Reichenbach Ceiling & Partition Co.,

REICHENBACH CEILING & PARTITION CO. 125 Reichenbach Ceiling & Partition Co. and Local 16, Operative Plasterers’ and Cement Masons’ In­ ternational Association of the United States, Pe­ titioner and Canada and Local 9, International Union of Bricklayers and Allied Craftworkers, AFL–CIO. Case 7–RC–21935 December 20, 2001 DECISION ON REVIEW BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN AND WALSH On March 23, 2001, the Acting Regional Director for Region 7 issued a Decision and Order (relevant portions of which are attached as an appendix). Thereafter, in accordance with Section 102.67 of the National Labor Relation Board’s Rules and Regulations, the Petitioner filed a timely request for review of the Acting Regional Director’s decision and the Intervenor filed an opposi­ tion. By Order dated July 18, 2001, the Board granted the Petitioner’s request for review. The Intervenor filed a brief on review. Having carefully considered the entire record, includ­ ing the Intervenor’s brief on review, with respect to the issue of whether the Employer and the Intervenor entered into a 9(a) bargaining relationship, the Board has decided to affirm the Acting Regional Director’s decision.1 Hav­ ing found a 9(a) relationship, the Board further affirms the Acting Regional Director’s determination that the present petition is barred and thus should be dismissed.2 CHAIRMAN HURTGEN, concurring. I agree that the agreement here contains language, which establishes a 9(a) relationship. However, in my view, that agreement and language are binding only on the parties thereto. The Petitioner is not a party thereto. Accordingly, if the petition had been filed within 6 months of the recognition, the Petitioner would have been free to assert that such recognition was not major­ ity-based. However, inasmuch as the petition was filed more than 6 months after the recognition, such an asser­ tion is untimely. A contrary view would mean that stable relationships, assertedly based on Section 9(a), would be vulnerable to attack based on stale evidence. That is not permitted with respect to unions in nonconstruction in- dustries.1 And, under John Deklewa & Sons, 282 NLRB 1375 fn. 53 (1987), unions in the construction industry 1 Central Illinois Construction, 335 NLRB No. 59 (2001). 2 VFL Technology Corp., 329 NLRB 458 (1999) (reiterating the Board’s policy that “a 9(a) contract will bar any petition filed outside the window period of that contract”). 1 Machinists Local 1424 (Bryan Mfg. Co.) v. NLRB, 362 U.S. 411 (1960); S. L. Wyandanch Corp ., 208 NLRB 883 (1974). are not to be treated less favorably than unions in non- construction industries. Thus, such an attack should not be permitted with respect to unions in the construction industry. Accordingly, I concur that the petition should be dismissed. APPENDIX . . . . DECISION AND ORDER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, hereinafter referred to as the Act, a hearing was held before a hearing officer of the National Labor Relations Board, hereinafter referred to as the Board. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its authority in this proceeding to the un­ dersigned. Upon the entire record in this proceeding,2 the undersigned finds: 1. The hearing officer’s rulings made at the hearing are free from prejudicial error and are hereby affirmed. 2. The Employer is engaged in commerce within the mean­ ing of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein.3 3. The labor organizations involved herein claim to repre­ sent certain employees of the Employer. 4. No question affecting commerce exists concerning the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Sections 2(6) and (7) of the Act. 5. The Petitioner and Intervenor agree that the appropriate unit for bargaining consists of all plasterers employed by the Employer within the State of Michigan, excluding the counties of Wayne, Oakland, Macomb, and Monroe. Petitioner, Plaster­ ers Local 16 (hereinafter Petitioner), filed the instant petition on December 28, 2000, requesting certification of representative in a bargaining unit comprised of the Employer’s approximately 12 current plasterer employees. During the past 2 years, the Employer’s workforce has fluctuated between 13 and 20 plas­ terers. Bricklayers Local 9 (hereinafter Intervenor), asserts that the Employer is bound to a collective-bargaining agreement with the Intervenor effective from June 22, 2000 through Au- gust 1, 2003, covering plasterers, which bars the instant petition and requires its dismissal. 