*1 NATIONAL LABOR BOARD RELATIONS LOCAL UNION NO. 103, INTERNATIONAL ASSOCIATION
OF BRIDGE, STRUCTURAL & ORNAMENTAL
IRON WORKERS, AFL-CIO, еt al. Argued No. 76-719. January 17, October 1977 Decided *2 Norton him petitioner. J. Come for With argued the cause Allen, McCree, on A. the briefs were Solicitor General Richard John Irving, Taylor, 8. Carl L. Linda Sher. L.
Sydney Berger respondents. With argued the cause him Berger. brief L. was Charles *
*J. Albert Woll and Gold American Federa- Laurence filed a brief for the Congress tion of Labor and curiae. Organizations of Industrial as amicus opinion delivered the of the Court. Mr. Justice White (b) Sections 8 and 8 (7) (f) were added to the National Labor Relations Act in 1959.1 so- permitting Section (f), (b) (7), (b) (7), Section 73 Stat. provides: U. S. C. §
“It shall be an unfair labor organization for a its labor or agents picket ... picketed, picket or cause to be or threaten to or cause any picketed, to bе employer object requir- where an forcing thereof is or ing or organization with a as the representative employees, forcing of his requiring accept organization or select such labor as their collective bargaining representative, organization currently unless such labor cer- representative employees: tified as the of such “ (A) lawfully recognized where the in accordance with this question organization Act other labor concerning representa- *3 appropriately 9(c) tion not Act, be raised under section of this “(B) preceding where within the twelve months a valid election under 9(c) conducted, section of this Act has been or “(C) picketing petition where such has been conducted a without under 9(c) being period section filed within a reasonable of time not to exceed thirty days picketing: Provided, from the commencement of such That petition when forthwith, such has been filed the Board shall without regard provisions (c) (1) showing to the of section 9 or the absence of a part of a interest on of organization, substantial the the labor an direct certify in appropriate election such unit as the Board finds to be and shall further, nothing subparagraph the results thereof: Provided That in this (C) any prohibit picketing publicity shall be construed to or other for truthfully advising consumers) public (including the of the that of, employer employ with, members an does not or have a contract a labor organization, any an еffect of such unless is to induce individ- by any person employed employment, other in the ual course of his any pick up, transport goods perform any deliver or or not to services. (7) “Nothing paragraph permit in shall be construed to act practice (b) labor otherwise be an unfair under this which would section 8 (f), (f), provides: 29 U. S. C. 158 Section 8 Stat. practice (a) (b)
“It not be an unfair labor under shall subsections employer engaged primarily for an building of this section the industry agreement covering employees to make an engaged construction who, upon employment, engaged) will be (or building their the and-con- industry organization a labor building with struction and con- (not established, employees maintained, are members struction or assisted “prehire” called agreements industry, pro in the construction practice vides that shall not be an unfair into it labor to enter an majority such with a union has agreement not attained prior status (b) to the execution of agreement. Under (7) (C), representative a union that not the certified is employees prac unit the relevant commits an unfair labor pickets tice if it object” an with “an or “forcing requiring an or labor bargain with a organization representative of his if it employees” days does not within 30 for petition file a an election under (c). §9 The National Labor held (Board) .Relations Board is unfair labor meaning within the (b) (7) (C) for an union not representing uncertified to engage in extended in an effort to enforce agreement employer.2 with issue here is whether this misapplication is a as the section, Appeals Court of held in this case.3
