No. 98-1986
In the Supreme Court of the United States
ROAD SPRINKLER FITTERS LOCAL UNION NO. 669, ETC., PETITIONER
v.
AMERICAN AUTOMATIC SPRINKLER SYSTEMS, INC.,
ET AL.
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE
NATIONAL LABOR RELATIONS BOARD
IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
FREDERICK L. FEINSTEIN
General Counsel
LINDA SHER
Associate General Counsel
NORTON J. COME
Deputy Associate General Counsel
JOHN EMAD ARBAB
Attorney
National Labor Relations
Board
Washington, D.C. 20570
QUESTION PRESENTED
Whether the union established that, in its bargaining relationship with
a construction industry employer, it had attained the full representative
status accorded by Section 9(a) of the National Labor Relations Act, 29
U.S.C. 159(a), rather than the limited representative status accorded by
Section 8(f) of the Act, 29 U.S.C. 158(f).
In the Supreme Court of the United States
No. 98-1986
ROAD SPRINKLER FITTERS LOCAL UNION NO. 669, ETC., PETITIONER
v.
AMERICAN AUTOMATIC SPRINKLER SYSTEMS, INC.,
ET AL.
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE
NATIONAL LABOR RELATIONS BOARD
IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-29a) is reported at 163
F.3d 209. The decision and order of the National Labor Relations Board (Pet.
App. 30a-48a) and the decision of the administrative law judge (Pet. App.
48a-181a) are reported at 323 N.L.R.B. 920.
JURISDICTION
The judgment of the court of appeals was entered on January 14, 1999. A
petition for rehearing was denied on March 12, 1999 (Pet. App. 182a-183a).
The petition for a writ of certiorari was filed on June 10, 1999. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. It is ordinarily an unfair labor practice for an employer to enter into
a collective bargaining agreement with a union that has not been "designated
or selected for the purposes of collective bargaining by the majority of
the employees in a unit appropriate for such purposes" pursuant to
Section 9(a) of the National Labor Relations Act (Act), 29 U.S.C. 159(a).
See International Ladies' Garment Workers' Union v. NLRB, 366 U.S. 731 (1961).
Section 8(f) of the Act, 29 U.S.C. 158(f), however, creates an exception
to that general principle for the building and construction industry. Section
8(f) provides that it is not an unfair labor practice for an employer and
a union "to make an agreement covering employees engaged (or who, upon
their employment, will be engaged) in the building and construction industry
* * * because (1) the majority status of such labor organization has not
been established under the provisions of section 9" of the Act. 29
U.S.C. 158(f)(1).
In John Deklewa & Sons, Inc., 282 N.L.R.B. 1375 (1987), enforced sub
nom. International Ass'n of Bridge, Structural & Ornamental Iron Workers,
Local 3 v. NLRB, 843 F.2d 770 (3d Cir.), cert. denied, 488 U.S. 889 (1988),
the National Labor Relations Board (Board) substantially revised its interpretation
of Section 8(f). Under the Board's previous interpretation, an employer
could repudiate an 8(f) agreement any time before the union had gained the
support of a majority of the bargaining unit employees, but, under the "conversion
doctrine," the union could, with relative ease, establish that it had
become the employees' Section 9(a) representative.1 In Deklewa, the Board
decided that it would "no longer apply the so-called conversion doctrine
to 8(f) cases." 282 N.L.R.B. at 1384. The Board further held that,
although an 8(f) agreement cannot be repudiated during its term (unless
the employees "vote to reject or change their representative"),
"[b]eyond the operative term of the contract, the signatory union acquires
no other rights and privileges of a 9(a) exclusive representative."
Id. at 1387. Accordingly, "[u]nlike a full 9(a) representative, the
8(f) union enjoys no presumption of majority status on the contract's expiration
and cannot picket or strike to compel renewal of an expired agreement or
require bargaining for a successor agreement." Ibid.2
The Board explained in Deklewa that it did not "mean[] to suggest that
unions have less favored status with respect to construction industry employers
than they possess with respect to those outside the construction industry."
