Oklahoma Installation

National Labor Relations Board - Board Decisions

May 14, 1998

325 N.L.R.B. 741 (N.L.R.B. 1998)

741
325 NLRB No. 140
OKLAHOMA INSTALLATION CO.
1 On January 15, 1997, Administrative Law Judge Martin J. Linsky
issued the attached decision. The General Counsel filed exceptions
and a supporting brief and the Respondent filed an answer brief.
2 The Board certified the Union as the Sec. 9(a) representative of
OFC employees in March 1992. The Union thereafter filed unfair
labor practice charges alleging that OFC and the Respondent were
alter egos and/or a single employer. Cases initiated by those charges
settled after the Respondent executed the recognition agreement and
letter of assent.
3 Golden West Electric, 307 NLRB 1494, 1495 (1992); Triple A
Fire Protection, 312 NLRB 1088 (1993); and Goodless Electric Co.,
321 NLRB 64, 66 (1996), enf. denied 124 F.3d 322 (1st Cir. 1997).
Oklahoma Installation Company and United Broth-
erhood of Carpenters & Joiners Local Union
No. 943. Case 17–CA–18500
May 14, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HURTGEN
Resolution of the unfair labor practice allegations in
this case1 turns on whether the judge correctly found
that the Union did not have the status of an exclusive
bargaining representative within the meaning of Sec-
tion 9(a) of the Act. The Board has considered the
judge’s decision and the record in light of the excep-
tions and briefs and has decided to affirm the judge’s
rulings, findings, and conclusions only to the extent
consistent with this Decision and Order.
The judge found that the Respondent and the Union
had entered into a collective-bargaining relationship
and executed a contract pursuant to Section 8(f) of the
Act, which provides an industry exception to the
majoritarian principles of representation in Section
9(a). He therefore concluded that the Respondent had
no legal obligation to continue this relationship or to
adhere to the terms of the contract once it had expired.
He recommended dismissal of the complaint alleging
that postcontract withdrawal of recognition and unilat-
eral changes by the Respondent violated Section
8(a)(5) and (1). We find, contrary to the judge, that the
Respondent recognized the Union as the full 9(a) rep-
resentative of bargaining unit employees. The Re-
spondent therefore had a continuing obligation to rec-
ognize and bargain with the Union, and to adhere to
the terms of the parties’ expired contract. We shall
therefore reverse the judge and find the violations al-
leged in the complaint.
The Respondent is a construction industry employer
engaged in the business of commercial remodeling and
installing retail store fixtures. In February 1993, it
signed a ‘‘Recognition Agreement and Letter of As-
sent’’ binding it to a 1993–1995 collective-bargaining
agreement between the Union and Oklahoma Fixture
Company (OFC) covering present and future jobsites
within the Union’s geographic jurisdiction.2 The first
paragraph of the recognition agreement and letter of
assent (letter of assent) states that the Union has sub-
mitted, and the Employer is satisfied that the Union
represents a majority of its employees in a unit that is
appropriate for collective bargaining.
In August 1995, 2 months after expiration of the
contract, the Respondent commenced work on a
project within the geographic jurisdiction of the Union.
In disregard of the provisions of the expired contract,
the Respondent performed the work with workers who
were not referred from the Union’s hiring hall, paid
them wages below the rates specified in the contract,
and ceased payments to the Union’s fringe benefit
funds.
In dismissing the complaint, the judge rejected the
contention of the General Counsel that the Union at-
tained the status of a 9(a) representative in 1993 when
the Respondent signed the letter of assent. Although he
found that the language of the letter of assent ‘‘cer-
tainly suggest[ed] that a Section 9(a) relationship ex-
isted between the Respondent and the Union,’’ the
judge concluded to the contrary in the absence of addi-
tional supporting evidence that the Union had dem-
onstrated its majority support to the Respondent. We
disagree.
