Baker Concrete Construction v. Reinforced Concrete Contractors , 820 F.3d 827 ( 2016 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0099p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
BAKER CONCRETE CONSTRUCTION, INC., ┐
Plaintiff-Appellee, │
│
│
v. │
│
REINFORCED CONCRETE CONTRACTORS │ No. 14-4102
>
ASSOCIATION, │
Defendant, │
│
│
REINFORCED CONCRETE IRON WORKERS’ LOCAL │
UNION 372 OF THE INTERNATIONAL ASSOCIATION OF │
BRIDGE STRUCTURAL, ORNAMENTAL, AND │
REINFORCING IRON WORKERS, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 1:13-cv-00225—Stephanie K. Bowman, Magistrate Judge.
Argued: June 10, 2015
Decided and Filed: April 21, 2016
Before: BOGGS and BATCHELDER, Circuit Judges; HUCK, District Judge.
_________________
COUNSEL
ARGUED: David O’Brien Suetholz, KIRCHER, SUETHOLZ & GRAYSON, PSC, Louisville,
Kentucky, for Appellant. Michael J. Underwood, PORTER WRIGHT MORRIS & ARTHUR
LLP, Columbus, Ohio, for Appellee. ON BRIEF: David O’Brien Suetholz, Neal B. Hayes,
KIRCHER, SUETHOLZ & GRAYSON, PSC, Louisville, Kentucky, for Appellant. Michael J.

The Honorable Paul C. Huck, Senior United States District Judge for the Southern District of Florida,
sitting by designation.
1
No. 14-4102 Baker Concrete Constr. v. Reinforced Concrete Contractors Ass’n, et al. Page 2
Underwood, Kathryn L. Kreps, PORTER WRIGHT MORRIS & ARTHUR LLP, Columbus,
Ohio, for Appellee.
_________________
OPINION
_________________
ALICE M. BATCHELDER, Circuit Judge. This is a case of first impression for this
circuit. We are asked to determine whether an employer has the right under the National Labor
Relations Act (“NLRA”) to repudiate both his statutory and contractual obligations under a § 8(f)
collective bargaining agreement when the employer does not employ anyone within the relevant
bargaining unit. We adopt the single-employee-unit rule, hold that an employer may repudiate
his statutory and contractual obligations under such circumstances, and affirm the judgment of
the district court.
I.
Baker Concrete Construction, Inc. (“Baker”) is a company based in Monroe, Ohio. Its
primary field of work involves the concrete construction industry. As with many large
companies in the construction industry, Baker subcontracts its work to various smaller firms and
individuals. In 2000, Baker became a signatory to a multi-employer collective bargaining
agreement (“CBA”) between the Reinforced Concrete Contractors Association (“RCCA”) and
Reinforced Concrete Iron Workers’ Local Union 372 (“Union”). The CBA was intended to
cover current employees as well as employees that Baker had not yet hired. It was later revised
and renewed, with the current version taking effect on January 1, 2012, and expiring May 31,
2015.
This prehire CBA is a special type of bargaining contract that is allowed only in the
construction industry. See 29 U.S.C. § 158(f). Essentially, the CBA established the basic work-
place conditions, wage rates, and employee protections that can be found in any other collective
bargaining agreement, and then was renewed automatically from year to year, even after the
initial term of the contract had expired.
No. 14-4102 Baker Concrete Constr. v. Reinforced Concrete Contractors Ass’n, et al. Page 3
On January 25, 2013, Baker sent a letter to the Union stating: “This letter is to notify you
that Baker has no ongoing contractual obligations under the Agreement. To the extent that any
formal notice of termination is necessary, this letter is Baker’s notice of its intent to terminate the
Agreement, including any subsequent successor agreements.” Baker asked the Union to respond
if it believed that this termination was ineffective or deficient in any way. On January 30, 2013,
the Union responded with a letter to Baker stating:
As per Article 40, in the Agreement between Local 372 and the Reinforced
Concrete Contractors Association, notice of withdrawal should be made not more
than 60 days prior to the termination of the Agreement. The Agreement is in
effect from January 1, 2013 until May 31, 2015, therefore your request was put
forth in an untimely manner.
On February 12, 2013, Baker responded to the Union with a letter stating:
[R]egardless of Article 40’s language, Baker reiterates that none of its employees
currently perform work covered by the Agreement. Further, no Baker employees
have performed bargaining unit work covered by the Agreement for at least
7 years or longer. Accordingly, Baker has no contractual obligations to Local
372, and Baker is not bound to any provisions in the recently renegotiated
contract or any other Local 372 contract.