282 N.L.R.B. at 1387 n.53. Therefore, an 8(f) union may attain the status
of a full 9(a) representative and thus be entitled to the "normal presumptions"
attendant to 9(a) status, by winning a Board-conducted certification election
(id. at 1385) or by obtaining voluntary recognition from "the employer
of a stable work force where that recognition is based on a clear showing
of majority support among the unit employees, e.g., a valid card majority."
Id. at 1387 n.53.
2. Respondent American Automatic Sprinkler Systems, Inc., (American) makes
and installs fire sprinkler systems. Pet. App. 51a. Beginning in 1974, American
was a party to successive collective bargaining agreements with petitioner
Road Sprinkler Fitters Local Union No. 669, United Association, AFL-CIO,
through membership in the National Fire Sprinkler Association (NFSA), a
multiemployer bargaining association. Id. at 4a.3 On October 12, 1987, during
the term of the 1985 NFSA labor agreement, which was a Section 8(f) agreement,
petitioner sent a letter to American and its other signatory contractors.
C.A. App. 196.4 The letter explained that the Board's Deklewa decision "may
throw into question the nature of the relationship between" American
and petitioner and requested American to sign an enclosed "form recognition
agreement" reflecting petitioner's "status as the exclusive bargaining
representative of [American's] sprinkler fitters." Ibid. Petitioner
also enclosed with the letter a copy of a recent fringe benefit report filed
by American, which, petitioner stated, "accurately confirms that all,
or nearly all, of [American's] sprinkler fitter employees are members of
and represented by [petitioner]." Ibid.
On October 14, 1987, American signed the "form recognition agreement"
proffered by petitioner. C.A. App. 195. That agreement stated:
The Employer executing this document below has, on the basis of objective
and reliable information, confirmed that a clear majority of the sprinkler
fitters in its employ have designated, are members of, and are represented
by, Road Sprinkler Fitters Local Union No. 669, U.A., AFL-CIO, for purposes
of collective bargaining.
The Employer therefore unconditionally acknowledges and confirms that Local
669 is the exclusive bargaining representative of its sprinkler fitter employees
pursuant to Section 9(a) of the National Labor Relations Act.
Ibid.; see also Pet. App. 4a. Petitioner and American later entered into
several successor agreements containing similar language. Id. at 4a-5a,
32a. Before the expiration of the most recent agreement, American notified
petitioner that it was withdrawing from NFSA and wished to bargain independently
for future agreements. Id. at 5a, 53a. American sent petitioner a proposed
new contract that authorized American to operate on a nonunion basis and
to subcontract out all of its work. Id. at 66a. On August 11, 1994, after
several unsuccessful bargaining sessions with petitioner, American unilaterally
implemented its proposal and thereafter refused to recognize petitioner
as the representative of its employees. Id. at 73a-77a.
3. Acting on charges filed by petitioner, the Board's General Counsel issued
a complaint alleging, among other things, that American engaged in bad-faith
bargaining with petitioner during the 1994 negotiations, in violation of
Section 8(a)(5) of the Act, 29 U.S.C. 158(a)(5). Pet. App. 48a, 51a. The
Board, in agreement with the administrative law judge (ALJ), first concluded
that petitioner "[is] the [Section] 9(a) representative[] of [American's]
journeymen sprinkler fitters and apprentices." Id. at 31a; see also
id. at 85a. The Board based that conclusion on the recognition language
in the October 1987 "form recognition agreement" and the later
agreements. Id. at 32a. The Board noted that it had previously found the
same 1987 form recognition agreement sufficient to establish petitioner's
Section 9(a) status. Ibid. (citing Triple A Fire Protection, Inc., 312 N.L.R.B.
1088 (1993), enforced, 136 F.3d 727 (11th Cir. 1998), cert. denied, 119
S. Ct. 795 (1999)). The Board further noted that, "in any event, [American's]
challenge to the 9(a) status of [petitioner] was untimely raised."
Pet. App. 33a (citing Casale Indus., Inc., 311 N.L.R.B. 951 (1993)). On
the merits, the Board found that American had violated Section 8(a)(5) and
ordered it to bargain with petitioner and to "rescind any or all unilateral
changes in mandatory subjects of bargaining implemented on and after August
11, 1994." Pet. App. 31a, 44a, 80a, 163a.
