United States Court of Appeals, District of Columbia Circuit
September 7, 2017
Petition for Review and Cross-Application for Enforcement of
an Order of the National Labor Relations Board
A. Lenz argued the cause for petitioner. With him on the
briefs was L. Brent Garrett.
N. Raudabaugh and Glenn M. Taubman were on the brief for
amicus curiae Robert Blackwell in support of Colorado Fire
Jeffrey W. Burritt, Attorney, National Labor Relations Board,
argued the cause for respondent. With him on the brief were
Richard F. Griffin, Jr., General Counsel at the time the
brief was filed, Jennifer Abruzzo, Deputy General Counsel at
the time the brief was filed, John H. Ferguson, Associate
Deputy Counsel, Linda Dreeben, Deputy Associate General
Counsel, and Usha Dheenan, Supervisory Attorney.
William W. Osborne Jr. argued the cause and filed the brief
for intervenor, Road Sprinkler Fitters Local Union 669, U.A.,
Before: Rogers and Millett, Circuit Judges, and Randolph,
Senior Circuit Judge.
MILLETT, CIRCUIT JUDGE.
the Colorado Fire Sprinkler company's labor agreement
with the Road Sprinkler Fitters Union expired, the Company
announced that it would no longer recognize or negotiate with
the Union as a representative of the Company's employees.
The Company asserted a right under Section 8(f) of the
National Labor Relations Act, 29 U.S.C. § 158(f) (which
applies to labor agreements in the construction and building
industries), to walk away from the union relationship. The
Union begged to differ, contending that a different provision
of the National Labor Relations Act, Section 9(a), 29 U.S.C.
§ 159(a), obligated the Company to continue negotiating
in good faith with the Union. The Union filed a grievance,
and the National Labor Relations Board sided with the Union.
Because the Board's decision rested on insubstantial
evidence and failed to address important evidence supporting
the Company, we grant the Company's petition for review,
deny the Board's cross-application for enforcement,
vacate the Board's decision, and remand.
This is a tale of two statutory provisions, and of a
Union's effort to move between them.
the more commonly employed Section 9(a) of the National Labor
Relations Act, a union that obtains the support of "the
majority of the employees in a unit" will become the
recognized representative of those employees, and the
employer will be obligated to communicate and negotiate with
it on the terms and conditions of employment. 29 U.S.C.
§ 159(a). A union recognized under Section 9(a)
"enjoys numerous benefits, including a conclusive
presumption of majority status during the term of any
collective-bargaining agreement, up to three years."
Raymond F. Kravis Center for the Performing Arts, Inc. v.
NLRB, 550 F.3d 1183, 1188 (D.C. Cir. 2008) (citation
omitted). An employer's refusal to bargain with a union
recognized as the employees' Section 9(a) representative
is an unfair labor practice. See 29 U.S.C. §
different rule operates in the building and construction
industries. For those businesses, labor costs need to be
known in advance so that companies can bid for work. In
addition, union organization is difficult because projects
can be relatively short-lived and employees migrate between
jobs. See Nova Plumbing, Inc. v. NLRB, 330 F.3d 531,
534 (D.C. Cir. 2003) (explaining that Section 8(f) addresses
"the unique nature" of industries that "need
to draw on a pool of skilled workers and to know their labor
costs up front in order to generate accurate bids, " and
in which employees often "work for multiple companies
over short, sporadic periods").
address those challenges, Section 8(f) of the National Labor
Relations Act allows employers and unions in the building and
construction industries to enter into what is known as a
"pre-hire agreement." Nova Plumbing, 330
F.3d at 534 (citation omitted). Under such an agreement, the
business and union agree in advance that a particular union
will represent employees, and they may even negotiate the
initial terms and conditions of employment directly between
themselves. That can all occur without any vote by the
employees, or even before a single employee is hired.
See 29 U.S.C. § 158(f).
pre-hire agreement in the construction and building
industries is presumed to be governed by Section 8(f) rather
than Section 9(a). Allied Mechanical Services, Inc. v.
NLRB, 668 F.3d 758, 766 (D.C. Cir. 2012). A Section 8(f)
relationship can convert into a Section 9(a) relationship
only if the union "either petition[s] for a
representation election or demand[s] recognition from the
employer by providing proof of majority support." M
& M Backhoe Service, Inc. v. NLRB, 469 F.3d 1047,
1050 (D.C. Cir. 2006).
the more commonplace Section 9(a) union representation, when
a collective bargaining agreement expires, the employer
generally must continue to negotiate with the union in good
faith and preserve the status quo in employment terms and
conditions. See, e.g., NLRB v.
Katz, 369 U.S. 736, 743 (1962) (holding that "an
employer's unilateral change in conditions of employment
under negotiation" is a violation of the National Labor
Relations Act because "it is a circumvention of the duty
to negotiate"); Nova Plumbing, 330 F.3d at 534
(noting that, under Section 9(a), when a collective
bargaining agreement expires, an employer must "continue
bargaining * * * unless the company can demonstrate either
that the union has in fact lost majority support or that the
employer has a good faith uncertainty as to the union's
for Section 8(f) agreements. For them, the employer (or the
union) "may repudiate the terms of a pre-hire agreement
when it expires, " and the employer has "no
obligation to bargain with the union" upon expiration.
M & M Backhoe, 469 F.3d at 1048.
all a long way of saying that, when a labor agreement
expires, an employer's rights and obligations under
Section 8(f) and Section 9(a) of the National Labor Relations
Act are ...