National Labor Relations Bd. v. OK Installation Co., No. 98-9524

• Citation: 219 F.3d 1160
• Decision Date: 10 July 2000
• Docket Number: No. 98-9524
• Parties: (10th Cir. 2000) NATIONAL LABOR RELATIONS BOARD, Petitioner, v. OKLAHOMA INSTALLATION COMPANY, Respondent
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1160

219 F.3d 1160 (10th Cir. 2000)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. OKLAHOMA INSTALLATION COMPANY, Respondent.

No. 98-9524

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-18500)

Robert J. Englehart, Attorney (David A. Fleischer, Senior Attorney; Frederick L. Feinstein, Acting General Counsel; Linda Sher, Associate General Counsel; and John D. Burgoyne, Acting Deputy Associate General Counsel, 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.

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 Oklahoma Installation Company [Company] on May 14, 1998, finding that the Company recognized the United Brotherhood of Carpenters & Joiners Local Union No. 943 [Union] as a 9(a) representative and "therefore had a continuing obligation to recognize and bargain with the Union, and to adhere to the terms of the parties' expired contract." Oklahoma Installation Co., 325 N.L.R.B. 741, 741 (1998). The Board ruled that the Company violated 8(a)(1) and (5) of the National Labor Relations Act [NLRA or Act]. See id. at 742. We exercise jurisdiction under 29 U.S.C. 160(e).

I.

Oklahoma Installation Company is a construction industry employer engaged in commercial remodeling and the installation of retail store fixtures. On February 26, 1993, the Company signed a Recognition Agreement and Letter of Assent with the Union.¹ See R., Vol. II, Resp't Ex. 21. By executing this Recognition Agreement, the Company agreed to be bound to a collective bargaining agreement between the Union and the Oklahoma Fixture Company, until the Company terminated the Recognition Agreement "by giving written notice to the Union . . . at least 150 days prior to the then-current anniversary date of the [above referenced] collective bargaining agreement." Id. at 2. The Recognition Agreement also included a clause stating, "The Union has submitted, and the Employer is satisfied that the Union represents a majority of its employees in a unit that is appropriate for collective bargaining." Id. at 1. The Company had no employees working within the Union's jurisdiction when it entered into this agreement in February 1993. See R., Vol. III, Doc. 1 at 2.

The parties performed according to the Recognition Agreement and the underlying collective bargaining agreement until the collective bargaining agreement expired on May 31, 1995. Two months later, in August 1995, the Company began work on a project within the Union's jurisdiction but did not employ carpenters through the Union's hiring hall. Instead, the Company paid its carpenters wages lower than the contract rate and stopped making payments to the Union's fringe benefits funds. In response to the Company's actions, the Union filed unfair labor practice charges and the Board issued a complaint against the Company, alleging that it had failed to maintain the terms and conditions of employment set forth in the expired agreement between the Union and the Oklahoma Fixture Company and failed and refused to bargain with and recognize the Union in violation of 8(a)(1) and (5) of the Act. The Company denied the allegations.

The matter was heard before an administrative law judge who determined that the relationship between the Company and the Union was governed by 8(f) of the Act, not 9(a), because "no election [was] won by the Union among Respondent's employees and [there was] no showing of majority support for the Union among [the same] employees." Id. at 5. The judge further concluded that because the underlying collective bargaining agreement had expired the Company was free to repudiate the 8(f) relationship and withdraw recognition from the Union, as it did. See id.

A divided Board rejected the conclusions of the administrative law judge. Chairman Gould and Member Fox held that the language of the Recognition Agreement sufficiently demonstrated that the Company recognized the Union as the exclusive representative of the Company's employees under 9(a). See Oklahoma Installation 325 N.L.R.B. at 741-42. Therefore, the majority concluded, the Company's withdrawal from the Union, its refusal to bargain with the Union, and its unilateral actions changing the terms and conditions of employment violated 8(a)(1) and (5) of the Act. See id. at 742.