4. The court of appeals denied enforcement of the Board's order in relevant
part. Pet. App. 1a-29a.5 The court upheld, as a "defensible" construction
of the Act, the Board's decision in Deklewa to abandon the conversion doctrine
and to conclude that "8(f) unions, like their counterparts in nonconstruction
industries, would not be precluded from achieving 9(a) status through either
a Board-certified election or voluntary recognition based upon a clear showing
of majority support." Id. at 17a. Because "the Board does not
argue that [petitioner] attained 9(a) status through a certified election,"
the relevant question, in the court's view, was whether petitioner "satisfied
the requirements for attaining such exclusive representative status through
voluntary recognition." Id. at 19a. The court explained that "both
the Board and the reviewing courts have required the union's unequivocal
demand for, and the employer's unequivocal grant of, voluntary recognition
as the employees' collective-bargaining representative based on the union's
contemporaneous showing of majority employee support." Id. at 21a (internal
quotation marks omitted).
Applying that principle, the court rejected, as unreasonable, the Board's
"finding of an effective voluntary recognition of [petitioner's] 9(a)
status." Pet. App. 22a. The court concluded that the fringe benefits
report proffered by petitioner in support of its demand that American sign
the October 1987 form recognition agreement did not "suffice to satisfy
the requirement of a contemporaneous showing of majority support."
That was so because "the parties' 8(f) contract included a standard
union security clause requiring employees, as a condition of employment,
to join the union within seven days of being hired." Ibid. The court
noted that, in Deklewa, the Board "not only recognized the unreliability
of union membership as a proxy for union support where a [union] security
clause is in effect, but in fact based its decision to abandon the conversion
doctrine in part on the 'highly questionable' nature of just such an inference."
Id. at 23a.
The court of appeals also addressed the Board's conclusion that American's
"challenge to [petitioner's] 9(a) status is time-barred because it
occurs more than six months after voluntary recognition was granted."
Pet. App. 19a n.6. The court concluded that "we do not believe that
section 10(b) [of the Act, 29 U.S.C. 160(b),] can reasonably be interpreted
to prohibit American, the party against whom the complaint has been filed,
from defending itself by challenging the validity of the evidence of effective
voluntary recognition that is the basis of the Board's complaint."
Id. at 21a n.6.
ARGUMENT
1. Petitioner asks this Court to decide whether the six month statute of
limitations in Section 10(b) of the Act, 29 U.S.C. 160(b), applies when
an employer in the construction industry seeks to defend against unfair
labor practice charges by challenging the validity of a Section 9(a) voluntary
recognition agreement. See Pet. i (Question 1), 10-22. That question, however,
is not presented by this case, because the court of appeals held that petitioner
and American had a Section 8(f) agreement, not a Section 9(a) agreement.
Section 10(b) provides, in pertinent part, that "no complaint shall
issue based upon any unfair labor practice occurring more than six months
prior to the filing of the charge with the Board." 29 U.S.C. 160(b).
In Local Lodge 1424, IAM v. NLRB (Bryan Manufacturing Co.), 362 U.S. 411
(1960), a case arising outside the construction industry, this Court held
that a collective bargaining agreement, lawful on its face, could not be
found unlawful because it was entered into with a minority union, when the
charge of illegality was filed more than six months after the contract was
executed. Id. at 417-419.
The Board and the courts have applied Section 10(b) and its underlying policies
to preclude employers in the construction industry from raising, more than
six months after the event, defensive claims that the union lacked majority
employee support at the time the parties entered into a Section 9(a) bargaining
relationship through voluntary recognition. See, e.g., NLRB v. Triple A
Fire Protection, Inc., 136 F.3d 727, 737 (11th Cir. 1998) ("after achieving
full section 9(a) status," union was "entitled to full membership
in section 9(a) status, including the application of section 10(b),"
to bar employer's challenge to union's majority status at time of voluntary
recognition), cert. denied, 119 S. Ct. 795 (1999); Casale Indus., Inc.,
311 N.L.R.B. 951, 953 (1993) ("if a construction industry employer
extends 9(a) recognition to a union, and 6 months elapse without a charge
or petition, the Board should not entertain a claim that majority status
was lacking at the time of recognition").
