Submitted September 21, 2015
For National Labor Relations Board, Petitioner (15-1302): Linda Dreeben, Deputy Associate General Counsel, Kira Dellinger Vol, Marni von Wilpert, NATIONAL LABOR RELATIONS BOARD, Washington, DC; Rik Lineback, NATIONAL LABOR RELATIONS BOARD, Indianapolis, IN.
For International Union of Operating Engineers, Local 150, AFL-CIO, Intervenor (15-1302, 15-2039): Steven A. Davidson, Dale P. Pierson, LOCAL 150 LEGAL DEPARTMENT, Countryside, IL.
For Seedorff Masonry, Inc., Respondent (15-1302): Kelly Randall Baier, Raymond Rinkol, Jr., BRADLEY & RILEY, Cedar Rapids, IA.
For Seedorff Masonry, Inc., Petitioner (15-2039): Kelly Randall Baier, Raymond Rinkol, Jr., BRADLEY & RILEY, Cedar Rapids, IA.
For National Labor Relations Board, Respondent (15-2039): Linda Dreeben, Deputy Associate General Counsel, Kira Dellinger Vol, Marni von Wilpert, NATIONAL LABOR RELATIONS BOARD, Washington, DC; Rik Lineback, NATIONAL LABOR RELATIONS BOARD, Indianapolis, IN.
Before LOKEN, BENTON, and SHEPHERD, Circuit Judges.
LOKEN, Circuit Judge.
On September 7, 2012, with an arbitrator selected to hear a pending grievance,
Local 150 of the International Union of Operating Engineers (" Local 150" ) filed an unfair labor practice charge, alleging that Seedorff Masonry, Inc. (" Seedorff" ), a masonry contractor based in Strawberry Point, Iowa, violated the National Labor Relations Act (" NLRA" ) " by repudiating the parties' collective bargaining agreement" (" CBA" ). The National Labor Relations Board's General Counsel filed a Complaint alleging that Seedorff had violated NLRA § § 8(a)(1) and (5), 29 U.S.C. § § 158(a)(1), (5), by repudiating a CBA between the Quad Cities Builders Association (" QCBA" ) and Local 150 to which Seedorff had agreed to be bound.
After an evidentiary hearing, the Board's Administrative Law Judge (" ALJ" ) ruled that Seedorff violated § § 8(a)(1) and (5) by repudiating a valid pre-hire CBA with Local 150 and by failing " to abide by the hiring hall and benefit provisions of the contract." The ALJ rejected as largely irrelevant Seedorff's claim that its actions were a lawful response to a jurisdictional dispute between Local 150 and the Laborers' International Union of North America (" the Laborers" ) over whether Seedorff was properly assigning masonry work that fell within the overlapping coverages of the two unions' pre-hire CBAs to members of the Laborers. The Board affirmed the ALJ's analysis and issued a Decision and Order requiring Seedorff to pay Local 150's members " for any loss of earnings and other benefits suffered as a result of [Seedorff's] failure to honor" its CBA with Local 150. Seedorff Masonry, Inc., 360 N.L.R.B. No. 107, at *2 (2014). At oral argument, counsel for the Board confirmed that this back pay remedy could include work that had been performed by Laborers consistent with that union's CBA. The Board petitions to enforce its Decision and Order. Seedorff cross-petitions to review and vacate the Order. Local 150 has intervened in support of the Board. Concluding that the Board's analysis was contrary to the NLRA and pre-hire CBAs as construed in prior judicial decisions and the Board's own precedent, we deny enforcement and vacate the Decision and Order.
A. Section 8(f) Pre-Hire Agreements.
Based on established practice in the construction industry, Congress enacted § 8(f) of the NLRA to modify the rule that an employer may not enter into a CBA with a union that does not represent a majority of the employees in the bargaining unit. See 29 U.S.C. § 159(a); McKenzie Eng'g Co. v. NLRB, 303 F.3d 902, 906 (8th Cir. 2002). Section 8(f) " allows construction industry employers and unions to enter into agreements setting the terms and conditions of employment for the workers hired by the signatory employer without the union's majority status first having been established in the manner provided for under § 9 of the Act."
Jim McNeff, Inc. v. Todd, 461 U.S. 260, 266, 103 S.Ct. 1753, 75 L.Ed.2d 830 (1983).
For many years, the Board held that a construction industry employer could unilaterally repudiate a § 8(f) pre-hire agreement any time before the union attained majority status. However, the Board overturned this rule in John Deklewa & Sons, Inc. Under Deklewa, § 8(f) agreements are " binding, enforceable, and not subject to unilateral repudiation" throughout their term. 282 N.L.R.B. at 1389. We expressly upheld the Deklewa rule in N.L.R.B. v. WL Miller Co., 871 F.2d 745, 747-48
(8th Cir. 1989). Although the rule provides that neither party may be compelled to negotiate a successor agreement after expiration of a § 8(f) agreement, the Board has ruled that an automatic renewal provision in a § 8(f) agreement extends the no-unilateral-repudiation rule, a holding we upheld in Cedar Valley Corp. v. NLRB, 977 F.2d 1211, 1219 (8th Cir. 1992), cert. denied, 508 U.S. 907, 113 S.Ct. 2334, 124 L.Ed.2d 246 (1993).
Under Deklewa, an employer's unilateral repudiation of a § 8(f) agreement before its expiration violates the employer's § 8(a)(5) duty to bargain, just as repudiation of a CBA with a majority-status union has long been held to violate § 8(a)(5). McKenzie Eng'g, 303 F.3d at 908. However, the Board has carved a " single-employee unit" exception to its no-unilateral-repudiation rule for § 8(f) CBAs which is critical in this case:
[W]hen a unit consists of no more than a single permanent employee at all material times, an employer has no statutory duty to bargain and thus, will not be found in violation of the Act for ...