Marrowbone Development Company v. District 17, United Mine Workers of America Local Union 93, United Mine Workers of America , 147 F.3d 296 ( 1998 )

JONES, District Judge,

dissenting:

The collective bargaining agreement (“CBA”) between Marrowbone and the Union contains a “work preservation” provision, which, as reasonably construed by an arbitrator, provides that Marrowbone will use only bargaining unit employees to transport and deliver materials and supplies within its Min-go County complex. The primary issue on appeal is whether the CBA, which indirectly prohibits Marrowbone from using the outside contractors it previously employed to do such work, is unenforceable under § 8(e) of the National Labor Relations Act. The majority holds that because the CBA’s effect is to grant the local bargaining unit work it did not previously perform, the relevant clause does not “preserve” work for the Union, but is rather “work-acquisitive” and thus viola-tive of § 8(e). However, just as clauses that preserve work the local bargaining unit has long performed are not necessarily lawful under § 8(e),¹ I do not believe that work acquisition clauses automatically violate § 8(e). In attempting to determine whether a contract provision violates § 8(e), we .should not rely solely on the distinction between work acquisition and work preservation, but should instead look at the totality of the circumstances to determine if the provision in question was motivated by primary or secondary intent.² Accordingly, I dissent.

Admittedly, the language of § 8(e) is broad, and taken at face value, would appear to prohibit any agreement that requires an employer to cut off business dealings with an outside party. However, § 8(e) was intended to prohibit only those clauses that have the effect of creating secondary pressure on a bargaining situation. In its seminal opinion on the subject, the Supreme Court noted that “Congress meant §§ 8(e) and 8(b)(4)(B) to prohibit only ‘secondary’ objectives.” National Woodwork, 886 U.S. at 620, 87 S.Ct. 1250. The Court has since further explained that “[t]he ‘touchstone’ and ‘central theme’ of § 8(e) is the protection of neutral employers ... which are caught in the middle of a union’s dispute with a third party.” Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 84, 102 S.Ct. 851, 70 L.Ed.2d 833 (1982). Although little ease law analyzes the limits of § 8(e), the Supreme Court opinions on point make clear that § 8(e) was enacted because Congress did not want a dispute between a single business and its employees to draw neutral outside parties into its ambit.

The Supreme Court has set forth general formulations to aid courts in determining when a clause has secondary effects and when it is primary in nature. In National Woodwork, the Court held that because the union’s goal in that case was to preserve work traditionally performed by union laborers, the clause at issue was primary in nature and did not violate § 8(e).. 386 U.S. at 644-46, 87 S.Ct. 1250. More than a decade later, in NLRB v. International Longshoremen’s Ass’n, 447 U.S. 490, 504, 100 S.Ct. 2305, 65 L.Ed.2d 289 (1980) (“ILA I”), the Court held that courts must not only seek to determine whether the agreement’s effect is to preserve work, but also whether its intent or objective is to preserve work.³

Where a clause meets the ILA I test and is found to have the primary objective of seeking to preserve work traditionally done by the union, the clause generally does not violate § 8(e). However, the Supreme Court has never held that a clause seeking to acquire new work for union employees necessarily violates § 8(e).⁴ Rather, the Court has stated that “[t]he touchstone is whether the agreement or its maintenance is addressed to the labor relations of the contracting employer vis-a-vis his own employees.” National Woodwork, 386 U.S. at 645, 87 S.Ct. 1250.

The majority holds that this case turns on whether the CBA’s clause was work-preservative or work-acquisitive.⁵ Further, the majority concludes that “Marrowbone ... need not demonstrate that the Union had an illegal motive. Rather, it need only show that, under ‘all the surrounding circumstances,’ the agreement is work-acquisitive in nature.” In my opinion, this analysis incorrectly replaces the Supreme Court’s primary query in National Woodwork, whether a clause is primary or secondary, with a derivative inquiry, whether a clause is work preservative or work acquisitive.

As the Supreme Court has recognized, “[t]he various linguistic formulae and eviden-tiary mechanisms we have employed to describe the primary/secondary distinction are not talismanic nor can they substitute for analysis.” ILA II, 473 U.S. at 81, 105 S.Ct. 3045. Rather, cases require an inferential, fact-intensive inquiry. Id. While the fact that a clause is work acquisitive is a relevant factor to consider when analyzing whether the clause is primary or secondary, the preservation/acquisition distinction is only one of several factors to consider.

The party who challenges a contract provision has the burden of proving that the provision in question was motivated by unlawful, secondary intent and thus violates § 8(e). Looking at the case at hand, I find that Marrowbone has failed to show that the clause at issue had any secondary purpose. Again, “[cjontraet provisions are secondary and unlawful if they ... have as their principal objective the regulation of the labor policies of other employers and not the protection of the unit.” General Truck Drivers, 298 N.L.R.B. at 399, 1990 WL 122512 (quoting Retail Clerks, 163 N.L.R.B. at 819). Even if a contract provision increases the number of union jobs, “[ajbsent some additional showing of an attempt ‘to reach out to monopolize jobs,’ such an agreement is lawful.” ILA II, 473 U.S. at 79, 105 S.Ct. 3045 (quoting National Woodwork, 386 U.S. at 630, 87 S.Ct. 1250).

