United States Court of Appeals,
Eleventh Circuit.
No. 96-6036.
LOCAL UNION 48 SHEET METAL WORKERS, Board of Trustees, Sheet
Metal Workers National Pension Fund, Board of Trustees, Sheet Metal
Workers National Cola Fund, Board of Trustees, National
Stabilization Agreement of Sheet Metal Industry Trust Fund, Board
of Trustees, National Training Fund for the Sheet Metal and Air
Conditioning Industry, Board of Trustees, National Energy
Management Institute Committee, Board of Trustees, Sheet Metal
Occupational Health Institute Trust Fund, Sheet Metal Workers Local
Union No. 48 Welfare Fund, JW Rollan, Abram Carpenter, Sam P.
Rollan, Jr., Ken Turner, Gene Dykes, David Shelby as Trustees of
Sheet Metal Workers Local Union No. 48 Welfare Fund, Plaintiffs-
Counter-Defendants, Appellants,
v.
S.L. PAPPAS & COMPANY, INC., Defendant-Counter-Claimant,
Appellee,
P & M Mechanical, Inc., Defendant-Appellee.
Feb. 28, 1997.
Appeal from the United States District Court for the Northern
District of Alabama. (No. CV-92-H-2036-S), James H. Hancock,
District Judge.
Before TJOFLAT and DUBINA, Circuit Judges, and STAGG*, Senior
District Judge.
STAGG, Senior District Judge:
Plaintiffs/Appellants, Sheet Metal Workers Local Union No. 48,
et al. ("the Union"), appeal the district court's decision granting
summary judgment in favor of Defendants/Appellees, S.L. Pappas &
Company, Inc., and P & M Mechanical, Inc. ("Pappas"). Based on
prior decisions of this circuit, we affirm the district court on
other grounds.
I. FACTS AND PROCEDURAL HISTORY
*
Honorable Tom Stagg, Senior U.S. District Judge for the
Western District of Louisiana, sitting by designation.
The Union filed this action under section 301 of the Labor
Management Relations Act ("LMRA"), 29 U.S.C. § 185(a), against
Pappas, alleging that Pappas was bound by and had breached a
collective bargaining agreement effective from June 1, 1991,
through May 31, 1994. Pappas contended that the previous
collective bargaining agreement between the parties was a voidable
pre-hire agreement under section 8(f), 29 U.S.C. § 158(f), and that
Pappas had repudiated the agreement, in writing, prior to the
commencement of negotiations for a new or successor pre-hire
agreement.
The following facts are taken from the district court's
October 6, 1995 Memorandum of Decision. Plaintiff, the Union, is
a labor organization representing employees who perform roofing,
ventilating, and air conditioning contract services for the
construction industry. Plaintiff Trustees 1 are respective Boards
of Trustees for various welfare funds ("the Funds") which provide
benefits for qualified employees of the Union. Defendant Pappas
was a corporation performing services as a mechanical subcontractor
in Alabama. Pappas was a member of the Mechanical Contractors
Association of Birmingham, Alabama, Inc. ("MCA"), which is a
multi-employer bargaining unit representing various employers in
negotiating agreements with the Union. Since its incorporation,
through its membership in MCA, Pappas was a party to a series of
1
The Plaintiff/Trustees are Boards of Trustees for the
following funds: Sheet Metal Workers National Pension Fund,
Sheet Metal Workers National Cola Fund, National Stabilization
Agreement of Sheet Metal Industry Trust Fund, National Training
Fund for the Sheet Metal and Air Conditioning Industry, National
Energy Management Institute Committee, and Sheet Metal
Occupational Health Institute Trust Fund.
section 8(f) pre-hire agreements with the Union. On June 1, 1988,
Pappas signed a pre-hire agreement with the Union ("the 1988-1991
agreement") which obligated Pappas periodically to contribute
specified amounts to the Funds through May 31, 1991. By letter
dated January 22, 1991, before the commencement of negotiations for
a new pre-hire agreement, Pappas informed the Union that the
multi-employer bargaining unit was no longer a labor negotiating
agent for Pappas. Pappas's January 22 letter was not, however,
provided at least 150 days prior to the expiration of the 1988-1991
agreement as required by the terms of the agreement. On January
30, 1991, the Union provided Pappas with a 90-day notice of the
Union's intent to reopen certain aspects of the 1988-1991
agreement. Pappas did not take part in the negotiations between
the MCA and the Union in 1991. On June 1, 1991, the Union sent
Pappas a copy of an agreement negotiated between the MCA and the
Union covering a period from 1991-1994 ("1991-1994 agreement")
requesting that Pappas sign the agreement and return it to the
Union. Pappas discarded the agreement without signing it. Pappas
did, however, continue to use the union hiring hall, pay union
wages, and contribute to the plaintiff funds until Pappas ceased
operations the last week of May 1992.