As the judge recognized, this case involves interpre-
tation and application of the general principles set forth
in John Deklewa & Sons, 282 NLRB 1375 (1987). In
Deklewa, the Board declared a presumption that bar-
gaining relationships in the construction industry are
governed by Section 8(f). The Board further affirmed,
however, that a union seeking to represent employees
in the construction industry could achieve 9(a) rep-
resentative status. In several decisions subsequent to
Deklewa, the Board has explained that a union may
prove the existence of a 9(a) relationship by submitting
positive evidence that it unequivocally demanded rec-
ognition as the employees’ 9(a) representative and that
the employer unequivocally accepted it as such.3
We find that the language of the letter of assent is
sufficient proof of the Union’s unequivocal demand for
recognition as a 9(a) bargaining representative and the
Respondent’s voluntary acceptance of the demand. As
quoted above, the Respondent acknowledged in the let-
ter that it was ‘‘satisfied that the Union represents a
majority of its employees’’ in the appropriate unit. Be-
cause the Act confers 9(a) status only on majority
unions, and because Section 8(f) permitted these par-
ties to contract without concern for the Union’s major-
ity status, it is clear that the Respondent’s recognition
of the Union as the majority representative of unit em-
ployees constituted recognition on the basis of Section
9(a).
Contrary to the judge, we find no warrant to deny
the legal effect of the express terms of the letter of as-
sent because of the Union’s failure to submit additional
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00741 Fmt 0610 Sfmt 0610 D:\NLRB\325.110 APPS10 PsN: APPS10
742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 See, e.g., Goodless Electric, supra at 66–67 (authorization cards);
Golden West Electric, supra at 1495 (same); Triple A Fire Protec-
tion, supra at 1088 (fringe benefit report ‘‘confirming that all, or
nearly all . . . employees are members of and represented by
[union]’’).
5 Hayman Electric, 314 NLRB 879, 887 fn. 8 (1994); accord: Dec-
orative Floors, Inc., 315 NLRB 188, 189 (1994).
evidence of its majority status, such as authorization
cards, an employee poll, or a majority-supported peti-
tion requesting an election. Although evidence of this
kind has been a relevant factor in many of the post-
Deklewa cases in which 9(a) status has been found,4
the Board has never held that contract language alone
of the kind at issue here is insufficient to achieve such
standing. Indeed, to require more would contravene
Deklewa’s admonition that unions in the construction
industry should not be treated less favorably than those
outside the construction industry. 282 NLRB at 1387
fn. 53. Outside the construction industry,
[A] union . . . is not required to show the em-
ployer any evidence of majority status unless the
employer requests to see the evidence. Moisi &
Son Trucking, 197 NLRB 198 (1972); Soil Engi-
neering Co., 269 NLRB 55 (1984); Marysville
Travelodge, 233 NLRB 527 (1977); and Lincoln
Mfg. Co., 160 NLRB 1866, 1876–1877 (1966). If
an employer voluntarily recognizes a union based
solely on that union’s assertion of majority status,
without verification, an employer is not free to re-
pudiate the contractual relationship that it has
with the union outside the 10(b) period, i.e., be-
yond the 6 months after initial recognition, on the
ground the union did not represent a majority
when the employer recognized the union. Morse
Shoe, Inc., 231 NLRB 13 (1977); Berbiglia, Inc.,
233 NLRB 1476 (1977). Moreover, where an em-
ployer outside the construction industry expressly
recognizes a union as the 9(a) representative, the
union becomes the 9(a) representative of the unit
employees, unless the employer timely produces
affirmative evidence of the union’s lack of major-
ity at the time of recognition, i.e., within the 10(b)
period. See Royal Coach Lines, 282 NLRB 1037
(1987); E. L. Rice & Co., 213 NLRB 746 (1974);
Moisi & Son Trucking, supra . . . . The Board’s
ruling in [Casale Industries, 311 NLRB 951
(1993)] effectively extends time limitations simi-
lar to 10(b) limitations to the construction indus-
try.5
We also find no merit in the Respondent’s argument
that the absence of specific mention of Section 9(a) in
the letter of assent precludes finding that recognition
was sought and extended on this statutory ground.