by any action (a) defined in section prac- of this Act anas unfair labor tice) (1) because organization status such not been provisions established under the prior of section 9 of this Act making agreements, (2) agreement requires of such or such as a employment, membership condition of organization in such labor after day following seventh beginning employment of such or effec- agreement, tive date of the later, (3) whichever such requires notify organization opportunities such labor employment employer, gives organization such such labor *4 opportunity qualified applicants (4) to refer emрloyment, for such or such agreement specifies training qualifications experience minimum or for employment provides priority opportunities for employment for based upon length employer, industry service par- with such in the or in the Provided, geographical nothing ticular area -. That in this subsection shall proviso (a) (3) set aside the final to section 8 of this Act: Provided fur- ther, any agreement invalid, (1) That which would be for but clause subsection, petition shall not be a bar pursuant to a filed to section (e).” (c)9 or 9 (Higdon Contracting
2 Iron Local 103 Co.), Workers B. N. L. R. (1975). App. Iron Workers Local 103 U. S. D. 535 F. C. 2d 87
I Higdon Construction Co. and Local 103 of the International &; Association of Bridge, Structural Ornamental Iron Workers, (hereinafter AFL-CIO Local 103), history had a of collective bargaining dating back to A prehire agreement 1968. was by reached Local 103 Higdon July 31, 1973, obliging Higdon by abide the terms of the under- multiemployer standing between Local 103 and the Tri-State Iron Workers Employers Inc. Association, security provi- No clause was sion contained in 103-Higdon agreement. the Local At Higdon about the same time, Contracting Co. for was.formed express purpose on construction work with carrying nonunion labor. picketed projects Local 103 subsequently two by Higdon Kentucky undertaken Contracting Co.,, with Indiana, signs "Higdon read: Construction Com- pany is violation of the the Iron Workers Local Number 103.” one Picketing jobsite persisted for more repre- than 30 into March 1974. days, Local had never sented a employеes and, although at either site petition it was to do did not for so, representation free it election to determine the wishes of the at either location. March 6, 1974, Higdon
On filed a Contracting charge Co. with the Director Regional Board, alleging of the that Local 103 was violating (b) (7) Labor Act. The Adminis- Judge Law trative found that Co. and Higdon Contracting for Higdon legally purposes Construction Co. were indistinct In proceedings. opinion -an issued he August 23, 1974, concluded that Local 103’s did not constitute practice. Higdon unfair had entered into a lawful § 8 promised contract with Local 103 which to abide by multiemployer pur- standard. was poses compliance obtaining existing contract, rather recognition than to obtain as an initial matter. lattеr forbidden Only (b)(7). *5 Law Judge. did not with the Administrative agree The Board emphasized decision,4 on its R.J. Smith the Board Relying and majority status, Local 103 fact that had never achieved force on the (f) binding thus had no was not employer. For this Local 103’s reason, existing with simply compliance forcing contract, finding that accepted even the Board though only single employer the Board’s view was involved. Under evidence, object the law and to Company, Inc., “forcing requiring Higdon Contracting currently without certified as 103], being [Local Inc.’s representative of Higdon Contracting Company, petition (c) being and without a under Section within period filed a reasonable of time . . . .” Local sought Court of review the United States Appeals court for the District of Cirсuit. That Columbia set aside the Board’s R. J. Smith order, as had aside the set years previously.5 Appeals order three ruled that The Court of with it the validity of a 8 contract carried right to right by picketing, enforce that contract and the prevail when to well, agreement occurs, breach of the file employer for practice charge against on an unfair labor to bargain. nonmajority failure elevation of This rights in the court’s acceptable, status was proviso (f), because of second denies view, protection prehire agreements the usual contract bar permits representation election to be held at the instance agreement. party during either time the life subsequent petition Board’s this Court for a writ of granted.6 certiorari was We reverse. Co., (1971),
4 R. J. Smith Construction 191 N. L. R. B. 693 enf. denied Engineers App. nom. sub Local 156 U. S. D. C. 480 F. (1973). 2d 1186 5Engineers NLRB, supra. Local 150 v. 429 U. S.