2 The parties filed briefs, which were carefully considered. 3 The Employer did not participate in the hearing held on February 23, 2001, and therefore, the parties were unable to stipulate to the Em­ ployer’s activity in commerce. The record establishes that on February 6, 2001, the Employer was sent a letter pursuant to Tropicana Products, Inc., 122 NLRB 121 (1959), stating that unless it informed the Regional Office otherwise, the Board would assert jurisdiction over the Em­ ployer in this matter. Gregory Brisboy, business agent for Petitioner, testified that within calendar year 2000 the Employer performed at least $100,000 worth of services for Michigan State University and at least $50,000 in services for Barton-Malow, both of whom I take administra­ tive notice are directly engaged in interstate commerce. Accordingly, I find that it is appropriate to assert jurisdiction over the Employer for purposes of the instant matter. Tropicana Products, supra. 337 NLRB No. 17 126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Employer is a wall and ceiling contractor owned by James Reichenbach that primarily builds interior walls and installs suspended ceilings. The Petitioner and Employer were parties to an 8(f) collective-bargaining agreement covering unit employees effective from June 1, 1998 through May 31, 2000, and have had a collective-bargaining relationship since 1945. By a memorandum of understanding dated November 8, 2000, the Petitioner and Employer agreed to abide by the terms of 2000–2002 collective-bargaining agreement between the Peti­ tioner and the Lansing, Jackson Area Plastering Contractors.4 The contract is limited to plasterers employed within the Michigan geographic areas of Clinton, Eaton, Jackson, and Ingham Counties, the northwestern portion of Livingston County, including the townships of Conway, Cococtah, Handy, and Howell, and the city of Howell. The Intervenor was party to a collective-bargaining agree­ ment effective from June 22, 1997 through June 21, 2000, with a multiemployer association, the Michigan Council of Employ­ ers of Bricklayers & Allied Craftworkers (hereinafter the MCE). Although the Employer is not a member of MCE, it agreed to be bound to the contract for its unit employees on September 29, 1998, by virtue of James Reichenbach’s execu­ tion of the 1997–2000 contract as a non-association member. The Employer did not serve notice to terminate or to withdraw from the 1997–2000 contract prior to its expiration. Conse­ quently, according to the roll-over provision of the contract, the Employer became bound to a successor agreement between the Intervenor and MCE, effective from June 22, 2000 to August 1, 2003. The geographic coverage of the contract is the entire State of Michigan, but excluding the southeast counties of Wayne, Oakland, Macomb, and Monroe. Both the expired contract and successor 2000–2003 contract include the follow­ ing language: The Employer, which is a Section 9(a) Employer within the meaning of the National Labor Relations Act, hereby recognizes and acknowledges that the Union is the exclusive representative of all of its Employees in the clas­ sifications of work falling within the jurisdiction of the Union, as defined in Article II of this Agreement, for the purpose of collective bargaining. The Union has submitted to the Employer evidence of majority support, and the Employer is satisfied that the Union represents a majority of the Employer’s Employees in the bargaining unit described in the current collective- bargaining agreement between the Union and the Em­ ployer. The Employer therefore voluntarily agrees to recog­ nize the Union as the exclusive bargaining representative of all Employees in the contractually described bargaining unit on all present and future jobsites within the jurisdic­ tion of the Union, unless and until such time the Union loses its status as the Employees’ exclusive representative as a result of a NLRB election requested by the Employ­ ees. 4 Despite the 9(a) language contained in the memorandum of under- standing, Petitioner does not assert that it has a Section 9(a) bargaining relationship with the Employer. The Employer and the Union acknowledge that they have a 9(a) relationship as defined under the National La­ bor Relations Act and that this Recognition