Where, as here, an employer expressly recognizes a
union in writing as the majority representative of unit
employees, i.e., the very essence of 9(a) status, it is
unnecessary that specific reference be made to Section
9(a) itself.
Having found, therefore, that a 9(a) relationship ex-
isted between the parties on and after February 1993,
the Respondent was obligated to continue recognition
of the Union and to adhere to the terms of the expired
collective-bargaining agreement. Its failure to do so
violated Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7)
of the Act, and the Union is a labor organization with-
in the meaning of Section 2(5) of the Act.
2. Since February 26, 1993, the Union, pursuant to
Section 9(a) of the Act, has been the exclusive rep-
resentative of the Respondent’s employees who per-
form carpentry and construction work within the juris-
diction of the Union.
3. By withdrawing recognition from the Union and
refusing to bargain with the Union after May 31, 1995,
and by unilaterally discontinuing and changing em-
ployees’ existing terms and conditions of employment,
the Respondent has violated Section 8(a)(5) and (1) of
the Act.
4. The violations found are unfair labor practices af-
fecting commerce within the meaning of Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(5)
and (1) of the Act, we shall order it to cease and desist
and to take certain affirmative action to effectuate the
policies of the Act. Specifically, we shall order the Re-
spondent to recognize and, on request, bargain with the
Union as the exclusive bargaining agent of its car-
pentry and construction employees working within the
Union’s jurisdiction. We shall also order the Respond-
ent, on request by the Union, to rescind changes in
employment terms made after May 31, 1995, restoring
those employment terms to levels that existed prior to
that date. As to those employment terms for which re-
scission is requested and restoration occurs, the Re-
spondent shall be ordered (1) to make whole all unit
employees for any loss of wages and other benefits
suffered, as calculated in accordance with Ogle Protec-
tion Service, 183 NLRB 682, 683 (1970), with interest
computed in the manner prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987); (2) to make
whole any fringe benefit funds in the manner pre-
scribed in Merryweather Optical Co., 240 NLRB 1213
(1979); (3) to reimburse employees for any losses or
expenses they may have incurred because of its failure
to make payments to those funds, in the manner pre-
scribed in Kraft Plumbing & Heating, 252 NLRB 891
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00742 Fmt 0610 Sfmt 0610 D:\NLRB\325.110 APPS10 PsN: APPS10
743OKLAHOMA INSTALLATION CO.
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
1 John Deklewa & Sons, 282 NLRB 1375 (1987), enfd. sub nom.
Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir.), cert. denied
488 U.S. 889 (1988).
fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981),
with interest computed in the manner prescribed in
New Horizons for the Retarded; and (4) to offer imme-
diate and full employment to those applicants who
would have been referred to the Respondent for em-
ployment through the Union’s hiring hall were it not
for the Respondent’s unlawful conduct, and to make
them whole for any loss of earnings and other benefits
they may have suffered by reason of the Respondent’s
failure to hire them, as provided in J. E. Brown Elec-
tric, 315 NLRB 620 (1994). Backpay is to be com-
puted in a manner consistent with F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest thereon as set
forth in New Horizons for the Retarded, supra. Rein-
statement and backpay issues will be resolved by a
factual inquiry at the compliance stage. J. E. Brown,
supra at 623.
ORDER
The Respondent, Oklahoma Installation Company,
Owasso, Oklahoma, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Withholding recognition from, and failing and
refusing to bargain with United Brotherhood of Car-
penters & Joiners Local Union No. 943 as the exclu-
sive representative of employees in an appropriate unit
consisting of:
All carpentry and construction employees who
perform work within the jurisdiction of the Union.