II It undisputed is the that union was not the certified representative of Higdon’s employees and that it did not file petition an election within 30 of onset days picket the of the ing. The issue for the Board was whether for purposes the of 8§ (b)(7)(C), pickets the .union carrying signs asserting that Higdon was an agreement with violating the union were picketing the forbidden purpose requiring Higdon or bargain with the union. Under the Board’s view prehire (f), agreement minority does not entitle union be treated the majority representative as of the employees until and unless it majority attains the support in relevant unit. Until that the prehire agreement timе is not voidable does have the same stature as a collective- bargaining contract entered into with repre a union actually senting majority the and recognized as such by employer. the Accordingly, here, the Board as it did holds, that by a picketing minority union prehire to enforce a that refuses effectively to honor, object of attaining recognition represent bargaining ative with support is among the employees, consequently violative of 8 (b) (7) (C). The Board and Appeals Court thus differ principally questions on the legal of how § 8 is to be consequences construed and what prehire execution of a agreement has on the enforcement of primarily other sections of the Act, (a)(5) (b)(7) §§ 8 and 8 (C). We have concluded the Board’s construction of the Act, perhaps only not the although tenable one, accept is an reading statutory able of the language and a reasonable implementation purposes of the the relevant statutory sections.7 conclusion, appear, object Board’s As will that an picketing though recognition sought only even Local
was to obtain to enforce (f) contract, the Board’s flows from view that a contract equivalent recognizing the union representa as the is face, (b)(7)(C) apply would Although §8 its recognition union where picketing extended an uncertified literally section has not been object, prehire agree employees, attempt to enforcе the tive of the require ment the union is to treat with recognitional picketing. object, is a recur-
Determining objects, of labor *7 mixed ring necessary of these function of the Board. Its resolution questions type legal normally judicial A of factual and survives review. ostensibly frequently (b) (7) activity found to violate 8§ by incorporated purpose forcing employer of an abide terms employers. Even in agreements the union and other cases into between any intent, acceptance expressly recognitional union disavows where the by the “net effect” of proposed terms the union can have of the uniform establishing negotiator wage of rates and benefits.” the union “as the NLRB, Building v. 124 S. Construction Trades Council U. Centralia & (1966). 212, 214, 699, “The has held App. D. C. 363 F. 2d 701 Board employ informing рublic employer that an does not members object, stating organizational organization indicates an of a'labor organization simi- have a contract with a labor that an does not Carpenters bargaining.” larly implies object recognition and an of (1973). Hence, picketing 906, 138, to enforce Local 204 N. L. R. B. 139 standards, had been assured notice from where an area hours, you wages, and other expect to observe the union that “while we documents, any expect do not or seek col- set forth in these we benefits your bargaining relationship firm,” has been held to violate lective with Employees (Holiday America, (b) (7). Inns Hotel & Restaurant 8§ of (1968). Inc.), 683, 684 169 L. R. B. N. Appeals upheld in these inferences. The Courts have the Board “Though legend interpreted could be [‘Non-Union Conditions’] merely protest working conditions, of the it was reasonable restaurant’s message part for the NLRB to conclude that . . . was least working that the desired to alter a situation obtain- non-union ing recognition. countervailing evidence, In the absence recog- NLRB could thus determine that the App. Joint v. nitional.” San Francisco Local Board S.U. 234, 239, 794, (1974). Carpenters, D. C. 501 F. 2d NLRB See also (CA9 1971), F. 2d 1255 cases cited therein. case, present agent In the Higdon the Local’s business contacted Con- tracting’s general asking manager, going “if people ‘we’were to use union applied. The employer’s Board holds that an refusal to honor a collective-bargaining contract executed the uniоn hav ing support is a bargain refusal and an unfair labor practice under 8 (a) (5).8 picketing by Extended the union attempting to bargain enforce the require contract thus seeks to ing, applies but as the Board (b) (7) (C) does not Act, § bar such picketing. Building & Construction Council Trades County (Sullivan Santa Barbara Electric L. Co.), N. R. Bay B. (1964); District Council Car Counties penters (Disney Roofing & L.N. R. B. Co.), Material prohibition (b)(7)(C) against § 8 picketing with object forcing “to with a organization” should not be read as encompassing separate two and unrelated but was terms, to proscribe “intended picketing having forcing as its target requiring an employer’s initial acceptance the union as the representative of his employees.” Sullivan Elec tric, supra, at 1087. present
As the case demonstrates, Sullivan however, *8 protect Electric rule does not picketing to a enforce contract job.” general manager the The negative; on in answered the the busi- agent replied, right ness get it,” pickets “I'll on and the materialized. message picket signs The Higdon the that announced not com- was in pliance the with terms of its Local with 103. The inference is certainly sustainable Higdon that Local 103 wished to abide those terms. Hence, if (f) the Board in of is correct its 8 view interaction §§ (b)(7)(C), precedent
