Northern Pacific Sealcoating

National Labor Relations Board - Board Decisions

Dec 9, 1992

309 N.L.R.B. 759 (N.L.R.B. 1992)

759
309 NLRB No. 118
NORTHERN PACIFIC SEALCOATING
1 There is no evidence, or claim, that the Employer recognized the
Union based on a demonstrated showing of majority support, as re-
quired in the construction industry to establish 9(a) status. See J &
R Tile, 291 NLRB 1034, 1036 (1988).
2 282 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).
3 Metropolitan Edison v. NLRB, 460 U.S. 693 (1983). See, e.g.,
Gem City Ready Mix Co., 270 NLRB 1260, 1261 (1970) (waiver of
prestrike seniority); Texaco, Inc., 291 NLRB 613 (1988) (union
waived disabled employees’ right to receive accrued accident and
sickness benefits during strike); Gulf Oil Co., 290 NLRB 1158
(1988) (employer’s discontinuance of sickness and accident benefits
during a strike not a violation because the union clearly intended to
waive any contractual claim to those benefits in back-to-work agree-
ment); Sun World, Inc., 271 NLRB 49 (1984) (employer, by its con-
duct, waived a defense that the collective-bargaining agreement had
automatically renewed); Lange Co., 222 NLRB 558 (1976) (union
waived its right to bargain about layoffs and transfers by not timely
requesting bargaining).
4 Deklewa, 282 NLRB at 1385.
Northern Pacific Sealcoating, Inc., Petitioner and
Laborers’ International Union of North Amer-
ica, Local 270, AFL–CIO. Case 32–RM–676
December 9, 1992
DECISION ON REVIEW AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On December 23, 1991, the Regional Director for
Region 32 administratively dismissed the instant RM
petition, concluding that the Employer had waived its
right to file a petition covering the represented employ-
ees. Thereafter, in accordance with Section 102.67(b)
of the Rules and Regulations of the National Labor
Relations Board, the Employer filed a timely request
for review of the Regional Director’s dismissal of the
petition.
The National Labor Relations has delegated its au-
thority in this proceeding to a three-member panel.
For the reasons set forth below, we grant the Em-
ployer’s request for review and, on review, affirm the
Regional Director’s dismissal of the petition. We find
that by virtue of the waiver provision contained in the
memorandum agreement between the Employer and
the Union, the Employer effectively waived its right to
file a representation petition.
The relevant facts are undisputed. The Employer is
a licensed general contractor engaged in the business
of onsite construction. On December 29, 1988, the
Employer entered into an 8(f) relationship with the La-
borers’ Union (the Union) by executing a memoran-
dum agreement binding it to the then-current Laborers’
master agreement.1 The memorandum agreement exe-
cuted by the Employer contained a termination provi-
sion which required the parties to give written notice
of an intention to terminate, change, or cancel the
agreement not more than 90, nor less than 60, days
prior to the June 30, 1989 expiration date of the con-
tract, or June 30 of any year in which the master
agreement would terminate. There was no evidence
that the Employer ever provided any notice of an in-
tention to cancel, modify, or terminate the contract
with the Union. Consequently, the Employer became
bound to the terms and conditions contained in succes-
sive master agreements, the most recent of which is ef-
fective from January 1, 1989, through June 30, 1993.
The memorandum agreement signed by the Em-
ployer also contains the following provision:
It is the intention of the undersigned to enforce
the provisions of this Agreement only to the ex-
tent permitted by law. Except as set forth below,
the individual employer waives any right that he
or it may have to terminate, abrogate, repudiate or
cancel this Agreement during its term, or during
the term of any future modifications, changes,
amendments, supplements, extensions, or renewals
of or to said Master Agreement; or to file or proc-
ess any petition before the National Labor Rela-
tions Board seeking such termination, abrogation,
repudiation or cancellation.
The Regional Director found that the waiver provi-
sion in the agreement was clear and unequivocal, and
that it was not contrary to Board policy as neither
party contended that the employees were precluded
from filing a petition. The Regional Director therefore
dismissed the petition, noting that the fact the waiver
was not explicitly discussed with the Employer did not
negate the waiver’s validity. The Employer argues that
enforcing such a waiver is inconsistent with the
Board’s decision in John Deklewa & Sons,2 under
which signatory parties to an 8(f) contract are per-
mitted to file a petition anytime during the term of the
contract; that enforcing the waiver would, in effect,
convert the 8(f) agreement into a 9(a) agreement; and
that signing a contract containing such a boilerplate
waiver does not constitute the ‘‘conscious’’ relinquish-
ment of a right, which the Board requires to find an
effective waiver.
The Board has long recognized that parties to collec-
tive-bargaining agreements may waive certain of their
rights, including some fundamental statutory rights.
The Board has generally enforced such waivers when
they are clear, knowing, and unmistakable, whether
they be by contractual provision or by conduct.3 In the