(b) Changing terms and conditions of employment
for unit employees without first giving notice to the
Union and affording it an opportunity to bargain about
the proposed change.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain in good faith
with the Union as the exclusive bargaining agent for
unit employees and embody any agreement reached in
a written contract.
(b) On request of the Union, rescind any or all
changes made on and after May 31, 1995, in the terms
and conditions of employment for unit employees, and
make whole all unit employees and benefit funds for
losses suffered as result of these changes in the manner
prescribed in the remedy section of this decision.
(c) Offer immediate and full employment to those
applicants who would have been referred to the Re-
spondent by the Union were it not for the Respond-
ent’s unlawful conduct, and make them whole for any
loss of earnings and other benefits suffered by reason
of the Respondent’s failure to hire them, in the manner
set forth in the remedy section of this decision.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post
at its Owasso, Oklahoma facility copies of the attached
notice marked ‘‘Appendix.’’6 Copies of the notice, on
forms provided by the Regional Director for Region
17, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since March 13, 1996.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
MEMBER HURTGEN, dissenting.
Contrary to my colleagues, I do not find that the
Union was the 9(a) representative of the Respondent’s
employees. Accordingly, I would dismiss the com-
plaint alleging that the Respondent violated Section
8(a)(5) by withdrawing recognition from the Union
following expiration of the parties’ collective-bargain-
ing agreement.
In Deklewa1 and its progeny, the Board established
the principle that the bargaining relationship between a
construction industry employer and union is presumed
to be Section 8(f) rather than Section 9(a). See, e.g.,
Comtel Systems Technology, 305 NLRB 287, 289
(1991). The party asserting that the relationship is gov-
erned by Section 9(a) has the burden of proof. Casale
Industries, 311 NLRB 951, 952 (1993). Under
Deklewa, this burden is met either where there has
been a Board-conducted representation election or
where the union has made an express demand for, and
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00743 Fmt 0610 Sfmt 0610 D:\NLRB\325.110 APPS10 PsN: APPS10
744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 I recognize that there are some cases which appear to have back-
tracked from the requirement of a contemporaneous showing of ma-
jority support. Decorative Floors, 315 NLRB 188 (1994); MFP Fire
Protection, 318 NLRB 840 (1995), enfd. 154 LRRM 2034 (8th Cir.
1996); and American Automatic Sprinkler Systems, 323 NLRB No.
160 (June 11, 1997). However, Brannan Sand and J & R Tile have
never been overruled, and I agree with that precedent.
3 The clause, as set forth in the ‘‘Recognition Agreement and Let-
ters of Assent,’’ states, in relevant part that the:
Union has submitted, and the Employer is satisfied that the
union represents a majority of its employees in a unit that is ap-
propriate for collective bargaining.
the construction employer has voluntarily granted, rec-
ognition of the union as the 9(a) bargaining representa-
tive based on a contemporaneous showing of union
support among a majority of the employees in an ap-
propriate unit. Brannan Sand & Gravel, 289 NLRB
977, 979–980 (1987); and J & R Tile, 291 NLRB
1034, 1036 (1988).2
In the instant case, there was no contemporaneous
showing of majority support. In addition, the language
of the contract does not clearly state that there was
such a showing.3 Nor does it clearly state that the Re-
spondent extended Section 9 recognition. The contract
language says that ‘‘the Union represents a majority of
[the] employees.’’ However, ‘‘representation’’ is not
the issue: a union ‘‘represents’’ employees in both 9(a)
and 8(f) situations. Similarly, the contract says that the
Union is the ‘‘exclusive’’ representative. However, ex-
clusivity in representation is as true of 8(f) relation-
ships as it is of 9(a) relationships. In sum, there is no
language which simply declares that the employees
have signed cards or otherwise designated the Union as
their representative, and that the Respondent has ex-
tended Section 9 recognition.