and 8 the Board’s decision here was within settled concluding that a Higdon of the was to force Con- tracting bargain to with the union. The carried case, (f) required contrary on in this unless 8 a as a conclusion matter § law, (b) (7) (C). clear violation 8§ 8 Hyde, 568, (CA9 See NLRB 1965). F. 2d 339 571-573 A cоntract majority representative presumption also with it with a carries Dayton Motels, Inc., majority still obtains. the union’s status 192 (1971), remanded, (CA6 474 674, B. 2d 1973), R. 678 F. 328 N. L. 1976). enf’d, (CA6 F. 2d 476 the union is not and to where pursuant § into entered of the representative majority of a been the chosen never a unit. will the issue relevant Board employees a Neither employee refusing (5) against order (a) bargaining 8§ can complaining union by a 8 contract unless § (f) abide Smith R. J. unit. majority its status in the demonstrate Co., Construction 191 N. L. B. R. prevailing generally
The is rooted in the position Board’s statutory purport union to act as policy that a should for agent employees, all unit and collective-bargaining recognized such, not be unless is the voice employees in the unit. 7 of the 61 Stat. Act, of the Section employees right 157, guarantees 29 U. S. §C. choosing. collectively representatives of their own bargain (a), provides bargain- (a), 29 U. S. C. Section must agent employees appropriate for unit ing all of the in the representative purposes for “designated be the or selected .” employees of collective of the bargaining ... (a) It is thus an under §§ unfair for an (1) (1) (2) (b) (A) union under to interfere a employees restrain, right or coerce in the their with, exercise their Court has held that both representative. select they practices sign commit unfair when the union as the collective-bargaining agreement recognizing in fact minor- representative only exclusive when ity represent of the have the union authorized could abridgment their “There be no clearer interests. assuring employees right 'to Act, collectively through representatives choosing’ their own activity” grant refrain from’ bar- 'to such than to “exclusive agency by minority to an selected of its gaining status *9 thereby upon noncon- employees, impressing that agent Garment Workers v. senting S. majority.” U. though employer This is true even 731, good faith, mistakenly, the union but the union believe that majority support. has obtained “To countenance such an place excuse would in permissibly employer careless power hands the to completely frustrate employee realization premise prohibitions the Act—that to go its will far assure and majority employee freedom choice selec- rule in Id., of representatives.” tion at 738-739. (f) exception
Section 8 is an to this The execution rule. minority normally with a union, an act practice unfair both legitimated by union, by is (f) § 8 is in industry. when the construction exception The is nevertheless of limited for the usual scope, rule the union from protecting inquiry majority into its status during the terms of a not collective-bargaining contract does apply prehire A agreements. proviso to the section declares that a which contract, would be invalid absent section, petition pursuant “shall be bar to a filed to sec- (e).” or 9 (c) The and its tion —and the union itself for call for a bargaining matter — representative election at airy time. proviso
The exposing prehire agreements uniоns with inquiry into their standing (c) elections under J. Smith: An employer led the to its R. Board decision in does not commit an unfair under when he § (a)(5) refuses to honor bargain the contract and with the union and the union fails establish the unfair labor practice proceed- ing that it majority support. has ever had As viewed Board, “prehire agreement merely step is preliminary contemplates development further action for the of a full Co., bargaining relationship.” Ruttmann Construction L. R. B. 702 (1971). employer’s duty N. and honor the contingent contract union’s attaining NLRB majority support at various construction sites. In Irvin, (CA3 F. 1973), 2d 1265 for example, contract was binding projects deemed on those respect union had secured a but not with to those *10 346 union had terminated yet begun before the
projects contract. context, (b) (7) (C) (f) § of 8 in the 8
Applying § this view to picketed in when the the Board held this case that challenge the could prehire Higdon its agreement, enforce charge and (b) (7) by filing a 8 majority standing § union's union admit- prevail, could did because Higdon here, as projects. picketed at tedly lacked credentials relation- collective-bargaining qualifications, Absent these exclusive as the ship to act and the union’s entitlement enforce to Picketing matured. bargaining agent had never picketing equivalent of (f) legal 8 contract was the § (C) (b) (7) recognition agent, § the exclusive require request union failed an election infringed when the within 30 days. (f) either
Nothing language purposes § in the (7) statute. Because (b) application § foreclosеs minority with (f), making prehire agreements § would be in other unions is not an unfair as it purport industries. But does not to authorize itself prehire where the union has agreements to enforce expand the majority support. not achieved Neither does it duty bargain which is to (a)(5), §8 under employer to require with majority representative, with with which he executed a a union majority support to win but has failed the covered unit.