In April of 1991, P & M Mechanical, Inc. ("P & M"), was
incorporated to perform mechanical work as a subcontractor in
Alabama, Georgia, and South Carolina. P & M and Pappas have the
same owners and P & M leases its building space from Pappas. The
district court, in its August 5, 1994 opinion, held that Pappas and
P & M were a "single employer" under the Act. Thus, P & M would be
bound by the same agreements to which Pappas was bound.
The 1988-1991 agreement bound Pappas to be a member of the
multi-employer bargaining unit, and thus, contribute to the Funds,
until Pappas gave written notice of withdrawal to the Union at
least 150 days prior to the then-current expiration date of the
agreement. If Pappas did not give such notice, the agreement
provided that Pappas would be bound by any successor agreement
entered into by the parties.
In its complaint, the Union alleged that Pappas was a party to
the 1991-1994 agreement and thus was required to contribute to the
various multi-employer funds pursuant to this agreement. The Union
sought specific performance of the section 8(f) agreement and
declaratory and injunctive relief, including requiring Pappas to
contribute to the Funds, to utilize the union hiring hall, and to
pay contractually established wages. The Union also sought
liquidated damages and attorney's fees.
The Union originally moved for partial judgment on the
pleadings, which the district court treated as a motion for partial
summary judgment. Pappas filed an opposition to the motion for
partial judgment on the pleadings, which the district court treated
as a cross-motion by Pappas for partial summary judgment. The
Union then filed a second motion for summary judgment requesting,
inter alia, that the district court find Pappas and P & M to be
single employers and that both be bound by the 1991-1994 pre-hire
agreement. The district court ruled in favor of the Union on both
issues. Pappas and P & M were found to be bound to the successor
agreement because Pappas did not provide notice of repudiation
within the 150 day period required by the 1988-1991 agreement.
Thus, they were obligated to make the requisite contributions to
the Funds covered by the pre-hire agreement. Pappas moved for
reconsideration, which was denied.
The Union, after completing discovery, moved for summary
judgment on the remaining issues not covered by the district court
in its August 5, 1994 ruling. On October 6, 1995, the district
court entered summary judgment in favor of Pappas. The district
court based its ruling on a newly released decision of the National
Labor Relations Board, James Luterbach Construction Co., Inc., 315
N.L.R.B. 976 (1994). Luterbach returned the status of NLRB law
regarding section 8(f) agreements to the position it previously
held in John Deklewa & Sons, 282 N.L.R.B. 1375 (1987), enf'd sub
nom. Int'l Assoc. of Bridge, Structural and Ornamental Iron
Workers, Local 3 v. NLRB, 843 F.2d 770 (3rd Cir.), cert. denied,
488 U.S. 889, 109 S.Ct. 222, 102 L.Ed.2d 213 (1988). The Union
filed a motion to reconsider, which was granted by the district
court. Ultimately, however, the district court determined that its
October 6 ruling was correct and reinstated that ruling in its
final judgment dated December 5, 1995. This appeal followed.
On appeal, the Union argues that Pappas is bound by the
successor agreement, that is, the 1991-1994 agreement, because
Pappas did not give notice of withdrawal within the 150 day notice
period provided in the 1988-1991 agreement. The Union claims that
Pappas must make the requisite contributions to the Funds because
Pappas is bound by the successor agreement for 1991-1994. Pappas
makes two arguments, only one of which is considered by this court.
First, Pappas argues that this court must affirm the decision of
the district court based on Eleventh Circuit precedent, which we
are required to follow under the prior panel decision rule.
Second, Pappas argues that if Luterbach and Deklewa apply in this
instance, we should affirm the district court for the reasons
provided in its October 6, 1995 ruling. Namely, Pappas argues that
upon the expiration of the 1988-1991 agreement, it was free to
withdraw from the successor agreement since it did not take
"distinct affirmative action" to bind itself to the successor
agreement. See Luterbach, 315 N.L.R.B. 976 (1994). We agree with
the former argument and affirm (on other grounds) the decision made
by the district court. Our decision is based on Eleventh Circuit
precedent and not on NLRB decisions not yet adopted by this
circuit.
