475 F.

2d 1265
82 L.R.R.M. (BNA) 3015, 70 Lab.Cas. P 13,525

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.
David F. IRVIN and James B. McKelvy, Partners, d/b/a The
Irvin-McKelvy Company, Respondents.
No. 72-1168.

United States Court of Appeals,

Third Circuit.
Argued Feb. 5, 1973.
Decided March 22, 1973.

Peter G. Nash, Patrick Hardin, Marcel Mallet-Prevost, Abigail Cooley

Baskir, Michael S. Winer, Washington, D. C., for Petitioner, National
Labor Relations Board.
Francis T. Coleman, William H. Howe, Counihan, Casey & Loomis,
Washington, D. C., for Respondents.
Edward L. Carey, Bernard Dunau, Washington, D.C., for United Mine
Workers of America as amicus curiae.
Before BIGGS and GIBBONS, Circuit Judges, and HUYETT, District
Judge.
OPINION OF THE COURT
GIBBONS, Circuit Judge.

This case is before us on the application of the National Labor Relations Board
(the Board) filed pursuant to Section 10(e) of the National Labor Retions Act,
29 U.S.C. Sec. 160(e), for enforcement of the November 8, 1971 order against
the respondents David F. Irvin and James B. McKelvy, partners doing business
as The Irvin-McKelvy Company (the Employer).1 The Employer is engaged in
construction work for coal mine operators in the bituminous coal fields. The
charging party in the proceedings before the Board was International Union of

District 50, Allied and Technical Workers of the United States (District 50).
United Mine Workers of America (UMW), though not a respondent here,
participated in the proceedings before the Board as a party to a contract with the
Employer, and has filed an amicus curiae brief with this court. The case
involves the application of Section 8(f)2 of the National Labor Relations Act,
29 U.S.C. Sec. 158(f), to prehire collective bargaining agreements in the
construction industry made successively with rival labor organizations.
2

Section 8(f) was enacted as Section 705 of the Labor-Management Reporting

and Disclosure Act of 1959, Pub.L. No. 86-257, 73 Stat. 519. It amended
Section 8 of the National Labor Relations Act by adding a new subsection,
applicable to the construction industry, providing among other things that it
would not be, as it would otherwise have been, an unfair labor practice for an
employer engaged primarily in that industry, to make a collective bargaining
agreement with a labor organization covering its employees prior to the time
the majority status of that labor organization had been established in a manner
authorized by Section 9 of the Act, 29 U.S.C. Sec. 159. The amendment was
adopted to meet specific problems which had arisen in the construction industry
under the prior law because of the transitory nature of the employer-employee
relationship in that industry. During the Wagner Act period the Board had
declined to exercise jurisdiction over the industry. In 1947, after passage of the
Taft-Hartley amendments, the Board applied the provisions of the Act to the
industry with consequent difficulties. These difficulties are discussed in Senate
Report No. 187, House Report No. 741, and Conference Report No. 1147, 86th
Cong., 1st Sess. (1959). 1959 U.S.Code Cong. & Ad.News, 86th Cong., 1st
Sess. 2318, 2344, 2441, 2513. In summary, prehire agreements which would
otherwise be invalid were authorized in the construction industry because of the
dual necessities (1) that construction bidders know in advance of bid what their
labor costs would be, and (2) that construction employers have access to an
available pool of skilled craftsmen for quick reference.

The Employer here falls within Sec. 8(f). It employs a more or less stable work
force of approximately eighteen employees. Prior to June, 1964, the employees
were not represented for collective bargaining. At that time, in order to obtain
work from bituminous coal operators needing construction, the Employer
signed a collective bargaining agreement with District 50. This agreement was
supplanted, on June 27, 1967, by an industrywide contract between the Coal
Mine Construction Contractors Association, Inc. (CMCCA) and District 50, by
its terms effective from June 1, 1967 to May 31, 1970.

Both the original June, 1964 contract and the June, 1967 contract contained a
union security clause and a dues check-off clause. The June, 1967 contract

contained a "most favored nations" clause to the effect that if District 50

executed any contract with a construction contractor in the coal fields and that
contract contained more favorable provisions than the CMCCA-District 50
contract, any employer signatory to the latter could immediately have the
benefit of identical provisions. On October 29, 1968, District 50 entered into a
contract with Zeni-McKinney-Williams Corporation identical with the
CMCCA agreement, except that it was a "project only" agreement rather than
one for the term June 1, 1967 to May 31, 1970. Shortly thereafter the general
counsel of CMCCA advised District 50 that CMCCA considered the ZeniMcKinney-Williams contract to be more favorable than the fixed-term
agreement, and that all members of CMCCA were thereafter bound to District
50 only for the period of time required for the completion of those construction
projects then being worked on. District 50 has always disputed this construction
of the "most favored nations" clause, but the Board found that after it entered
into a "project only" agreement with a competitor, District 50's contract with
the Employer was converted to a project agreement. That finding is not in
dispute in this enforcement proceeding.
5