The Board has recognized, however, that Section 10(b) does not preclude
an inquiry into whether a union had an 8(f) relationship rather than a 9(a)
relationship. See Brannan Sand & Gravel Co., 289 N.L.R.B. 977, 979 (1988)
("Section 10(b) as construed in [Bryan Manufacturing] does not preclude
finding that a construction industry bargaining relationship, whatever its
age, is not a 9(a) relationship" but rather an 8(f) relationship);
Deklewa, 282 N.L.R.B. at 1387 (status of 8(f) union "as the employees'
representative is subject to challenge at any time"). Moreover, "[u]nder
Deklewa, the Board presumes that parties in the construction industry intend
their relationship to be an 8(f) relationship," see Casale, 311 N.L.R.B.
at 952, and the party claiming that Section 9(a) status has been attained
bears the burden of overcoming that presumption, Deklewa, 282 N.L.R.B. at
1385 n.41 (party "asserting the existence of a 9(a) relationship [must]
prove it").
In this case, the Board first concluded that petitioner's presumptive 8(f)
status had been overcome and that a 9(a) bargaining relationship had been
established and then applied the six month limitations period reflected
in Section 10(b) to bar American's challenge to petitioner's majority status.
See Pet. App. 32a-33a. The court of appeals, however, concluded that petitioner
had only a Section 8(f) relationship with American. See id. at 22a-24a.
Because petitioner had only 8(f) status, the court concluded, American had
no obligation to bargain with petitioner upon the expiration of the 8(f)
agreement. Id. at 28a.
Accordingly, the court did not need to reach the issue on which petitioner
seeks this Court's review: whether, had petitioner established that it enjoyed
a 9(a) relationship with American, petitioner would have been entitled to
invoke Section 10(b) against a challenge to its majority status at the time
of voluntary recognition. Indeed, the court stated that it was deciding
"only * * * whether the Board's conclusions in Deklewa as to the means
by which an 8(f) union can attain 9(a) status * * * are permissible."
Pet. App. 14a n.4.
Petitioner (Pet. 19-20) would have this Court read the court of appeals'
opinion broadly as having concluded that Section 10(b) does not apply to
defensive charges of unfair labor practices when employers and unions have
entered into 9(a) bargaining relationships in the construction industry.
Such a conclusion would be questionable.6 As discussed above, however, the
court's decision can properly be read as having decided only that Section
10(b) does not bar inquiry into whether a bargaining relationship in the
construction industry is an 8(f) or a 9(a) relationship. Therefore, review
by this Court of the issue framed by petitioner-whether Section 10(b) applies
when there is a 9(a) bargaining relationship in the construction industry-should
await a case in which it is clear that the court of appeals was required
to reach and actually decided that issue.
2. For similar reasons, petitioner is incorrect in contending (Pet. i (Question
1), 11, 16-17) that the decision of the court of appeals in this case conflicts
with the decisions of the Eleventh Circuit in NLRB v. Triple A Fire Protection,
Inc., supra, and the Tenth Circuit in MFP Fire Protection, Inc. v. NLRB,
101 F.3d 1341 (1996). In both of those cases, unlike in this case, the courts
of appeals upheld the Board's finding that the parties had attained a 9(a)
bargaining relationship.
In Triple A, the employer "[did] not in its brief on appeal challenge
the Board's finding that the conversion to full Section 9(a) status was
achieved" by petitioner. 136 F.3d at 735. Moreover, the court found
that, on the particular facts of that case, the Board had satisfied "the
Deklewa standard that a 'voluntary recognition . . . [be] based on a clear
showing of majority support.'" Ibid.7 Accordingly, the court agreed
with the Board that, "after achieving full section 9(a) status,"
petitioner was "entitled to * * * the application of section 10(b)"
to bar the employer's challenge to its majority status based on its claim
that the employees were coerced to join the union. Id. at 737. In this case,
by contrast, American challenged the Board's finding that petitioner enjoyed
a 9(a) bargaining relationship with American, and the court sustained American's
challenge. See Pet. App. 22a-24a. Given the court's finding that petitioner
had only an 8(f) relationship with American, there is no conflict over the
application of Section 10(b) between the court's decision in this case and
the Eleventh Circuit's decision in Triple A.
