Opposition Brief — District Council of Iron Workers of California v. Camping Construction Co.

Supreme Court, US

FILED

No. 90-1413 APR 10 1998

| OFFICE OF THE G

In The

Supreme Court of the United States

October Term, 1990

+

DISTRICT COUNCIL OF IRON WORKERS

OF THE STATE OF CALIFORNIA AND

VICINITY, L- CIO, an unincorporated

association, and Iron Workers Local Union

No. 378, an unincorporated association,

Petitioners,

CAMPING CONSTRUCTION COMPANY,

Respondent

—

Petition For A Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

oo

BRIEF IN OPPOSITION

n

Mark R. THierman*®

Joun W. Pracer, Jr

Rosert Frep

THIeERMAN, Coox, Brown & Pracer

601 California Street,

17th Floor

San Francisco, CA 94108-2822

(415) 391-9200

Attorneys for Respondent

Camping Construction Company

Counsel of Record

April 1991

COLELE LAW G20) PRINTING CO. Gee 240

O8 CALL COLLACT a) M).2a))

QUESTIONS PRESENTED

1. DOES THE COURT, RATHER THAN AN ARBITRA-

TOR, HAVE THE OBLIGATION UNDER FEDERAL

LABOR LAW AND POLICY TO DETERMINE WHETHER

A COLLECTIVE-BARGAINING AGREEMENT ARISING

UNDER SECTION &f) OF THE NATIONAL LABOR

RELATIONS ACT, AND EXECUTED AND REPUDIATED

PRIOR TO THE DECISION OF THE NATIONAL LABOR

RELATIONS BOARD IN JOHN R. DEKLEWA & SONS,

282 N.L.R.B. 1375 (1987) ENF. SUB. NOM. INTERNA-

TIONAL ASSOCIATION OF BRIDGE, STRUCTURAL &

ORNAMENTAL IRONWORKERS, LOCAL 3 V. N.L.R.B.,

843 F. 2d 70 (3rd CIR.), CERT. DEN. 488 U.S. 889 (1988)

HAS BEEN REPUDIATED, OR CONTINUES TO EXIST?

TABLE OF CONTENTS

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STATEMENT OF THE CAS ll...

REASONS FOR DENYING THE WRIT.............

THE ISSUE OF DEKLEWA RETROACTIVITY IS

NOT BEFORE THE COURT IN THIS CASE BUT

SHOULD THE COURT DEEM PLENARY

REVIEW PROPER SUCH REVIEW SHOULD

INCLUDE THE MERITS OF THE ADOPTION OF

THE DEFERRAL BY THE COURT TO THE

BOARD'S “LAW CHANGING” DECISION IN

, ˙AA ; nne.

NO CONELICT EXISTS WITH THE PRIOR

DECISIONS OF THE COURT ON THE ISSUE OF

ARBITRABILITY OF DISPUTES................

, · .

iv

TABLE OF AUTHORITIES

Cases

AT&T Techno v. Communications Workers,

47S UG. CEB TIGGE) 2. „ 6

Brotherhood of Teamsters & Auto Truck Drivers

Local No. 70 v. Interstate Distributor Co., 832

R2d S07 (th Cie. 1967)... cccccccccccccccccces

lon Construction v. District Council of Painters

No. 16, 803 F.2d 1050 (9th Cir. 1986)...........

Jim McNeff v. Todd, 461 U.S. 260, 103 S. Ct. 1753

. oc ccccccvccccccasccccccescevcesscevecesece

John R Deklewa & Sons, 282 N.L.R.B. 1375 (1987),

enf. sub. nom. International Association of

Bridge Structural & Ornamental Ironworkers,

Local 3 v. N.L.R.B., 843 F. 2d 70, cert. den. 488

UD. GED CIGD o ccccccccccccccccvcccavcccsecece

Mesa Verde Construction v. Northern California

District Council of Laborers, 885 F.2d 594 (9th

pan e den. U.S. 59 US LW. 3250

%CCCCVTTTCVTTTTTTTT

Mitsubishi Motors * v. Soler Chrysler -Plym-

outh, Inc, 473 U.S. 614

Ornamental Ironworkers, Local 3 v. N.L.R.B., 843

F.2d 70 (3d Cir. 1988), cert. den. 488 U.S. 889

CIDE oo co cvcccccccccccvcvccccsscccocceseescoess

Shearson/American Express, Inc. v. McMahon,

462 US. 22D (1967) 2. cccccccccccccccecccccscces

Steelworkers v. American Mfg. Co., 363 U.S. 564

. cccccccccccccccccccsssccccccscvccescuecs

Steelworkers v. Enterprise Wheel & Car Corp., 363

CLI

Steelworkers v. Warriors & Gulf Navigation Co,

SES US. SFE CIDER)... ccccvcccscccccessccvccces:

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OPINIONS BELOW

The relevant opinions below are set forth at page 2 of

Petitioners’ Iron Workers Petition for a Writ of Certiorari

to the United States Court of Appeals for the Ninth

Circuit, No. 90-1413. (“Petition”).

eo —

JURISDICTION

The relevant jurisdictional history is set forth at Peti-

tion, page 2. The Petition was received on March 11, 1991.

This opposition is timely filed under 28 U.S.C. § 2101 and

Rule 12 of the Court.

—>

STATUTES INVOLVED

The relevant statutory provisions are set forth at

Petition, page 3 and Appendix H.

—

STATEMENT OF THE CASE

On September 16, 1987, Camping Construction Com-

pany (“Camping”) filed a Complaint for Declaratory and

injunctive Relief in the U.S. District Court for the North-

ern District of California, invoking the jurisdiction of that

Court under Section 301 of the Labor-Management Rela-

tions Act of 1947, as amended, 29 U.S.C. §185. The Com-

plaint sought the intervention of the District Court in a

dispute over whether the conduct of either Camping or

the Unions negated the continued existence of a collec-

tive-bargaining agreement and the continued vitality of

the arbitration provisions thereof. Camping contended

that if there was no collective-bargaining contract extant

between the parties, then a fortiori there was no agree-

ment to arbitrate disputes arising out of events occurring

subsequent to that contract’s demise.

The facts were not in dispute. In 1978 Camping exe-

cuted a pre-hire memorandum agreement with the Peti-

tioners, District Council of Iron Workers and Iron

Workers Local 378. The master agreement to which the

memorandum agreement referred contained grievance

and arbitration provisions and a termination date of June

30, 1980. The Unions notified Camping of their desire to

modify the agreement on February 21, 1980, thus trigger-

ing the termination of the collective-bargaining agree-

ment on June 30, 1980, or so Camping contended.

Camping, in reliance upon that position, did not comply

with the agreement's provisions after June 30, 1980, and

believed that its open and notorious failure to do so was

known to the Unions, which began to picket Camping at

jobsites within their jurisdiction.

Seven years later, however, the Unions sought to

invoke the grievance and arbitration provisions of the

then current Master Labor Agreement, a collective-bar-

gaining agreement to which Camping had never

assented. Grievances filed by the Unions alleging viola-

tions of that agreement's provisions were premised upon

Camping’s failure to have used the Unions’ members on

Camping’s construction projects in 1987, and were sched-

uled for arbitration before the Board of Adjustment pro-

vided for in that Master Labor Agreement.

_ 1 ⁰

Since the existence of an agreement to arbitrate dis-

putes is for a court, not an arbitrator, to decide, Camping

sought to have the District Court review whether it was

bound to arbitrate the asserted grievances of the Unions,

and to stay the scheduled arbitration proceedings pend-

ing such review.

The District Court, at Camping’s request, issued a

Preliminary Injunction staying arbitration proceedings

pending final disposition of the issue before the Court as

to whether Camping was bound to a contract calling for

arbitration of disputes. It is the propriety of the issuance

of that injunction which is at issue in the Cross Petition

for Certiorari being filed by Camping in conjunction with

this Opposition.

Although the District Court subsequently granted

summary judgment for the Unions - concluding that the

question of the collective-bargaining agreement's termi-

nation, lawful repudiation, and very existence was for the

arbitrator to determine the U.S. Court of Appeals for

the Ninth Circuit partially disagreed. It held (1) the issue

as to the “termination” of the agreement was for the

arbitrator, (2) the issue as to the lawful repudiation of the

Section 8(f) pre-hire collective-bargaining agreement was

for the District Court to decide, but (3) the District Court

could not issue an order staying arbitration proceedings

without full compliance with the provisions of the

Norris-LaGuardia Act, 29 U.S.C. §§101-115.

Petitioners have requested certiorari on the second of

these three issues, as to whether the court, not an arbitra-

tor should properly decide whether an otherwise lawful

pre-Deklewa repudiation occurred, framed, as an implicit

condition predicate, in terns of a generalized request for

review by the Court of the underlying issue of retroactive

application of Deklewa.

