H.Y. Floors & Gameline Painting, Inc.

National Labor Relations Board - Board Decisions

May 31, 2000

331 N.L.R.B. 304 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 304
H.Y. Floors and Gameline Painting, Inc. and Fer-
nando Moreno and Carpenters 46 Northern
California Counties Conference Board. Case
20–RD–2244
May 31, 2000
DECISION ON REVIEW AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
FOX, LIEBMAN, HURTGEN, AND BRAME
On December 22, 1997, the Regional Director for Re-
gion 20 issued a Decision and Direction of Election in
the above-entitled matter in which he found that the
memorandum agreement between the Employer and the
Union was an 8(f) agreement and therefore did not bar
processing the petition filed by an individual, Fernando
Moreno. Pursuant to Section 102.67 of the National La-
bor Relations Board’s Rules and Regulations, the Union
filed a timely request for review of the Regional Direc-
tor’s Decision, and the Employer filed a brief on review.
An election was held on January 16, 1998, and the bal-
lots were impounded, pending the Board’s ruling on the
request for review. On March 17, 1998, the Board
granted the Union’s request for review as it raised sub-
stantial issues warranting review.
On careful consideration of the entire record, we find,
contrary to the Regional Director, that the Employer and
the Union have a collective-bargaining agreement that
constitutes a 9(a) contract vis-a-vis each other. However,
it is not binding on Fernando Moreno, the individual
petitioner, in this case. We therefore remand this case to
the Regional Director to reopen the record with respect to
the Union’s evidentiary burden of showing it represented
a majority of employees in the bargaining unit at the time
the Employer extended 9(a) recognition to it.
The Employer installs and repairs basketball floors,
and paints gamelines on them. On September 3, 1996,1
the Employer signed the Carpenters 46 Northern Califor-
nia Counties memorandum agreement, under which it
agreed to be bound by the Carpenters’ master agreement
for Northern California, effective from June 16–30,
2000. The memorandum agreement specifically states:

The individual employer expressly acknowledges that
it has satisfied itself that the Union represents a major-
ity of its employees employed to perform bargaining
unit work and that the Union is the collective bargain-
ing representative of such employees. The individual
employer specifically agrees it is establishing or has es-
tablished a collective bargaining relationship within the
meaning of Section 9 of the National Labor Relations
Act of 1947, as amended, by this Agreement and/or by
the execution of previous Memorandum Agreement(s).

On October 22, Fernando Moreno filed the petition in this
case.

