Unpublished Disposition, 842 F.2d 335 (9th Cir. 1987)

ORDER

It is ordered that the memorandum disposition filed on April 27, 1987 be withdrawn and the attached memorandum filed.

The appellees' petition for rehearing en banc filed May 8, 1987 is moot.

MEMORANDUM^* 

Defendant-appellant Charles Warren, d/b/a Warren Construction Company ("Warren"), appeals from a district court judgment awarding plaintiff-appellee Idaho Branch AGC Laborers Trust Funds (the "Trust") $22,189.18 and attorneys' fees of $2,722.25. After oral argument, this panel deferred submission of the appeal pending the decision of the National Labor Relations Board (NLRB) in Deklewa v. International Ass'n of Bridge Workers, Local 3, 282 N.L.R.B. 184 (1987). Following the NLRB's decision in Deklewa, the appeal was resubmitted and this panel issued its disposition instructing the district court to dismiss the Trust's complaint for lack of subject matter jurisdiction.

After this panel issued its original disposition, the Trust filed a petition for rehearing en banc. This panel then requested supplemental briefs from the parties addressing Deklewa, Mesa Verde Constr. Co. v. Northern Cal. Dist. Council of Laborers, 820 F.2d 1006 (9th Cir.), withdrawn for rehearing en banc, 832 F.2d 1164 (9th Cir. 1987), and United Bhd. of Carpenters & Jointers, Local 2247 v. Endicott Enterprises, Inc., 806 F.2d 918 (9th Cir. 1986), cert. denied, 108 S. Ct. 151 (1987). By separate order, we have withdrawn our original disposition. Here, we decide that the district court had jurisdiction, and we affirm.

Endicott held that district courts have jurisdiction to adjudicate the majority status of a union for the purpose of deciding whether an employer could effectively repudiate a prehire agreement. The Endicott panel observed that "the doctrine of primary jurisdiction does not apply in determining a union's past representational status." 806 F.2d at 921 (emphasis in original). Because only the past representational status of the union is at issue in cases involving the repudiation of a prehire agreement, Endicott concluded that the doctrine of primary jurisdiction did not divest the district court of jurisdiction. Id.

Endicott was decided prior to the resubmission of this appeal, and is therefore binding on this panel. Under Endicott, the district court had jurisdiction to address the majority status issue and to determine whether Warren had effectively repudiated its prehire agreement:

Section 8(f) of the Labor Management Relations Act (the "LMRA"), 29 U.S.C. § 158(f), authorizes certain employers to enter into prehire agreements with a union even though the union does not have majority status, on the condition that the prehire agreement may be repudiated by the employer at any time before the union attains majority status. Our previous decisions have recognized two methods by which a union can establish that it has attained majority status. First, if the prehire agreement covers a stable workforce, the question is whether the union has majority support within that workforce. NLRB v. Pacific Erectors, Inc., 718 F.2d 1459, 1463 (9th Cir. 1983). If a majority of the employees in that workforce become union members, "a rebuttable presumption of the union's majority status is created." Id. Second, if the employer hires employees on a job to job basis, the union must establish its majority status at each job site. Numerical proof of majority status through non-coercive methods such as representation elections or card counts is unnecessary. Id.

The district court correctly concluded that the union membership of a majority of Warren employees created a rebuttable presumption of majority status that Warren failed to overcome. Relying on the union's business records, Walter Jones, the union local's business manager, testified in some detail as to the dues paying status of a substantial majority of Warren's employees prior to the attempted repudiation of the prehire agreement. His testimony and the records introduced at trial established that Warren had a stable workforce. This evidence established a rebuttable presumption in favor of the union's majority status. Warren's rebuttal evidence consisted of testimony from two employees, who testified that they joined the union in part because they needed jobs. Their testimony is insufficient to rebut the presumption of majority status. Consequently, Warren could no longer repudiate the prehire agreement.

In Deklewa, the NLRB overruled a number of its previous decisions and held that a section 8(f) prehire agreement is binding unless the employees reject their collective bargaining representative in an NLRB conducted election or until the agreement expires according to its terms. This position conflicts with the law of this circuit, which is consistent with the view held by the NLRB prior to Deklewa. In Mesa Verde, a panel of this court refused to adopt Deklewa, because the law of this circuit does not permit a panel "to overrule prior panels' interpretations of the [LMRA], even with intervening NLRB case law." 820 F.2d at 1013. As recommended by the Mesa Verde panel, however, this circuit has ordered that Mesa Verde be reheard by an en banc court. 832 F.2d at 1164.

If the en banc court adopts Deklewa, the question of whether the union repudiated the prehire agreement will be irrelevant. Under Deklewa, the prehire agreement stands unless the employees vote to reject or change the collective bargaining representative, or until the agreement expires according to its terms. If majority status becomes irrelevant, it will make no difference whether this question should be resolved by the NLRB or by the district court. The district court will still have jurisdiction.

On the merits, Warren could not have rejected the prehire agreement because neither of the Deklewa criteria have been met in this case. Therefore, the outcome of this case would be the same whether or not Deklewa applies, and we need not await the decision of the en banc panel considering Mesa Verde.

The Trust seeks attorney's fees and costs on appeal pursuant to 29 U.S.C. § 1132(g) (2). "Under [section] 1132(g) (2), trust funds that successfully sue for unpaid contributions 'shall' be awarded reasonable attorney's fees [and costs]. This provision is mandatory," and applies to attorney's fees and costs on appeal. Operating Engineers Pension Trust v. Cecil Backhoe Serv., Inc., 795 F.2d 1501, 1508 (9th Cir. 1986); see Woodward Sand Co. v. Western Conference of Teamsters Pension Trust Fund, 789 F.2d 691, 697-98 (9th Cir. 1986). Here, the Trust has successfully sued for unpaid contributions, and is therefore entitled to attorney's fees and costs on appeal.

The decision of the district court is AFFIRMED and the Trust's request for attorney's fees and costs on appeal is GRANTED.