In late 1968 the Employer joined the Association of Bituminous Contractors

(ABC) in order to avail itself of an agreement which on December 10, 1968,
ABC had signed with UMW. By this time the Employer's customers were
advising that to get their construction business the work would have to be done
by UMW labor. The Employer continued to recognize the District 50 contract
on three or four existing projects. It concluded that as of April 1, 1969, all
projects to which the District 50 contract applied were substantially complete.
Beginning on April 1, 1969, therefore, it applied to all its employees the
provisions of the ABC-UMW contract.3 The employees joined the UMW.
District 50 filed with the Board a charge that the Employer violated Sections
8(a)(1), (2), (3) and (5) of the Act by withdrawing recognition from it and
recognizing the UMW.

The Board concluded that as of April 1, 1969, all of the Employer's employees
working on projects still not completed on March 31 were members of District
50, and that on those projects District 50 had majority status. It ruled, therefore,
that in ceasing to recognize District 50 as of April 1, 1969, the Employer
violated Sections 8(a)(5) and (2) of the Act, and that in requiring employees on
projects still in progress on March 31, 1969, to join the UMW the Employer
violated Sections 8(a)(3) and (1) of the Act. The Board recognized that the
conversion of the District 50 contract from a term to a project agreement left the
Employer free to make a Sec. 8(f) prehire agreement with the UMW covering
subsequent projects, but it qualified that recognition by the language "so long
as it did not employ at such projects a work force of which a majority were

District 50 members." Irvin-McKelvy Co., 194 NLRB No. 8, 78 LRRM 1516,

1518. As shall be developed hereafter, the qualifying language introduced a
serious ambiguity, which was not clarified by those parts of the Board's cease
and desist order dealing with the status of the UMW. The Board ordered the
Employer to cease and desist from:
7 Requiring membership in the Mine Workers as a condition of employment on
"(d)
any projects covered by Respondent's contract with District 50.. . ."
8

In its brief in support of the application for enforcement, the General Counsel
takes the position that the Board intended the quoted cease and desist provision
to apply not only to pre-March 31, 1969 projects, but also to post-March, 1969
projects on which the Employer's regular work force, members of District 50
by virtue of the union security clause in the Sec. 8(f) contract with that union,
may be employed. That position, the General Counsel urges, is consistent with
the further provision in the Board order that the Employer:

9 (a) Withdraw and withhold recognition from the Mine Workers as the collective"2.
bargaining representative of Respondent's employees who are working on projects
covered by the District 50 contract unless and until such labor organization shall
have been certified by the National Labor Relations Board." (emphasis supplied)
10

The Employer moved before the Board for a clarification of this order. On June
1, 1972, the Board ruled:

11 its Decision and Order, the Board intended that when the Respondent, on any
"By
project, new or old, continues to use a work complement constituting an appropriate
unit of which a majority continues to consist of members of District 50, the
Respondent is not free to sign a contract with the United Mine Workers of America
or any other labor organization covering the said unit."
12

The clarifying order and the italicized language in the original Board order,
according to the General Counsel, indicates that the Board has applied to the
CMCCA-District 50 contract the presumption of Machinists Local 1424 v.
NLRB, 362 U.S. 411, 80 S.Ct. 822, 4 L.Ed.2d 832 (1960); that is, that the sixmonth limitation in Section 10(b) of the Act, 29 U.S.C. Sec. 160(b), prohibited
an inquiry into the majority status of District 50 and the contract carried with it
a presumption of majority status.

13

An appreciation of the General Counsel's position requires familiarity with the

Board's decision in R. J. Smith Construction Co., 191 NLRB No. 135, 77
LRRM 1493 (1971), enforcem't pending sub nom. Local 150, International

Union of Operating Engineers v. NLRB, No. 71-1689 (D.C.Cir.) In that case

the Board had before it successive Sec. 8(f) contracts with rival unions. The
employer repudiated the first contract, and the first union as charging party
urged a Sec. 8(a)(5) violation. The charging party contended that Machinists
Local 1424 v. NLRB, supra, gave it, by virtue of its contract, the benefit of an
irrebuttable presumption of continued majority status. The Board held:
14
"Such
is not the case with an 8(f) agreement. As previously described, an 8(f)
agreement, because of its prehire nature, need not be made with a majority union to
be legal. For this reason, there is no basis, either in logic or in policy, to extend to the
union which is party to such a contract, an irrebuttable presumption of majority
status. Indeed, we conclude that-any such presumption would be irreconcilable with
the final proviso to Section 8(f). It is, of course, necessary sometimes to go behind
the 10(b) period to see what kind of contract is involved in a particular case- . . . .
However, once that is accomplished and it is determined that the particular contract
is validated by Section 8(f) rather than by Section 9(c)(3)-one to which no
irrebuttable presumption of majority status can be attached5 - that is the end of the
pre-10(b) inquiry.
15

