Case Information
*2 Before HENRY , McKAY , and ANDERSON , Circuit Judges.
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McKAY , Circuit Judge.
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The National Labor Relations Board petitions for enforcement of the Decision and Order it issued to Respondent Triple C Maintenance, Inc., on October 30, 1998, finding that Triple C is not free to attack a collective bargaining agreement on the basis of a claim of lack of majority support after more than six months had elapsed from the time the agreement was entered into and that Triple C violated § 8(a)(1) and (5) of the National Labor Relations Act [NLRA or Act]. International Association of Heat and Frost Insulators and Asbestos Workers Local Union 64 [Union] intervenes to support the Board’s petition. We exercise jurisdiction under 29 U.S.C. § 160(e).
I.
Triple C is an Oklahoma company engaged primarily in the installation of *3 insulation products in the greater Tulsa, Oklahoma, arеa. Triple C is owned by Chester Cline and his daughter-in-law, Lori Cline, who is married to Carlton Cline. On June 17, 1993, Triple C entered into a collective bargaining agreement with the Union, which was patterned after a contract between the Union and a multiemployer bargaining association, the Master Insulators Association of Tulsa. The contract was effective for one month, until July 15, 1993. It included a recognition clause stating that Triple C recognized the Union “as the sole and exclusive bargaining agent” for the unit employees, the unit was “appropriate for bargaining within the meaning of [§] 9(a),” and “this recognition [was] predicated on a clear showing of majority support for [the Union] indicated by [the] bargaining unit employees.” R., Vol. II, Ex. GC3 at 2 (Art. II, § 2). When Triple C entered into the agreement with the Union in June 1993, its only еmployee was Carlton Cline. Although he signed an authorization card, Carlton was not a statutory employee for purposes of § 9(a) because he was the husband and son of the owners. See 29 U.S.C. § 152(3) (excluding from the definition of employee “any individual employed by his parent or spouse”).
On July 16, 1993, Triple C entered into a contract with the Union for the period from July 16, 1993, to June 15, 1994, which contained the same recognition clause language as the previous month-long agreement. In September 1993, Triple C hired two employees, both of whom had signed authorization cards *4 designating the Union as their exclusive representative. Triple C entered into subsequent contracts in 1994 and again in 1995, both of which contained the same recognition language as the previous contracts.
In April 1996, Triple C advised the Union that upon the expiration of the 1995-1996 agreement it might choose not to renegotiate with the Union. After unsuccessfully attempting to negotiate a six-month rather than a year-long contract, Triple C did not sign the 1996-1997 contract. However, it is uncontested that Triple C operated for several months as though it were still applying the expired contract. It continued to make monthly contributions to the Union benefit funds until December 1996, and it made three requests to use the Union’s wage equality fund during the same time period. On November 24, 1996, Triple C notified the Union that it had laid off its employees, and the Union subsequently advised Triple C that it would withhold wage equality payments until Triple C signed the 1996-1997 contract. In April 1997, Triple C notified the Union that no contract existed between them for the 1996-1997 periоd, that it would not sign a new contract for 1997-1998, and that it no longer recognized the Union. See R., Vol. II, Ex. GC18; Vol. III, Doc. 1 at 5.
The Union filed unfair labor practice charges against Triple C, alleging that it improperly refused to sign the 1996-1997 agreement and negotiate a new agreement, failed to adhere to the terms of the 1996-1997 collective bargaining *5 agreement, and improperly withdrew recognition from the Union. Triple C responded by arguing that because its relationship with the Union was governed by § 8(f) it was entitled to repudiate that relationship when the contract expired. The Union argued that the relationship between the parties was governed by § 9(a) and that Triple C is barred from raising the § 8(f) defense under § 10(b) of the NLRA.