In MFP, the Tenth Circuit accepted the Board's finding that petitioner had
attained Section 9(a) status because it concluded on equitable grounds that
the employer had waited too long to challenge petitioner's representative
status. The court held that "the Board did not err in concluding that
the passage of six and one-half years after the expiration of the six-month
period allowed for protest, during which health and welfare and pension
payments were paid by the employer, barred the employer from retrospectively
asserting the absence of a § 9(a) relationship." 101 F.3d at 1344.
The court in MFP did not cite Section 10(b) and did not address whether
(much less hold that) Section 10(b) bars inquiry into whether a union has
Section 8(f) or Section 9(a) status.8 Unlike the Tenth Circuit in MFP, the
court of appeals in this case did not address any equitable preclusion theory
and rejected the Board's determination that petitioner had established 9(a)
status.
3. The only question actually presented by this case is whether the court
of appeals was correct in its conclusion, contrary to that of the Board,
that petitioner never attained Section 9(a) status. Although petitioner
contends (Pet. i (Question 2), 22-27) that the court erred, the court's
conclusion raises no issue of general importance that warrants this Court's
review because it turns on the interpretation of a particular labor agreement
in light of the law at the time that the agreement was made.
Petitioner takes issue (Pet. 23) with the view of the court of appeals (see
Pet. App. 22a) that a "contemporaneous evidentiary proffer of majority
union support among unit employees is required" for an 8(f) union to
obtain voluntary 9(a) recognition from an employer. Recent Board decisions
support petitioner's contrary view that the validity of an employer recognition
agreement instead turns on whether the union "was, in fact, the chosen
representative of a majority of the employees in an appropriate bargaining
unit." Ibid.9 This Court has explained, however, that a labor agreement
"must be read * * * in the light of the law relating to it when made."
Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 279 (1956). The court of appeals
was therefore not unwarranted in turning to Deklewa, which had just been
decided at the time petitioner and American entered into the October 1987
agreement, as the source of law by which to evaluate the parties' bargaining
relationship. That is particularly so because petitioner's correspondence
with American made clear that petitioner sought the October 1987 agreement
in reaction to Deklewa, under which American would have been free to repudiate
its 8(f) relationship with petitioner upon the expiration of the then-extant
NFSA collective bargaining agreement. See pp. 3, 5, supra.
The court of appeals also was not unreasonable in concluding that Deklewa
requires an 8(f) union to base a request for voluntary 9(a) recognition
on a contemporaneous showing of majority support (Pet. App. 21a) because
Deklewa itself and its immediate progeny use those terms. See Deklewa, 282
N.L.R.B. at 1387 n.53; J&R Tile, Inc., 291 N.L.R.B. 1034, 1036 (1988)
("Since Deklewa * * * a party may prove the existence of a 9(a) relationship
either through a Board representation election, or a union's express demand
for, and an employer's voluntary grant of, recognition to the union as the
bargaining representative based on a contemporaneous showing of union support
among a majority of the employees in an appropriate unit."); Brannan
Sand & Gravel Co., 289 N.L.R.B. at 980 (describing "traditional
means of proving 9(a) status" under Deklewa and progeny as "a
Board conducted election or recognition based on a contemporaneous showing
of majority support for the union").10
Petitioner further contends (Pet. 24) that the court of appeals erred in
concluding that "the existence of a background union security clause
is * * * a basis for invalidating a union showing of interest based on the
bargaining unit employee union membership." The court's contrary view
is not unwarranted, however, judged in light of the state of the law in
October 1987, when petitioner made its showing of support. The court rejected
petitioner's contemporaneous showing of employee support because its proffer
involved the same type of evidence that Deklewa deemed an unreliable indicator
of actual employee union support, i.e., evidence that a majority of American's
employees were members of petitioner pursuant to a seven day union security
clause in the parties' 8(f) agreement. See Pet. App. 19a-24a. As the court
observed (id. at 23a), in Deklewa, the Board, explaining why it had decided
to abandon the conversion doctrine, seemed to conclude that union membership
under a union security clause was not a sufficiently accurate indicator
of employee support for the union; rather, such evidence was a "highly
questionable factual foundation" upon which to base a conclusion that
the union had attained majority 9(a) status, since "[a] union security
clause operates to compel new employees to join the union because union
membership is the price for obtaining a job." Deklewa, 282 N.L.R.B.
at 1384 (quoting Precision Striping, Inc. v. NLRB, 642 F.2d 1144, 1148 (9th
Cir. 1981) (internal quotation marks omitted)). See also J&R Tile, Inc.,
291 N.L.R.B. 1034, 1037 (1988) ("that employees are union members,"
even in "a right-to-work state where union membership is voluntary,"
is "not dispositive of the status of the collective-bargaining agreement").