As for was added (b)(7), which, along (f), its Act’s 1959, major purpose implement was to one of the principal ensure that were free to make goals—to agent. recognized an uncoerced choice of As we Steamfitters, Connell Construction v. Plumbers & Co. (1975), major U. S. 616 aims the 1959 Act was “[o]ne 'top to limit used down’ in which unions organizing campaigns, wеapons economic from an recognition force regardless employees.” Id., of his wishes partic references cited therein. The use of was of *11 a specific ular concern as method of coercion in three con employees texts: where union already had selected another representative, employees recently where had voted against union, labor and employees given where had not been a chance to question representation. Picketing vote the of in these thought circumstances was with the impermissibly to interfere employees’ freedom of choice.9
Congressional concern about of bar- designations coerced evaporatе did not focus turned to the gaining agents as the proposals “The total effect of these in administration bill the would regulate picketing employers employees be to their so that and will not subject organizational picket to be the continuous coercion of an line.” (1959) (remarks Dirksen), Legisla Cong. Rec. 1731 Sen. History Labor-Management Reporting tive of the Act of Disclosure 1959, (hereinafter Leg. Hist.). p. 994 cited as provisions
The administration bill had that added the would become (b)(7). Department explanatory grouped The statement of Labor’s §8 exerted, ways pressure together the in unfair could be subject practice, it “an unfair labor to and noted that bill would make mandatory injunction, picket union order to for a to coerce bargaining representative employ- recognize it as of his to Cong. (1959), Leg. ees .. . .” 105 Rec. 1281 Hist. 977. transmittal letter had stated: President’s legislation illegal union, by picket- it “I recommend . . . make for a [t]o ing, bargaining representa- to coerce employees accept designate employees tive his or his it as their representative recognized in accordance with law where the organization, representation election has been another or where a months, be preceding 12 or where it cannot conducted within the last part showing on the that there a sufficient of interest demonstrated is by or where employees being represented period time without 'picketing has continued a reasonable election; by representation being determined desires of Doc. No. provide speedy measures.” S. effective enforcement added). (emphasis 10, (1959), Leg. Hist. 81-82 Cong., Sess., 1st 2-3 86th industry.10 (f) was, course, construction Section 8 moti unique industry. vated an awareness situation Board had not over the jurisdiction Because the asserted 1947, construction before the House Committee industry Report concepts observed that Board had been evoked “developed industry.” without construction reference H. R. No. Rep. Sess., (1959), Leg. 86th 1st Cong., 777. There aspects peculiar building Hist. were two to the Congress justified trades that apparently thought use represent agreements unions did then the employees: necessary “One reason for this is that it for the employer to his making know labor costs before *12 upon estimate which A his bid will be based. second reason is that must be able to available have a of for supply ready quick skilled craftsmen referral.” Ibid.