1 All dates are in 1996 unless otherwise indicated.
The Regional Director noted the elements necessary
for establishing a 9(a) relationship—the union must un-
equivocally demand recognition as the employees’ 9(a)
representative; the employer must unequivocally accept
the union as such; and this recognition must be based on
a contemporaneous showing of union support among a
majority of the employees in an appropriate unit.2 The
Regional Director then noted the testimony of the Em-
ployer’s witness, i.e., that the Union never discussed,
with the Employer, the subject of union support among
employees at the time of the Employer’s execution of the
memorandum agreement. The Regional Director also
noted that the Union presented no evidence at the hearing
that the Union had, at any time, presented authorization
cards from a majority of the unit employees to the Em-
ployer. Finally, the Regional Director found that the
statement in the memorandum agreement concerning a
9(a) relationship was insufficient to overcome these in-
adequacies. The Regional Director therefore concluded
that the memorandum agreement was an 8(f) contract
and did not bar the petition in the instant case.
We disagree. The Employer is an employer engaged
in the construction industry. In the construction industry,
parties may create a relationship pursuant to either Sec-
tion 9(a) or Section 8(f). In the absence of evidence to
the contrary, the Board presumes that the parties intend
their relationship to be governed by Section 8(f), rather
than Section 9(a), and imposes the burden of proving the
existence of a 9(a) relationship on the party asserting that
such a relationship exists.3 To establish voluntary recog-
nition pursuant to Section 9(a) in the construction indus-
try, the Board requires evidence that the union unequivo-
cally demanded recognition as the employees’ 9(a) repre-
sentative, and that the employer unequivocally accepted
it as such.4 The Board also requires a contemporaneous
showing of majority support for the Union at the time
9(a) recognition is granted.5 As to this last factor, the
Board has held that an employer acknowledgement of
such support is sufficient to preclude the employer from
challenging majority status.6
The requisite elements are present here. First, the lan-
guage of the September 3 memorandum agreement stat-
ing that the Employer is specifically establishing a col-
lective-bargaining relationship within the meaning of
2 The Regional Director cited J & R Tile, 291 NLRB 1034, 1036
(1988). See also James Julian, Inc., 310 NLRB 1247, 1252 (1993);
Brannan Sand & Gravel Co., 289 NLRB 977, 979–980 (1988); and
American Thoro-Clean, 283 NLRB 1107, 1108–1109 (1987).
3 John Deklewa & Sons, 282 NLRB 1375 (1987), enfd. sub nom.
Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988), cert. de-
nied 488 U.S. 889 (1988).
4 Compare Golden West Electric, 307 NLRB 1494 (1992); J & R
Tile, supra at 1034.
5 Golden West Electric, supra at 1495.
6 See Oklahoma Installation Co., 325 NLRB 741 (1998) (language
in the recognition agreement stated that the union has submitted, and
the employer was satisfied, that the union represented a majority of its
employees in an appropriate unit).
331 NLRB No. 44
H.Y. FLOORS & GAMELINE PAINTING 305
Section 9 of the National Labor Relations Act evinces
both the Union’s unequivocal demand for such a rela-
tionship and the Employer’s unequivocal acceptance of
it. Second, the agreement’s language stating that the
Employer has satisfied itself that the Union represents a
majority of its employees employed to perform bargain-
ing unit work and that the Union is their representative
evinces the Union’s contemporaneous showing of major-
ity employee support. Hence, the Employer and the Un-
ion established a relationship based on Section 9(a) and
not Section 8(f) of the Act.7 Thus, the Employer is
bound by the September 3 memorandum agreement and
cannot repudiate it during its term. Accordingly, had the
Employer filed the petition here, the agreement would
have barred the petition.
However, that same September 3 memorandum
agreement between the Employer and the Union cannot
bar the October 22 decertification petition filed here by
an individual. Unlike the Employer, the decertification
petitioner was not a party to the Memorandum Agree-
ment and is thus not estopped from timely challenging
the 9(a) recognition. This petition, filed 7 weeks after
the Memorandum Agreement is undoubtedly timely.
Our dissenting colleagues argue that by allowing, in
this representation case, litigation of the Union’s major-
ity status, we are “acting contrary to the statutory
scheme” which allows this issue to be raised only in an
unfair labor practice setting. Contrary to our dissenting
colleagues’ assertion, the filing of an unfair labor prac-
tice charge is not the only means of challenging majority
status in circumstances, as here, in which a former 8(f)
union has been voluntarily granted 9(a) recognition. As
the Board stated in Casale Industries, 311 NLRB 951,
953 (1993), a union’s majority status may also be chal-
lenged by filing a timely representation petition. That
was done in this case.8
In taking the position that the only avenue available to
attack the union’s majority status is an 8(a)(2) charge, the
dissenters would overrule Casale to the extent that it per-
mits a challenge to the union’s majority status by the filing
of a petition. In their view, that portion of Casale creates
tension with the Board’s practice, which is set forth in
Texas Meat Packers, 130 NLRB 279 (1961), not to litigate
unfair labor practice matters in a representation proceed-
ing. We disagree and find no inconsistency. The Board in
Texas Meat Packers speaks in terms of what is the
“gravamen” of the contention being raised in the R-case
setting as a key question for determining the forum. Ac-
cording to Texas Meat Packers, if the gravamen of the

7 MFP Fire Protection, 318 NLRB 840 (1995); Decorative Floors,
315 NLRB 188 (1994).
8 However, we do not pass on whether such a petition must be filed
within 6 months of the recognition as discussed in Casale. In this
regard, we note that the petition was filed 7 weeks after the recognition
was extended. Thus, we find it unnecessary to pass on Casale’s filing
requirement in this case.
contention is an unfair labor practice, then the appropriate
forum is the unfair labor practice proceeding. However,
here, the gravamen of the decertification petitioner’s con-
tention is not that an unfair labor practice was committed
when the Employer initially recognized the Union. There
is no attempt on the part of the decertification petitioner to
seek a remedy for unlawful recognition if it is determined
that the Union only had minority status when recognition
was extended on September 3. Rather, our inquiry into
whether the Union had majority status here is to determine
if an election can presently be conducted to ascertain cur-
rent employee support. We believe that this inquiry,
which is akin to the procedural question of standing, is
properly before us now.
Consequently, in view of the foregoing, we shall re-
mand this case to the Regional Director to open the hear-
ing and adduce evidence with respect to the Union’s ma-
jority status on September 3, and its effect, if any, on the
bar quality of the September 3 memorandum agreement.
Thereafter, the Regional Director shall issue a Supple-
mental Decision.9
ORDER
The Regional Director’s Decision and Direction of
Election is reversed with respect to his finding that the
September 3 memorandum agreement between the Em-
ployer and the Union was not a 9(a) contract that could
operate as a bar to the petition. The case is remanded to
the Regional Director with directions to reopen the hear-
ing solely with respect to whether the Union represented
a majority of employees on September 3 when the Em-
ployer established a 9(a) relationship with the Union,
and, consequently, whether the individual’s petition here
may be processed.
The Regional Director shall thereafter issue a Supplemental
Decision and take further appropriate action.