Agreement confirms the on-going obligation of both parties to engage in collective bargaining in good faith. Despite not specifically agreeing to be bound to the 2000– 2003 contract, the Employer is making contributions to the Intervenor’s fringe benefit fund and paying wages to plasterers in accordance with its terms. As the Intervenor’s current contract covers the petitioned-for unit, if its bargaining relationship is controlled by Section 9(a) of the Act, the contract will bar the instant petition. In the con­ struction industry, parties may create a bargaining relationship pursuant to either Sections 9(a) or 8(f) of the Act. In the ab­ sence of evidence to the contrary, the Board presumes that the parties intend their relationship to be governed by Section 8(f), rather than Section 9(a), and imposes the burden of proving the existence of a 9(a) relationship on the party asserting that such a relationship exists. H.Y. Floors & Gameline Painting, 331 NLRB 304 (2000); John Deklewa & Sons, 282 NLRB 1375 (1987), enfd. sub nom. Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d. Cir. 1988), cert. denied 488 U.S. 889 (1988). To establish voluntary recognition in the construction industry pursuant to Section 9(a), the Board requires evidence that the union (1) unequivocally demanded recognition as the employ­ ees’ Section 9(a) representative, and (2) that the Employer un­ equivocally accepted it as such. H.Y. Floors & Gameline Painting, supra. The Board also requires a contemporaneous showing of majority support by the union at the time 9(a) rec­ ognition is granted. Golden West Electric, 307 NLRB 1494, 1495 (1992). However, as to this contemporaneous showing the Board has held that an employer’s acknowledgement of such majority support is sufficient to preclude a challenge to majority status. H.Y. Floors & Gameline Painting, supra; Oklahoma Installation Co., 325 NLRB 741 (1998). Moreover, the Board has held that a challenge to majority status must be made within a 6-month period after the grant of 9(a) recogni­ tion. Casale Industries, 311 NLRB 951 (1993). I find that the Employer’s agreement on September 29, 1998, to be bound as a non-association member to the MCE contract constituted an unequivocal acceptance of the Intervenor’s un­ equivocal demand for recognition as the petitioned-for unit employees’ 9(a) representative.5 As part of that agreement to be bound, the Employer clearly acknowledged that the Interve­ nor had submitted to the Employer evidence of majority sup- port and that the Employer was satisfied that the Intervenor represented a majority of its unit employees. Accordingly, as of September 29, 1998, the Intervenor was the exclusive collec­ tive bargaining representative of the Employer’s employees pursuant to Section 9(a) of the Act. 5 Petitioner argues that the document signed by Reichenbach on Sep­ tember 29, 1998, did not include 9(a) language. Although this is accu­ rate, the document states that Reichenbach read and agreed “to be bound by all the terms and conditions set forth in the foregoing agree­ ment,” and there is no evidence that Reichenbach did not understand the significance of the contractual 9(a) language as recited above. REICHENBACH CEILING & PARTITION CO. 127 Since any challenge to the Intervenor’s 9(a) status must have been made within the 6-month period following September 29, 1998, and the Petitioner did not challenge the Intervenor’s ma­ jority status until the filing of the instant petition on December 28, 2000, over 2 years after the Intervenor gained 9(a) status and at least 6 months after the current contract became effec­ tive, the instant petition is barred and must be dismissed.6 6 Even if Petitioner’s challenge to the Intervenor’s majority status had been timely, I note that Petitioner submitted no evidence to rebut the Intervenor’s majority status, either at the time of recognition or at any time since. The mere filing of a petition by the Petitioner does not itself challenge the Intervenor’s majority status. It is ordered, based on the foregoing and the entire record, that the petition is dismissed.7 7 Under the provisions of the Board’s Rules and Regulations, a re- quest for review of this Decision and Order may be filed with the Na­ tional Labor Relations Board, addressed to the Executive Secretary, Franklin Court, 1099 14th Street, N.W., Washington, D.C. 20570. This request must be received by the Board in Washington by April 6, 2001.