J & R Tile, Inc

1034 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD J & R Tile, Inc and Bricklayers and Allied Crafts men, Local Union #2 Case 23-RM-433 December 8 1988 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On June 15, 1987 the Regional Director for Region 23 issued a Decision and Order in the above entitled proceeding in which he found that the 1984 collective bargaining agreement between the Employer and the Union was a Section 9(a) contract rather than a Section 8(f) prehire agree ment as it met the criteria established by the Board s decision in John Deklewa & Sons i and be cause the Employer is a successor employer under NLRB v Burns Security Services 2 However al though the Regional Director found the petition to be timely filed he nevertheless dismissed it because the Employers objective considerations were insuf ficient to support the filing of an RM petition Thereafter, in accordance with Section 102 67 of the National Labor Relations Board Rules and Regulations the Employer filed a timely request for review of the Regional Directors decision The Employer asserted that the Regional Director should have processed the petition arguing that the relationship between the Employer and the Union was not 9(a) but 8(f) and thus under Deklewa an election could properly be conducted The Employer also argued that even assuming the contract was entered into pursuant to Section 9(a) of the Act the Employers objective considerations were sufficient to raise a reasonable doubt that the Union represented a majority of the Employer s employees The Union filed an opposition to the Employer s request for review On September 9 1987 the Board granted the Employers request for review On December 16 1987 the National Labor Rela tions Board issued an unpublished Decision on Review and Order in this proceeding in which the Board reversed the Regional Directors dismissal of the Employers petition After considering the record evidence the Board found that the collec tive bargaining agreement between the Employer and the Union constituted an 8(f) agreement that 1 282 NLRB 1375 (1987) 2 406 US 272 (1972) under Deklewa 3 did not bar the Employers RM petition The Board therefore reinstated the pets tion and remanded the case to the Region The Union filed a motion for reconsideration of the Board s decision a motion to stay the election and a request for oral argument The AFL-CIO and the Building and Construction Trades Depart ment of the AFL-CIO filed a joint amici curiae memorandum in support of the Union s position The Union argued that the parties collective bar gaining agreement was a 9(a) agreement because (1) it met the requirements of Deklewa and (2) the predecessor employer had a collective bargaining agreement with the Union The Employer subse quently filed an opposition to the motion for recon sideration and the motion to stay Thereafter the Regional Director issued a Supplemental Decision and Direction of Election The Union filed a timely request for review of the Regional Directors deci Sion and a further motion to stay the election reit erating the arguments set forth in its motion for re consideration In an Order dated March 2 1988 the Board denied the stay of election The election was conducted on March 4 1988 and the ballots were impounded The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel Having duly considered the entire matter the Board grants the Union s motion for reconsider ation and its request for review first to correct its previous decision in this case and second to clan fy its prior decision with respect to its ruling that the collective bargaining agreement between the parties is an 8(f) agreement 4 In reading the Union s motion for reconsider ation the Board learned that the parties had not re ceived the decision approved by the Board In stead, copies of an earlier draft of the decision had been issued inadvertently The decision that the Board approved not only addressed the status of the collective bargaining agreement between the Employer and Union under Deklewa but also ad dressed the issue of what impact the Employer s status as a successor has on its collective bargaining agreement with the Union Consequently we have set forth below in its entirety the decision that the Board 3 Supra 4 The Board denies the Union s request for oral argument as the record and briefs on review adequately present the issue and the positions of the parties 291 NLRB No 144 J & R TILE 1035 Board intended to issue and are issuing the decision With respect to clarification although the Board nunc pro tune 5 5 The decision is as follows UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD J&R TILE INC Employer Petitioner and Case 23-RM-433 BRICKLAYERS AND ALLIED CRAFTSMEN LOCAL UNION #2 Union DECISION ON REVIEW AND ORDER On 2 September 1987 the Board granted the Employers Request for Review of the Regional Directors Decision and Order which found that the 1984 contract between the Employer and the Union was not an 8(f) contract but dismissed the Employers petition on the ground that the objective criteria necessary to support an RM petition in the context of a 9(a) relationship were insufficient Having carefully reviewed the entire record the Board has decided to re verse the Regional Directors decision on the ground that the rela tionship between the Employer and the Union is 8(f) rather than 9(a) and that under the Board s decision in John Deklewa & Sons 282 NLRB No 184 (Feb 20 1987) an RM petition may be filed by a signatory employer at any time during the term of an 8(f) contract In Deklewa slip op p 27 the Board recognized the difficulty of establishing exclusive bargaining representative status after the par ties have entered into 8(f) contracts and therefore abolished the conversion doctrine A contract