*

REASONS FOR DENYING THE WRIT

I. THE ISSUE OF DEKLEWA RETROACTIVITY IS

NOT BEFORE THE COURT IN THIS CASE BUT

SHOULD THE COURT DEEM PLENARY REVIEW

PROPER SUCH REVIEW SHOULD INCLUDE THE

MERITS OF THE ADOPTION OF AND DEFERRAL

BY THE COURT TO THE BOARD'S “LAW CHANG-

ING” DECISION IN THAT CASE

Petitioners raise no real issue that may be determined

by the Court without revisiting either the no-retroactivity

rule of Mesa Verde’ and the substantive validity of the

decision of the National Labor Relations Board in

Deklewa.? Prior to Deklewa, the Board, the Circuits and the

Court all considered repudiation an integral characteristic

of section 8(f) agreements. Absent Deklewa, it is plain that

repudiation rights are not grievable because no arbitra-

tion obligations can arise from a contract that does not

exist. The Board’s construction of the Act, adopted by the

1 Mesa Verde Construction v. Northern California District

Counsel of Laborers, 885 F.2d 594 (9th Cir.), cert. den. U

___, 59 U.S.L.W. 3250 (1990).

2? John R. Deklewa & Sons, 282 NL REH 1375 (1987), emf. sud.

nom. International Association of Bridge Structural & Ornamental

Ironworkers, Local J N.L.R.B., 843 F.2d 70 (3d Cir. 1988), cert.

den. 488 U.S. 889 (1988).

Court in McNeff and the Ninth Circuit in lon Construction,*

and affirmed in Interstate Distributor Co.* and Camping, gives

no hint of any controversy whatsoever on this issue.

The decision below simply confirms that since

pre-Deklewa repudiations under 800 agreements are not

grievable, the Court retains primary jurisdiction to deter-

mine whether repudiation has occurred. Factually it is no

different from that presented in Mesa Verde save that the

issue of repudiation has not yet been decided by a Dis-

trict Court. The issues of retroactivity were fully briefed

in Mesa Verde and Petitioners’ brief herein adds no new

arguments“ Deklewa retroactivity is simply not before the

Court in this case, and for that reason is not ripe for

decision. Should the Court deem plenary review justified,

Camping respectfully requests that the Court exercise the

same discretion with respect to the Questions Presented

in the Cross-Petition previously filed in Mesa Verde, on

the merits of the adoption of and deferral by the Court to

the Board's “law changing” decision in Deklewe.”

* Jim MeNeff v Todd, 461 U.S. 260, 103 S Ct. 1753 (1983).

* lon Construction v District Cowncil of Painters No. 16, 803

F.2d 1050 (9th Cir. 1986).

* Brotherhood of Teamsters & Auto Truct Drivers Local No. 70

& Interstate Distributor Co. 832 F.2d S07 (9th Cir. 1987)

A copy of the Response filed by Mesa Verde on the issue

of retroactivity is attached herein as Appendix A“ for the

convenience of the Court in assessing the underlying merits of

Petitioners’ request for plenary review.

For the convenience of the Court, the Cross Petition in Mess

Verde Construction Co. d Northern California District Council of

Laborers, et al. Case No. 89-1874 is reproduced at Appendix “B*

nT

6

Il. NO CONFLICT EXISTS WITH THE PRIOR DECI-

SIONS OF THE COURT ON THE ISSUE OF ARBI-

TRABILITY OF DISPUTES

Similarly, no substantive conflict exists with respect

to the presumption in favor of arbitrability of contractual

disputes. That presumption, which has its genesis in the

willing agreement of contracting parties, depends on the

statutory framework that governs their substantive con-

duct. In purporting to rely on that presumption, Peti-

tioner is simply missing - or obscuring - the point. Rights

arising under federal enactments, whether it be federal

antitrust doctrine securities law“ or federal labor law,

are specific to those enactments and their own unique

policy considerations. The scope of any presumption as to

the “arbitrability” of statutory rights is for Congress and

the Court to determine. The issue is not whether as a

generalized proposition, because they are of statutory

origin, rights so created are, a fortiori, not arbitrable, but

whether the particular statutory right of repudiation is

consistent with the statutory scheme set forth in section

8(f) of the National Labor Relations Act.'®

® See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,

Inc., 473 U.S. 614 (1985).

% Shearson/American Express, Inc. v. McMahon, 482 U.S. 220

(1987).

0 29 U.S.C. 158 (f). The independent non-arbitrable char-

acter of a section 8(f) repudiation is not premised on the

inviolability of the labor agreement or any supposed gener-

alized immunity from arbitration. To the contrary, the Court

has, in cases ranging from the Steelworkers Trilogy (Steelworkers

v. American Mfg. Co., 363 U.S. 564 (1960); Steelworkers v. Enter-

prise Wheel & Car Corp., 363 U.S. 593 (1960); Steelworkers v

(Continued on following page)

The substantive issues of uniform application of fed-

eral statutory law advanced by Petitioner simply do not

arise and no certworthy issue is presented. The myth of

immortality vested in the right of repudiation by Peti-

tioner by virtue of the automatic renewal of construction

industry collective-bargaining agreements does not coin-

cide with the harder realities of the Ninth Circuit's deci-

sion in Mesa Verde, which forecloses the possibility of

reasonable reliance on the right to repudiate in either

Board doctrine or Ninth Circuit law. Indeed, if repudia-

tion does have continued viability after Mesa Verde, it can

only exist if the Court chooses to revisit that decision on

the merits.

(Continued from previous page)

Warrior & Gulf Navigation Co., 363 U.S. 574 (1960)) to AT&T

Technologies (AT&T Technologies v. Communications Workers, 475

U.S. 643 (1986), acknowledged the traditional role of arbitra-

tion in the processing of grievances arising under labor agree-

ments. Issues of contract formation, termination and,

especially, repudiation are quite another matter. The abuse of

discretion lies in the unfounded belief that repudiation is

grievable in the first instance, not in the rectification of that

error by a district court. Mesa Verde Construction Co. v Northern

California District Council of Laborers, 598 FSupp. 1092 N. D

Cal. 1984)

CONCLUSION

For all the foregoing reasons, Camping respectfully

submits that this Petition for Writ of Certiorari should be

denied. However, should the Court believe that the issues

warrant plenary review, Camping respectfully urges the

Court to grant the Cross-Petition for Writ of Certiorari

filed herewith.

Respectfully submitted,

Marx R. Tuns

Joun W. Pracer, Je.

Rosext Faub

Tem, Coox, Baown & Peraces

601 California Street,

17th Floor

San Francisco, CA 94108-2822

(415) 391-9200

2

Camping ruct ion Company

Counsel of Record

April 1991

App. 1

APPENDIX A

No. 89-1661

—+

In The

Supreme Court of the United States

October Term, 1989

—

NORTHERN CALIFORNIA DISTRICT COUNCIL OF

LABORERS, AND CARPENTERS 46 NORTHERN

CALIFORNIA COUNTIES CONFERENCE BOARD,

Petitioners,

MESA VERDE CONSTRUCTION CO,

Respondent.

+

RESPONSE TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

>

OPINIONS BELOW

The Order and Amended Opinion of the United

States Court of Appeals for the Ninth Circuit after

remand from the en banc Court (Pet. App. A) is reported

at 885 F.2d 594. The Opinion of the en banc Court (Pet.

App. B) filed November 15, 1988 is reported at 861 F.2d

1124. The Opinion of the original three-judge panel of the

United States Court of Appeals for the Ninth Circuit (Pet.

App. O) filed June 23, 1987 is reported at 820 F.2d 1006

The Decision of the United States District Court for the

_

App. 2

Northern District of California (Pet. App. D) filed Decem-

ber 13, 1984 is reported at 598 F. Supp. 1092. The Order of

the United States District Court for the Northern District

of California denying the Motion for Alteration, Amend-

ment or Vacation of Order (Pet. App. E) filed February 11,

1985 is reported at 602 F. Supp. 327.

+

JURISDICTION

The Judgment and Opinion of the original three-

judge panel of the United States Court of Appeals for the

Ninth Circuit was entered on June 23, 1987. A timely

Petition for Rehearing and Suggestion for Rehearing en

banc was filed and granted. The Decision of the en banc

Court reversing the earlier Opinion and remanding the

case to the three-judge panel to determine the question of

retroactivity was filed on November 15, 1988. The Deci-

sion of the three-judge panel after remand was filed on

September 13, 1989. A timely Petition for Rehearing and

Suggestion for Rehearing en banc was filed on September

27, 1989. On January 26, 1990, the Petition for Rehearing

was denied, and the Suggestion for Rehearing en banc

was rejected, and the Order of the three-judge panel was

amended.

The jurisdiction of the Court has been invoked under

28 U.S.C. § 1254(1). The Petition was timely filed with the

Court under 28 U.S.C. § 2101(c), and this Response is

filed pursuant to the Request of the Court.

+

App. 3

STATUTES INVOLVED

The relevant statutory provisions are:

A. National Labor Relations Act, as amended, Sec-

tion 8(f), 29 U.S.C. § 15800.

B. Labor-Management Relations Act of 1947, as

amended, Section 301, 29 U.S.C. § 185.

Pertinent portions of these statutory provisions are

reproduced at Pet. App. F.

+

STATEMENT OF THE CASE

The Northern California District Council of Laborers

(“Laborers”) and the Carpenters 46 Northern California

Counties Conference Board (“Carpenters”) are labor

organizations within the meaning of the National Labor

Relations Act of 1947, as amended (hereinafter “NLRA”),

29 US.C. § 152(d). Mesa Verde Construction Company

(“Mesa Verde”) is an employer primarily engaged in the

construction industry within the meaning of § 8(f) of the

NLRA, 29 U.S.C. § 15800.