An administrative law judge tried the case and determined that Triple C was “precludеd from attacking the purported Section 9(a) contract by the limitations period set forth in Section 10(b) of the Act.” Id., Vol. III, Doc. 1 at 6. The Board affirmed the decision of the administrative law judge with some modifications. While they agreed that the recognition clause of the initial collective bargaining agreement showed that the Union had majority status, Board Members Fox and Liebman found that Triple C was “not free to attack the agreement on the basis of a claim of lack of majority [status] after more than [six] months had elapsed.” Triple C Maintenance, Inc. , 327 N.L.R.B. No. 15, 1998 WL 799280, at *1 n.1 (1998). Board Member Hurtgen, on the other hand, stated that Triple C could not have entered into a 9(a) relationship in June 1993 because it had no employees at that time, but when Triple C signed the new agreement in 1994, which contained the same § 9(a) recognition language, it had employees and therefore recognized the Union as the exclusive representative of those *6 employees under § 9(a). See id. This appeal followed.
We review the Board’s application of the law to particular facts under the
substantial evidence standard. Under § 10(e) of the NLRA, 29 U.S.C. § 160(e),
the Board’s factual findings are conclusive 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.,
II.
There are two issues controlling our decision: (1) whethеr the relationship between the union and the employer was governed by § 8(f) or § 9(a), and (2) whether § 10(b) precludes the employer from attacking the formation of a 9(a) relationship. One approach a court might take in addressing these issues would be to determine first whether an employer is precluded from attacking the purported § 9(a) agreement by the limitations period in § 10(b). If the employer were so precluded, a court could refuse to examine whether the agreement satisfies the requirements of § 9(a) recognition. However, because the party *7 asserting the existence of a 9(a) relationship has the burden to prove its existence, we believe the proper approach is first to 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). Then, if it is clear from the agreement that a 9(a) relationship was intended, which means that the parties had sufficient notice that § 9(a) governs their agreement, 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.
A. The 9(a) – 8(f) Distinction
The dispute between § 8(f) or § 9(a) governance finds its origins in the
NLRA which made a distinction between the multiemployer bargaining
relationships it recognizes. Section 9(a) of the Act, 29 U.S.C. § 159(a), provides
that when a majority of employees in a unit appropriate for collective bargaining
designates a labor union to represеnt it, the union becomes the exclusive
representative for collective bargaining purposes. Under § 9(a) an employer may
not unilaterally repudiate a contract and has a duty to bargain in good faith after
the contract expires. See James Luterbach Constr. Co.,
On the other hand, § 8(f) of the Act, 29 U.S.C. § 158(f), allows employers
engaged primarily in the building and construction industry to enter into pre-hire
agreements containing union security clauses whether or not the union represents
a majority of the employer’s employees. Under an 8(f) contract, the union enjoys
no presumption of majority status and either party may repudiate the relationship
upon the expiration of the contract.
[1]
See Luterbach,
*9
A relationship between a union and a construction industry employer is
presumed to be governed by § 8(f), and “the party asserting the existence of a 9(a)
relationship [has the burden] to prove it.” John Deklewa & Sons, Inс., 282
N.L.R.B. 1375, 1385 n.41 (1987), enforced sub nom. International Ass’n of
Bridge, Structural & Ornamental Iron Workers v. NLRB,
The threshold issue in this case is what kind of proof is necessary to satisfy the third prong of the voluntary recognition option. The Board and the Union assert that a contemporaneous showing of majority support may be established without extrinsic proof of majority status. Triple C argues that a 9(a) relationship was not established because the voluntary recognition was not based on actual objective proof of majority support. In fact, Triple C contends that a 9(a) relationship could not have been formed because, at the time it signed the contract with the Union in 1993, the company had only one employee who did not qualify as an employee for purposes of § 9(a), thus no majority support existed. We are not persuaded by Triple C’s arguments.