in the construction industry will be deemed to be 8(t) unless the party asserting a 9(a) relationship can prove such a relationship exists Deklewa fn 41 slip op p 30 The Board recognized that normal presumptions would flow where an employer voluntarily recognizes a union based on a clear showing of majority support Deklewa fn 53 slip op p 36 In the instant case the Employer is a successor employer and therefore if the contract between the predecessor employer was 9(a) the contract between the Employer and the Union also would be 9(a) The evidence however is insufficient to establish that the contract between the predecessor and the Union was entered into pursuant to Section 9(a) of the Act The only evidence pertaining to the prior contract indicated that the contract provided for health welfare and pension benefits and that the Employers president had been a union member who may have been covered by the contract neither of which establishes that the parties had a 9 (a) relationship Moreover the evidence is insufficient to establish that the 1984 con tract between the Employer and the Union was entered into pursu ant to Section 9(a) of the Act The Union did not present nor offer to present authorization cards to demonstrate that it represented a majority of the Employers employees nor did it offer to demon strate majority support by any other method Further even if the Employer had personal knowledge that most if not all of its em ployees were members of the union this is, insufficient to establish that the Employer voluntarily recognized the Union as exclusive bargaining agent based on a clear showing of majority support as contemplated in Deklewa Consequently absent any affirmative showing of a majority we find that the relationship between the Employer and the Union is 8(f) An employer may file an RM peti tion any time during the term of an 8(f) contract and therefore the contract between the Employer and the Union does not operate to bar the instant petition Deklewa slip op p 30 Accordingly the Board reverses the Regional Directors dismissal reinstates the petition and remands the case to the Region for further appropriate action Donald L Dotson Chairman James M Stephens Member Mary Miller Cracraft Member Dated Washington D C December 16 1987 adheres to its pnor conclusion, the Board now wishes to set forth in greater detail why the cir cumstances in this case cause it to conclude that the agreement between the Employer and the Union was entered into pursuant to Section 8(f) of the Act rather than Section 9(a) The Employer is engaged in the construction business of installing tile marble and terrazzo at its facility in Texas The Employers predecessor Aetna Enterprises employed approximately 15-20 employees, of whom 5 or 6 were engaged in tile setting Aetna was also a member of the South Texas Contractors Association which had been party to a collective bargaining agreement with the Union 6 The record however contains only scant evidence regarding the status of the agreement be tween Aetna and the Union Raymond Kotara the Employers president had been employed by Aetna pnor to its purchase and had been a member of the Union dunng his employment According to Kotara s testimony although he knew the contract existed he did not know whether the contract ap plied to him while he worked for Aetna Five other employees employed by Aetna however were union members covered by the collective bar gaining agreement between Aetna and the Union Diane Kotara, the Employers secretary testified that the Unions agreement with Aetna provided for health, welfare and pension contributions In July 1984 the Employer purchased all the assets of Aetna Enterprises including outstanding construction projects rented Aetna s building and hired the five Aetna employees covered by the contract The Employer officially commenced busi ness on July 19, 1984 Thereafter Kotara met with Gibbon the Union s business representative Gibbon asked Kotara to sign the contract between the Union and the Association which had been ne gotiated pnor to the acquisition of Aetna In the discussion that followed Gibbon told Kotara that all the Aetna employees who were going to become his employees belonged to the Union Gibbon did not produce any union authon zation cards at this meeting or offer to substantiate his claim in any manner According to Gibbon he did not believe proof was necessary because both he and Kotara belonged to the Union and, there fore they both were aware that everybody was in the Union a The record reflects that the Association originally entered into an agreement with Tile Setters Marble Masons and Terrazzo Workers Local #2 However it was established at the hearing that Bricklayers and Allied Craftsmen Local #2 and Tile Setters Marble Masons and Terrazzo Workers Local #2 were the same union Accordingly the pets tion was amended to reflect the correction 1036 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Kotara testified that he believed that the employ ees he hired from Aetna were union members be cause he had worked with these employees for the last 20 years Also Kotara had remained a member of the Union after purchasing Aetna According to Kotara s testimony he signed the agreement be cause we decided that we were going to be a union contractor So we just went in and signed it Cause I was in the union and most everybody else that was in the shop at that particular time was in the Union Kotara did not attend union meet ings and had only seen a union card belonging to one employee Consequently Kotara and the Union executed the 1984 agreement effective by its terms from July 1 1984 through June 30 1987 7 An 8(f) prehire agreement is not based on a showing of majority support and therefore confers no presumption of majority status on the signatory