857 F.3d 877
D.C. Cir.2017Background
- Hawaiian Dredging (major Hawaii contractor) had performed craft work for ~20 years under Section 8(f) pre-hire agreements with unions, most recently with the Boilermakers; that agreement expired Sept. 30, 2010.
- Parties negotiated after expiration; a short interim extension was agreed (Oct. 8–29), then negotiations continued and disputes arose over terms and dispatching. Boilermakers declined some dispatches in Dec. 2010.
- After the NLRB Regional Director found no complete successor agreement and dismissed the company’s unfair-labor charge, Hawaiian Dredging sent a Feb. 17, 2011 letter terminating its relationship with the Boilermakers and temporarily stopped welding work.
- The company then entered an 8(f) agreement with the Pipefitters and rehired eight of thirteen discharged Boilermaker welders after assisting them to join the Pipefitters; Boilermakers filed an unfair-labor charge alleging unlawful discharge for union membership.
- An ALJ found no Section 8(a)(3)/(1) violation, crediting the company’s long-standing business model of using union hiring halls under 8(f) agreements and treating short hiatuses as routine.
- The NLRB majority reversed, finding unlawful discrimination under Wright Line and Great Dane, emphasizing gap periods when the company performed or could have performed craft work without an 8(f) agreement; one Board member dissented.
Issues
| Issue | Boilermakers' / GC Argument | Hawaiian Dredging's Argument | Held |
|---|---|---|---|
| Whether discharges were motivated by union membership under Wright Line (discriminatory motive and nexus) | Discharges targeted only Boilermakers members and show animus and nexus; gaps do not rebut inference of discrimination | Discharges were motivated by business model requiring current 8(f) agreements for craft work; long practice and good-faith belief rebut inference | Court: Board’s finding not supported — remanded because Board failed to adequately address record evidence of company’s long-standing practice and belief; petition granted |
| Whether mere union membership is protected activity under Wright Line | GC treated membership and the company’s letter referencing membership as protected conduct supporting Wright Line | Company argued membership alone may not be protected activity and Board presumed protection without proof | Court: did not decide the general rule; instead remanded because Board’s analysis of animus/nexus was inadequate given factual record |
| Whether conduct was "inherently destructive" under Great Dane (i.e., so harmful to rights that discharge cannot be justified) | Letter and summary discharge were inherently destructive to employees’ right to choose union | Company argued adverse effect was slight, acted to preserve its business model, and promptly facilitated rehiring under Pipefitters contract | Court: Board’s Great Dane analysis inadequate — it gave insufficient weight to ALJ’s findings that harm was comparatively slight; remand required |
Key Cases Cited
- M&M Backhoe Serv., Inc. v. NLRB, 469 F.3d 1047 (D.C. Cir.) (Section 8(f) allows pre-hire agreements in construction without majority status)
- Nova Plumbing, Inc. v. NLRB, 330 F.3d 531 (D.C. Cir.) (same principle re: 8(f) pre-hire agreements)
- NLRB v. Local Union No. 103, Int’l Ass’n of Bridge, Structural & Ornamental Iron Workers, 434 U.S. 335 (1978) (background on congressional purposes for 8(f) statutory exception)
- American Ship Building Co. v. NLRB, 380 U.S. 300 (1965) (Section 8(a)(3) violations turn on employer motivation; employer management rights acknowledged)
- NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967) (employer actions that are "inherently destructive" of union rights may be unlawful)