II. STANDARD OF REVIEW
This court reviews the grant of summary judgment "de novo "
and "must determine whether there is any genuine issue of material
fact and whether the moving party is entitled to judgment as a
matter of law. All evidence and reasonable factual inferences
drawn therefrom are reviewed in the light most favorable to the
party opposed to the motion." Batey v. Stone, 24 F.3d 1330, 1333
(11th Cir.1994) (citations omitted).
III. DISCUSSION
A. The Law Regarding Section 8(f) Agreements
"A section 8(f) agreement is a labor contract negotiated
between a construction employer and a union [that] does not
represent a majority [of the employees] at the time of contract
execution." Plumbers and Pipefitters Local Union 72 v. John Payne
Co., Inc., 850 F.2d 1535, 1538 (11th Cir.1988), quoting
Construction Erectors, Inc. v. NLRB, 661 F.2d 801, 804 (9th
Cir.1981). If a union does not achieve majority representative
status among a company's employees, the employer/union agreement
can only be viewed as a pre-hire agreement, as contemplated by
section 8(f) of the LMRA and not as a fully enforceable collective
bargaining agreement. See John Payne, 850 F.2d at 1538.
In U.S. Mosaic Tile Co., Inc. v. NLRB, 935 F.2d 1249 (11th
Cir.1991), cert. denied, 502 U.S. 1031, 112 S.Ct. 871, 116 L.Ed.2d
776 (1992), we provided a thorough explanation of the difference
between section 8(f) and section 9(a) agreements and the bargaining
protections that flow from each type of agreement.
Section 8(f) of the Act provides an exception to other
bargaining provisions of the Act for the construction
industry. Generally, a collective bargaining representative
(union) outside the construction industry must be designated
or selected by a majority of the employees in a given unit
before that representative can have the exclusive right to
represent the employees in bargaining with the employer. Once
a representative achieves this status under § 9(a), it
receives various bargaining protections provided by § 8(a) and
(b) of the Act. The union also receives a presumption of
majority status for a reasonable time, including during the
period immediately after the end of a prior agreement when the
parties are bargaining for a new contract.... Congress,
recognizing the uniquely fluctuant nature of the construction
industry, enacted § 8(f), which enables a representative of
employees in the construction industry to enter a collective
bargaining agreement with an employer without first having
achieved majority status. The agreements are known as
pre-hire agreements.... Prior to Deklewa the Board
interpreted § 8(f) to permit either party to terminate the
bargaining agreement at will, so long as the union had not
achieved majority status. R.J. Smith Construction, 191
N.L.R.B. 693, enf. denied sub nom. Operating Engineers Local
150 v. NLRB, 480 F.2d 1186 (D.C.Cir.1973). The Board also
determined, however, that if the union achieved majority
status during the period of the agreement, it would receive
the same protections as a § 9(a) union, including the
presumption of majority status upon the expiration of the
bargaining agreement.... The Board, realizing the confusion
and difficulty created by its own interpretation, decided to
overhaul its view of § 8(f) agreements. Thus, in Deklewa, the
Board decided that pre-hire agreements were no longer
terminable at will, but were valid for the entire term.
Additionally, the Board stated that the union would no longer
receive the presumption of majority status upon expiration of
the agreement, and thus would not retain the right to
exclusive bargaining at that point. The union could, however,
achieve majority status through the traditional methods for
becoming a § 9(a) representative: Board certified election or
voluntary recognition by the employer. 843 F.2d at 778....
Several circuits have now approved of Deklewa, often relying
on the reasoning used by the Third Circuit when it enforced
Deklewa in International Assoc. of Iron Workers v. NLRB....
Mosaic Tile, 935 F.2d at 1253 n. 2 (citations omitted). In Mosaic
Tile, we refrained from speaking to the viability of Deklewa in
this circuit because the employer's attempt to argue Deklewa was
untimely. Id. at 1253.
We again decline to speak to the viability of Deklewa because
we must strictly follow the prior panel rule. See United States v.
Woodard, 938 F.2d 1255, 1258 (11th Cir.1991), cert. denied, 502
U.S. 1109, 112 S.Ct. 1210, 117 L.Ed.2d 449 (1992) (holding that
"[t]he law in this circuit is emphatic that "only a decision by
this court sitting en banc or the United States Supreme Court can
overrule a prior panel decision,' " quoting U.S. v. Machado, 804
F.2d 1537, 1543 (11th Cir.1986)). The prior panel decision rule is
applied in this circuit to such an extent that where there is a
conflict between panel decisions within this circuit, the earlier
decision is binding until the court decides the issue en banc.