instant case, there is no dispute regarding what the
Employer agreed to waive: signatory parties to an 8(f)
contract ordinarily have the right under Deklewa to file
a petition anytime during the term of the contract.4
The waiver provision in the memorandum agreement
clearly and unmistakably provides that the Employer
agreed to waive its right to file a petition (as well as
agreeing not to resort to Board processes to terminate
760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The Employer’s argument that enforcing the waiver provision in
effect ‘‘converts’’ the 8(f) contract into a 9(a) contract, contrary to
the teachings of Deklewa, is clearly without merit. The contractual
restriction on the Employer’s right to file a petition does not estab-
lish 9(a) status. For example, the restriction does not affect employ-
ees’ right to file a decertification petition (or other unions’ right to
file a representation petition) during the term of the collective-bar-
gaining agreement, as would be the case if a 9(a) agreement was in-
volved; similarly, upon the expiration of the instant contract, there
will be no presumption of continued majority status, as there would
be if a 9(a) agreement was involved.
6 63 NLRB 1270 (1945).
7 See also Cessna Aircraft Co., 123 NLRB 855 (1959).
8 63 NLRB at 1272.
9 179 NLRB 1, 3 (1969).
10 137 NLRB 346 (1962).
11 Id., 137 NLRB at 348–349 (footnotes omitted).
12 Id. at 349 fn. 7.
the contract), and the waiver provision was executed
by the Employer well after the Board issued its deci-
sion in Deklewa. Consequently, the Employer knew, or
should have known, the nature of the rights it agreed
to waive at the time it signed the memorandum agree-
ment. Thus, we are satisfied that the waiver was clear
and unmistakable and that the Employer knowingly re-
linquished its right to file a petition.
The Board has not, until now, addressed the validity
of a waiver of an employer’s right to file a petition.
We find, however, that enforcing such a waiver is nei-
ther contrary to Board policy nor contrary to the Act.5
In Briggs Indiana Corp.,6 the Board enforced an ex-
press contractual agreement by the union to forego its
right to represent or seek to represent certain of an em-
ployer’s employees.7 The Board there stated that ‘‘the
exercise of the right of given employees to choose any
representative they desire is never literally unre-
stricted,’’ and reasoned that the Act neither gave em-
ployees an unqualified right to membership in a par-
ticular union nor prevented a union from declining to
organize and represent certain employees.8 We find
that the issue here is analogous to that presented in
Briggs Indiana. Since the Board will, as Briggs Indi-
ana and its progeny hold, enforce a union’s waiver of
its right to represent certain employees, it seems to us
that the logical corollary of that proposition is that the
Board should enforce an employer’s waiver of its right
to challenge the union’s representation of certain em-
ployees during the term of the particular contract in-
volved.
Finally, we are reluctant to permit parties to use
Board processes in a manner contrary to their contrac-
tual commitments or obligations. In reaffirming the
Briggs Indiana doctrine, the Board in Allis-Chambers
Mfg. Co.9 noted that it was unwilling to lend govern-
ment sanction to undo the terms of a bargain which the
parties themselves had struck, as such a result would
be contrary to the statutory policy directed toward sta-
bilizing the collective-bargaining relationship. Simi-
larly, in Montgomery Ward & Co.,10 the Board held
that the parties’ 5-year collective-bargaining agreement
served to bar the employer’s petition, even though the
term of that agreement exceeded the 3-year maximum
permitted by the Board’s contract bar doctrine. The
Board reasoned that:
[W]e cannot interpret our contract-bar rules in
such a way as to permit employers [and] certified
unions to take advantage of whatever benefits
may accrue from the contract with the knowledge
that they have an option to avoid their contractual
obligations and commitments through the device
of a petition to the Board for an election.11
Further, the Board noted that it had not in the past per-
mitted a party to avoid valid commitments or obliga-
tions in other respects through the use of the Board’s
processes, and there was no reason to conclude that a
different rule should be applied to petitions by the con-
tracting parties.12
In the instant case, although the Employer may not
have actually participated in bargaining over the initial
inclusion of the waiver provision at issue, the Em-
ployer did sign the short memorandum agreement
which included the waiver provision at issue. Permit-
ting the Employer now to use the Board’s processes to
obtain an election would allow the Employer to avoid
the terms and conditions of an otherwise valid contract
it voluntarily signed. Moreover, as we noted above
(infra at fn. 5), and as was the case in Montgomery
Ward, our decision to enforce the waiver does not af-
fect the rights of employees or outside unions to file
representation petitions.
Accordingly, for the reasons stated above, we find
that the Employer waived its right to file the instant
petition, and, therefore, affirm the Regional Director’s
dismissal of the petition.
ORDER
The Regional Director’s administrative dismissal of
the instant petition is affirmed.