Member Hurtgen, however, dissented and would have dismissed the complaint because he did not agree that the Union was a 9(a) representative of the Company's employees. Relying on the fact that "there was no contemporaneous showing of majority support . . . [and that] the language of the contract [did] not clearly state that there was such a showing," id. at 744, Member Hurtgen concluded that the Recognition Agreement did not unambiguously indicate that the employer extended 9(a) recognition to the Union. See id. Because the persons who might attack 9(a) recognition "were not on clear notice that a Section 9 relationship was intended," id., he also concluded that 10(b) of the Act, which applies a six-month bar to attacks on majority status, did not apply in this case.

In reviewing the Board's decision, we are guided by the substantial evidence standard. According to 10(e) of the Act, 29 U.S.C. 160(e), the Board's findings of fact should be upheld 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). "If the Board adopts a rule that is rational and consistent with the Act, then the rule is entitled to deference from the courts." Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 42 (1987) (citation omitted); see, e.g., NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 786-87 (1990). However, the Board's interpretation of contract language is not entitled to any deference. See Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 202-03 (1991).

II.

The issues in this case are identical to those raised in a companion case, NLRB v. Triple C Maintenance, Inc., F.3d (10th Cir. 2000). They are (1) whether the relationship between the union and the employer was governed by 8(f) or 9(a) of the Act, and (2) whether 10(b) precludes the employer from attacking the formation of a 9(a) relationship. In Triple C Maintenance, we decided that the correct approach to answering these questions would be as follows: First, "because the party asserting the existence of a 9(a) relationship has the burden to prove its existence," we must "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)." Id., at 1152. Only when we determine that the agreement unambiguously shows that

a 9(a) relationship was intended, which means that the parties had sufficient notice that 9(a) governs their agreement, [do] 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.

Id. at 1152. Conversely, if we determine that the parties did not have clear notice that a 9(a) relationship was intended, then the presumption in favor of 8(f) was never rebutted and it is not necessary to consider the applicability of a time bar.

Board precedent mandates that the party asserting the existence of a 9(a) relationship has the burden to prove it because a contract formed between a union and a construction industry employer is presumed to be governed by 8(f). See Casale Indus., Inc., 311 N.L.R.B. 951, 952 (1993); John Deklewa & Sons, Inc., 282 N.L.R.B. 1375, 1385 n.41 (1987), enforced sub nom. International Ass'n of Bridge, Structural & Ornamental Iron Workers v. NLRB, 843 F.2d 770 (3d Cir. 1988). This burden may be met in two ways. The party either may conduct a Board-certified election or it may obtain the employer's voluntary recognition of the union as the employees' exclusive majority bargaining agent. See Deklewa, 282 N.L.R.B. at 1387 n.53; accord NLRB v. Goodless Elec. Co., 124 F.3d 322, 328 (1st Cir. 1997). When attempting to prove a 9(a) relationship through the latter method, a party must show three things: (1) the union's unequivocal demand for recognition as a 9(a) representative; (2) the employer's unequivocal and voluntary grant of such recognition; and (3) a contemporaneous showing of majority support. See Goodless Elec. Co., 321 N.L.R.B. 64, 65-66 (1996); rev'd on other grounds, 124 F.3d at 328; Golden West Elec., 307 N.L.R.B. 1494, 1495 (1992); J & R Tile, Inc., 291 N.L.R.B. 1034, 1036 & n.11 (1988).

In Triple C Maintenance, at 1155, we decided that the third element requiring a contemporaneous showing of majority support may be satisfied by language in a bargaining agreement where that language "unequivocally demonstrates that the parties intended to be governed by 9(a)." We held that the contractual language met this standard by showing that the Union wanted to be recognized as a 9(a) representative, reciting that the employer "'recognize[s] [the Union] as the sole and exclusive agent for . . . a unit [of employees] appropriate for bargaining within the meaning of Section 9(a),'" and stating that the employer's recognition is based on its acknowledgment or acceptance of some proof or "'clear showing of majority support.'" Id., at 1155 (citation omitted). In short, the language of the recognition clause itself was evidence that a 9(a) relationship was contemplated by the parties and that a showing of majority proof had been actually made or offered. As a result, we ruled that the contract language was sufficient to satisfy the requirement of a...