union Prior to the issuance of the Board s decision in Deklewa an 8(f) relationship or agreement could convert into a 9(a) relationship and once con version occurred the union enjoyed the rights of a 9(a) representative including an irrebuttable pre sumption of majority status during the contract s term 8 Consequently after an agreement converted from 8(f) to 9(a) the agreement served to bar any election petitions filed after conversion but during the contract term Cf Albuquerque Insulation Con tractor 256 NLRB 61 63 fn 5 (1981) In Deklewa however the Board abandoned the conversion doctrine concluding that an 8(f) agree ment could no longer convert into a 9(a) agree ment The Board also reaffirmed that normal pre sumptions would flow when an employer voluntar ily recognizes a union based on a clear showing of majority support 9 Thus Deklewa does not pre elude parties in the construction industry from en tering into a traditional 9(a) relationship However in light of the legislative history of Section 8(f) and the prevailing practice in the construction in dustry a contract in the construction industry will be deemed to be 8(f) unless the party asserting a collective bargaining relationship under Section 9(a) affirmatively proves that such a relationship 7 The record is unclear regarding the exact date the parties executed the agreement Prior to the contracts termination the Employer notified the Association by letter of March 30 1987 that it was withdrawing its membership from the Association effective June 30 1987 8 See R J Smith Construction Co 191 NLRB 693 (1971) enf denied sub nom Operating Engineers Local 150 v NLRB 480 F 2d 1186 (D C Cir 1973) which the Board overruled in Deklewa 8 Deklewa at fn 53 citing Island Construction Co 135 NLRB 13 (1962) In Island Construction Co the union which had never been party to a collective bargaining agreement with the employer presented the employer with signed authorization cards The employer checked the cards and subsequently the parties executed an agreement The Board found that although the employer was engaged in the construction indus try the contract operated to bar the petition because the union proved its majority status in a manner recognized as valid under Sec 9(a) exists 10 Since Deklewa the Board has stated that a party may prove the existence of a 9(a) relationship either through a Board conducted representation election or a union s express demand for and an employers voluntary grant of recognition to the union as bargaining representative based on a con temporaneous showing of union support among a majority of the employees in an appropnate-unit 11 The Board however recognizes that the avail ability of 8(f) agreements in the construction Indus try renders ambiguous a union s demand to execute a collective bargaining agreement Because of this ambiguity an employer in the construction Indus try may not be certain whether a union in request Ing recognition or presenting a collective bargain ing agreement for execution is seeking an 8(f) or a 9(a) relationship Further the ambiguity is exacer bated in the context of successive collective bar gaining agreements when the employer had previ ously established an 8(f) relationship with the union We believe therefore that to establish vol untary recognition pursuant to Section 9(a) of the Act in the construction industry there must be evi dence that the union unequivocally demanded rec ognition as the employees 9(a) representative and that the employer unequivocally accepted it as such As we stated in Deklewa unions do not have less favored status with respect to construction in dustry employers than they possess with respect to those outside the construction industry 12 Rather we are merely acknowledging the practical consid erations raised by executing collective bargaining agreements in the construction industry Thus re gardless of whether the contract in dispute is an initial or successive collective bargaining agree ment absent a Board conducted election the Board will require positive evidence that the union sought and the employer extended recognition to a union as the 9(a) representative of its employees before concluding that the relationship between the parties is 9(a) and not 8(f) 13 Here the evidence establishes that the Employer is a successor employer to Aetna Enterprises as the Employer purchased Aetna s assets including Aetna s outstanding construction projects rented 10 Deklewa supra at fn 41 See Harris Painting 286 NLRB 642 (1987) 11 See Brannan Sand & Gravel Co 289 NLRB 977 979 (1988) Amen can Thoro Clean 283 NLRB 1107 1108 (1987) In Precision Striping 284 NLRB 1110 (1987) the Board although finding the agreement between the parties to be 8(f) pointed out that an employer-conducted poll prior to initial recognition may in proper circumstances establish a 9(a) bar gaining relationship in the construction industry i2 Supra at fn 53 19 In Island Construction Co supra fn 9 it was clear that the union was demanding recognition as the 9(a) representative and the employer understood that to be the situation Consequently despite the construe tion industry context the Board found that the parties entered into an agreement pursuant to Sec 9(a) of the Act J & R TILE 1037 Aetna s building performed the same type of work and five of the Employers six employees were em ployed by Aetna 14 Consequently as we stated in our unpublished decision if the collective bargain ing agreement between the Union and Aetna had been a 9(a) agreement the Union would have en ,toyed a continuing presumption of majority status with respect to a successor employer and there fore the 1984 agreement would also be 9(a) 15 We conclude however that the evidence is insufficient to establish that the relationship between the prede cessor employer and the