Nat'l Labor Relations Bd. v. Triple C. Maintenance, No. 99-9500

• Decision Date: 10 July 2000
• Docket Number: No. 99-9500
• Citation: 219 F.3d 1147
• Parties: (10th Cir. 2000) NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TRIPLE C MAINTENANCE, INC., Respondent, and INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS AND ASBESTOS WORKERS LOCAL UNION 64 ("LOCAL 64"). Intervenor
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1147

219 F.3d 1147 (10th Cir. 2000)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TRIPLE C MAINTENANCE, INC., Respondent and INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS AND ASBESTOS WORKERS LOCAL UNION 64 ("LOCAL 64"). Intervenor.

No. 99-9500

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

July 10, 2000

ON PETITION TO ENFORCE ORDER OF THE NATIONAL LABOR RELATIONS BOARD (Case No. 17-CA-19243)

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Robert J. Englehart, Attorney (Frederick C. Havard, Supervisory Attorney; Frederick L. Feinstein, General Counsel; Linda Sher, Associate General Counsel; John D. Burgoyne, Acting Deputy Associate General Counsel, with him on the brief), National Labor Relations Board, Washington, D.C., for Petitioner.

Stephen L. Andrew (D. Kevin Ikenberry with him on the briefs) of Stephen L. Andrew & Associates, Tulsa, Oklahoma, for Respondent.

Robert D. Kurnick of Sherman, Dunn, Cohen, Leifer & Yellig, P.C., Washington, D.C. (Walter C. Brauer, III, of Brauer, Buescher, Valentine, Goldhammer & Kelman, Denver, Colorado, with him on the brief), for Intervenor.

Before HENRY, McKAY, and ANDERSON, Circuit Judges.

McKAY, Circuit Judge.

The National Labor Relations Board petitions for enforcement of the Decision and Order it issued to Respondent Triple C Maintenance, Inc., on October 30, 1998, finding that Triple C is not free to attack a collective bargaining agreement on the basis of a claim of lack of majority support after more than six months had elapsed from the time the agreement was entered into and that Triple C violated 8(a)(1) and (5) of the National Labor Relations Act [NLRA or Act]. International Association of Heat and Frost Insulators and Asbestos Workers Local Union 64 [Union] intervenes to support the Board's petition. We exercise jurisdiction under 29 U.S.C. 160(e).

I.

Triple C is an Oklahoma company engaged primarily in the installation of insulation products in the greater Tulsa, Oklahoma, area. Triple C is owned by Chester Cline and his daughter-in-law, Lori Cline, who is married to Carlton Cline. On June 17, 1993, Triple C entered into a collective bargaining agreement with the Union, which was patterned after a contract between the Union and a multiemployer bargaining association, the Master Insulators Association of Tulsa. The contract was effective for one month, until July 15, 1993. It included a recognition clause stating that Triple C recognized the Union "as the sole and exclusive bargaining agent" for the unit employees, the unit was "appropriate for bargaining within the meaning of [] 9(a)," and "this recognition [was] predicated on a clear showing of majority support for [the Union] indicated by [the] bargaining unit employees." R., Vol. II, Ex. GC3 at 2 (Art. II, 2). When Triple C entered into the agreement with the Union in June 1993, its only employee was Carlton Cline. Although he signed an authorization card, Carlton was not a statutory employee for purposes of 9(a) because he was the husband and son of the owners. See 29 U.S.C. 152(3) (excluding from the definition of employee "any individual employed by his parent or spouse").

On July 16, 1993, Triple C entered into a contract with the Union for the period from July 16, 1993, to June 15, 1994, which contained the same recognition clause language as the previous month-long agreement. In September 1993, Triple C hired two employees, both of whom had signed authorization cards designating the Union as their exclusive representative. Triple C entered into subsequent contracts in 1994 and again in 1995, both of which contained the same recognition language as the previous contracts.

In April 1996, Triple C advised the Union that upon the expiration of the 1995-1996 agreement it might choose not to renegotiate with the Union. After unsuccessfully attempting to negotiate a six-month rather than a year-long contract, Triple C did not sign the 1996-1997 contract. However, it is uncontested that Triple C operated for several months as though it were still applying the expired contract. It continued to make monthly contributions to the Union benefit funds until December 1996, and it made three requests to use the Union's wage equality fund during the same time period. On November 24, 1996, Triple C notified the Union that it had laid off its employees, and the Union subsequently advised Triple C that it would withhold wage equality payments until Triple C signed the 1996-1997 contract. In April 1997, Triple C notified the Union that no contract existed between them for the 1996-1997 period, that it would not sign a new contract for 1997-1998, and that it no longer recognized the Union. See R., Vol. II, Ex. GC18; Vol. III, Doc. 1 at 5.