In light of the lack of clarity, I consider it appro-
priate to look to what actually happened at the time
when the parties entered into the contract. At that time,
according to the evidence, there were no employees,
and thus necessarily there was no showing of majority
support. In short, this was a pre-hire contract, pure
and simple. Accordingly, I conclude that the contract
was classically an 8(f) contract. It follows that Re-
spondent was free to withdraw recognition at the end
of that contract.
My colleagues assert that unions in the construction
industry should not be treated less favorably than those
outside the construction industry. However, as my col-
leagues acknowledge, Section 9 status in a non-
construction industry is defeated if the employer shows
that there was no majority status at the time of rec-
ognition. As discussed above, there is such a showing
here.
I recognize that, outside the construction industry,
the showing of lack of majority must be made within
6 months of recognition. That is, where Section 9 rec-
ognition is extended, persons with knowledge thereof
have 6 months in which to attack it. However, in the
construction industry, recognition can be under Section
9 or 8(f). Where, as in the instant case, it is not clear
that Section 9 recognition was extended, the presump-
tion in favor of 8(f) status is not rebutted. In any
event, persons were not on clear notice that a Section
9 relationship was intended. Thus, the 6-month bar on
attacking Section 9 relationships does not apply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT withhold recognition from and fail
and refuse to bargain with United Brotherhood of Car-
penters & Joiners Local Union No. 943 as the exclu-
sive representative of our employees in the following
appropriate bargaining unit:
All carpentry and construction work employees
who perform work within the jurisdiction of the
Union.
WE WILL NOT change any term and condition of em-
ployment for unit employees without first giving the
Union notice and affording it an opportunity to bargain
about that change.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL recognize and, on request, bargain in good
faith with the Union and put in writing and sign any
agreement reached on terms and conditions of employ-
ment for unit employees on and after May 31, 1995.
WE WILL, on request, rescind any or all unilateral
changes made on or after May 31, 1995, in terms and
conditions of employment of unit employees and WE
WILL make those employees and their benefit funds
whole for any losses resulting from those unilateral
changes.
WE WILL offer immediate and full employment to
those applicants who would have been referred for em-
ployment by the Union were it not for our unlawful
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00744 Fmt 0610 Sfmt 0610 D:\NLRB\325.110 APPS10 PsN: APPS10
745OKLAHOMA INSTALLATION CO.
conduct, and make them whole for any loss of earn-
ings and other benefits suffered by reason of our fail-
ure to hire them.
OKLAHOMA INSTALLATION COMPANY
Francis A. Molenda, Esq., for the General Counsel.
Stephen L. Andrew, Esq., of Tulsa, Oklahoma, for the Re-
spondent.
Thomas F. Birmingham, Esq., of Tulsa, Oklahoma, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On March
13 and July 23, 1996, a charge and amended charge were
filed by Carpenters Local 943 (the Union) against Oklahoma
Installation Company (Respondent).
On July 24, 1996, the National Labor Relations Board, by
the Acting Regional Director for Region 17, issued a com-
plaint which alleges that Respondent violated Section 8(a)(1)
and (5) of the National Labor Relations Act (the Act) since
about September 13, 1995, when it withdrew recognition
from the Union and failed and refused to recognize and bar-
gain with the Union as the exclusive collective-bargaining
representative of the unit and when it failed to maintain the
established terms and conditions of employment of the unit,
as evidenced by the expired collective-bargaining agreement
between Oklahoma Fixture Company and the Union, by fail-
ing to use the Union’s hiring hall, to pay into fringe benefit
funds, and to pay the contractual wage rates.
Respondent filed an answer in which it denied that it vio-
lated the Act in any way.
A hearing was held before me on October 8, 1996, in
Tulsa, Oklahoma.
On the entire record in this case, to include posthearing
briefs submitted by the General Counsel and Respondent,
and on my observation of the demeanor of the one witness
called to testify, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all material times Respondent, a corporation, with an
office and place of business in Owasso, Oklahoma, has been
engaged in the building and construction industry as an in-
staller of store fixtures.