Because an 8(f) agreement is available to the construction industry, a
union’s demand to execute a collective bargaining agreement with an employer is
inherently ambiguous. See J & R Tile,
The Board, however, has interpreted the contemporaneous showing
requirement with greater latitude; it can be met in a number of ways. Board
precedent indicates that majority support may be contemporaneously shown by
actual objective proof, such as the presentation of employee authorization cards to
an employer, see Hayman Elec., Inc.,
Not all Board decisions rely on some sort of extrinsic evidence to satisfy
the contemporaneous showing requirement and prove the existence of a 9(a)
relationship. To the contrary, several Board decisions make clear that the
contemporaneous showing requirement may be satisfied by contractual language
indicating that a union has offered to show its majority status and that the
employer acknowledges and is satisfied by that offer. For example, in Decorative
Floors, Inc.,
type of evidence presented to establish majority support. The union in that case attempted to use as proof of majority status the union membership count determined by the union security clause. Because Deklewa specifically rejected this type of evidence as proof of majority support, the Fourth Circuit correctly held that it could not count as a contemporaneous showing of majority support. See id. at 220. There is no contention in this case that majority support was unlawfully established by a union security clause. *15 support, the critical component is that the agreements either describe a contemporaneous showing of majority status or have the employer acknowledge the fact that majority status was shown.
In accordance with Board precedent, the Third Circuit recently held that the
recitations of a “collective bаrgaining agreement constitute[d] uncontroverted
proof that the parties were governed by § 9(a).” Sheet Metal Workers’ Internat’l
Ass’n Local 19 v. Herre Bros., Inc.,
*17
The collective bargaining agreements entered into by Triple C and the
Union in 1993, 1994, and 1995 meet this standard. The initial bargaining
agreement, as well as the subsequent agreements, unequivocally states that Triple
C “recognize[s] [the Union] as the sole and exclusive bargaining agent for . . . a
unit [of employees] appropriate for bargaining within the meaning of Section
9(a).” R., Vol. II, Ex. GC3 at 2. Significantly, the agreement also represents that
“[t]he Employer agrees that this recognition is predicated on a clear showing of
majority support for [the Union] indicated by bargaining unit employees.” Id.
While the agreement does not state that the Union unequivocally demanded
recognition, such a demand is clearly implied by the content of the entire
recognition clause and by the fact that the Union presented Triple C with the
collective bargaining agreement. See Sheet Metal Workers’,
*18
The Board’s conclusion that the contract language satisfies all the
requirements necessary to rebut the 8(f) presumption, including the requirement
of a contemporaneous showing of majority support, is supported by substantial
evidence. We hold that the language recited in the collective bargaining
agreements in this case “constitutes uncontroverted proof that the parties were
governed by § 9(a).”
[4]
Sheet Metal Workers’,
B. The Time Limitation
Triple C contends that the Board improperly applied the six-month period of limitations set forth in § 10(b) of the NLRA to preclude Triple C’s attack on the majority status of the Union at the time the parties entered into the collective bargaining agreement. The Board and Union argue that the Board’s application of a rule “limiting the circumstances in which a construction industry employer that grants Section 9(a) recognition to a union can subsequently challenge the union’s majority status” is rational and should be upheld. Intervenor’s Br. at 24; see Petitioner’s Br. at 25-26.
*19
Strictly speaking, § 10(b) requires that challenges to unfair labor practices
must be made within six months after the commission of the alleged unfair labor
practice.