The Union responded by filing a grievance against Baker for arbitration. Baker reiterated its
belief that, since it had not employed any workers under the CBA, it was free to repudiate the
contract, as it had stated in its January 25th letter. Baker also stated that it did not recognize the
arbitrator’s authority to decide this dispute, but that it would agree to appear at the hearing solely
for the purpose of preserving its position. On March 26, 2013, RCCA notified Baker that the
arbitrator found Baker in violation of Article 23 of the CBA and that Baker had five working
days to become compliant. Baker responded by filing suit for declaratory judgment.
It is undisputed that Baker had not hired any employees under the CBA for several years
prior to its repudiation of the CBA on January 25, 2013. Although the Union disputed this fact at
earlier stages of this litigation, the district court rejected the Union’s arguments, and the Union
failed to raise the issue on appeal. Thus, the Union has waived the issue. See McPherson v.
Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997).
No. 14-4102 Baker Concrete Constr. v. Reinforced Concrete Contractors Ass’n, et al. Page 4
Baker and the Union proceeded through discovery and filed cross-motions for summary
judgment.1 The district court eventually granted Baker’s motion, denied the Union’s motion,
and vacated the arbitration award. It also granted declaratory judgment for Baker, declaring that
“Baker Concrete has no duty to bargain with Local 372 and no ongoing contractual obligations
under any Local 372 CBA.”
II.
The questions of (1) whether Baker had the right to repudiate the CBA and (2) whether
its repudiation was effective with respect to both its statutory and contractual obligations are
questions of law, and the district court correctly adjudicated these questions on the merits
without deferring to the judgment of the arbitrator. The courts’ role in this case is distinct from
the role performed by the arbitrator. We are not to determine what the rights of the parties might
be under the CBA, but rather whether the dispute is actually governed by the CBA. Teamsters
Local Union No. 89 v. Kroger Co., 617 F.3d 899, 904 (6th Cir. 2010) (citing Landis v. Pinnacle
Eye Care, LLC, 537 F.3d 599, 561 (6th Cir. 2008)); see also Int’l Ass’n of Bridge, Structural,
& Ornamental Iron Workers, Local Union No. 44, et. al. v. J & N Steel & Erection Co., 8 F.
App’x 381, 385 (6th Cir. 2001).2 This is a legal question that we review de novo. Kroger Co.,
617 F.3d at 904.
1
RCCA filed a motion to dismiss before the case proceeded to discovery, and the district court granted that
motion. See Baker Concrete Constr., Inc. v. Reinforced Concrete Iron Workers Local Union 372 of the Int’l Ass’n
of Bridge Structural, Ornamental, and Reinforcing Iron Workers, et al., No. 1:13-cv-225, 2013 WL 5524641 (S.D.
Ohio Oct. 4, 2013). Thus, RCCA was not a party to the summary judgment decision of the district court that is on
appeal before us here.
2
In past cases, we have held that if the question of the termination or expiration of a CBA is a question of
contract interpretation, then it should be submitted to the arbitrator, not the court. See J & N Steel and Erection Co.,
8 F. App’x at 385–86. But this case does not present an issue of contract interpretation. Rather, the question
presented here—regardless of the termination clauses and expiration dates of the CBA—is whether Baker had a
right under the NLRA to repudiate the CBA. This case has to do with the interpretation and application of the
NLRA, not with the interpretation and application of the CBA. Thus, this is a question properly before the courts,
not the arbitrator.
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III.
This case hinges on the applicability and scope of the one-employee-unit rule. This is a
narrow rule that has been articulated and applied by the NLRB in cases involving CBAs under
NLRA § 8(f) 3:
It is settled that if an employer employs one or fewer unit employees on a
permanent basis that the employer, without violating Section 8(a)(5) of the Act,
may withdraw recognition from a union, repudiate its contract with the union, or
unilaterally change employees’ terms and conditions of employment without
affording a union an opportunity to bargain.
Stack Elec., 290 N.L.R.B. 575, 577 (1988).
Only two of our sister circuits have had the opportunity to address this rule in
circumstances analogous to those before us here: Laborers Health & Welfare Trust Fund v.
Westlake Dev., 53 F.3d 979 (9th Cir. 1995), and J.W. Peters, Inc. v. Bridge, Structural,
& Reinforcing Iron Workers, Local Union 1, 398 F.3d 967 (7th Cir. 2005).