Respondent admits, and I find, that at all material times
Respondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that at all material times
the Union has been a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The facts in this case are undisputed. The evidence con-
sists of 2 General Counsel exhibits, plus the formal papers,
27 Respondent exhibits, and the testimony of one witness,
i.e., Union Business Manager J. C. Phillips, whose credibility
is not disputed.
The Respondent is engaged in the installation of retail
store fixtures and related products and is an employer in the
construction industry. Oklahoma Fixture Company is en-
gaged in the manufacture and installation of retail store fix-
tures. The Union was certified as the 9(a) representative of
a unit of Oklahoma Fixture Company’s employees on March
9, 1992, following a Board-conducted election wherein Okla-
homa Fixture Company’s employees voted to be represented
by the Union. Thereafter, the Union filed charges in Cases
17–CA–16321 and 17–CA–16380 alleging that these two
companies, i.e., Respondent and Oklahoma Fixture Company,
were alter egos and/or a single employer. The cases were set
for trial in 1993, but were settled when the Respondent
agreed to execute a recognition agreement and letter of as-
sent on February 26, 1993.
When the parties executed the recognition agreement and
letter of assent there were no employees of the Respondent
working within the jurisdiction of the Union, although the
Respondent employed carpenters both before and after the
execution of the recognition agreement. Under the recogni-
tion agreement, which is in evidence as Respondent Exhibit
21, the Union and the Respondent bound themselves to the
collective-bargaining agreement between Oklahoma Fixture
Company and the Union which was to expire by its terms
on May 31, 1995, and contained a provision for a 90-day no-
tice of termination. Oklahoma Fixture Company gave timely
notice pursuant to that provision on January 13, 1995. Okla-
homa Fixture Company and the Union have bargained for a
new contract but have not reached an agreement.
The Respondent was working in the Union’s jurisdiction
between August 1995 and July 1996, which was subsequent
to the expiration date of the contract Respondent agreed to
be bound by. Respondent was working and employing car-
penters at the Tulsa Promenade Mall Dillards Department
Store doing remodeling. The Respondent had not made re-
quests for carpenters under the Union’s referral system, nor
had it made payments into the benefits funds. In addition, the
Respondent had paid most of its employees a rate well below
the contract rate of $13.50 per hour.
The primary issue in this case is whether the relationship
between Respondent and the Union is a 9(a) or an 8(f) rela-
tionship. The General Counsel and the Union maintain that
the parties had a 9(a) relationship whereas the Respondent
maintains that the relationship was an 8(f) relationship. If the
relationship was an 8(f) relationship, then when the contract
expired Respondent’s obligation to bargain with the Union
terminated. If we have a 9(a) relationship, Respondent con-
tinued to have the duty to bargain with the Union.
Section 9(a) states as follows:
Representatives designated or selected for the pur-
poses of collective bargaining by the majority of the
employees in a unit appropriate for such purposes, shall
be the exclusive representatives of all the employees in
such unit for the purposes of collective bargaining in
respect to rates of pay, wages, hours of employment, or
other conditions of employment: Provided, That any in-
dividual employee or a group of employees shall have
the right at any time to present grievances to their em-
ployer and to have such grievances adjusted, without
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00745 Fmt 0610 Sfmt 0610 D:\NLRB\325.110 APPS10 PsN: APPS10
746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the intervention of the bargaining representative, as
long as the adjustment is not inconsistent with the
terms of a collective-bargaining contract or agreement
then in effect: Provided further, That the bargaining
representative has been given opportunity to be present
at such adjustment.