R. J. Smith Construction Co., supra, 77 LRRM at 1495-96.

16

The instant case presents the fact situation hypothesized in footnote 5 of the
Board's R. J. Smith Construction Co. decision. District 50 is party to a Sec. 8(f)
contract with a union security agreement which was enforced. The effect of the
General Counsel's interpretation of the Board's decision is that the Employer
may not change the collective bargaining representative of those employees
who became members of District 50 under the compulsion of that Sec. 8(f)
agreement except by virtue of a Sec. 9(c) or Sec. 9(e) representation petition.
The Employer has, in other words, lost the Sec. 8(f) option with respect to such
employees.

17

The Employer, responding to the application for enforcement, urges as a first

position that the Board erred in finding that the District 50 contract had not
terminated on April 1, 1969. With respect to those projects which were
underway prior to March 31, 1969, however, substantial evidence in the record
as a whole supports the Board's finding that in three or four instances the
projects were not complete on that date. Since the District 50 contract was by
this time a project agreement, it still applied to these projects. Accepting the
Board's findings in this respect, two questions are presented. First, where an
employer's business has more than one bargaining unit (in this case the
unfinished projects and subsequent projects to which the first contract by its
terms did not apply) may a Sec. 8(f) employer, without a representation

proceeding, make a Sec. 8(f) agreement with a new union, although he employs
at the new bargaining unit persons who by operation of the union security
clause in the first contract became members of the first union? Second, may a
Sec. 8(f) employer, without a representation proceeding, repudiate a Sec. 8(f)
contract containing a union security clause which has been enforced, and enter
into a new Sec. 8(f) contract covering the bargaining unit and employees to
which the first contract applied? The first question arises from the Board's
prohibition against recognizing the UMW on new projects where District 50
members are employed. The second question is applicable only to those
portions of the Board's decision finding a violation and its order granting relief
with respect to the three or four projects uncompleted on April 1, 1969.
18

The General Counsel contends that both questions must, by virtue of the socalled Midwest Piping rule, be answered in the negative. In Midwest Piping &
Supply Co., 63 NLRB 1060, 17 LRRM 40 (1945), the Board held that an
employer violated the Act by executing an agreement with one of two rival
unions while a representation dispute was pending. The employer, the Board
held, must resort to the representation proceedings specified in the Act. But we
think that the General Counsel's position gives too little heed to the changes
wrought, in the construction industry, by the enactment of Sec. 8(f). By that
section construction industry employers were excused from the duty of
neutrality mandated by the prohibition against unlawful assistance in Secs. 8(a)
(1), (2) and (3). At the same time the final proviso of Sec. 8(f) establishes that
recognition via the Sec. 8(f) route shall not be a bar to a Sec. 9(c) petition by
employees or by a rival labor organization for a representation election. In the
construction industry the employer need not remain neutral in representation
matters, but both the employees and rival labor organizations are free to resort
to the Board for a representation election at any time.

19

The foregoing discussion suggests, we think, the correct answer to the first
question, at least in a context where the first Sec. 8(f) contract is, as here, a
project rather than a term agreement. Since there is no duty of neutrality in
representation matters, on new projects the Employer was free to assist the
UMW by entering into a prehire contract. The union membership of the
prospective employees on new projects was irrelevant, at least until such time
as they or District 50 petitioned the Board for a representation election pursuant
to Section 9(c) of the Act.

20

The second question, however, is somewhat more complex. While it is clear

that a construction industry employer is free to assist a selected union by a
prehire agreement that would, except for Sec. 8(f), be unlawful, it does not
appear that such an employer has been excused from the duty of bargaining

collectively. A refusal to bargain collectively with a designated representative

of employees is an unfair labor practice under Sec. 8(a)(5), subject to the
provisions of Sec. 9(a). The latter section provides:
21
"Representatives
designated or selected for the purposes of collective bargaining by
the majority of the employees in a unit appropriate for such purposes, shall be the
exclusive representative of all the employees in such unit for the purposes of
collective bargaining. . . ." 29 U.S.C. Sec. 159(a).
22

The Employer suggests that District 50 was never "designated or selected . . .

by the majority of the employees in a unit" because the designation was made
by it pursuant to Sec. 8(f). It contends that the Board has recognized that this is
the reality of the situation in R. J. Smith Construction Co., supra, which,
properly interpreted, leaves a construction industry employer free at all times to
repudiate a collective bargaining contract with one union and enter a new one
with another. While the contract in R. J. Smith Construction Co., supra, did not
contain a union security clause, this, the Employer urges, should make no
difference, since that clause is no more free of the taint of employer assistance
than the balance of the contract.