The Union filed unfair labor practice charges against Triple C, alleging that it improperly refused to sign the 1996-1997 agreement and negotiate a new agreement, failed to adhere to the terms of the 1996-1997 collective bargaining agreement, and improperly withdrew recognition from the Union. Triple C responded by arguing that because its relationship with the Union was governed by 8(f) it was entitled to repudiate that relationship when the contract expired. The Union argued that the relationship between the parties was governed by 9(a) and that Triple C is barred from raising the 8(f) defense under 10(b) of the NLRA.

An administrative law judge tried the case and determined that Triple C was "precluded from attacking the purported Section 9(a) contract by the limitations period set forth in Section 10(b) of the Act." Id., Vol. III, Doc. 1 at 6. The Board affirmed the decision of the administrative law judge with some modifications. While they agreed that the recognition clause of the initial collective bargaining agreement showed that the Union had majority status, Board Members Fox and Liebman found that Triple C was "not free to attack the agreement on the basis of a claim of lack of majority [status] after more than [six] months had elapsed." Triple C Maintenance, Inc., 327 N.L.R.B. No. 15, 1998 WL 799280, at *1 n.1 (1998). Board Member Hurtgen, on the other hand, stated that Triple C could not have entered into a 9(a) relationship in June 1993 because it had no employees at that time, but when Triple C signed the new agreement in 1994, which contained the same 9(a) recognition language, it had employees and therefore recognized the Union as the exclusive representative of those employees under 9(a). See id. This appeal followed.

We review the Board's application of the law to particular facts under the substantial evidence standard. Under 10(e) of the NLRA, 29 U.S.C. 160(e), the Board's factual findings are conclusive if they are supported by substantial evidence in the record as a whole. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); NLRB v. American Can Co., 658 F.2d 746, 753 (10th Cir. 1981). To the extent that the Board's resolution of an issue involves the application of a rule that "'fill[s] the interstices of the broad statutory provisions,'" that rule must be accorded "considerable deference." NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 786 (1990) (citation omitted).

II.

There are two issues controlling our decision: (1) whether the relationship between the union and the employer was governed by 8(f) or 9(a), and (2) whether 10(b) precludes the employer from attacking the formation of a 9(a) relationship. One approach a court might take in addressing these issues would be to determine first whether an employer is precluded from attacking the purported 9(a) agreement by the limitations period in 10(b). If the employer were so precluded, a court could refuse to examine whether the agreement satisfies the requirements of 9(a) recognition. However, because the party asserting the existence of a 9(a) relationship has the burden to prove its existence, we believe the proper approach is first to examine whether the bargaining agreement, on its face, demonstrates that the parties intended to form a 9(a) relationship as opposed to one governed by 8(f). Then, if it is clear from the agreement that a 9(a) relationship was intended, which means that the parties had sufficient notice that 9(a) governs their agreement, we examine whether a challenge to the 9(a) status, and its presumption of majority support, is reasonably restricted by a period of limitations under 10(b) or otherwise.

A. The 9(a) 8(f) Distinction

The dispute between 8(f) or 9(a) governance finds its origins in the NLRA which made a distinction between the multiemployer bargaining relationships it recognizes. Section 9(a) of the Act, 29 U.S.C. 159(a), provides that when a majority of employees in a unit appropriate for collective bargaining designates a labor union to represent it, the union becomes the exclusive representative for collective bargaining purposes. Under 9(a) an employer may not unilaterally repudiate a contract and has a duty to bargain in good faith after the contract expires. See James Luterbach Constr. Co., 315 N.L.R.B. 976, 979 (1994). This is because the union that has attained the status of a 9(a) bargaining representative enjoys a presumption of majority status for the duration of a contract or for a reasonable period. See Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 786 (1996). When a contract or reasonable period expires, the employer may rebut the presumption of majority status by showing either that the union does not in fact enjoy majority support or that the employer has a "good-faith reasonable" doubt of the union's continued majority status. See Allentown Mack Sales & Serv. v. NLRB, 522 U.S. 359, 361 (1998).

On the other hand, 8(f) of the Act, 29 U.S.C. 158(f), allows employers engaged primarily in the building and construction industry to enter into pre-hire agreements containing union security clauses whether or not the union represents a majority of the employer's employees. Under an 8(f) contract, the...