[5]
See 29 U.S.C. § 160(b); Local Lodge No. 1424 (Bryan Mfg.) v. NLRB,
The overriding purpose of the six-month statute of limitations is “to
stabilize existing [collective] bargaining relationships” by preventing lawsuits
*20
long after an unfair labor practice has occurred. Bryan Mfg.,
Specifically, § 10(b) was enacted “to bar litigation over past events ‘after records
have been destroyed, witnesses have gone elsewhere, and recollections of the
events in question have become dim and confused.’” Bryan Mfg.,
In Bryan Manufacturing, the union committed an unfair labor practice by entering into a collective bargaining agreement that contained a union security clause at a time when the union did not represent a majority of the employees. See id. at 412-13. The agreement’s union security clause required employees to join the union within forty-five days. More thаn six months after execution of the collective bargaining agreement, employees filed unfair labor practice charges challenging the continued enforcement of the union security clause. See id. at 414. The Supreme Court held that the charges were time-barred by § 10(b). See id. at 415. It rejected the notion that the ongoing enforcement of the agreement was a continuing violation, because “the entire foundation of the unfair labor practice charged was the Union’s time-barred lack of majority status when the original collective bargaining agreement was signed.” Id. at 417. The Court *21 reasoned that enforcement of the union security clause itself was permissible and that the charges were based on a time-barred occurrence, i.e., the еxecution of the collective bargaining agreement with a security clause at a time when the union did not have majority status. See id. at 417-19. The Court refused to vitiate the policies behind the limitations period by converting enforcement of a collective bargaining agreement, perfectly lawful on its face, to an unfair labor practice by reference to an event that, because of a time limitation, could not be the subject of an unfair labor practice complaint. See id. at 419.
Although § 10(b) was promulgated in the context of the non-construction
industry where minority recognition is unlawful, the Board and several courts of
appeals have extended it or a similar limitations period to the construction
industry. For example, in Casale Industries ,
In addition to its decision in Casale Industries, the Board has applied the
six-month limitations period in two other cases involving construction industry
employers. In Triple A Fire Protection,
*24
The Board again applied a time-bar in MFP Fire Protection, 318 N.L.R.B.
at 842. There the Board refused to inquire into the union’s showing of majority
status after four years had passed since the most recent agreement was executed
by the employer which voluntarily recognized the union as a 9(a) representative.
See id. This court enforced that decision, holding that the Board did not err in
applying § 10(b)’s six-month limitations period to bar “the employer from
retrospectively asserting the absence of a § 9(a) relationship” after such a long
period of time had passed since recognition. MFP Fire Protection, Inc. v. NLRB,
In light of these decisions by the Board and this court, as well as those by
the First and Eleventh Circuit courts, we see no reason why the Board’s
application of a time bar to challenges to the formation of a bargaining
relationship based on a lack of majority status is unreasonable. In each instance
where the Board properly precluded a challenge to the union’s majority status in
the construction industry context, a substantially longer span of time than six
months had passed since the grant of § 9(a) recognition. See, e.g., MFP Fire
Protection,
Other facts also support the reasonableness of the Board’s application of a
*25
limitations period. Not only did Triple C enter into a collective bargaining
agreement which contained language unequivocally granting § 9(a) recоgnition to
the Union as the exclusive bargaining representative of a majority of the
appropriate employees but it also executed a series of three additional contracts,
all of which contained language identical to the first contract. Similar to the
situation in Bryan Manufacturing, the entire foundation of Triple C’s defense
against the unfair labor practice charges in this case is the Union’s lack of
majority status when the original collective bargaining agreement was signed. Cf.
Bryan Mfg.,
Finally, the manner in which the burdens are allocated to the collective bargaining parties demonstrates the reasonableness of applying a period of limitations in the construction industry. Initially, under Deklewa, we presume that a contract formed between a union and an employer primarily engaged in the *26 construction industry is governed by § 8(f). Once the party asserting a 9(a) relationship demonstrates that the employer has recognized the 9(a) status of the uniоn, then the presumption in favor of § 8(f) dies and a 9(a) relationship exists. However, a second presumption comes into play when a 9(a) relationship is established: Where a union has demonstrated, at least facially, that a 9(a) relationship exists, it enjoys a presumption of majority status for the duration of the contract or for a reasonable period. In order to reconcile these two presumptions, we hold that if a party challenges the union’s majority status within a reasonable period of time from the date of recognition, then the burden remains on the union to prove its majority support in accordance with the initial § 8(f) presumption. [7] After a reasonable period of time has passed since the 9(a) recognition, and in keeping with the 9(a) presumption of majority status, it is then reasonable to preclude an attack on the 9(a) relationship based on a lack of majority support. This allocation of burdens also preserves the NLRA’s goals of uniformity and stability.