Section 8(f) states as follows:
It shall not be an unfair labor practice under sub-
sections (a) and (b) of this section, for an employer en-
gaged primarily in the building and construction indus-
try to make an agreement covering employees engaged
(or who, upon their employment, will be engaged) in
the building and construction industry with a labor or-
ganization of which building and construction employ-
ees are members (not established, maintained, or as-
sisted by any action defined in section 8(a) of this Act
as an unfair labor practice) because (1) the majority sta-
tus of such labor organization has not been established
under the provisions of section 9 of this Act prior to
the making of such agreement, or (2) such agreement
requires as a condition of employment, membership in
such labor organization after the seventh day following
the beginning of such employment or the effective date
of the agreement, whichever is later, or (3) such agree-
ment requires the employer to notify such labor organi-
zation of opportunities for employment with such em-
ployer, or gives such labor organization an opportunity
to refer qualified applicants for such employment, or
(4) such agreement specifies minimum training or expe-
rience qualifications for employment or provides for
priority in opportunities for employment based upon
length of service with such employer, in the industry or
in the particular geographical area: Provided, That noth-
ing in this subsection shall set aside the final proviso
to section 8(a)(3) of this Act: Provided further, That
any agreement which would be invalid, but for clause
(1) of this subsection, shall not be a bar to a petition
filed pursuant to section 9(c) or 9(e).
Paragraph 1 of the recognition agreement and letter of as-
sent signed by Respondent and the Union contains the fol-
lowing language: ‘‘The Union has submitted, and the Em-
ployer is satisfied that the Union represents a majority of its
employees in a unit that is appropriate for collective bargain-
ing.’’ This language would certainly suggest that a 9(a) rela-
tionship existed between Respondent and the Union. How-
ever, the evidence reflects that there was no election among
Respondent’s employees in which they selected the Union as
their collective-bargaining representative, there was no show-
ing of authorization cards by the Union to establish majority
status, there was no petition presented by the Union signed
by a majority of Respondent’s employees reflecting their de-
sire to be represented by the Union, and there was no other
showing at or about the time of the execution of the recogni-
tion agreement and letter of assent that the Union represented
a majority of Respondent’s employees.
In Deklewa, the Board held that a party asserting the exist-
ence of a 9(a) relationship has the burden of proving it. John
Deklewa & Sons, Inc., 282 NLRB 1375 (1975), enfd. sub
nom. Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir.
1988), cert. denied 488 U.S. 889 (1988). Similarly, in Casale
Industries, 311 NLRB 951, 952 (1993), the Board stated that
it is presumed that parties in the construction industry intend
their relationship to be an 8(f) relationship, and the burden
of proof is on the party who seeks to prove the 9(a) relation-
ship. It is undisputed that Respondent and the Union are in
the construction industry.
In Deklewa, the Board discussed the requirements for a
9(a) relationship in the construction industry. Deklewa at
1385. The Board stated that in the event of a Board election,
a vote in favor of a union would result in that union’s certifi-
cation and the full panoply of 9(a) rights and obligations.
The Board also indicated that in the construction industry, as
elsewhere, an employer may enter into a 9(a) collective-bar-
gaining relationship by voluntarily recognizing the union
based on a clear showing of majority support among the em-
ployees. Id. at 1387 fn. 53. In the instant case there was no
election among Respondent’s employees won by the Union
and no showing, clear or otherwise, of majority support
among the employees.
What I find happened in this case is that to settle an out-
standing unfair labor practice case the Respondent agreed to
be bound by the terms and conditions of the agreement en-
tered into between the Union and Oklahoma Fixture Com-
pany.
Paragraph 2 of the recognition agreement and letter of as-
sent provides as follows:
The Employer recognizes the Union as the exclusive
collective bargaining agent for its employees who per-
form carpentry and construction work within the juris-
diction of the Union on all present and future job sites.
The Employer, from the date of this letter of assent,
agrees to be bound by the terms and conditions, includ-
ing any extensions, renewals or modifications of a cer-
tain collective bargaining agreement between Oklahoma
Fixture Company and Carpenters Local Union 943 cov-
ering outside construction work dated the 26th day of
February, 1993, including the obligation to make the
contractually-stated contributions to and be bound by
the terms and conditions of the Declaration of Trust of
the Oklahoma Carpenters Health and Welfare Fund, the
Carpenters Labor-Management Pension Fund, and the
Carpenters Joint Training and Apprenticeship Fund.