In 1979, Mesa Verde entered into its first collective

bargaining agreement with the Laborers, and signed an

additional collective bargaining agreement with the

Laborers on June 26, 1980. On November 17, 1982, Mesa

Verde and the Laborers agreed in writing that their 1980

contract would continue in effect until June 15, 1986.

Mesa Verde first entered into a collective bargaining

agreement with the Carpenters in August, 1979. Through

a subsequent agreement executed in June, 1980, Mesa

— c

App. 4

Verde accepted the new June 16, 1980 to June 15, 1983

Carpenters Master Agreement. On September 8, 1982,

Mesa Verde and the Carpenters entered into an early

extension of the agreement to June 15, 1986. *

Despite the fact that the agreements with both unions

were to remain in effect until June 15, 1986, Mesa Verde,

by way of letters, informed the Unions of its intent to

abrogate or repudiate its collective bargaining agree-

ments in May of 1984. At the time, Mesa Verde was

working on a project in Hercules, California, at which it

employed members of both Unions.

In late May or early June of 1984, Mesa Verde began

work on another project employing non-union workers.

Both unions filed grievances against Mesa Verde and

requested arbitration over Mesa Verde’s contractual obli-

gations on the mew project. Mesa Verde brought suit

under Section 301 of the LMRA, 29 U.S.C. § 185, against

both Unions seeking a declaratory judgment that it need

not comply with the Agreements with respect to projects

begun after its repudiation of the Agreements. The Dis-

trict Court stayed the arbitrations pending resolution of

the declaratory judgment action and later granted Mesa

Verde summary judgment against both Unions.

The District Court concluded that Mesa Verde was a

“project by project” employer, and that neither Union had

“majority” support in the relevant units, ie. the new

projects. The Court held that the collective bargaining

agreements at issue were “pre-hire” agreements autho-

rized by § 8(f) of the NLRA and that Mesa Verde’s May,

1984 letters were sufficient to repudiate the Agreements.

+

App. 5

REASONS FOR DENYING THE WRIT

Summary of Argument

Although the issues underlying Petitioner's argu-

ment are important in the administration of the day-to-

day relationships between construction unions and con-

struction employers, those issues are not of such impor-

tance as to warrant the review of the Court.

The decision of the court below correctly analyzed

whether the “law-changing” decision of the National

Labor Relations Board (“NLRB”) should be applied retro-

actively to the factual situation present in this case. Chev-

ron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349 (1971). Its

decision rested upon settled principles of law.

Although “the general rule of long-standing is that

the law announced in la] Court’s decision controls the

case at bar,” see eg, St. Francis College v. Al-Khazraji, 481

U.S. 604, 608, 107 S.Ct. 2022, 2025 (1987), the Court has

recognized that this general rule is subject to exception

where, inter alia, substantial inequitable results would

occur. See, e.g., Chevron Oil Co. v. Huson, 404 U.S. 97, 92

S.Ct. 349 (1971)

Mesa Verde recognizes that among the members of

the Court, there may be differences of opinion as to the

continued viability of the Court's civil retroactivity doc-

trine, e. g., American Trucking Associations, Inc., et al. v.

Smith, 495 US. __, __ S.Ct. __ (June 4, 1990), but

respectfully suggests that under the reasoning of either

the plurality or dissent in that case, the outcome of this

case would be the same. Hence, review of the “retroac-

tivity” issues presented by Petitioner is unnecessary

App. 6

In its attempt to convince the Court otherwise, Peti-

tioner has mischaracterized certain facts, and over-

emphasized the impact of the decision of the court below.

It does not create the parade of horribles that Petitioner

has suggested.

Finally, this case does not present a situation where

there is a clear conflict among the Circuits on the precise

issues presented.

ARGUMENT

A. The Court Below Correctly Concluded That

Retroactive Application Of The NLRB’s “Law-

Changing” Decision in John R. Deklewa &

Sons, Inc. To The Parties In This Case Was

Unwarranted.

The Chevron Oil v. Huson test to determine whether a

decision should not be given retroactive effect — a test

which apparently still commands support of the plurality

of the Court - has three parts, which may be summarized

as follows:

1. whether the “law-changing” decision is one

of first impression, or overrules clear past

precedent;

2. whether retrospective operation of the law-

changing decision would further or retard

the operation of the rule in question;

3. whether retrospective Moen of the rule

will impose substantial inequitable results.

Application of these three factors to the situation

here reveals the correctness of the decision of the court

below.

App. 7

First, the “repudiation” rule applicable to Section 8(f)

pre-hire contracts, previously grounded in NLRB prece-

dents, see ¢.g., D'Angelo & Kahn, Inc., 248 NLRB 396

(1980), was clearly overruled by the NLRB in john R.

Deklewa & Sons, Inc., 282 NLRB No. 184 (1987). The Ninth

Circuit, which itself had previously adopted the “repu-

diation” rule as the law in its Circuit, see e. g., United Bhd.

of Carpenters & Joiners Local 2247 v. Endicott Enters., 806

F.2d 918 (9th Cir. 1986), clearly “overruled” its own past

precedents on this subject in its en banc decision below.

The pre-Deklewa law concerning a party's ability to

repudiate a pre-hire agreement during its term was abun-

dantly clear, even if the law as to all of the types of

methods to accomplish it was not. The “law-changing”

decision involved here - either the NLRB’s decision, or

that of the Ninth Circuit's en banc panel - overturned the

clear past precedent as to the employer's ability to repudi-

ate such agreements. Under the NLRB’s holding in

Deklewa, neither a union nor an employer has the ability

to lawfully repudiate a pre-hire agreement during its

unexpired term; the question of the proper method to

accomplish such a repudiation has become irrelevant.

Second, retrospective operation of the new “non-

repudiation” rule endorsed by the majority of the en banc

Court below would not further “employee free choice” or

“labor relations stability”. The practical effect of retroac-

tivity of the new “non-repudiation” rule of the NLRB and

Ninth Circuit would be to judicially impose a collective-

bargaining representative upon the “non-union” workers

employed by Mesa Verde on the projects at issue (Pet. p.

App. 8

4), thereby currently depriving them of any free choice as

to a bargaining representative, and depriving them of the

ability they may have had six years ago to renounce the

Union as their representative through an NLRB election.

Moreover, contrary to Petitioner’s suggestions (Pet.

p. 7), “labor relations stability” is fostered, not retarded,

when the parties to a collective-bargaining relationship

even one legitimated by Section 8(f) of the Act - enter

into and live by the rules of such a relationship knowing

their respective rights and obligations. Here, both the

Unions and the Employer must be held to have known

when they entered into their original relationship and

subsequently lived by it that the pre-hire agreements

were voluntary and voidable by either party. The Unions

could not expect that such agreements were enforceable

unless they became the majority bargaining representa-

tive at each new jobsite, Dee Cee Floor Covering, 232 NLRB

421 (1977), and the Employer must be held to have known

that as long as the Union had majority status“, the

Employer would not be permitted to ignore the agree-

ment or the economic consequences of its voluntary exe-

cution. NLRB v. Pacific Erectors, Inc., 718 F.2d 1459 (9th

Cir. 1983).

Petitioner’s stated fears of forum-shopping (Pet. p.

11) should not persuade the Court that a prospective

application of the new rules will retard their operation.

The issue is not whether the NLRB and the courts have

different rules today for the parties to collective-bargain-

ing relationships. Rather, the issue is whether a termina-

tion of the relationship, accomplished in full accord with

the law at the time of the operative conduct, is to be

App. 9

penalized by retroactive adoption of a new rule out-

lawing such termination. Nothing in the law would have

prevented the Unions here from challenging Mesa

Verde’s repudiation of the collective-bargaining agree-

ments in appropriate charges made to the NLRB in 1984

at the time of the operative conduct, or would have

prevented the Unions from arguing to the NLRB that on

the facts or the law, Mesa Verde had unlawfully termi-

nated the collective-bargaining relationship. The Unions

simply chose not to do so, and now complain that their

failure to have done so should be remedied by retroactive

application of rules which did not exist at the time.

Petitioner’s “forum shopping” fears are illusory ones, for

all cases involving repudiation conduct after the date of

the Deklewa decision will be governed by it, and only a

few old situations will be governed by the prior rules.

As to the third prong of the Chevron Oil test -

whether retrospective application of the rule will impose

substantial inequitable results the reliance interests of

the parties clearly suggest that Mesa Verde, and other

employers, who relied upon the fundamental principles

of law developed under Section 8(f) and Section 8(a)(5) of

the Act would be unfairly treated by retroactive applica-

tion of a rule which not only changes their economic and

administrative expectations, but also the length and char-

acter of their relationship with the Unions involved.

Here, the “grievances” of the Laborers and Carpen-

ters deal with alleged violations of the collective-bargain-

ing agreement which occurred after, not before, the

repudiation of the agreement by Mesa Verde (Pet. App.