That rationale may no longer be valid because of subsequent developments
in the law, but the court of appeals did not address the potential effect
of those developments.11
In sum, the court's ruling that petitioner failed to establish that it had
attained a 9(a) relationship with American turns on an interpretation of
the October 1987 agreement in light of the law at the time. The law respecting
the requirements for establishing a 9(a) relationship in the construction
industry is undergoing further development. Thus, the court of appeals'
decision does not raise an issue of sufficient ongoing importance to warrant
review by this Court.12
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
FREDERICK L. FEINSTEIN
General Counsel
LINDA SHER
Associate General Counsel
NORTON J. COME
Deputy Associate General Counsel
JOHN EMAD ARBAB
Attorney
National Labor Relations
Board
AUGUST 1999
1 See Jim McNeff, Inc. v. Todd, 461 U.S. 260 (1983); NLRB v. Local 103,
Int'l Ass'n of Bridge, Structural & Ornamental Iron Workers, 434 U.S.
335 (1978); R.J. Smith Constr. Co., 191 N.L.R.B. 693 (1971), enforcement
denied sub nom. Local No. 150, Int'l Union of Operating Eng'rs v. NLRB,
480 F.2d 1186 (D.C. Cir. 1973). Under the conversion doctrine, "[t]he
achievement of majority support required no notice, no simultaneous union
claim of majority, and no assent by the employer to complete the conversion
process." Majority employee support could be established, in litigation
before the Board, through such evidentiary factors as "the presence
of an enforced union-security clause, actual union membership of a majority
of unit employees," or "employee statements and actions that indicate
union support." Deklewa, 282 N.L.R.B. at 1378.
2 Section 8(a)(5) of the Act, 29 U.S.C. 158(a)(5), makes it an unfair labor
practice for an employer "to refuse to bargain collectively with the
representatives of his employees, subject to the provisions of section 9(a)"
of the Act. A union which has been "designated or selected" as
a bargaining representative by a majority of the unit employees in accordance
with Section 9(a) is entitled to a rebuttable presumption of continued majority
status at the expiration of a collective bargaining agreement. Concomitantly,
an employer who is party to an agreement with a Section 9(a) union may not
refuse to bargain with the union following expiration of the contract unless
the employer proves either that a majority of the employees no longer support
the union or that it has a good faith doubt as to the union's continued
majority status. See NLRB v. Curtin Matheson Scientific, Inc., 494 U.S.
775, 778 (1990).
3 American also had a bargaining relationship with Sprinkler Fitters Local
Union No. 536, a sister local of petitioner. Pet. App. 4a; Pet. 3 n.2. Local
536 was a party to the proceedings before the Board but not the court of
appeals (Pet. App. 1a), and it has not sought this Court's review of the
decision of the court of appeals. Therefore, this brief does not discuss
the facts relating to Local 536.
4 Although the 1985 NFSA agreement was not part of the record before the
Board in this case, the court of appeals correctly regarded it as an 8(f)
agreement. See Pet. App. 22a; NLRB v. Triple A Fire Protection, Inc., 136
F.3d 727, 730 (11th Cir. 1998) (describing 1985 NFSA contract as a "section
8(f) prehire national agreement"), cert. denied, 119 S. Ct. 795 (1999);
MFP Fire Protection, Inc. v. NLRB, 101 F.3d 1341, 1342 (10th Cir. 1996)
(same).
5 The court of appeals enforced other elements of the Board's order, see
Pet. App. 3a, 29a, and that aspect of the court of appeals' decision is
not at issue in this Court.