MEMBERS FOX AND LIEBMAN, dissenting.
Contrary to our colleagues, we would not allow litiga-
tion in this representation proceeding of the Union’s ma-
jority status at the time the Employer entered into the
collective-bargaining agreement with the Union. The
record is clear, and indeed our colleagues find, that the
Employer, a construction industry employer, voluntarily
recognized the Union as the 9(a) representative of its
employees when it signed the memorandum agreement
on September 3, 1996. Nevertheless, they have directed
the Regional Director to reopen the representation hear-
ing and take evidence on what is in essence an unfair
labor practice issue—that is, whether the Employer rec-
ognized the Union as a 9(a) representative at a time when
9 Member Hurtgen would not find, on this record, that the Employer
is bound to a Sec. 9 contract. See his dissent in Oklahoma Installation,
supra. However, he agrees with his colleagues that, in any event, the
petitioner-employee is not foreclosed from challenging the Sec. 9 basis
for that contract.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 306
the Union did not, in fact, represent a majority of the
employees in the relevant unit.
The Board’s well-established practice is to exclude
from representation proceedings matters related to unfair
labor practices. Texas Meat Packers, supra; Clarostat
Mfg. Co., 88 NLRB 723 fn. 2 (1950); and New England
Fish Co., 83 NLRB 656 (1949). Consistent with that
principle, under longstanding Board precedent, the
Board’s general practice in representation cases is “to
presume the regularity and legality of a collective bar-
gaining contract and to refuse to admit evidence on the
question whether or not a majority of employees covered
by such a contract had actually designated the contract-
ing union as their representative at the time the contract
was made.” U.S. Rubber Co., 62 NLRB 795, 797 fn. 1
(1945). Accord: Dale’s Super Valu, Inc., 181 NLRB 698
(1970). The majority status of the union may of course
be challenged, but only through the filing of a timely
charge and the issuance of a complaint in an unfair labor
practice proceeding.1 Id. at 699.

1 We acknowledge that the Board’s decision in Casale Industries,
311 NLRB 951, 953 (1993), cited by the majority, implies that in con-
struction industry cases, the union’s majority status at the time it was
initially recognized may be challenged by the filing of a timely charge
or petition. We note, however, that the Casale decision makes no
mention of the Texas Meat Packers line of cases cited above and pro-
vides no rationale for why the principles set forth in those decisions
were not applied. We note further that because Casale otherwise
stresses that 9(a) bargaining relationships in the construction industry
are entitled to no less protection than 9(a) bargaining relationships in
other industries, the logic of the decision argues against rather than for
By allowing litigation of the unfair labor practice issue
in this proceeding, the majority is acting contrary to the
statutory scheme, which vests the General Counsel with
final authority as to the issuance and prosecution of un-
fair labor practice complaints. See Texas Meat Packers,
supra. It is also disregarding the Board’s statement in
John Deklewa & Sons, 282 NLRB 1375, 1387 fn. 53
(1987), that, with respect to the normal presumptions
flowing from voluntary recognition of a union by an em-
ployer, unions in the construction industry should not be
treated less favorably than those in nonconstruction in-
dustries. We see neither the logic nor the wisdom in our
colleagues’ decision to depart from those principles in
this case. Accordingly, we dissent.

the position taken by the majority here. Thus, to the extent that Casale
can be read to hold that notwithstanding Texas Meat Packers and its
progeny, a construction union’s alleged lack of majority status at the
time of recognition can be litigated in a representation proceeding, we
find it to be of questionable validity and would overrule it.
We additionally express our concern that at the same time they are
citing Casale for the proposition that the union’s majority status may be
challenged through the filing of an election petition, our colleagues
have also, without explanation, called into question Casale’s clear
holding that any such petition must be filed within 6 months of the
employer’s grant of recognition to the union. Abandoning the timeli-
ness requirement compounds the problems created by allowing what is
essentially an unfair labor practice to be litigated in a representation
case. Moreover, since the majority has neither explained its rationale
for abandoning the 6-month requirement nor announced what rule it
would apply in its place, the effect is to leave both practitioners and
Agency employees without guidance as to what legal and procedural
rules apply in this important area.