64a). The undisputed facts reveal that the Unions were

not the freely-chosen majority bargaining representative

App. 10

of the employees working at the construction projects

begun after the May 8 and May 15 repudiations of the

Carpenters and Laborers Agreements. (Pet. App. 84a,

100a)

The economic and administrative consequences of

retroactive application of the new non-repudiation rule

would be to impose upon Mesa Verde the financial bur-

dens of labor costs not expected as to those projects, as

well as the necessity to deal with the Unions as to all the

“wages, hours and other terms and conditions of employ-

ment” of Mesa Verde’s employees notwithstanding the

“non-majority” status of those Unions. Retroactive appli-

cation would likewise impose contractual arbitration

clauses. A voluntary method of settling disputes - favored

by the Court for precisely this reason - would become,

with adroit judicial prestidigitation, involuntary.

This case was carried to judgment in the District

Court on the basis of settled principles of law. Mesa

Verde premised its repudiation conduct on rights

grounded in applicable NLRB and Ninth Circuit prece-

dent, see Dee Cee Floor Covering, Inc., supra; NLRB v.

Pacific Erectors, Inc., supra. The case was litigated with the

understanding of all concerned that the operative princi-

ples governing the parties conduct were clear.

The Court has recognized that the lower courts,

when considering whether a “law-changing” decision

should be applied retroactively, should look at the harsh

and disruptive effects upon the litigants, and should be

guided by the following principles: if the operative con-

duct or events occurred before the “law-changing” deci-

sion, a court should apply the law prevailing at the time

App. 11

of the conduct; otherwise, the court should apply the new

law. American Trucking Associations, Inc. d Smith, supra, 495

US. at __. Recognizing the reliance interests of the par-

ties, that is what the Ninth Circuit has done in this case.

Mesa Verde’s repudiation of the Laborers and Car-

penters agreements occurred almost three years before

the “law-changing” decision of the NLRB in Deklewa.

Therefore, it was proper for the Ninth Circuit to affirm

the District Court's entry of judgment which had applied

the prior law to the conduct which occurred prior to the

“law-changing” decision. This position is consistent with

the Court's precedents in similar circumstances. See, e

Northern Pipeline Construction Co. v. Marathon Pipe Line

Co., 458 U.S. 50, 88, 102 S.Ct. 2858 (1982) (“law-changing”

decision not applied retroactively when to do so would

have upset judgment entered prior to “law-changing”

decision).

In sum, since the Ninth Circuit correctly evaluated

the application of the Chevron Oil factors to this case,

there is no overriding warrant for the Court to exercise its

supervisory power and review the Ninth Circuit's anal-

ysis of the retroactivity issue

B. There Is No Conflict In The Courts Of Appeals

Which Warrants Resolution By The Court At

This Time.

Petitioner suggests that the Ninth Circuit and the

Third, Eighth and Seventh Circuits are in conflict as to

whether the NLRB’s decision in Deklewa should be

applied retroactively. Although it is true that the Third,

Eighth, and Seventh Circuits have seen fit to defer to the

App. 12

NLRB’s conclusion that the new non-repudiation rules

should apply retroactively to pending NLRB cases, see,

Ironworkers Local 3 v. NLRB, 843 F.2d 770 (3rd Cir. 1988);

NLRB v. W.L. Miller Co., 871 F.2d 745 (8th Cir. 1989); NLRB

v. Bufco Corp., _ F.2d __ (7th Cir. 1990), no Circuit

Court is in conflict with the Ninth Circuit on the applica-

tion of such a rule in cases arising under Section 301 of

the LMRA, 29 U.S.C. § 185.

Whatever may be said of the correctness of the non-

repudiation rule adopted by the NLRB in Deklewa, the

“law changing” decision of the NLRB was premised upon

administrative convenience to overcome the NLRB’s per-

ceptions of the evidentiary problems in litigation of

unfair labor practices. The NLRB’s unfair labor practice

decisions do not always formulate the rules for the

enforcement of collective-bargaining agreements under

Section 301. Indeed, that dichotomy was foreseen by the

Court in Jim McNeff, Inc. v. Todd, 461 U.S. 260, 103 S.Ct.

1753 (1983). There, the Court concluded that although a

Section 8(f) pre-hire agreement may form the basis of a

breach of contract claim under Section 301 even if the

Union does not represent a “majority” of the employees

in the relevant unit, such a contract does not obligate the

employer to “bargain” with the Union under penalty of

an unfair labor practice. Jim McNeff, Inc. v Todd, supra;

John R. Deklewa and Sons, Inc., supra.

It would not be improper to have as a matter of

federal labor policy a divergence in the law under differ-

ent Sections of the Labor Act concerning the enfor-

ceability of pre-hire agreements. Since the unfair labor

practice Sections of the Act, and Section 301 serve differ-

ent purposes, Jim McNeff, Inc. v. Todd, supra, it is not

necessary for the Court to fashion rules so as to create

App. 13

identical results under them. Given such, it is not neces-

sary for the Court to review the “retroactivity” analysis of

the Ninth Circuit here simply to attempt to square the

results in the two different lines of cases unfair labor

practices cases, and Section 301 breach of contract cases.

C. Even If The Court's Civil Retroactivity Doctrine

Were To Be lied Simply As A Remedial

One, The le Balance In This Case Tilts

In Favor Of Upholding The Decision Below.

One of the functions of the Court is to construe

statutes, determining the meaning of them as Congress

intended. Chevron U.S.A. v. Natural Resources Defense

Council, Inc, 467 U.S. 837, 104 S.Ct. 2778 (1984). Although

in reviewing an administrative agency's interpretation of

the statute it is charged with enforcing, the Court may

apply a deferential test of “reasonableness”, the judiciary

still is obligated to and does exercise its function with an

eye on what Congress intended to be the law governing

the rights and obligations of the parties regulated by

those statutes. Id.

As Mesa Verde has set forth in its Cross-Petition For

Writ of Certiorari, No. 89-1874, the Ninth Circuit's en banc

decision here gave almost blind deference to an adminis-

trative agency which changed its mind about what rules

were “workable” and about the proper Congressional

intent behind two interrelated Sections of the Labor Act.

Contrary to the Ninth Circuit, the question before it in

this case was not whether the Court's decision in McNeff

can be read as supporting the Board’s decision in

Deklewa, but rather whether the Labor Act's provisions

themselves can support Deklewa. As Justice Scalia has

App. 14

stated: “We defer to agencies, however (and thus apply a

mere “reasonableness” standard of review) in their con-

struction of their statutes, not of our opinions.” NLRB Y

IBEW, Local 340. U.S. ___, 107 S.Ct. 2002, 2015 (1987)

(Scalia, J. dissenting).

Even so, the extent that both the NLRB and the Ninth

Circuit have appropriately changed the law in their

respective jurisdictions so that now Mesa Verde’s lawful

repudiation of its pre-hire agreement would be unlawful,

the question remains as to the remedy. If the dissent’s

view in American Trucking Associations, Inc. v. Smith, supra,

is applied here, this new rule would be applied retroac-

tively to the facts of this case, leaving it to the lower

courts to determine the remedy to be enjoyed by the

Unions. Here the suit was one for declaratory, not mone-

tary, relief, so that a limitation on the scope of recovery

would be inappropriate.

However, the reliance interests of the parties suggest

that the Unions are entitled to no relief. The parties’

relationship was governed by the applicable NLRB prece-

dent, applicable Circuit Court precedent and the Court s

decisions. The conduct of Mesa Verde in repudiating its

Agreements with the Laborers and Carpenters was prem-

ised upon the intent of Congress that pre-hire agreements

were to be “voluntary”, Jim McNeff, Inc. v. Todd, supra,

and the practical realities that minority Unions in the

construction industry were treated differently by Con-

gress when it enacted Section 800 in 1959. .

Principles of equity eschew reliance on rigid applica-

tion of technical rules, and it is precisely for this reason

App. 15

that the Court adopted its Chevron Oil retroactivity doc-

trine. Mesa Verde relied upon the law as it existed in 1984

to repudiate its contracts. The Unions chose not to chal-

lenge such conduct as an unfair labor practice, but chose

to litigate the matter to judgment under that law. It seems

unquestionable that the conduct of Mesa Verde, once

lawful, cannot be made unlawful by changes in the law it

had no hand in shaping, changes it could not have fore-

seen in light of the Court’s decision in McNeff.

The Ninth Circuit correctly rejected rigid adherence

to the new rule, and balanced the equities concluding that

the Unions here were entitled to no relief, albeit doing so

by application of the civil retroactivity principles of Chev-

ron Oil. That equitable balancing in the form of viewing

the matter as one of remedy results in the same conclu-

sion.

Hence, assuming arguendo the correctness of the

Ninth Circuit's deference to the NLRB and its adoption of

Deklewa as the law of that Circuit, the outcome of this

matter should have been, and should be that the Unions

are not entitled to enforce the repudiated pre-hire agree-

ment.

D. Should The Court Grant Review Of The Ninth

Circuit's Retroactivity Decision, The Court

Should Also Review The Underlying “Law-

changing” Decision On Its Merits.

Although the retroactivity issues presented by Peti-

tioner do not warrant review by the Court, Mesa Verde

respectfully suggests that the Ninth Circuit has erred in

not following the Court's decision in Jim McNeff, Inc. v.