There is no evidence in this case that suggests the Union negotiated this provision to target neutral employers or coerce customers. Rather, the totality of the circumstances that can be gleaned from the record⁶ indicates that a newly-formed local bargaining unit had only its own members’ interests at heart when it negotiated a provision that would reserve transport jobs for Marrow-bone employees.

Determining § 8(e) claims is a fact-bound endeavor, and the totality of surrounding circumstances must be examined to determine whether a union’s objective was primary in nature, or whether an agreement was “tactically calculated to satisfy union objectives elsewhere.” National Woodwork, 386 U.S. at 644, 87 S.Ct. 1250; ILA I, 447 U.S. at 504, 100 S.Ct. 2305 (court must look at “all the surrounding circumstances” to decide if Union’s objective is primary or secondary). The totality of circumstances to consider in determining whether a union had primary or secondary motivation includes the “history of labor relations between the union and the employers ... and the economic personality of the industry.” National Woodwork, 386 U.S. at 645 n. 38, 87 S.Ct. 1250. It seems also relevant to consider the history and strength of a particular union when attempting to distinguish between the union which seeks only to advance its members’ economic interests and the union which seeks to aggrandize power with which to coerce neutral third parties.

The district court considered the history between the parties, as well as the parties’ actions and motivations, and after reviewing the totality of circumstances, held that this case contained no indicia of improper secondary Union motivations. Instead, it found that the provision was negotiated by a fledgling local bargaining unit solely to advance its own workers’ interests and that the provision was “addressed to the labor relations of the contracting employer vis-a-vis [its] own employees.” ILA I, 447 U.S. at 504, 100 S.Ct. 2305. Marrowbone has not identified any evidence contradicting these findings and has failed to demonstrate that the provision at issue was the result of any improper secondary motivations.

For these reasons, I respectfully dissent.

1 . "[A]n agreement that reserves work for union members may also have an unlawful secondary objective. The preservation/acquisition dichotomy ... can serve the useful purpose of aiding the inquiry regarding unlawful secondary objectives when an agreement attempts to secure work but 'jobs are not threatened.’ ” NLRB v. Int’l Longshoremen's Ass'n., 473 U.S. 61, 79 n. 19, 105 S.Ct. 3045, 87 L.Ed.2d 47 (1985) (emphasis added) ("ILA II”). However, [i]t must not be forgotten that the relevant inquiry ... is whether a union's activity is primary or secondary.” Id. at 81, 105 S.Ct. 3045.

2 . The NLRB's standard for determining if a contract clause violates § 8(e) is that "[cjontract provisions are secondary and unlawful if they arc to have as their principal objective the regulation of the labor policies of other employers and not the protection of the unit.” General Truck Drivers, Local Union 957 v. Northwood Stone & Asphalt Co., 298 N.L.R.B. 395, 399, 1990 WL 122512 (1990) (quoting Retail Clerks Int'l Ass’n, Local Union 1288, 163 N.L.R.B. 817, 819 (1967)). See also National Woodwork Mfrs. Ass’n v. NLRB, 386 U.S. 612, 635-636, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967) ("Although the language of § 8(e) is sweeping, ... the legislative history ... consistently defined the evil to be prevented in terms of agreements which obligated neutral employers not to do business with other employers involved in labor disputes with the union.”).

The Third Circuit put it well when it explained that "[i]f the purpose is to benefit the employees of the bargaining unit, the agreement is 'primary’ and does not run afoul of § 8(e). If, however, the aim is to put pressure on an outside employer to submit to union objectives, the provision is secondary and prohibited.... So long as the union has no forbidden secondary purpose to affect the employment relations of an outside employer, the agreement is valid even though it adversely affects the employment opportunities of non-represented workers.” In Re Bituminous Coal Wage Agreements, 756 F.2d 284, 289 (3d Cir.1985).

3 . The Third Circuit has held that to find a contract clause invalid under § 8(e), a court must find that it has both a secondary purpose and a secondary effect. In Re Bituminous Coal, 756 F.2d at 290. The Supreme Court’s holdings are consistent with this view. For example, the Court has held that a work preservation clause is not valid per se, but rather fails to provide a union with an adequate defense to an § 8(e) charge — even if the work "preserved” was traditionally performed by the union — if one of the union’s objectives is really to influence the employer by exerting pressure on a third party, such as a subcontractor. See NLRB v. Enterprise Ass’n of Steam Pipefitters, 429 U.S. 507, 97 S.Ct. 891, 51 L.Ed.2d 1 (1977).

4 . The Supreme Court specifically reserved that question, noting that while work preservation was a protected primary motivation, it might be different if a union sought to "monopolize jobs or acquire new job tasks when their own jobs [were] not threatened.” National Woodwork, 386 U.S. at 630-31, 87 S.Ct. 1250; NLRB v. Enterprise Ass'n of Steam Pipefitters, 429 U.S. at 528 n. 16, 97 S.Ct. 891 (majority) and 537 n. 2, 97 S.Ct. 891 (dissent).

5 . Because the parties have focused on the question of whether the Union is preserving or acquiring work, a primary issue has been whether we should consider the work that was previously done by the specific local bargaining unit, or the work traditionally done by similar units across the nation in order to decide if work is being preserved or acquired. Although the district court held that it should consider the past work practices of other local bargaining units, I find the majority's analysis of this issue more persuasive. Nonetheless, I do not believe that this determination ends our inquiry.

6 .The case was decided by the district court on a joint stipulation of undisputed material facts.