In Westlake, the Ninth Circuit was presented with a case nearly identical to the one before
us here. Westlake, an employer in the construction industry, entered into a CBA with a local
union and then, over the next several years, did not hire anyone who would be covered by the
agreement. Westlake Dev., 53 F.3d at 981. Accordingly, Westlake notified the union that “it
considered the CBA unenforceable and would no longer abide by the agreement.” Id. The union
filed a grievance against Westlake and began arbitration. Id. The arbitrator entered an award for
the Union, and Westlake filed a petition to vacate the award. Id. Upon review, the Ninth Circuit
reiterated its holding from Operating Eng’rs Pension Trust v. Beck Eng’g & Surveying Co.,
746 F.2d 557 (9th Cir. 1984): “A construction industry employer who employs a single
employee pursuant to a Section 8(f) pre-hire agreement is entitled to repudiate the agreement by
conduct sufficient to put the union and the employee on notice that the agreement has been
terminated.” Westlake Dev., 53 F.3d at 982 (quoting Beck, 746 F.2d at 566). Because Westlake
was a “one-employee employer during the relevant time period,” and because it had given due
3
For the sake of clarity, we note that the NLRA is codified in 29 U.S.C. §§ 151–169. But the most
common convention is to refer to the section numbers and divisions found in the NLRA, not those found in Title 29.
No. 14-4102 Baker Concrete Constr. v. Reinforced Concrete Contractors Ass’n, et al. Page 6
notice to the union of its repudiation of the CBA, the Ninth Circuit concluded that the pre-hire
agreement was no longer binding on Westlake in any way. Id.
In Peters, the Seventh Circuit addressed a similar situation. Again, the employer, Peters,
worked in the construction industry and entered into a prehire agreement with the local union for
hiring ironworkers. Peters, 398 F.3d at 969–70. Peters sent notification to the Union,
terminating the agreement inasmuch as it had not employed any covered employees for quite
some time and had no intention of hiring any such employees in the future. Id. at 970. After
surveying several NLRB cases in which the one-employee-unit rule was applied, the Peters court
held that “the Board’s decisions explicitly allow an employer, more generally, to repudiate a pre-
hire agreement and discontinue its duties under the agreement where it employs no more than
one employee in the relevant unit.” Id. at 974. This included both the statutory duty to bargain
and any contractual duties entailed by the CBA. Id. at 974–75. The Seventh Circuit concluded
that,
[A]s a matter of common sense, it seems illogical to continue to bind Peters to a
pre-hire agreement simply because it has no employees who could reject the
Union as their bargaining representative in a Board-conducted election. We
therefore conclude that if Peters in fact employed fewer than two employees
during the relevant period, the company’s unilateral repudiation of the contract
would, as a matter of law, relieve it of its contractual obligation to arbitrate before
the JAB.
Id. at 975.
The same rationale is immediately applicable to the present case. Here, Baker found
itself in exactly the same circumstances that confronted Westlake and Peters, namely, as a party
to a § 8(f) agreement that was inapplicable to any of its employees and had been for some time.
And like Westlake and Peters, Baker sent a very clear notice of termination to the Union. Hence,
as our sister circuits held in Westlake and Peters, we hold that Baker had the right to repudiate
the CBA, and with such repudiation, all of Baker’s statutory and contractual obligations under
the CBA were terminated.
The logic of the one-employee-unit rule fits perfectly with (1) the nature of collective
bargaining, (2) the nature of § 8(f) agreements, and (3) the Supreme Court’s rationale in Jim
No. 14-4102 Baker Concrete Constr. v. Reinforced Concrete Contractors Ass’n, et al. Page 7
McNeff, Inc. v. Todd, 461 U.S. 260, 266 (1983). First, with reference to the nature of collective
bargaining, the NLRB has long held that the very concept of collective bargaining “presupposes
that there is more than one eligible person who desires to bargain.” Foreign Car Center, Inc.,
129 N.L.R.B. 319, 320 (1960). If there are no employees within the relevant unit for a collective
bargaining agreement, then the agreement is nugatory. Intuitively, a collective bargaining
agreement should be voidable where there is no one with whom and nothing about which to
bargain.
Second, with reference to the nature of § 8(f) agreements, that section of the NLRA was
enacted to address a very narrow and specific problem. Unlike typical collective bargaining
agreements formed under § 9(a), a “pre-hire agreement is a contract agreed to by an employer
and a union before the workers to be covered by the contract have been hired.” Int’l Ass’n of
Bridge, Structural, & Ornamental Iron Workers, Local 3 v. NLRB, 843 F.2d 770, 773 (3rd Cir.