App. 16

Todd, supra. There, the Court clearly stated that Section

8(f) pre-hire agreements were voidable and capable of

unilateral repudiation until the Union achieved majority

status in the relevant unit, but were fully enforceable

under Section 301 of the LMRA, 29 U.S.C. § 185, absent

such repudiation. That the NLRB, an administrative

agency, has concluded that such a rule is now “unwork-

able”, or that the Ninth Circuit shares such a view, is no

excuse for either to ignore the applicable precedent of the

Court. As the Court stated only recently: “If a precedent

of this Court has direct application in a case, yet appears

to rest on reasons rejected in some other line of decisions,

the Court of Appeals should follow the case which

directly controls, leaving to this Court the prerogative of

overruling its own decisions.” Rodriguez de Quijas, et al. v.

Shearson/American Express, Inc., 490 US. __, __, 109 S.Ct.

1917, 1922 (1989).

The Court of Appeals below did not respect that

admonition, which clearly was applicable here. It is for

this reason that Mesa Verde has sought the Court's plen-

ary review of the entire Section 8(f) — Section 8(a)(5)

ruling of the NLRB in Deklewa. See, Cross-Petition for

Writ of Certiorari, in No. 89-1874. Unless the Court either

“overrules” its McNeff decision, or “overrules” the Ninth

Circuit en banc decision here, litigants can not know

whether their conduct past or future will expose them to

Sec. 301 liability.

Mesa Verde suggests that the Court's decision in

McNeff rested upon sound reasoning, and carefully bal-

anced union-employer-employee rights in the construc-

tion industry. Respect for the principles of stare decisis

suggests that the Court should not tamper with the rules

App. 17

formulated in McNeff. Such principles also suggest that

the Ninth Circuit's deferential adoption of the non-repu-

diation rule of Deklewa was unsound and contrary to law.

+

CONCLUSION

For all the foregoing reasons, Mesa Verde respectfully

submits that this Petition for Writ of Certiorari should be

denied.

However, should the Court believe that the issues

herein warrant plenary review, Mesa Verde respectfully

urges the Court to grant the Cross-Petition for Writ of

Certiorari in No. 89-1784, and review the underlying

questions of the correctness of the Ninth Circuit's en banc

“law-changing” decision.

Respectfully submitted,

Marx R. Tiexman*

Joun W. Pracer, Jr.

Rowert Frep

TrermMan, Coox, Brown &

PRAGER

601 California Street,

17th Floor

San Francisco, CA 94108-2822

Attorneys for Respondent,

Mesa Verde Construction Co.

Counsel of Record

July 1990

App. 18

APPENDIX B

No.

—

In The

Supreme Court of the United States

October Term, 1989

—

MESA VERDE CONSTRUCTION CO.,

v Cross- Petit ioner,

NORTHERN CALIFORNIA DISTRICT COUNCIL

OF LABORERS, AND

CARPENTERS 46 NORTHERN CALIFORNIA

COUNTIES CONFERENCE BOARD,

Respondent.

—

CROSS-PETITION FOR A WRIT OF

CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

- > —ͤ—

Mesa Verde Construction Company (“Mesa Verde”)

petitions for a Writ of Certiorari to review the Order and

Amended Opinion of the United States Court of Appeals

for the Ninth Circuit entered in this proceeding on Janu-

ary 26, 1990.

—

OPINIONS BELOW

The relevant opinions below are set forth at page 2 of

Petitioners’ Laborers’ and Carpenters’ Petition for a Writ

App. 19

of Certiorari to the United States Court of Appeals for the

Ninth Circuit in the connected case of Northern Califor-

nia District Council of Laborers, and Carpenters 46

Northern California Counties Conference Board v. Mesa

Verde Construction Co., No. 89-1661 (“Petition”) and

Appendices A-E thereto.

+

JURISDICTION

The relevant jurisdictional history is set forth at Peti-

tion, page 2. The jurisdiction of the Court is invoked

under 28 U.S.C. § 1254(1). The Petition was received on

April 30, 1990. This Cross-petition is timely filed under 28

U.S.C. § 2101 and Rule 12.3 of the Court.

+

STATUTES INVOLVED

The relevant statutory provisions are set forth at

Petition, page 2 and Appendix F, with the addition,

herein and at Appendix A, of the following:

A. National Labor Relations Act, as amended, sec-

tion(s) 8(a)(5); 8(b)(3); 8(b)(7)(C); Sa) and 10(b)

[29 U.S.C. §§ 158(a)(5); (b)(3); (b)(7MC); § 159(a)

and § 160(b)]

o—

STATEMENT OF THE CASE

The factual statement of this case is fairly set forth in

the Petition for Certiorari and in the opinion below.

+

REASONS FOR GRANTING THE WRIT

More important than the issues of labor law pre-

sented by the instant case, the question raised below is

App. 20

the responsibility of the National Labor Relations Board

to follow the decisions and statutory interpretations of

the United States Supreme Court, and the role of federal

appellate courts in deferring to the NLRB in cases of

conflict between the Supreme Court and the NLRB’s cur-

rent opinion. The Courts of Appeal for the Ninth, Third,

Seventh and Eighth Circuits' have abandoned the tradi-

tional balance between the judiciary and the courts by

adopting a decision of an administrative agency that

purports to overrule Supreme Court precedent and clear

statutory construction in the name of administrative con-

venience. Judge Kozinski, writing in dissent in Mesa

Verde, en banc, ends his analysis by noting “I can only

hope that the Court will have occasion for sober reflec-

tion on the wisdom of the approach taken by our court

today and by the Third Circuit in International Ass'n of

Bridge, Structural and Ornamental lron Workers, Local 3 v.

NLRB, 843 F.2d 770 (3rd Cir.), cert. denied. U.S.

109 S.Ct. 222, 102 L.Ed.2d 213 (1988).” The elegiac ele-

gance of Judge Kozinski’s plea merits just such consider-

ation by the Court, and, accordingly, it is on those terms

that prayer for plenary relief is made.

The Cross-Petition For Certiorari Should Be Granted

Because The Decision Of The Court Of Appeals For The

Ninth Circuit Directly Conflicts With The Holding And

Opinion Of The Court.

In 1977, General Counsel for the National Labor Rela-

tions Board argued to the Court in its brief to the United

' NLRB U WL. Miller Co, 871 F.2d 745 (8th Cir. 1989);

NLRB vp. BUFCO Cory, Fd 1 WL 37251 (7th Cir.

1990)

App. 21

States Supreme Court in NLRB v. Local Union No. 103, Int'l

Assoc. of Bridge, Structural and Ornamental Iron Workers

(Higdon), No. 76-719 (October Term, 1976) that the

language of section 8(f) and its relationship to other pro-

visions of the Act reflect that section 8(f) was not intended

to relieve unions that are parties to pre-hire agreements from

the obligation to achieve majority support before they can

require an employer to honor such an agreement by means of

section 8(a)(5). . . IId. at 23-24)(emphasis added). While

there were other arguable interpretations of Section 8(f)

and its legislative history, the United States Supreme

Court announced that the Board’s position was essen-

tially correct, and stated: “the pre-hire agreement is void-

able 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.” 434 U.S. at 341. The Court

affirmed the Board’s decision that picketing to enforce a

pre- hire agreement violated NLRA section 8(b)(7)(C) [29

U.S.C. section 158(b(7(C)], as “acceptable” and a “defen-

sible construction of the statute.” Id. at 341, 350. It is not

“acceptable” for the Board to ignore the fact that the

Supreme Court in Higdon upheld the Board based upon a

review of the legislative history of section 8(f), and was

not merely reiterating the Board's philosophy.

The Supreme Court embraced this logic and statutory

interpretation in the context of a trust fund lawsuit under

section 301 of the National Labor Relations Act [29 U.S.C.

§ 185] in the case of Jim McNeff, Inc. v. Todd, 461 U.S. 260

(1983). In MeNeff, as in this case, the union brought suit

under section 301 of the Labor Management Relations Act

to enforce a pre-hire agreement. The Court unanimously

App. 22

affirmed that an employer has an “undoubted right to

repudiate a pre-hire agreement before the union attains

majority support in the relevant unit.. 461 U.S. at 270

(emphasis added). See also Id. at 271 (“a section 8(f) pre-

hire agreement is subject to repudiation until the union

establishes majority status”), and see Woelke and Romero

Framing, Inc. v. NLRB, 456 U.S. 645, 664 (1981) (“[the

employers], if they do not have a stable workforce among

whom the union has secured a majority, may be free to

repudiate the agreement at any project which the union

has not demonstrated that it represents the majority of

their employees”). By emphasizing that the Court's juris-

diction derived from section 301, the Court drew a “criti-

cal distinction” between the Board’s obligation to decide

unfair labor practice charges and the Court's obligation to

construe the enforceability of collective bargaining agree-

ments under section 301. The Court noted that only the

former had been addressed in Higdon. The latter was

settled in McNeff. Id. at 267, and at 267 n. 7. See also

Thurston Motor Lines, Inc. v. Jordank, Rand, Ltd., 460 U.S.

533, 535 (1983); Hutto v. Davis, 454 U.S. 370, 375 (1982)

(per curiam). Thus, the meaning of section 8(f) and its

legislative history became the finding of the Court.

Only four years after the Court’s opinion in McNeff,

in the case of John R. Deklewa and Sons, Inc., 282 NLRB No.

184 (1987), the NLRB decided, for administrative conve-

nience, to abandon this view of the legislative history.