Clark v. Housing Authority of City of Alma, 971 F.2d 723, 726 n. 4
(11th Cir.1992). The law of this circuit regarding the ability to
repudiate section 8(f) agreements is found in Plumbers and
Pipefitters Local Union 72 v. John Payne Co., Inc., and Local 92,
Int'l Assoc. of Bridge, Structural and Ornamental Ironworkers v. B
& B Steel Erectors, Inc., 850 F.2d 1551 (11th Cir.1988).2
In John Payne, a post-Deklewa decision, this circuit cited
with approval Jim McNeff, Inc. v. Todd, 461 U.S. 260, 271-72, 103
S.Ct. 1753, 1759, 75 L.Ed.2d 830 (1983), which held that under
section 301 actions to recover money allegedly owed to a union
fund, a section 8(f) pre-hire agreement is subject to repudiation
until the union establishes majority status in a section 9(a)
election. John Payne, 850 F.2d at 1540. In John Payne, the union
did not claim to have ever achieved majority representative status
among the company's employees. Id. at 1538. Thus, the pre-hire
agreement was not a fully enforceable collective bargaining
agreement. Id. This circuit followed McNeff regarding section
8(f) agreements and then proceeded to determine whether the
employer had made an effective repudiation. Id. at 1540.
In Local 92, also a post-Deklewa decision, we stated, "[i]t is
well settled law that "a pre-hire agreement is voidable by the
employer and that such an agreement does not become a collective
bargaining contract unless the union actually represents a majority
of the employees in the relevant unit and is recognized by the
employer.' " Local 92, 850 F.2d at 1554, quoting Painters Local
Union No. 164 v. Epley, 764 F.2d 1509, 1514 (11th Cir.1985), cert.
denied, 475 U.S. 1120, 106 S.Ct. 1636, 90 L.Ed.2d 182 (1986). The
panel agreed with the district court which held that because a
section 8(f) pre-hire agreement is voidable by repudiation until
2
John Payne was decided on August 3, 1988. Local 92 was
decided the next day, by a different panel, on August 4, 1988.
the union establishes majority support and because it was
undisputed that the union had never achieved majority status in B
& B's work force, the district court concluded that B & B had the
right to repudiate the pre-hire agreement. Local 92, 850 F.2d at
1554.
In the case sub judice, it is undisputed that the Union did
not establish majority support of the workforce at Pappas or at P
& M. Under John Payne and Local 92, Pappas could repudiate the
1988-1991 section 8(f) agreement at any time prior to the Union
establishing majority support of the work force. If Pappas made an
effective repudiation, Pappas would be bound by neither the 1988-
1991 agreement nor by the successor agreement, the 1991-1994
agreement. Following the prior panel decision rule and controlling
Eleventh Circuit precedent, we affirm the decision of the district
court. We decline to reach the issue of whether Luterbach and
Deklewa are viable in this circuit.
B. Effective Repudiation By Pappas
Next, we must determine whether Pappas effectively made the
repudiation that is authorized under John Payne and Local 92. In
order to repudiate a pre-hire agreement, an employer must give
notice to the union sufficient to make manifest his intent to
terminate the agreement. Local 92, 850 F.2d at 1556, citing
Trustees of the Atlanta Iron Workers Local 387 Pension Fund v.
Southern Stress Wire Corp., 509 F.Supp. 1097, 1105 (N.D.Ga.1981),
rev'd on other grounds, 724 F.2d 1458 (11th Cir.1983).
There is no doubt that Pappas made an effective repudiation
of the 1988-1991 agreement by way of its letter dated January 22,
1991. The letter stated in clear terms that MCA was no longer the
labor negotiating agent for Pappas. Pappas's conduct also made
manifest that it had repudiated the agreement. Pappas did not
participate in the negotiations for the successor contract.
Ultimately, when Pappas received the 1991-1994 agreement from the
Union for Pappas's signature, it did not sign the agreement, but
rather discarded it. Thus, Pappas made an effective repudiation of
the pre-hire agreement and was not bound by the successor agreement
for 1991-1994.
Because the Union's claims are dismissed, its appeal of the
district court's decision to strike the Union's jury demand is
rendered moot.
The order of the district court granting judgment for Pappas
is affirmed.
AFFIRMED ON OTHER GROUNDS.