Local 3, AFL-CIO]. The

Association and the Union have been parties to suc-

cessive collective bargaining agreements for at least

the past 30 years, the most recent relevant contract

having been effective 1 June 1982 through 31 May

1985.

On 24 June 1960 the [Employer] entered into a

prehire agreement with the Union under which the

[Employer] agreed to be bound by the provisions of

the contract between the Association and the Union.

For the next 20 years the [Employer] executed and

adhered to the successive Association-Union collec-

tive-bargaining agreements. The [Employer] did so

as a separate entity and not by virtue of any mem-

bership in the multiemployer group.

In June 1980 the [Employer] became a member

of the Association, and subsequently executed the

1982-1985 agreement with the Union. This contract

had a 60-day notice of termination provision, an ex-

clusive hiring hall provision, and a union-security

clause. On 21 September 1983 the [Employer]

timely resigned its membership in the Association.

The Association has not opposed this resignation, but

it considers the |Employer] bound to the terms of

the 1982-1985 agreement. On the same date that it

resigned from the Association, the [Employer] noti-

fied the Union that it was repudiating the contract

and withdrawing recognition. The |Employer| was

not engaged in any construction projects on 21 Sep-

tember 1983 on which it directly employed employees

covered by the 1982-1985 labor agreement, and from

that date until the 3 May 1984 date of the parties’

stipulation the [Employer] has not directly em-

ployed any such employees.

By letter dated 27 September 1983, the Union ob-

jected to the |Employer’s] repudiation of the agree-

ment and withdrawal of recognition... .

4

The parties stipulated that from June 1960 until

its September 1983 repudiation: the [Employer] re-

lied exclusively on the Union’s hiring hall for its

ironworkers; all these employees were union mem-

bers; they were hired on a jobsite-to-jobsite basis;

and the [Employer] adhered to the terms of the ap-

plicable collective-bargaining agreement on all its

projects. On many of these projects the [Employer]

did not hire ironworkers directly, but used subcon-

tractors who were signatory to the Union-Association

agreement.

At all times material here, approximately 30 of

the 35 members of the Association have, on a con-

tinual and regular basis, been engaged in projects

requiring the direct employment of employees cov-

ered by the Association-Union agreement. These em-

ployees have been members of the Union or have

adopted the Union as their collective-bargaining rep-

resentative. A majority of such employees moved

from job to job and from employment by one mem-

ber of the Association to another in response to work

opportunities. Between 1 June 1982 and the date of

the stipulation here, the |Employer]| engaged in three

projects on which it directly employed employees

covered by the 1982-1985 agreement, the last of

which was completed in April 1983. [Pet. App. 53a-

56a. |

On these facts the Board found that

the [Employer] violated Section 8(a)(5) and (1)

by repudiating the 1982-1985 contract with the

Union and withdrawing recognition during the con-

tract’s term. The [Employer] voluntarily entered

into an 8(f) relationship with the Union and signed

the contract. This contract was binding, enforceable,

and not subject to unilateral repudiation by the

[Employer]. Because the contract has expired, how-

ever, the Union enjoys no continuing presumption of

majority status, and the [Employer] is not com-

pelled to negotiate or adopt a successor agreement

5

based solely on the existence of an 8(f) relationship.

In addition, the Union is not entitled to engage in

any coercive conduct, including strikes and picket-

ing, to force the [Employer] to execute a successor

8(f) agreement. [Pet. App. 96a. |

These findings were predicated on the Board’s decision

to abandon its then-current approach to §8(f) of the

National Labor Relations Act, as amended, 29 U.S.C.

§ 158(f)—the provision which permits employers and

unions in the construction industry to enter into collec-

tive bargaining agreements even though the union’s ma-

jority status is not established prior to doing so—and to

instead “apply the following principles in § 8/f) cases’:

(1) a collective-bargaining agreement permitted by

Section 8(f) shall be enforceable through the mech-

anisms of Section 8(a)(5) and Section 8ib) (3);

(2) such agreements will not bar the processing of

valid petitions filed pursuant to Section 9(c) and

9(e); (3) in processing such petitions, the appro-

propriate unit normally will be the single employer’s

employees covered by the agreement; and (4) upon

the expiration of such agreements, the signatory

union will enjoy no presumption of majority status,

and either party may repudiate the 8(f) bargaining

relationship. [Pet. App. 58a-59a. ]

On cross petitions for review filed by the Employer

and the Union, and the NLRB’s petition for enforcement,

the Court of Appeals affirmed the Board in all respects.

