RESPONDENT: National Labor Relations Board
LOCATION: Turner Turnpike
DOCKET NO.: 80-1798
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Ninth Circuit
CITATION: 456 US 645 (1982)
ARGUED: Mar 03, 1982
DECIDED: May 24, 1982
John W. Prager, Jr. - on behalf of Petitioner in 80-1798
Laurence Stephen Gold - for respondent unions
Lewis K. Scott - on behalf of Petitioners in 80-1808 and 81-91
Norton J. Come - on behalf of Respondent National Labor Relations Board
Facts of the case
Media for Woelke & Romero Framing, Inc. v. National Labor Relations Board
Audio Transcription for Oral Argument - March 03, 1982 in Woelke & Romero Framing, Inc. v. National Labor Relations Board
Warren E. Burger:
We will hear arguments first this morning in Woelke and Romero Framing, Incorporated, against National Labor Relations Board, and the consolidated cases.
Mr. Prager, I think you may proceed whenever you are ready.
John W. Prager, Jr.:
Mr. Chief Justice, and may it please the Court, these consolidated cases are here on petitions for certiorari to the United States Court of Appeals for the Ninth Circuit.
The en banc court below affirmed the Labor Board's decision that the construction unions involved in this case did not violate Section 8(b)(4)(A) of the Labor Act by picketing to obtain certain restrictive union-only subcontracting provisions which are commonly called subcontractor's clauses because both the court and the Board believed that such provisions were protected by the construction proviso to Section 8(e) of the Labor Act.
Two questions are thus presented to the Court.
First, are subcontractor's clauses always valid under the construction proviso simply because they are contained in a lawful collective bargaining relationship between the union and the employer?
Second, can a union lawfully picket to obtain such clauses?
We believe the answer to both questions is no.
We hope to persuade the Court that the Labor Board's decision and the court below's decision is contrary to the legislative history to Section 8(e) of the Labor Act, and contrary to the reasoning of this Court in Connell Construction, which was decided by the Court in 1975.
The facts of this case are fairly straightforward.
The Petitioner, Woelke and Romero, had a collective bargaining relationship with the unions, and in 1977, as the most currently contract to which it was party was about to expire, engaged in bargaining for a successor contract.
During the negotiations, the unions proposed the subcontractor clauses for Woelke and Romero to execute.
Woelke and Romero refused.
An impasse in bargaining developed, and in support of the union's provisions, the unions picketed various job sites to which Woelke and Romero at that time was working.
Woelke filed appropriate charges with the Labor Board, and this litigation ensued.
First, I think the Court should understand what kind of subcontracting provisions these are.
These are not provisions which restrict subcontracting simply to the bargaining unit.
In other words, these provisions prevail upon the employees and employers outside the bargaining unit.
Thus, these provisions clearly do not say that Woelke and Romero may not subcontract work or may not subcontract work if its employees are on layoff.
These provisions simply tell the employer which employers it may otherwise do business with.
They apply to the work only of the contracting union.
They name the particular union with which the subcontractor must be party.
They apply to all job sites of the contractor or subcontractors.
They apply to all tiers of subcontracting, and they apply in futuro to all job sites without regard to the presence or absence of union members on particular job sites.
They apply to the entire geographic area covered by the collective bargaining agreement, and they simply do not do anything other than to assist the construction unions who are party to the clauses in their organizing attempt in that geographic area.
Thus, in order for a subcontractor to be eligible to compete for the contractor's work, he must agree to sign the same exact union contract to which the contractor is party, and that subcontractor's employees must designate the particular union that is mentioned in the subcontractor clause in order for their employer to be eligible to do the work.
We believe that these kinds of clauses have serious antitrust and labor implications.
Although this is not an antitrust case, the Court should recognize the breadth of the boycott that is involved.
The contractor is precluded from doing work... or the subcontractor is precluded from doing work unless he is party to that contract.
The boycott extends beyond what we believe is any legitimate union purpose.