10Congress prehire agree was careful make to its intention clear that voluntarily, ments were arrived to be and no element of coercion was to be exception admitted into the being narrow established to the principle. Representative Barden, important an leader House floor on conferee, bill expression and a legislative introduced as an of intent Kennedy's explanation year voluntary Senator before of the nature prehire provision: Kennedy: “Mr. I shall answer the Senator from Florida as follows—and my intention, by it is answering, legislative history so to establish the question: require this It was the intention of the to committee (a) making prehire agreements, but, section 604 rather, permit to them; nor was intention of the committee to authorize labor organization strike, picket, sign or otherwise to coerce prehire agreement where the status of the union had not been voluntary permit prehire established. section is to agreements.” Cong. 2 (1969), Leg. Rec. 18128 Hist. 1715. Report similarly The House “[n]othing Conference stressed that in such
provision force, is intended ... coercion, strikes, authorize the use compel person prehire agreements.” to enter into such Rep. H. Cong., R. No. Sess., (1959), 86th 1st 1 Leg. Hist. 946. Report The Senate also “[representаtion noted that elections in a large industry segment are not feasible to demon- strate . majority . . periods status due short actual employment by specific employers.” Rep. S. No. 187, 86th Cong., Leg. 1st (1959), Hist. 541-542. Sess., Privileging unions and employers prehire to execute and agree- observe ments in an effort to accommodate special circumstances in the construction industry may greatly have convenienced unions and employers, but in no sense be as portrayed can it expression of the employees’ organizational wishes. Hence proviso despite an election could be demanded prehire agreement. By the same token, (b) (7) because 8§ adopted to ensure selection voluntary, uncoerced representative by employees, we cannot fault the holding Board for (b)(7) applies minority to a union § prehire to enforce a contract. position The Board’s not, respondents claim, does render (f) meaningless.11 Except § 8 (f), § neither the nor the could execute agreements without com practices. mitting unfair Neither has the Board chal lenged voluntary observance of valid 8 (f) otherwise which is the contracts, normal It course events. also comparable 11 A hot-cargo situation concerning clauses, obtains permitted industry by (e), (e), are in the construction 29 U. C.S. *13 by but which cannot be picketing. enforced Before the enactment proviso, secondary of the this Court it held that was a of the violatiоn boycott provisions Act, (b)(4) (A), 136, 61 to enforce Stat. §8 hot-cargo a by Carpenters lawful clause in refusing a contract to work. NLRB, (1958). adoption (e), v. U. S. 93 After the 8 357 position hot-cargo remained the Board's in the clause construction industry, exempted (e), which is from the ban of not be enforced by by (b)(4). Building conduct forbidden & Northeastern Indiana §8 Council, (1964), Construction Trades 148 N. L. R. remanded B. 854 220, (1965). other grounds, App. U. S. D. C. 2d 696 Cf. 352 F. (1977) Pipefitters, (valid preservation NLRB v. agree 429 U. S. work boycott privilege secondary ment picketing). does not successfully -seeks when the union undisputed that col- the status of a support, prehire agreement attains by employer executed lective-bargaining agreement employees in the unit. of the representing case in this conflicting оf the claims The Board's resolution construction of the statute and represents a defensible dif may prefer a entitled to deference. Courts considerable function application sections, ferent of the relevant but “[t]he policy is striking that balance effectuate national Congress which the responsibility, often a difficult delicate Board, primarily committed National Labor Relations Drivers, Truck subject judicial review.” NLRB v. limited Agents, NLRB v. Insurance 361 U. 87, (1957); 353 U. S. S. 477, (1960). “recognition appropriate Of course, power obviously . ex sphere of the administrative . cannot . But judicial all review of the Board’s actions.” Ibid. clude say the Board a new we cannot has here into “[moved] regulation Congress area of which not committed it.” [hаs] Ibid, Building In Co. Ship American 380 U. S. was (1965), the Court “unable to find that fair provisions by construction of the relied on the Board .. can. support its of an unfair labor finding .... [T]he fundamentally role assumed Board . . . incon -[was] with the sistent of the Act and the function of structure upon.” explained, sections relied As we have this is case here.