*27 We hold that it was not unreasonable for the Board to bar Triple C’s challenge to the Union’s majority status because a reasonable period of time had passed since Triple C had extended § 9(a) recognition, the parties were on notice that a 9(a) relationship was intended–as evidenced by the language of the contract, and the contract is facially valid. The salutory effect of our holding furthers the overwhelming intent of the NLRA to achieve uniformity and stabilize bargaining relationships.
III.
In sum, we hold that a collective bargaining agreement may, in and of itself, satisfy the requirement of a contemporaneous showing of majority support that is necessary to establish the existence of a 9(a) relationship and overcome the presumption accorded to § 8(f) relationships in the construction industry. In addition, similar to the period of limitations in § 10(b) of the Act, the Board may apply a time bar to challenges to a union’s § 9(a) majority status if a reasonable period of time has passed since the employer extended recognition to the union in a facially valid § 9(a) agreement. The order of the Board is hereby ENFORCED .
Notes
[1] Prior to the Board’s decision in John Deklewa & Sons, Inc., 282 N.L.R.B.
1375 (1987), enforced sub nom. International Ass’n of Bridge, Structural &
Ornamental Iron Workers v. NLRB,
[2] A close reading of American Automatic Sprinkler reveals that its holding
does not contradict ours. The Fourth Circuit held that the employer’s voluntary
recognition was not enough to establish a 9(a) relationship. The court requires
explicit proof of actual majority status presented contemporaneously with the
union’s demand and the employer’s voluntary recognition. See American
Automatic Sprinkler,
[3] Despite our view that the use of § 9(a) in recognition agreements is advisable and assists in carrying the burden of overcoming the 8(f) presumption, we do not disagree with the Third Circuit’s determination that reference to § 9(a) is not necessary so long as the remainder of the recognition language conclusively shows that the parties intendеd § 9(a) to apply. See Sheet Metal Workers’, 201 F.3d at 242.
[4] Triple C argues that the Board is applying the pre-Deklewa conversion doctrine if a 9(a) relationship can be established without extrinsic evidence contemporaneously showing majority support. We disagree. Under the pre- Deklewa conversion doctrine, an 8(f) relationship automatically would convert into a 9(a) relationship when the union obtained a majority of employees. According to the record in this case, conversion would have occurred in September 1993. However, under Member Hurtgen’s analysis, even if Triple C could challenge the Union’s majority status when the contract was first signed in 1993, we think that a valid § 9(a) relationship was formed in July 1994 when Triple C executed a new contract which contained the 9(a) recognition language stating that Triple C had recognized the Union as the exclusive § 9(a) representative based on a clear showing of majority support. See R., Vol. II, Resp. 2 at 2. Because a majority of Triple C’s employees had signed authorization cards when Triple C signed the new contract in 1994, Triple C cannot argue that there was no majority support.
[5] Section 10(b) reads in pertinent part: “[N]o complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made . . . .” 29 U.S.C. § 160(b).
[6] Although the Fourth Circuit notes in American Automatic Sprinkler, 163
F.3d at 218 n.6, that its analysis of whether § 10(b) applies to construction
industry cases is contrary to this court’s decision in MFP Fire Protection, 101
F.3d at 1343-44, and the Eleventh Circuit’s decision in Triple A Fire Protection,
[7] We note that a time limitation such as the one in § 10(b) is unique to both
the employer and the employee. Thus, it does not begin to run until the parties
have notice of the alleged illegal § 9(a) recognition (or other alleged illegal
action). For example, with respect to employees, § 10(b)’s six-month limitations
period would not begin to run until at least one statutory employee was hired or
otherwise had notice of the employer’s illegal actions. See Texas World Serv.
Co. v. NLRB,