REASONS FOR GRANTING THE WRIT

In its decision in this case, the National Labor Rela-

tions Board stated two basic rules for implementing

§ 8(f) of the National Labor Relations Act, as amended,

the provision permitting employees and unions in the

construction industry to enter into coilective bargaining

agreements even though the union’s majority status is not

established prior to doing so:

6

(1) a collective-bargaining agreement permitted by

Section 8(f) shall be enforceable through the mech-

anisms of Section 8(a) {5} and Section 8(b) (3);...

and [2] upon the expiration of such agreements, the

signatory union will enjoy no presumption of major-

ity status, and either party may repudiate the 8(f)

bargaining relationship. [Pet. App. 58a-59a. |]

The Employer’s certiorari petition in John Deklewa,

et al. v. NLRB, et al., No. 88-70, challenges the first of

these rules. We submit, for the reasons developed in our

brief in opposition there, that review by this Court of

the Board’s present approach to § 8(f) is premature at

this nascent stage in the process of litigating elucidation.

In this conditional cross-petition, we submit further

that if the Court determines that the time is ripe to

consider the status and effect of § 8(f) agreements, that

consideration should include not only the Board rule that

governs while the agreement runs its limited term but

also the rule that governs when the agreement termi-

nates; the inevitable next stage in a continuous prucess.

Given the inextricable interrelation between the two

Board rules, we believe that the Court would clearly

benefit in its deliberations by considering both together.

And we believe, too, that in terms of judicial efficiency

such an approach is superior to the alternative of consid-

ering the rule governing § 8(f) agreements during their

term on its own. These points seem to us largely self-

evident and we therefore do not belabor either one.

It is our position, moreover, that while the Board rule

challenged by the Employer’s certiorari petition in No.

88-70 is entirely correct, the related Board rule we call

into question here is entirely wrong. The second part of

that proposition is, to be sure, not self-evident and at this

juncture we therefore outline our supporting argument.

Under the narrowest standard for judicial review of

agency action—the “arbitrary and capricious” standard

7

—the agency’s ruling must be “rational, based on con-

sideration of the relevant factors and within the scope

of the authority delegated to the agency by the statute.”

Motor Vehicle Mfrs. Assn. v. State Farm Mut., 463 U.S.

29, 42 (1983) (emphasis added). The Board rule that

“upon the expiration of § 8(f) agreements, the signatory

union will enjoy no presumption of majority status, and

either party may repudiate the 8(f) bargaining rela-

tionship,” Pet. App. 59a, is inconsistent with the Board’s

own statement of the premises on which Congress acted

in enacting § 8(f) and thus fails in the most basic sense

to meet the test of rational agency decisionmaking.

The Board recognized that the 1959 Congress crafted

$ 8(f) to fit the collective bargaining system fostered by

the NLRA into the following unique characteristics of

the construction industry:

First, since the Board did not take jurisdiction over

the construction industry until 13 years after the NLRA

was passed it “had become established practice in the

construction industry for employers to recognize and

enter into collective-bargaining agreements with a con-

struction industry union for periods ranging from 1 to 3

years even before any employees had been hired. S. Rep.

1 Leg. Hist. 423.” Pet. App. 66a. While “the Board

had found unlawful the bargaining, referral, hiring, and

employment practices common in the industry,” Pet. App.

67a, the 1959 Congress regarded those practices as de-

sirable and worthy of preservation because the industry

pattern is essential to meet the needs of industry em-

ployees who wish to engage in collective bargaining as

well as the needs of industry employers who must, e.g.,

“know [their] labor costs before making the estimate

4 The Board decision uses the form “S.Rep.” and “Leg. Hist.” to

refer to S. Rep. No. 187, 86th Cong., lst Sess. (1959) and to the

NLRB, Legislative History of the Labor-Management Reporting and

Disclosure Act of 1959 (G.P.O. 1959) and we incorporate the Board’s

form herein.