Less than two years after Deklewa, the NLRB has likewise

abandoned the reasoning behind Deklewa in the case of

Laborers’ Local Union No. 1184 (NVE Constructors, Inc.),

App. 23

296 NLRB No. 165 (1989).2 Although it is raised in the

context of a trust fund lawsuit under Section 301 of the

Act, the Court of Appeals for the Ninth Circuit has over-

ruled existing Circuit Court cases and applied the NLRH s

vicw of section 8(f) instead of the Supreme Court's view.’

The Court must preserve the balance of power between

the executive, legislative and judicial branches of govern-

ment, and remind the agency and Court of Appeals that

due process of law includes the principles of stare decisis

? As will be set forth later, the NLRB erred in its reasoning

in support of the Deklewa decision. The first part of the Deklewa

decision describes well the subsidiary rules and policies devel-

oped as a result of the Supreme Court's decision in Higdon. In

Deklewa, the Board found it intellectually difficult to justify a

presumption in favor of majority status from the mere passage

of time or from the use of exclusive union hiring halls, trust

fund benefits, or forced union membership. This lead to the

result that all construction agreements which are not sup-

ported by card based or other independent pre-signing indica-

tions of majority status remain section 8(f) pre-hire agreements

until and unless the union wins in an NLRB conducted election

or is voluntarily recognized based upon independent evidence

of majority status. However, this does not make pre-hire agrce-

ment non-voidable, it does not create temporary fictitious 9a)

relationships and it does not mean the Supreme Court's opin-

ions in Higdon and McNeff can be ignored.

A further reason not to apply Deklewa in the context of

this section 301 suit is that the Board itself would not and

could not apply its decision to the facts of this case. The Board

held that Deklewa would apply only “to this case and to all

pending cases in whatever stage.” Deklewa at 1389. This case is

not now, nor could it ever be, presented for adjudication to the

Board. The Board could not accept an unfair labor practice

charge under section 8(a)(5) because the six-month statute of

limitations has run. NLRA section 10(b) [29 U.S.C. § 160(b)]

App. 24

and the power of higher courts to mandate to lower

courts the outcome of decisions based upon clear rules of

precedent. Otherwise, the principle of jurisprudence

becomes the mere political whim of the most recent judi-

cial or administrative official to deal with the problem.

MceNeff Was A Trust Fund Case In Which The Supreme

Court Did Not Defer To Any Agency Ruling. Likewise,

In Trust Fund Cases, A Federal Court Owes No Duty Of

Deferral To The NLRB, Especially When The Board

Rewrites The Act In The Name Of Administrative Con-

venience Instead Of Interpreting Congressional Intent.

The Court owes no deference to an agency which

attempts to engage “in the unauthorized assump-

tion . . of major policy decisions properly made by

Congress.” American Ship Building Company v. NLRB, 380

U.S. 300, 318 (1965). It is the responsibility of the Court

authoritatively to construe statutes, and to reject an

agency interpretation which is contrary to congressional

intent. Chevron USA v. Natural Resources Defense Council,

467 U.S. 837, 843-844 (1984); FEC v. Democratic Senatorial

Campaign Committee, 454 U.S. 27, 32 (1981). The agency is

subject to even greater scrutiny when it abruptly departs

from precedent. NLRB v. Local Union No. 103, International

Association of Bridge, Structural and Ornamental Iron

Workers, AFL-CIO (“Higdon”), 434 U.S. 335, 351 (1978);

Lovshin d. Department of the Navy, 767 F.2d 826, 840 (D.C.

Cir. 1985), cert. denied., 106 S.Ct. 1523 (1986); Frank Dieh!

Farms v. Secretary of Labor, 696 F.2d 1325, 1330 (11th Cir.

1983); NRDC Y EPA, 683 F.2d 752, 760 Gd Cir. 1982);

especially so precedent set by the Court.

App. 25

Judge Kozinski, in his eloquent dissent to the dect

sion of the Ninth Circuit en banc, excerpts from which

follow, presented the issue directly.

“It is emphatically, the province and duty of

the judicial department, to say what the law is.”

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176,

2 L.Ed. 60 (1803). To MARBURY’s

nouncement the majority would add a icil:

“until and unless the agency charged with

administering the law changes its mind.”

According to the majority, if a federal court

relies on an agency's int tion of a statute,

the court's construction is binding only until the

a ＋ decides the statute means something

altogether. At that point the court, or a

higher court, or a lower court, may - nay, must

follow the agency's new interpretation unless

that — cena is — — * 1

respectfully suggest, results in a significant shift

of authority from the judiciary to the executive

branch. Whenever Congress charges an agency,

board, commission or department with adminis-

tering a statute - | would venture to that

this includes a substantial majority of our most

significant federal laws - the judges become the

handmaidens of the agency, ted to decid-

ing not what the law is, but only whether the

agency's construction of the law is reasonable.

This is no small change. Courts and agen-

cies are fundamentally different, both institu-

tionally and functionally. Judicial decision

making is hedged about with a variety of consti-

tutional safeguards designed to protect it from

manipulation by the political branches. In inter

preting statutes, courts are bound to find and

apply the meaning endowed them by Congress

and the President. It is emphatically not the

function of courts to read policy content into

statutes, or to interpret them in a way that will

App. 26

foster a particular political viewpoint. Adminis-

trative agencies, by contrast, are designed to

bend with the political winds. The leadership

and policy direction of executive departments

change with every administration; members of

so-called independent agencies are appointed

with reference to their political affiliations.

Agency officials are expected to rely on their

views of public policy in carrying out their

responsibilities.

Because judges must read a statute in the

way that best reflects its meaning, courts are far

slower than agencies in overruling their deci-

sions. Once a circuit interprets a statute, only an

en banc panel of the same court or the Supreme

Court may adopt a different construction; only

the Supreme Court may modify or reverse its

own prior construction of a statute. By contrast,

agencies can change their outlook as often and

easily as a chameleon changes its color. A

change of administration may prompt an execu-

tive department to alter its position on a partic-

ular piece of legislation overnight. As positions

taken by a regulatory agency may hinge on a

narrow majority, appointment of a single com-

missioner may drastically change the agency’s

approach to its organic statute.

This difference between the constraints on

the judiciary and the broad freedom afforded

agencies derives directly from the disparate

functions they perform. When courts interpret a

Statute, they search for its true meaning - and

there can never be more than one true meaning.

To be sure, reasonable minds may differ as to

what that meaning may be; occasionally it may

be necessary to correct a judicial decision that

misreads that meaning. But in performing their

ry ee function, judges must listen for the voice

of the legislature, not to the sound of their own

heartbeats. Because courts are bound by the best

App. 27

construction of the statute, they may alter their

interpretation only in response to a powerful

new insight as to the law’s meaning, not because

a 8 panel of judges prefers a different

result.

Agencies, on the other hand, may turn on a

dime: Their proper function is to fill in policy

gaps pursuant to an explicit or implicit delega-

tion of authority from Congress. See, e.g., Mor-

ton v. Ruiz, 415 U.S. 199, 231, 94 S.Ct. 1055, 1072,

39 L.Ed.2d 270 (1974) (“[t}he power of an admin-

istrative agency to administer a congressionally

created ... ram necessarily requires the

formulation of policy and the making of rules to

fill any gap left, implicitly or explicitly, by Con-

gress”). Where Congress has delegat such

authority, the statute becomes a clear vessel

which changes its tint as it is filled and refilled

by various policy pigments. Because the agency

administering the statute is not bound to a sin-

gle formulation of statutory language, it may

make changes without considering whether the

new approach more accurately reflects the

meaning of the statute.

Both types of decision making processes

serve a vital function so long as each is confined

to its own sphere. The spr cony, Bp astray in

conflating the two. This error has the effect of

displacing the courts’ methodical, deliberate

search for a law’s meaning with the policy judg-

ment of a 1 responsive administrative

agency. This is troubling both as a jurispruden-

tial and as a practical matter.

Jurisprudentially, | am troubled by the

majority’s implicit holding that the meaning of a

statute can change in an instant simply because

an administrative agency has said so. Statutory

— is not a matter of hopes or wishes, it is

a fact. In settling on a particular interpretation

App. 28

of a statute, the court is saying: “This is the

meaning that was actually conferred upon this

statute * Congress.” In reaching that conclu-

sion, the court looks first at the statute’s lan-

guage and structure, but may also rely on the

statute's legislative history and the view of the

agency charged with its enforcement. A change

in the agency's view alters this calculus and

may motivate a reviewing court to reconsider

the soundness of its prior interpretation. But a

change in an agency's position cannot automat-

ically alter the meaning Congress gave the stat-

ute years earlier.

By reaching the contrary conclusion, the

court is, in effect, holding that statutes have no

fixed meaning, that in passing laws — —

approves a range of possible interpretations,

each as good as the next. While this a h

fits in neatly with the lar mythology, con-

ceived and nurtured * 1 — that

words are incapable of conveying precise con-

cepts, it — the basic principle that

language provides a meaningful constraint on

public a rivate conduct.” Trident Center v.

Connecticut General Life Ins. Co., 847 F.2d 564, 569

(9th Cir. 1988). Needless to say, I disagree with

this approach which, in my view, represents a

serious abdication of judicial responsibility.