1988) (citing Roberts’ Dictionary of Industrial Relations, 562 (3rd ed. 1986)). Ordinarily, such
agreements are illegal because they purport to tie employees to a majority representative—i.e.,
labor union—without the majority of the employees’ selecting and ratifying which organization
they wish to represent their interests. But because general contractors and other employers in the
construction industry do not hire and keep employees and subcontractors on the same permanent
basis as other employers do, it is necessary for these employers to have more flexibility in their
bargaining contracts and union relations. Without the ability to enter into prehire agreements,
contractors would be unable to submit informed and accurate bids for construction projects
because they would not have any certainty regarding their employee expenses and personnel
overhead. Id. at 772–73; see also McNeff, 461 U.S. at 266. To accommodate these unique
needs, Congress added § 8(f) to make prehire agreements legal within the construction industry.
But § 8(f) agreements, by their very nature, are tentative and anticipatory. In fact, the Supreme
Court stated that, “[a]bsent majority credentials, the collective-bargaining relationship and the
union’s entitlement to act as the exclusive bargaining agent never mature[s].” McNeff, 461 U.S.
at 267. Section 8(f) agreements are intended to cover foreseeable groups of employees for short-
term or interim construction projects where they would otherwise be unrepresented. When there
have been no employees to represent for at least ten years, and will be no employees to represent
in the foreseeable future—as it is undisputedly the case with Baker here—it is difficult to
No. 14-4102 Baker Concrete Constr. v. Reinforced Concrete Contractors Ass’n, et al. Page 8
conceive of a reason to deny a contractor the right to terminate an agreement that was intended to
be tentative, anticipatory, and conditional in the first place.
Third, with reference to the Supreme Court’s rationale in McNeff, the one-employee-unit
rule is in line with the Court’s holding regarding the repudiation of § 8(f) agreements.
In McNeff, the Court commented on its prior decision in NLRB v. Local 103, International
Association of Bridge Workers (Higdon), 434 U.S. 335 (1978), and reaffirmed that “a prehire
agreement is voidable until and unless [the union] attains majority support in the relevant unit.”
McNeff, 461 U.S. at 269 (quoting Higdon, 434 U.S. at 341) (alteration in the original) (internal
quotation marks omitted). The Court went on to describe § 8(f) agreements as “voluntary and
voidable.” Id. The employer bound by these agreements was said to have an “undoubted right
to repudiate a prehire agreement before the union attains majority support in the relevant unit.”
Id. at 270. Obviously, if an employer has one or no employees in the relevant unit, then it is
impossible for the union to attain majority support. There is no majority. The one-employee-
unit rule simply makes explicit what McNeff’s rationale implied regarding § 8(f) agreements.
The Union argues that even if an employer’s statutory duty to bargain under a § 8(f)
agreement is susceptible to repudiation, the employer’s contractual duty under such an
agreement is not. While the Union is correct in seeing a distinction between these duties—a
distinction evidenced by the existence of a § 8(a)(5) action for statutory violations and a § 301
action for contractual violations—its argument is directly contradicted by McNeff:
Neither does respondents’ § 301 action trench on the voluntary and voidable
characteristics of a § 8(f) prehire agreement. . . . Moreover, although the voidable
nature of prehire agreements clearly gave petitioner the right to repudiate the
contract, it is equally clear that petitioner never manifested an intention to void or
repudiate the contract.
...
[T]he monetary obligations assumed by an employer under a prehire contract may
be recovered in a § 301 action brought by a union prior to the repudiation of the
contract, even though the union has not attained majority support in the relevant
unit. There having been no repudiation in this case, the judgment of the Court of
Appeals is Affirmed.
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Id. at 269–70, 271–72 (emphasis added). The dispositive fact in McNeff was that the employer
never manifested any intent to repudiate the agreement. Id. at 270. But the Court unequivocally
affirmed that if he had manifested such an intention, it would have effectively terminated all of
his contractual duties under the agreement. Here, Baker provided a specific and unmistakable
manifestation of intent to repudiate the CBA, and in keeping with McNeff, we hold that this
repudiation was effective to end all of Baker’s contractual duties under the CBA.
IV.
We conclude that the one-employee-unit rule is properly applicable in this case and that
Baker properly repudiated the CBA. We AFFIRM the disposition of the district court.