8

upon which [their] bid will be based... ,” Pet. App.

66a quoting S. Rep., 1 Leg. Hist. 424.

Second, Congress recognized, too, that in “construction,

an employee or group of employees ‘typically works for

many employers and for none of them continuously. Jobs

are frequently of short duration, depending on various

stages of construction.’ S. Rep., 1 Leg. Hist. 423... .

[Blecause of the short and sporadic periods of employ-

ment typical to the industry, ‘[r]epresentational elections

in a large segment of the industry are not feasible,’

S. Rep., 1 Leg. Hist. 451-452.” Pet. App. 66a-67a.

And, third, Congress recognized that “[a] substantial

majority of the skilled employees in [the construction]

industry constitute a pool of . .. help centered about

their appropriate craft union,” Pet. App. 66a, quoting

S. Rep., 1 Leg. Hist. 424, and that “‘[i]f the employer

relies upon this pool of skilled craftsmen, members of the

union, there is no doubt under these circumstances that

the union will in fact represent a majority of the em-

ployees actually hired.’ S. Rep., 2 Leg. Hist. 424.” Pet.

App. 71a.

Given Congress’ premises in enacting § 8(f), two con-

clusions follow ineluctably.

“é

(1) Congress recognized that “[r]epresentational elec-

tions in a large segment of the industry are not feasible.”

Thus requiring a construction industry union to obtain

a Board certification after a representation election (or

its equivalent, employer recognition based on proof of a

majority among the employer’s current employees) in or-

der to secure full exclusive representative status frus-

trates Congress’ intent in enacting § 8/(f).

(2) Congress recognized that a pre-hire agreement be-

tween an employer and a construction industry union

which results in the employer hiring from the skilled pool

of craftsmen centered about that craft union to be as

9

reliable an indicator that the union is the employees

chosen collective bargaining representative as a certifica-

tion after a representation election in other industries

covered by the Act; as the 1959 Senate Report put it,

“there is no doubt under these circumstances that the

union will in fact represent a majority of the employees

actually hired.” Again the failure to recognize as much

frustrates Congress’ intent in enacting § 8/f).

The Board has nonetheless laid down a per se rule

that a construction industry unicn can obtain full ex-

clusive bargaining representative status—with all the

rights and privileges ef that status—vonly if the union is

certified after a Board-conducted representation election

or is voluntarily recognized by the employer on the basis

of proof of majority among the employer’s current em-

ployees. Pet. App. 59a; 84a.

Absent such a certification or recognition, at the ex-

piration of a § 8(f) agreement, the decisicn below grants

the signatory employer the unfettered option to refuse to

deal with the signatory union without regard to the

length of their prior relationship and without any basis

for doubting the particular union’s majority status.

Granting employers such an option cuts deeply against the

NLRA poliey of “channeling conflict between labor and

management,” First National Maintenance Co. v. NLRB,

452 U.S. 666 (1981), as a means of minimizing indus-

trial strife. Furthermore, the Board’s decision strips the

union, and the employees the union represents, of the

right to strike or picket in an effort to secure a succes-

sor agreement. Doing so is equally inconsistent with the

Act’s emphases on“equalizing the bargaining power of the

employee with that of his employer,” NLRB v. City Dis-

posal Systems, Inc., 465 U.S. 822, 835 (1984).

Plainly then the Board’s conclusion that recognition

through a §8(f) agreement is never a sufficient basis

for full exclusive representative status is at war with

10

Congress’ premises in enacting § 8(f) as the Board itself

restated those premises. As we have seen, the legislative

effort that produced § 8(f) was not aimed solely at mak-

ing certain types of contracts enforceable for their term;

§ 8(f) rests on the premise that the usual processes for

obtaining full exclusive representative status—the very

process the Board here has required construction industry

unions to invoke—are not practicable in this industry and

that alternative means for obtaining that status are re-

quired. Driving construction unions back to the Board’s

election processes in this way makes a mockery of the

legislative process as it unfolded in 1959.