The union suggests that the Board’s construction of 8§ deserves applica- little or no deference it is merely because tion in the 8 (b)(7) context of the decision in J. Smith R. Co., Construction (1971), 191 N. L. R. B. itself prior Co., inconsistent with a decision, Maintenance Oilfield 142 N. L. R. B. It is not at all clear from the latter .case, that the however, union involved there had never had majority status. issue only received atten- passing tion at time; and the case was Board distinguishеd *14 Co.,
in Ruttmann Construction 191 N. L. R. B., at n. day Smith, supra, “primarily decided the same as R.J. as being a right successor-employer concerned” with to disavow “the by predecessor contracts made a with five unions and different substitute the terms of a contract it had with another union.” if any represents In Maintenance view event, a that Oilfield status of the majority executing prehire agreement a may not be challenged proceedings, unfair labor contrary plainly Board has not approach. adhered to Its that has expressed view been on more one An than occasion.12 agency administrative its disqualified not from changing mind; when it still does, the courts sit review statutory administrative approach decision and should not construction issue de nоvo regard and without to the adminis trative understanding the statutes. argues position
The union the Board’s permitting repudiate the union agreement until majority attains support practical renders the contract for all purposes unenforceable, assertedly contrary to Court’s Inc., in Retail Clerks Lion Goods, decision Dry 369 U. S. (1962). There, opinion recognized the Court’s Labor Act on Management jurisdiction Relations confers the federal courts to entertain suits contracts between minority employer and a as union, majority- well as those with designated collective-bargaining con- agents. Section 8 tracts were noted being category. in this The Court was nevertheless to an issue of speaking jurisdiction. That court has jurisdiction particulаr consider a suit on a contract does suggest that the contract is enforceable. be It would not Dry inconsistent with Lion Goods for a court to hold that Smith, R. expressly In J. the Board implication limited from such majority Maintenance to cases presumption where a rebuttable Oilfield status, fact, majority status, status existed. One-time cou pled security enforced, with a union gives clause that been rise presumption rebuttable status, of continued in the Board’s view. Smith, J. B., See R. 191 L.N. R. at 695.
352 subject litigation in a 301 majority standing §
union’s is to in just (a) (5) § to 8 it is a 8 contract, § suit enforce a as showing a practice proceeding, unfair labor and that absent the majority’s instrument, the union is the chosen contract that is unenforceable. already said, is also from that the
It clear what has been Building here is not & Construction decision inconsistent County (Sullivan Trades Council Santa Electric Barbara merely 146 N. L. B. Co.), permits R. 1086 That case actually to a represent enforce contracts with a in the ing majority employees Here, the unit. the union represent the and in majority, did to enforce the prehire agreement, privileges majority rep the of a sought resentative. The conclusion that 8 is (b) (7) § violated legally factually acceptable. defensible and judgment Appeals of the Court of is reversed.