6 It may be an unfair labor practice in the construction industry (as in
other industries) for a union and an employer to enter into an agreement
that purports to confer Section 9(a) status upon a union that does not represent
a majority of the bargaining unit employees. Cf. Hovey Elec., Inc., 328
N.L.R.B. No. 35 (Apr. 30, 1999) (rejecting, on factual grounds, complaint
predicated on theory that granting unwarranted 9(a) status to construction
union constitutes unlawful support and assistance in violation of Section
8(a)(2) of the Act, 29 U.S.C. 158(a)(2)); see also 29 U.S.C. 158(f) (authorizing
employer in construction industry to enter into agreement with minority
union that is "not established, maintained, or assisted by any action
defined in [Section 8(a)] * * * as an unfair labor practice").
7 Because the employer in Triple A had only eight employees, including the
owner and his son, and petitioner had asserted that all eight were union
members, the court found that "the Board could reasonably conclude
that [the owner] would have actually verified and known that a clear majority
of the employees had designated [petitioner] as their exclusive bargaining
representative." 136 F.3d at 735.
8 Although petitioner states (Pet. 11 n.9) that the Tenth Circuit's decision
in MFP "followed" that court's earlier decision in NLRB v. Viola
Industries-Elevator Division, Inc., 979 F.2d 1384 (1992), petitioner does
not contend that the decision in this case conflicts with Viola Industries.
In any event, the MFP court did not refer to or cite Viola Industries, which
involved the question whether Section 10(b) applies to an employer's defensive
claim that the union unlawfully coerced it into signing an 8(f) agreement.
See 979 F.2d at 1387. The present case does not involve, and the court of
appeals here did not address, the application of Section 10(b) to an unlawful
coercion claim.
9 See, e.g., Oklahoma Installation Co., 325 N.L.R.B. No. 140, slip op. at
2 (May 14, 1998) (clarifying that contractual language, standing alone,
may be sufficient to establish a 9(a) bargaining relationship between a
union and a construction-industry employer although "additional evidence
of [the union's] majority status" would be "a relevant factor"),
application for enforcement filed, No. 98-9524 (10th Cir. July 1, 1998);
Triple C Maintenance, Inc., 327 N.L.R.B. No. 15, slip op. at 1 n.1, 4 (Oct.
30, 1998) (finding a 9(a) bargaining relationship established in construction
industry by a recognition clause that "recites * * * that the Union
has shown majority status"), application for enforcement filed, No.
99-9500 (10th Cir. Jan. 19, 1999); Decorative Floors, Inc., 315 N.L.R.B.
188 (1994) (similar holding).
10 The contrary authority cited by petitioner (Pet. 23 n.14) either predates
Deklewa or does not involve the construction industry.
11 Those developments include California Saw & Knife Works, 320 N.L.R.B.
224, 235 & n.57 (1995) (requiring unions to inform newly hired employees,
when presenting them with union membership application forms pursuant to
a union security clause, that they have a right under NLRB v. General Motors
Corp., 373 U.S. 734 (1963), "to be and remain nonmembers" of the
union), enforced sub nom. IAM & Aerospace Workers v. NLRB, 133 F.3d
1012 (7th Cir.), cert. denied, 119 S. Ct. 47 (1998), and United Paperworkers
Int'l Union (Weyerhaeuser Paper Co.), 320 N.L.R.B. 349, 349-350 (1995) (establishing
similar notification requirement for current union members), enforcement
denied on other grounds sub nom. Buzenius v. NLRB, 124 F.3d 788 (6th Cir.
1997), vacated and remanded, 119 S. Ct. 442 (1998).
12 Petitioner contends (Pet. 25-27) that the court of appeals should have
remanded for the Board to determine in the first instance whether petitioner
made an adequate contemporaneous showing of majority employee support. Although
remand would have been preferable, see Florida Power & Light Co. v.
Lorion, 470 U.S. 729, 744 (1985), it would not have changed the outcome,
because the court of appeals had concluded that, under the relevant law,
the existence of the union security clause prevented petitioner from relying
on union membership to make the requisite showing. Petitioner has not claimed
that it made any contemporaneous showing of majority employee support other
than the fringe benefit report documenting that a majority of the employees
were union members.