The Board offered a single justification for the anomaly

its decision creates:

If, ...a union acquires full 9(a) status based...

on the employer’s adoption of an 8/f) agreement...

the signatory union. . . could lawfully seek to compel

the employer, through strikes or picketing, to nego-

tiate and sign a successor agreement. This would

be directly contrary to the express congressional

mandate that an employer cannot be coerced, through

strikes or picketing, into negotiating or adopting an

8(f) agreement.

39 The Conference Report on the 1959 amendments, see 2

Leg. Hist. 934, 946, states that “[nlothing in [Section 8(f) |

is intended . . . to authorize the use of force, coercion, strikes,

or picketing to compel any person to enter into such [8(f) ]

agreements.”

[Pet. App. 80a-81a. |

The NLRA, as this Court has noted, embodies a “Con-

gressional concern about coerced designations of bargain-

ing agents,” NLRB v. Iron Workers, 434 U.S. 335, 347

(1978) (Higdon Construction Co.); for that reason,

§$ 8(b) (7) of the Act strictly limits the use of “economic

weapons to force recognition from an employer,” id. at

346. But once a bargaining relationship is established,

the Act allows for the free play of economic forces as

“part and parcel of the process of collective bargaining.”

ee S

11

Labor Board v. Insurance Agents, 361 U.S. 477, 494

(1960).

The legislative history respecting the use of economic

force to secure a § 8(f) agreement must be understood

in this context. As the Board itself recognized in its

earliest decisions under § 8(f), what concerned the 1959

Congress was the use of economic evercion as part of “an

initial attempt by a union and an employer in the con-

struction industry to commence ... a [bargaining rela-

tionship].” Bricklayers Local 3, 162 NLRB 476, 478

(1966) (emphasis added). Senator Kennedy made this

explicit in the very statement that establishes the con-

gressional intent to preclude union coercion: “The pur-

pose of this section is to permit voluntary prehire agree-

ments. This is because of the inability to conduct repre-

sentation elections in the construction industry.” 2 Leg.

Hist. 1715.

In § 8(f), Congress thus sought to assure that con-

struction industry employers would be free to enter, or

not enter, a prehire agreement in the same way—and to

the same extent—that employers in other industries were

(and are) free to decide whether to extend voluntary

recognition to a union. There is no hint in the legislative

materials that Congress sought to insulate construction

industry employers from economic pressure respecting

the terms of successor agreements, any more than any

other employer who extends voluntary recognition to a

union is insulated from such pressure in negotiations for

successor agreements.

Thus, on examination, the Board’s purported justifica-

tion of its per se rule that “upon the expiration of

[§ 8(f)] agreements, the signatory union will enjoy no

p.2sumption of majority status, and either party may

repudiate the § 8(f) relationship,” Pet. App. 59a, turns

out to provide no justification at all for that rule.®

5 Given the importance of employee free choice in the NLRA

scheme we hasten to note that the Board does not—and could not

12

CONCLUSION

For the above stated reasons this petition for a writ of

certiorari should be granted if the certiorari petition in

the connected case of John Deklewa, et al. v. NLRB, et al.,

No. 88-70, is granted.

Respectfully submitted,

STANFORD A. SEGAL

1708 Law & Finance Building

Pittsburgh, PA 15219

LAURENCE J. COHEN

1125 15th Street, N.W.

Washington, DC 20005

Of Counsel: LAURENCE GOLD

VICTOR VAN BOURG (Counsel of Record)

875 Battery Place 815 16th Street, N.W.

Third Floor Washington, DC 20006

San Francisco, CA 94111 (202) 637-5390

—claim that the rule we challenge here protects employee rights.

Indeed, as the Board itself points out in another part of the decision

below:

A rule granting unilateral repudiation rights to an employer

who voluntarily enters a collective-bargaining agreement is not

a necessary predicate for advancement of the employee free

choice principles embodied in [§ 8(f)’s] second proviso... .

[A]n employer’s decision to repudiate may be based on the

employer’s cwn economic considerations, without reference to

or concern for the employee’s desire to continue the status quo.

Even if the employer has a legitimate question as to its em-

ployees’ representational desires, Congress has expressly pro-

vided an electoral mechanism for testing them. [ Pet. App. 74a.]

LL