23

Without suggesting how we would rule if presented with the repudiation during
its term by a Sec. 8(f) employer of a collective bargaining agreement containing
no union security provisions,4 we reject the interpretation of Sec. 8(f) advanced
by the Employer here, where there was a union security clause and a dues
checkoff provision, both of which were complied with until April 1, 1969.
Nothing in either the text or the legislative history of Sec. 8(f) suggests that it
was intended to leave construction industry employers free to repudiate
contracts at will. It is significant, we think, that despite the instant contract
provisions and their enforcement, the employees did not, from June, 1964 to
April, 1969, petition for a representation election. There was at least tacit
acquiescence in the designation of District 50 as collective bargaining
representative. Whatever may be the correct rule in the absence of union
security and dues checkoff clauses, at least where the union's role has by the
operation of such clauses been brought home to the employees quite directly,
and they have refrained from seeking a representation election, an employer is
not free to repudiate his Sec. 8(f) contract during its term. That being so, the
Employer violated Sec. 8(a)(5) when it unilaterally substituted the terms of the
ABC-UMW contract as of April, 1969, on the three or four projects then
unfinished.

24

Because of the passage of time since the last action by the Board (June 1, 1972)
it seems highly likely that all projects which were unfinished on March 31,

1969, have now been completed. If this is the case, the CMCCA-District 50
contract has expired by its terms. Since we have concluded that the Bord
decision was correct only insofar as it found unfair labor practices in connection
with the projects existing but uncompleted on March 31, 1969, the need for
injunctive enforcement of the Board's order may no longer exist. The
application for enforcement will be denied insofar as it applies to construction
projects commenced by the Employer after April 1, 1969. The application for
enforcement will be denied insofar as it applies to construction projects
commenced by the Employer prior to, but uncompleted on April 1, 1969,
without prejudice to an application by the General Counsel, within thirty days
from the filing of our judgment, on notice to the attorney for the Employer, to
which a response may be filed within ten days of such notice, setting forth
reasons, if any, which may still exist for enforcement of the Board's order with
respect to such projects. If such an application is filed it will be referred by the
Clerk to the same panel of this court which heard this application.

The Board's order is reported at 194 NLRB No. 8, 78 LRRM 1516 (1971)

Section 8(f) provides:

"It shall not be an unfair labor practice under subsections (a) and (b) of this
section for an employer engaged primarily in the building and construction
industry to make an agreement covering employees engaged (or who, upon
their employment, will be engaged) in the building and construction industry
with a labor organization of which building and construction employees are
members (not established, maintained, or assisted by any action defined in
subsection (a) of this section as an unfair labor practice) because (1) the
majority status of such labor organization has not been established under the
provisions of section 159 of this title prior to the making of such agreement, or
(2) such agreement requires as a condition of employment, membership in such
labor organization after the seventh day following the beginning of such
employment or the effective date of the agreement, whichever is later, or (3)
such agreement requires the employer to notify such labor organization of
opportunities for employment with such employer, or gives such labor
organization an opportunity to refer qualified applicants for such employment,
or (4) such agreement specifies minimum training or experience qualifications
for employment or provides for priority in opportunities for employment based
upon length of service with such employer, in the industry or in the particular
geographical area: Provided, That nothing in this subsection shall set aside the
final proviso to subsection (a)(3) of this section: Provided further, That any
agreement which would be invalid, but for clause (1) of this subsection, shall

not be a bar to a petition filed pursuant to section 159(c) or 159(e) of this title."
3

The employees did not complain since the hourly wage rates in the ABC-UMW
contract were significantly higher. The record discloses these examples:

Job Classification
-----------------Welder
Truck Driver
Laborer

District 50 Hourly Rate For

1969
-----------------------------$3.89
3.25
3.14

UMW Hourly Rate

Incre

--------------$4.125
3.745
3.745

-----23.5 c
49.
60.

It is possible that, in some situations, at least a rebuttable presumption of

majority will arise from an 8(f) contract. This might occur, for example, when a
union-security agreement is present in the 8(f) contract and has been enforced.
That is not the case here."

Members Fanning and Brown dissented from the holding in R. J. Smith

Construction Co., 191 NLRB No. 135, 77 LRRM at 1496. They would hold
that even in the absence of a union security clause a Sec. 8(f) employer must
bargain collectively with a union with which it has made a Sec. 8(f) contract
until its expiration or until a representation election changes the collective
bargaining representative. Cf. NLRB v. AAA Electric, Inc., 472 F.2d 444 (6th
Cir. 1973)