So ordered. with whom Mr. Stewart, Justice Blackmun Justice Me. and Mr. Justice join, dissenting. Stevens
An in construction other industry, like employer, is under no with a labor obligation orga represent majority employees.1 nization does not a of his that Laboratories, Inc., NLRB F. 2d See v. Philamon (CA2). unlikе other free to do employers, so, But he is under with a union whose (f) sign contract § under liability status not been established without risking (a) (5) Act, Labor in Section National Relations set forth (a) (5), provides 29 U. S. C. 158 it is an for an unfair bargain collectively representatives “to his refuse with the employees, provisions subject (a) section of this Sec title.” (a), (a), pertinent “[repre provides part tion 9 C. 159 in U. S. designated purposes bargaining sentatives or selected for of collective employees appropriate purposes, in unit for such representatives employees shall be the of all the in such exclusive unit purposes of collective . . . .” organizational for interfering rights with the §8 (a)(1) Cf. Garment minority union.2 recognizing Workers S. 731. When an U. 8 (f) prehire industry
construction does to enter a choose policies of provisions there nothing agreement, Board, or the employer, national labor law that allows case Court nullity. as a Yet dismiss *16 may precisely do employer holds that both the Board and the that. collective- as a or not it has the “same stature
Whether ante, or 341, at majority union, contract” with a bargaining R. J. order, subject (a) (5) of a bargaining be Co., denied 693, L. R. enf. Smith Construction B. N. Engineers D. C. Local App. 156 U. S. sub nom. v. ais contract (f) agreement prehire § 8 1186, 480 F. 2d 294, The parties. two obligations between embodying correlative lawfully could Board in this case concedes that the though even agreement to adhere to have chosen Higdon Thus even if not attained uniоn had status. legal duty by terms of the no abide was under im- Higdon was that fact does not establish that agreement, do so. it to pressure encouraging mune aimed from economic objectives, lawful primary picketing pursuit in Peaceful the National minority union, by not forbidden by even statutory express within Labor Relations Act unless falls an Teamsters, NLRB 274, 282. 362 U. S. prohibition. Act, as set forth in Relations Section 8 of the National Labor pertinent (f), provides part: U. S. C. 158§ (b) (a) and an under subsections “It shall not be unfair building primarily engaged for an this section engaged industry covering employees an to make construction building and engaged) in the (or who, upon employment, will be their building organization industry a labor of which construction with (1) the status . . . because are members construction provisions under organization has not been established of such labor making agreement . . . prior to the of such section 159 of title be statutory such Board believes to only provision that prohibits most applicable to this case is (b)(7), §8 the Board’s organizational recognitional picketing.3 But compel (b) (7) prohibits picketing com contention that existing prehire agreement supported is not pliance prior interpreta language of that section or the Board’s of it. tions to force an (b)(7) prohibits “picketing
Section bargain with organization a labor 'to ” Construction Building & representative employees.’ of his Electric County (Sullivan Council Barbara Trades Santa emphasis B. Co.), (quoting statute, 146 N. L. R. interpreted by Board, this seсtion opinion). Board’s As collective- prohibit picketing existing does not to enforce require would contract, though even bargaining enforcement only proscribe since it was intended bargaining, actual an em “picketing having target forcing requiring as its rep ployer’s acceptance initial of the union as employees.” (Emphasis supplied.) his Ibid. resentative of *17 relationship by a However one view the established is agreement it is established when the (f) agreement, 8§ interpretation of the terms signed. Only by the most strained be said to be for picketing can to enforce the (b) (7) Act, of the National Labor Relations as set forth Section in. (b) (7), pertinent part provides C. shall be an U. S. 158§ organization unfair for a labor picket picketed, picket threaten to or cause to be “to or cause to be or any employer object forcing requiring picketed, thereof is or where organization repre- or with a labor as the employees, forcing requiring or of an sentative of his accept organization employer to or select such labor as their collective bar- currently organization gaining representative, unless such labor certified employees: representative of such as the
“ (C) petition under such has been conducted without a where period being filed within a reasonable of time (c) section 159 of this title thirty days . . not to exceed from commencement such .” . And acceptance” recоgnition.4 gaining “initial inconsistent patently such a tortured construction would be “is a command Act, §with 13 of the 29 U. S. C. Congress ambiguities to the courts to resolve doubts and interpretation safeguards right favor of an . . . which prior Taft-Hartley as understood passage strike to the Teamsters, Act.” NLRB supra, 282. I think nor other (b) (7) provision
Since neither 8§ peaceful primary picket the Act rendered illegal the union’s total breach of its protesting Higdon’s unilateral and I agreement, judgment would of the Court of affirm the Appeals. rely “picketing holding The Board and the Court on cases *18 ostensibly forcing to abide terms for the employers”
incorporated agreements and other into between (b) Ante, recognitional purpose of 8 fact have a violation See, g., Carpenters 138; & 7. e. Local 204 N. L. R. B. Hotel 342 n. Employees (Holiday America, Inc.), Inns 169 N. L. R. B. Restaurant 683. But in none of these cases did the union and the have a pre-existing relationship (f) agreement. under a 8§