The Employer and the Union agree that this Agree-
ment shall be enforceable in a court of law, and in eq-
uity.
This letter of assent, to be bound by the Collective
Bargaining Agreement between the Oklahoma Fixture
Company and Carpenters Local Union 943, covering
outside construction work, shall remain in effect until
terminated by the undersigned employer by giving writ-
ten notice to the Union at 8220 East Skelly Drive,
Tulsa, Oklahoma, 74129, at least 150 days prior to the
then-current anniversary date of the collective bargain-
ing agreement between Oklahoma Fixture Company
and Carpenters Local Union 943 covering outside con-
struction work.
As there was no election won by the Union among Re-
spondent’s employees and no showing of majority support
for the Union among Respondent’s employees, the relation-
ship between the Respondent and the Union was an 8(f) rela-
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00746 Fmt 0610 Sfmt 0610 D:\NLRB\325.110 APPS10 PsN: APPS10
747OKLAHOMA INSTALLATION CO.
tionship. See Goodless Electric Co., 321 NLRB 64 (1996);
Golden-West Electric, 307 NLRB 1454, 1495 (1992); and J
& R Tile, 291 NLRB 1034, 1036 (1988).
On May 31, 1995, the underlying agreement between the
Union and Oklahoma Fixture Company expired. A new
agreement has not been reached between those parties. On
the expiration of that contract the Union no longer enjoyed
a presumption of majority status and Respondent was free to
repudiate the 8(f) relationship. Section 10(b) does not limit
the Respondent’s right to do what it did when it did it, i.e.,
to refuse to apply a contract that had expired and to refuse
to bargain with the Union when it was asked to do so after
the contract, to which it agreed to be bound, terminated.
Article XVI of the agreement between the Union and
Oklahoma Fixture Company, which agreement Respondent
agreed to be bound by, provided for termination of the agree-
ment in the event either party gives to the other written no-
tice of termination 90 days prior to the anniversary date of
the agreement. It is undisputed that such notices were given
by both Oklahoma Fixture Company and the Union, and that
as a result, the contract was terminated.
The 8(f) agreement between Respondent and the Union
provided that the parties would be bound by the February 23,
1993 contract between Oklahoma Fixture Company and the
Union, ‘‘including any extensions, renewals or modifica-
tions’’ of that agreement. That agreement has expired. Ac-
cordingly there is no contract in existence between Respond-
ent and the Union. The 150 days’ notice to terminate lan-
guage in the recognition and letter of assent was operative
if the Union and Oklahoma Fixture Company agreed to an
extension or modification of the February 23, 1993 agree-
ment and Respondent wanted to terminate its relationship
with the Union. Because the contract between Oklahoma Fix-
ture Company and the Union expired and was not extended,
renewed, or modified, Respondent was permitted to walk
away from its 8(f) relationship with the Union. It no longer
had a duty to bargain with the Union.
Because the relationship between Respondent and the
Union was an 8(f), rather than a 9(a), relationship, and since
the contract, which Respondent agreed to be bound by, ex-
pired the Respondent was free to withdraw recognition from
the Union and was free to no longer apply the terms of the
contract and was free to unilaterally decide to refrain from
using the Union’s referral system, pay union wages to its
employees, or make payments into union benefit funds. The
Union, of course, is free to organize Respondent’s employees
as it did the employees of the Oklahoma Fixture Company.
CONCLUSIONS OF LAW
1. Oklahoma Installation Company, the Respondent, is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. United Brotherhood of Carpenters and Joiners Local
Union No. 943 is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent did not violate the Act as alleged in the
complaint.
[Recommended Order for dismissal is omitted from publi-
cation.]
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00747 Fmt 0610 Sfmt 0610 D:\NLRB\325.110 APPS10 PsN: APPS10