Union was entered into pursuant to Section 9(a) of the Act There is no evidence that the parties entered into an agreement based on a demonstrated showing of majority sup port nor is there any evidence indicating that Aetna extended recognition to the Union as any thing but an 8(f) representative The fact that Aetna s employees were union members covered by the agreement does not establish 9(a) status Thus, we find that the agreement between Aetna and the Union was an 8(f) agreement 16 Further the evidence is insufficient to establish that the Employer after purchasing Aetna entered into a 9(a) collective bargaining relationship with the Union The record establishes that the Employ er s employees were in fact members of the Union at the time the parties executed the 1984 agreement and in view of Kotara s longstanding union mem bership he clearly had knowledge that his employ ees belonged to the Union Moreover Texas is a right to work State where union membership is voluntary However that employees are union members or that an employer has personal knowl edge of its employees union membership is not dispositive of the status of the collective bargaining agreement 17 Even when union membership is vol untary such as here and not imposed by a prior 8(f) contract a 9(a) relationship has not been estab lashed as there is no evidence indicating that the Union sought and thereafter was granted recogni tion as the 9(a) representative of the Employer s employees The Union and Aetna Enterprises the predecessor employer enjoyed an 8(f) relationship and there is nothing to suggest that the Union was 14 See NLRB v Burns Security Services 406 U S 272 (1972) Is Id 16 Deklewa at fn 41 17 In American Thoro Clean supra at fn II the employer and the union entered into successive supplemental agreements that contained a union security clause requiring all employees to be or to become union members The Board found that the parties entered into their initial agreement without regard to whether the union had the support of a ma ionty of the employers employees and with respect to all the agree ments there was no contention nor evidence of a demand for and grant of voluntary recognition based on a showing of majority support among the employers employees Consequently the collective bargaining agree ments were deemed to have been entered into pursuant to Sec 8 (f) of the Act Id at 7 seeking a different relationship when it presented a collective bargaining agreement to Kotara The Union never expressly stated that it desired to be the 9(a) representative as opposed to the 8(f) repre sentative and the Employer did not expressly des agnate the Union as the 9(a) representative Indeed Kotara simply decided that the Employer was going to be a union contractor Thus we con clude that the Union failed to establish that it clear ly and unequivocally demanded recognition as the 9(a) representative of the Employers employees Consequently the Board reaffirms its earlier deci Sion that the contract between the Union and the Employer is an 8(f) agreement that does not oper ate to bar an RM petition filed during the term of the agreement 18 ORDER The Regional Director for Region 23 is directed to open and count the impounded ballots to issue a tally of ballots and to take further appropriate action in accord with this decision and the Nation al Labor Relations Board Rules and Regulations MEMBER JOHANSEN dissenting Unlike my colleagues I concur in the Regional Directors finding of a 9(a) relationship between the Employer and Union The evidence shows that at the time the Union s business representative Gibbon, asked the Employers president Kotara to sign the contract he told Kotara that all the prede cessor s employees who were now Kotara s em ployees belonged to the Union Gibbon further stated that he believed proof of majority status was unnecessary because both he and Kotara as union members were aware that all the employees were in the Union Moreover Kotara confirmed Gib bon s belief of majority status by acknowledging that at the time Gibbon requested that he sign the contract he Kotara was in the Union and most everybody else was in the Union Furthermore Kotara gave this knowledge of majority status as his reason for signing the collective bargaining agreement By asserting that Kotara simply decided that the Employer was going to be a union contractor my colleagues ignore the testimony of both Gibbon and Kotara that the reason for union contractor status was because all employees were known by Gibbon and Kotara to be members of the Union In other words there was no question in either Gib bon s or Kotara s minds that the Union represented a majority of employees Because of this the col 18 Deklewa supra 1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lective bargaining relationship as evidenced by the signed contract ensued Thus this case is not one of those where the union s demand to execute a collective bargaining agreement is surrounded with ambiguity Kotara and Gibbon both acknowledged that they both knew that at the time the request was made and as sented to concerning establishing a collective bar gaining relationship the Union represented a ma Monty of the employees It can only be that a 9(a) rather than an 8(f) relationship was intended by the parties Indeed I fail to see how in these cir cumstances my colleagues cannot see that the Union did unequivocally demand recognition as the employees 9(a) representative and that the Em ployer unequivocally accepted it as such There was no ambiguity respecting each party s intent To hold otherwise exalts form over substance and imposes on the construction industry a standard of legal punctiliousness that we in the legal profession should eschew Accordingly I would affirm the Regional Direc tor s Decision and Order