[FN 2] A reassuring — te: the

majority is not — — with its own

prescription: ifically, the majority to

great pains iy srs A that Deklewa's inter

pretation of section 8(f) is not merely permis-

sible, but — Majority opinion at

1132-34. Thus, the court observes that

“Deklewa’s literal reading of the second

[of section 8(f)} is more likely reading of con-

ressional intent than that given by RI. Smith,”

J. at 1132 (emphasis added), and concludes that

“[t}he Board's prior rule, allowing repudiation

_&<<<mmoe™- ————

App. 29

of such agreements in addition to these explicit

statutory protections, has proved unwise.” Id. at

1133. Such ruminations have no legitimate place

within the analytical framework adopted by the

majority: If we are bound to follow the Board,

we must approve even a poor interpretation of

the statute, so long as it falls within the range of

permissible meanings. Future courts might be

wise to note the majority’s concern with what

“best serves the interests of employers and

employees,” id. at 1129, and then do as we do,

not as we Say.

And this brings me to the practical prob-

lems wrought by today’s decision. The en banc

court’s ruling - should it become the law of the

land- will make hundreds, perhaps thousands,

of laws that have been conclusively interpreted

by the courts subject to uncertainty whenever

there is a shift in the political winds. A brief

survey of recent cases in which the Supreme

Court has relied on an agency’s interpretation

suggests the scope of the problem. (citations

omitted) .. Our circuit has deferred to agency

construction of statutes in an equally wide range

of cases (citations omitted)

This handful of examples barely hints at the

scope of the problem created by today’s deci-

sion. If deference means blind adherence to the

agency’s construction as it meanders through

the range of non-irrational meanings, federal

judges should plan to take a long holiday and

observe from afar as the body of federal law

develops without their further meaningful

input. A change of this magnitude in the rela-

tionship between the judicial and executive

branches of government should come from the

Supreme Court, if it comes at all.

App. 30

The Board Has Not Construed Section 8(f), It Has

Rewritten It

Section 9(a) of the National Labor Relations Act is the

equivalent of a Bill of Rights for collective bargaining. It

applies, by its terms, after employees have, “by a major-

ity of the employees in a unit appropriate for such pur-

poses” chosen a representative to bargain for them

collectively. Section(s) 8(a)(5) and 8(b)(3) of the Act guar-

antee the freedom to make that choice by identifying

coercive or bad faith conduct by both union and

employer.

Contracts executed pursuant to section 8(f) of the Act

are different from section 9(a) collective bargaining agree-

ments. Retail Clerk's Int'l Assn. v. Lion Dry Goods, 369 U.S.

17, 27, 35 (1962). In enacting section 8(f) of the Act,

Congress fashioned a limited exception to the principle of

employee free choice enforced by sections 8(a) and (b) of

the Act. Thus, section(s) 8(a)(2) and (5) forbid an

employer from entering into a union agreement without

prior evidence of employee support. Section 8(f) validates

this otherwise unfair labor practice by permitting an

agreement to be reached on a pre-hire basis, e.g. before

any evidence of union support. In so doing, the Congress

clearly indicated that such an agreement must be “purely

voluntary” and free of coercion. Unless confirmed by

evidence of majority support, pre-Deklewa section 8(f)

contracts were considered purely executory and repudia-

ble at any time.

In implementing the Congressional mandate repre-

sented by section 8(f), the Board considered that the

—_

App. 31

shifting nature of the construction workforce made elec-

tions or a showing of cards, the traditional means recog-

nized in the Act for a demonstration of majority support,

impractical. Accordingly, the Board fashioned two addi-

tional devices to make employee choice possible. Thus,

the doctrines of conversion and merger serve to provide

the equivalent of an election by allowing proof that an

employer's workforce has the permanent and stable char-

acteristics of a non-construction employer; or if the

underlying contract is executed through a multi-

employer group, that a overall majority exists in favor of

the union, and therefore, the 8(f) contract is considered

merged into the larger whole.

Repudiation, merger and conversion were, until

Deklewa, entrenched and unchallenged Board law. The

only controversy was when a merger or conversion

occurred. The concepts required an employer to “chart”

its workforce, job-by-job and look for a statistically signif-

icant portion of employees working on more than one

jobsite successively. The trial court in Mesa Verde was able

to perform this task quite easily. See Mesa Verde Construc-

tion Co. v. Northern California District Council of Laborers,

598 F. Supp. 1092, 1097-1099 (N.D. Cal. 1984). Not only

are the “rules” of then existing Board law on merger and

conversion set forth clearly in the first pages of the

Deklewa decision, but they were widely published and

understood by the labor law community. Job-site by job-

site employers could repudiate for future jobs only,

unless they merged their workforce into the multi-

employer group’s workforce. See, e.g., Baton Rouge Build-

ing Trades Council v. E.C. Schaffer, 657 F.2d 806 (Sth Cir.

1981); Thierman & Pattison, Lowest Responsible Bidder,

App. 32

(1985). These rules have been adopted by the Court,

under the mandate it itself laid out in Chevron U.S.A. v.

Natural Resources Defense Council, 467 U.S. 837 (1984), as

permissible constructions of the Act.

The Deklewa rule abandons the doctrines of repudia-

tion, merger and conversion. In their stead, the Board has

altered the mechanisms by which elections may be sought

under the Act, by concluding that the contract bar rule

does not apply, and therefore employers may call for

decertification elections at any time without showing

proof of employee dissatisfaction with the union. This is a

useless slight of hand, since the union is by definition a

minority representative and existing Board law before

Deklewa allowed an employer to file a petition for an

election anytime anyway. See Albuquerque Insulation Con-

tractor, 256 NLRB No. 15 (1981)4

In Deklewa, the Board abandoned the statutory con-

struction it had urged before the Supreme Court in Hig-

don, and held that, in all respects, 8(f) agreements are

fully enforceable by Section(s) 8(a)(5) and 8(b)(3), as are

traditional collective bargaining agreements under the

Act.“ The NLRB also implied in Deklewa, that unions

* The pre-Deklewa reason for an employer to file for an

clection was that then the NLRB would make the initial deter-

mination that the contract was a pre-hire agreement and no

conversion or merger had occurred. The Union could always

file an unfair labor practice charge if it believed the contract

was not a pre-hire agreement.

* This position is somewhat disingenuous as to unions

who decide to “disclaim” and then renounce the section 8(f)

(Continued on following page)

App. 33

could not picket to obtain an employer’s signature to a

pre-hire agreement, since pre-hire agreements had to be

voluntarily entered into, although in a more recent deci-

sion, the Board has retraced its steps on that point, limit-

ing issuance of complaint under section 8(b)(7), in

contradictory fashion, to situations where there are no

unit employees or the picketing for a pre-hire agreement

has exceeded 30 days. See NVE Constructors, Inc., supra.

The Board’s pronouncement in Deklewa, that section

8(f) contracts are no longer (or were never) repudiable,

and that henceforth pre-hire agreements will be enforced

during their term under section(s) 8(a)(5) and 8(b)(3)

without regard to whether the union actually achieves

status under section 9(a) as the majority representative

contradicts the plain language of the statute. Section 8(f)

provides that “it shall not be an unfair labor practice

under subsections (a) and (b)” for a construction industry

employer to enter into an agreement with a union whose

majority status has “not been established under the pro-

visions of section 9 of this Act prior to the making of such

agreement.... See also S. Rep. No. 187 at 55, 1 Leg. Hist.

451; H. Rep. 741 at 50, 1 Leg. Hist. 808 (emphasis added).

(Section 8(f) “[mJakes clear that it is not an unfair labor

practice for an employer . . . to enter into [pre-hire agree-

ments] . . . without the union’s majority status having

(Continued from previous page)

agreement. The NLRB still belicves the relationship between a

union and the employces to be such a critical element of the

collective bargaining relationship that the union that docs not

“represent” employees can repudiate. Morcover, 8(f) agree-

ments, even after Deklewa, are not binding on employers with-

out employees. See e. g, Stack Electric, 290 NLRB No. 73 (1988).

App. 34

been established. ). Nothing in section 8(f) intended

pre-hire agreements to be enforced in the same manner as

collective bargaining agreements under section 9(a).®

Just a few years ago, the NLRB believed that Con-

gress wanted pre-hire agreements to be purely voluntary

and “at will” for the duration of a jobsite or until the

union became the majority representative of employees.

The NLRB and the courts were keenly aware of the power

of construction unions to engage in top down organizing.

Congress having legitimized the industry practice of

union only projects through the construction industry

proviso to section 8(e), the NLRB developed the law of

pre-hire abrogration to prevent contracts of adhesion and

to avoid trying issues of fraudulent or coercive induce-

ment. See Woelke and Romero Framing, Inc. v. NLRB, 456

U.S. 645, 665 (1981). In its brief to the Court in Higdon, the

* A more plausible holding, consistent with the decisions

of the Court and the legislative history, would affirm Congress’

intent that all contracts in the construction industry are consid-

ered pre-hire and “at will”. Let the union that seeks the benefit

of a section 9a) relationship come forward to file for an

clection. The Board’s pre-Deklewa position is similar to the

common law concepts of capacity to contract. A minor, who

lacks the legal capacity to contract, can void any contract, but

can continue to receive goods and services as long as the minor

pays for goods and services already received. In the pre-hire

context, the union lacks the capacity to enter into a binding

contract, but the employer must honor the contract for the job

or project, and must continue trust fund contributions until

notice is given to prevent third party reliance. Deklewa has

created a fictitious capacity in a minority union to enter into

binding contracts not envisioned in the Act, permitting them

an unequal bargaining position in establishing a permanent

relationship with an employer.

