Unpublished Disposition, 897 F.2d 533 (9th Cir. 1990)

No. 87-2183.

United States Court of Appeals, Ninth Circuit.

Before GOODWIN, Chief Circuit Judge and REINHARDT, Circuit Judge, and A. WALLACE TASHIMA, District Judge^* 

MEMORANDUM^** 

BACKGROUND

Appellee Strauss Construction Co. ("Strauss") is a general contractor. It was awarded a contract on a Napa, California, hotel project. When the business agent of appellent union ("Union") learned of this contract, he contacted Strauss and requested a pre-job conference. Strauss refused, contending it was not bound to any collective bargaining agreement ("CBA") with the Union. The Union then filed a grievance on access to the hotel project.

In response to the grievance, Strauss reiterated that it was not bound by any CBA and further that "to avoid any confusion, Strauss hereby gives you notification of repudiation ... effective immediately of any [CBA]...." Subsequently, the Union filed a second grievance for Strauss' use of non-union subcontractors on the Napa hotel project. It is uncontroverted that during the relevant period Strauss employed only one laborer and employed none when the oral and written repudiations were made.

Both grievances were taken to arbitration. Strauss made a "special appearance", contested the jurisdiction of the Board of Arbitration because it had repudiated the CBA and refused further to participate in the arbitration proceeding. The arbitration then proceeded as a default. The Board awarded compensation under the CBA. Strauss then petitioned the district court to vacate the award. The Union cross-petitioned to confirm the award.

On cross-motions for summary judgment, the court vacated the award on the ground that the CBA was a Sec. 8(f), 29 U.S.C. § 158(f), prehire agreement and that Strauss had effectively repudiated it. The Union appeals.¹ 

DISCUSSION

This Circuit adopted the Deklewa²  rule in Mesa Verde Constr. Co. v. Northern Cal. Dist. Council of Laborers, 861 F.2d 1124 (9th Cir. 1988) (en banc), but remanded the retroactive application issue to the original three-judge panel. In Mesa Verde Constr. Co. v. Northern Cal. Dist. Council of Laborers, Nos. 85-1665 & 85-2074, slip op. at 920 (9th Cir. Jan. 26, 1990) (as amended), the panel held that Deklewa should not be applied retroactively. We, thus, apply pre-Deklewa law to this case which involves events occurring in 1984 and 1985, in which the arbitration award was made and the district court decision was rendered in 1986.

In Ion Constr. Co. v. District Council of Painters No. 16, 803 F.2d 1050, 1051 (9th Cir. 1986) (per curiam), we held, consistent with John S. Griffith Constr. Co. v. United Bhd. of Carpenters, Local # 563, 785 F.2d 706, 712 n. 5 (9th Cir. 1986), that "as between the court and an arbitrator, it is the former that should determine the effectiveness of an employer's alleged repudiation of a prehire agreement." The Union attempts to distinguish Ion on the basis that the first grievance was filed before Strauss' explicit repudiation. However, it is clear from the record that the award here was based on the Union's second grievance, which was filed after the repudiation.

The district court correctly concluded, under pre-Deklewa law, that on these undisputed facts, Strauss effectively repudiated the prehire agrement. See, e.g., IBEW, Local Union No. 441 v. KBR Elec., 812 F.2d 495, 498-99 (9th Cir. 1987) (prehire agreement can be repudiated by giving actual notice to the union); Operating Eng'r Pension Trust v. Beck Eng'g & Surveying, 746 F.2d 557, 566 (9th Cir. 1984) (single employee employer can repudiate prehire agreement by conduct sufficient to put employee and union on notice).

The judgment of the district court is AFFIRMED.