Nlbr v. Iron Workers, 434 U.S. 335 (1978)

National Labor Relations Board v. Local Union No. 103,

International Association of Bridge, Structural &
Ornamental Iron Workers, AFL-CIO
No. 76-719.

Argued October 31, 1977
Decided January 17, 1978
434 U.S. 335

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Syllabus

An employer in the construction business made an agreement with respondent union under § 8(f) of the National Labor Relations Act, which provides that it shall not be an unfair labor practice for unions and employers in the construction, industry to enter into "prehire" agreements before the majority status of the union has been established. The contract contained no union security clause requiring employees to become union members within a specified period of time. After the employer later undertook construction projects with nonunion labor, the union picketed those projects (one for more than 30 days) with signs stating that the employer was violating the agreement with the union, though the union did not represent a majority of the employees at the jobsites and had not petitioned for a representation election. The employer then filed a charge with the National Labor Relations Board alleging that the union was violating § 8(b)(7)(C) of the Act, which makes it an unfair labor practice for an uncertified union to picket for the purpose of forcing an employer to recognize the union as a bargaining representative of his employees, for more than 30 days, unless a petition for an election has been filed within that period. The NLRB issued a cease and desist order in favor of the employer, concluding that an object of the picketing was to force the employer to bargain with a union that was not currently certified as the representative of the employees working for the employer. The Court of Appeals, denying enforcement of the NLRB’s order, held that the validity of a § 8(f) prehire contract conferred the right to enforce the contract by picketing as well as the right, upon a contract breach, to file and prevail on an unfair labor practice charge against the employer for failure to bargain.

Held: Respondent’s picketing was for recognitional purposes, and constituted an unfair labor practice under § 8(b)(7)(C). An uncertified union like respondent, which does not represent a majority of the employees, may not under that provision engage in picketing in an effort to enforce a prehire agreement with the employer. Pp. 341-352.

(a) Section 8(f), which contains a proviso clause that a "prehire" contract shall not bar a petition for an election under § 9(c), was not intended to relieve a union party to a prehire agreement from the obligation to achieve majority support before it can require the employer to honor such an agreement by means of § 8(a)(5), or to accord the union the status of bargaining representative that would exempt it from the recognitional picketing prohibition of § 8(b)(7). The NLRB therefore correctly held that, when the union picketed to enforce its prehire agreement, the employer could file and prevail on a § 8(b)(7) charge, because the union lacked majority credentials at the picketed projects. Picketing to enforce the § 8(f) contract was tantamount to recognitional picketing, and § 8(b)(7)(C) was infringed when the union failed to request an election within 30 days. Pp. 342-346.

(b) Because § 8(b)(7) was adopted to ensure employees the voluntary, uncoerced selection of a bargaining representative, the NLRB did not err in holding that that provision applies to a minority union’s picketing to enforce a prehire contract. Nor does the NLRB’s position, which is entitled to considerable deference, render § 8(f) meaningless, since, but for that provision, neither party could execute a prehire agreement without committing an unfair labor practice, and the voluntary observance of an otherwise valid § 8(f) contract is left unchallenged. Retail Clerks v. Lion Dry Goods, Inc., 369 U.S. 17; Building & Construction Trades Council of Santa Barbara County (Sullivan Electric Co.), 146 N.L.R.B. 1086, distinguished. Pp. 346-352.

175 U.S.App.D.C. 259, 535 F.2d 87, reversed.

WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, MARSHALL, POWELL, and REHNQUIST, JJ., joined. STEWART, J., filed a dissenting opinion, in which BLACKMUN and STEVENS, JJ., joined, post, p. 352.