1 ˙ 2

App. 35

General Counsel emphatically affirmed that the statute,

as written, compelled the Board’s result: section 8(f) did

not create 9(a) rights.

[T]he issue in [Higdon is] whether Section 8(f)

itself establishes that a union signatory to a pre-

hire agreement shall be deemed by operation of

law to be the recognized bargaining representa-

tive of all employees subsequently hired until

the agreement expires or the union is ousted by an

employer — initiated board election. As we demon-

strate below, neither the language of section 8(f)

nor its legislative history supports that conclusion,

or in any way suggests that Congress intended

so sweeping a qualification of the Act's major

— that employees shall be represented by

argaining agents of their own choosing. [Br. of

the Board in Higdon, pp. 18-19.]

Nothing in the language of Section 8(f), how-

ever, suggests that it was designed to confer

upon a union that is a party to a pre-hire agree-

ment the kind of representative status that would

support a Section 8(a)(5) bargaining order against

an employer who refused to bargain with it.

Indeed the language and structure of the Act sug-

gests precisely the opposite.

Significantly, Congress in 1959 did not, in

section 8(f) or elsewhere modify section 8(a)(5),

which makes it an unfair labor practice for an

employer “to refuse to bargain collectively with

the representatives of his employees, subject to

the provisions of section 9(a)” [emphasis in origi-

nal]. IId. at 22-23.

In short the language of section 8(f) and its

relationship to other provisions of the Act

reflect that section 8(f) was not intended to relive

unions that are parties to pre-hire agreements from

the obligation to achieve majority support before they

can require an employer to honor such an agreement

App. 36

by means of section 8(a)(5). ... IId. at 23-24]

(emphasis added).

For many years, union advocates have urged Con-

gress to alter the special character of 8(f) contracts to

make them instantly enforceable, upon execution. In Dek-

lewa, as affirmed in Mesa Verde, the Board did what the

Congress would not. Indeed, just this point was made to

the Court by the General Counsel in Higdon:

The legislative history of Section 8(f)) confirms

that Congress did not intend its authorization of

prehire agreements in the construction industry

to confer automatic representative status or to

obviate the union’s obligation to acquire major-

ity support. Congress rejected a proposal that

would have permitted the Board to certify a

union signing a prehire agreement as the

employees’ representative without an election

or other proof of majority support merely upon

a showing of a history of bargaining between

the union and the employer. [/d.] [See Section

702 of H.R. 8400, 86th Cong, Ist Sess., 1 Leg.

Hist. 678-79 (1959); 105 Cong. Rec. 6431, 15,

541-42, 17, 899, 18, 135 (1959).

The effort continues in Congress to this day. See e.g., H.R.

281, 100th Cong, Ist Sess. That, it is submitted, is where

it belongs.

Only An En Banc Panel Of The Court Should Have The

Ability To Alter Established Circuit Precedent In Order

To Ensure The Stability Of Our Laws And Reduce

Unjustified Appeals, And The NLRB Is Not Entitled To

Any Special Exemption.

The Ninth Circuit has long held that a decision of a

three judge panel may only be reversed en banc. “(U]nder

the long standing practice of this court, a panel may not

overrule a prior decision.” Charleston v. United States, 444

App. 37

F.2d 504 at n. 3 (9th Cir. 1961) (citing 9th Cir. Rule 23, 28

U.S.C.). A majority of other circuits have followed the

same practice. See En Banc Proceedings, 37 ALR 274, §5.

(Second, Third, Fourth, Fifth, and District of Columbia

Circuits.)

The en banc panel has now unwisely departed from

this principle, known in the Circuit as the Royal Develop-

ment rule. (Royal Development Co. v. NLRB, 703 F.2d 363,

369 (9th Cir. 1983)), citing NLRB v. J. Weingarten, Inc., 485

F.2d 1135 (Sth Cir. 1973), rev’d, 420 U.S. 251, 95 S.Ct. 959,

43 L.Ed.2d 171 (1975). This departure is particularly

unsound with regard to Circuit decisions adopting or

rejecting Board law in the typical case because the Circuit

court functions as a court of first resort for the purposes

of judicial review. In actions arising, as does this one,

under section 301, the trial court exercises its original

jurisdiction in interpretation of the Act in the enforce-

ment of collective bargaining agreements, subject to the

consent of the Circuit. As the Ninth Circuit observed in

Royal, this jurisdictional mandate is consistent with

sound

[plolicy reasons for refusing to adopt a Board

decision that conflicts with our earlier precedent

absent an en banc convening of the court. In

effect, the Board would be free to “reverse”

circuit decisions whenever its membership

changed, thus relegating the courts of appeal to

a minor supervisory role over the Board. This,

we believe, would be inconsistent with our leg-

islative process.

Id., 703 F.2d at 368.

The fundamental error in Mesa Verde's adoption of

Deklewa is that it is premised on a false belief that the

App. 38

Board may alter the rights created by the Act in discharg-

ing its duty to implement and interpret. The historical

charge of appellate courts, identified so clearly by Judge

Kozinski, is to isolate and correct such errors. Facilitating

their commission by permitting a variation of the en banc

rules invites a compromise of the essential guarantee of

justice which the Court exists to preserve.

+

CONCLUSION

For the above stated reasons this cross-petition for a

writ of certiorari should be granted.

Respectfully submitted,

Mark R. THteRMan*

Joun W. Pracer, Jr.

Rosert Friep

THiERMAN, Coox, Brown & PrRacer

601 California Street, 17th Floor

San Francisco, CA 94108-2822

(415) 391-9200

Counsel for Cross-Petitioner

Counsel of Record

May, 1990

App. 39

APPENDIX A

SUBCHAPTER IV- LIABILITIES OF AND

RESTRICTIONS ON LABOR AND MANAGEMENT

§ 158. UNFAIR LABOR PRACTICES

(a) It shall be an unfair labor practice for

an employer -

(5) to refuse to bargain collectively

with the representatives of his — sub-

ject to the provisions of section 9a).

(b) It shall be an unfair labor practice for a

labor organization or its agents

(3) to refuse to bargain collectively

with an employer, provided it is the representa-

tive of his employees subject to the provisions of

section 9(a);

(7) 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

71 — of an employer to or select

such labor organization as their collective bar-

gaining representative, unless such labor organi-

zation is currently certified as the representative

of such employees:

(C) where such picketing has been

conducted without a petition under section 9c)

being filed within a reasonable period of time

not to exceed thirty days from the commence-

ment 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

App. 40

the Board finds to be appropriate and shall cer-

tify the results thereof: Provided further, That

nothing in this subparagraph (C) shall be con-

strued to prohibit any picketing or other public-

ity 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 trans-

port any goods or not to perform any services,

Nothing in this paragraph (7) shall be construed to per-

mit any act which would otherwise be an unfair labor

practice under this section 8(b).

§ 159 REPRESENTATIVES AND ELECTION

Sec. 9. (a) Representatives designated or

selected for the purposes of collective bargain-

ing 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 bargain-

ing in respect to rates of pay, wages, hours of

employment, or other conditions of employ-

ment: Provided, That any individual employee or

a group of employees shall have the right at any

time to present grievances to their employer and

to have such grievances adjusted, without the

intervention of the bargaining representative, as

long as the adjustment is not inconsistent with

the terms of a collective-bargaining contract or

agreement then in effect: Provided further, That

the bargaining representative has been given

opportunity to be present at such adjustment.

c

App. 41

§ 160 PREVENTION OF UNFAIR LABOR PRACTICES

Sec. 10. (b) Whenever it is charged that

any person has engaged in or is engaging in any

such unfair labor practice, the Board, or any

agent or agency designated by the Board for

such purposes, shall have power to issue and

cause to be served upon such person a com-

plaint stating the charges in that respect, and

containing a notice of — before the Board

or a member thereof, or before a designated

agent or agency, at a place therein fixed, not less

than five days after the serving of said com-

laint: Provided, That no complaint shall issue

sed upon any unfair labor practice occurring

more than six months prior to the pe of the

charge with the Board and the service of a cop

thereof upon the person against whom suc

charge is made, unless the = aggrieved

thereby was prevented from filing such charge

by reason of service in the armed forces, in

which event the six-month period shall be com-

puted from the day of his discharge. Any such

complaint may be amended by the member,

agent, or agency conducting the hearing or the

Board in its discretion at ＋ time prior to the

issuance of an order based thereon. The person

so complained of shall have the right to file an

answer to the original or amended complaint

and to appear in person or otherwise and give

testimony at the place and time fixed in the

complaint. In the discretion of the member,

agent, or agency conducting the hearing or the

Board, any other person may be allowed to

intervene in the said proceeding and to present

testimony. Any such proceeding shall, so far as

practicable, be conducted in accordance with the

rules of evidence applicable in the district courts

of the United States under the rules of civil

rocedure for the district courts of the United

tates, adopted by the Supreme Court of the

App. 42

United States pursuant to the Act of June 19,

1934 (U.S.C., title 28, secs. 723-b, 723-C).