Saylor's, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 2002

338 N.L.R.B. 330 (N.L.R.B. 2002)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 330
Saylor’s, Inc. and Local 67, Operative Plasterers’ and
Cement Masons’ International Association of
The United States and Canada, AFL–CIO, Peti-
tioner and Local 9, International Union of
Bricklayers and Allied Craftworkers, AFL–
CIO, Intervenor. Case 7–RC–22037
September 30, 2002
ORDER DENYING REVIEW
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
The National Labor Relations Board has carefully con-
sidered the Petitioner’s request for review of the Re-
gional Director’s Decision and Order (pertinent portions
of which are attached). The request for review is denied
as it raises no substantial issues warranting review.
The Petitioner’s request for review contends that the
Regional Director erred in finding (1) that a 9(a) relation-
ship was established by the contractual language in the
collective-bargaining agreement between the Employer
and the Intervenor and (2) that the Petitioner’s challenge
to the Intervenor’s 9(a) status, occurring more than 6
months after the Employer’s grant of 9(a) status to the
Intervenor, is untimely. The Regional Director’s find-
ings are correct under existing Board precedent. See
Central Illinois Construction, 335 NLRB 717 (2001);
Pontiac Ceiling & Partition Co., 337 NLRB 120 (2001);
Reichenbach Ceiling & Partition Co., 337 NLRB 125
(2001); and Verkler, Inc., 337 NLRB 128 (2001).1
Our dissenting colleague disagrees with this existing
precedent with regard to both issues. Although as to the
contractual language issue he clearly advocates a reversal
of Central Illinois, he attempts to distinguish existing
precedent as to the timeliness issue. Contrary to his con-
tention, in Pontiac, Reichenbach, and Verkler, the Board
rejected the argument put forth in his dissent—that the
Board should allow a union’s 9(a) status to be challenged
by another union beyond the 6-month period following
its establishment.
Those cases, like the present case, arose out of the na-
tionwide dispute between the International Union of
Bricklayers and Allied Craftworkers, AFL–CIO, and the
Operative Plasterers’ and Cement Masons’ International
Association of the United States and Canada, AFL–CIO.

1 Member Bartlett agrees that, under Board precedent, the agree-
ment here contains language sufficient to establish a 9(a) relationship.
Accordingly, in the absence of a three-member Board majority to re-
consider that precedent, he joins in denying review inasmuch as the
petition was not filed within 6 months after 9(a) recognition was
granted and thus any claim that the Intervenor lacked majority status at
the time of recognition would be untimely. He further notes that the
Petitioner will have the opportunity to file a new petition during the
upcoming 30-day window period between 60 and 90 days prior to
expiration of the current agreement on August 1, 2003.
In Reichenbach and Verkler the Plasterers made the same
argument to the Regional Director and the Board that it
does here, i.e., that the 6-month period should not begin
to run until it had actual notice of the establishment of
the Bricklayers’ 9(a) status, and in Pontiac the Bricklay-
ers made the same argument with regard to the Plaster-
ers’ 9(a) status. The Regional Director squarely rejected
this argument in each case, and the Board denied review
in each case. Accordingly, we find no merit in our col-
league’s contention that those cases do not require that
the petition in this case be dismissed.

MEMBER COWEN, dissenting.
Contrary to the Regional Director, I would find that
the Intervenor, Bricklayers Local 9, has not provided
sufficient evidence to establish that its successive con-
tractual agreements with the Employer create a 9(a) bar-
gaining relationship. Rather, I find that the Intervenor
has only a prehire agreement with the Employer that the
Act specifically sanctions for the construction industry
under Section 8(f). I therefore would process the instant
petition filed by the Petitioner, Local 67, Operative Plas-
terers and Cement Masons, because it raises a question
concerning representation under Section 9(c) of the Act.1
The Intervenor and the Employer in this case have
maintained a bargaining relationship since 1998. Their
most recent collective-bargaining agreement is effective
from June 22, 2000, through August 1, 2003. In both
their initial 1998 contract and the 2000 successor agree-
ment, the Employer and the Intervenor have included
contractual language “acknowledg[ing]” that they have a
9(a) relationship. Thus, these contracts provide, in perti-
nent part, that:

The Union has submitted to the Employer evidence of
majority support, and the Employer is satisfied that the
Union represents a majority of the Employer’s Em-
ployees in the bargaining unit described in the current
collective bargaining agreement between the Union and
the Employer.

Based on the recent decision Central Illinois Construc-
tion, supra, the Regional Director found that the contrac-
tual language of the collective-bargaining agreements
between the Employer and the Intervenor was sufficient
to confer 9(a) status. The Regional Director stressed that
in Central Illinois, the Board stated that a union may
1 John Deklewa & Sons, 282 NLRB 1375, 1377 (1987), enfd. sub
nom. Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988), cert.
denied 488 U.S. 889 (1988), as discussed infra, holds that 8(f) agree-
ments do not bar the processing of valid petitions filed pursuant to
Secs. 9(c) and (e) of the Act. I rely on the Board’s decision in Deklewa
only for purposes of the analysis in this dissent.
338 NLRB No. 35
SAYLOR’S, INC. 331
establish 9(a) status in the construction industry where its
collective-bargaining agreement with the employer:

unequivocally indicates that (1) the union requested
recognition as the majority or Section 9(a) representa-
tive of the unit employees; (2) the employer recognized
the union as the majority or Section 9(a) bargaining
representative; and (3) the employer’s recognition was
based on the union having shown, or having offered to
show, evidence of its majority support. [footnote omit-
ted]

Id. at 720. Because he found that the contractual language
in this case effectively meets all three of these criteria, the
Regional Director concluded that the Intervenor has been
the 9(a) representative of the bargaining unit employees
since it entered into a bargaining relationship with the Em-
ployer in August 1998. Therefore, he dismissed the instant
petition.
Contrary to the Regional Director’s analysis, I con-
clude that there are only two valid means for creating
9(a) status in the construction industry and they are iden-
tical to the requirements for unions to attain that status
outside the construction industry. In order for unions to
become 9(a) bargaining representatives, I would require
that they demonstrate their majority status either (1)
through certification following a Board-conducted elec-
tion or (2) through voluntary recognition based on the
employer’s card check showing that the union holds ma-
jority status in the bargaining unit.2
In Deklewa, supra at 1377–1378, the Board set forth
four basic tenets governing 8(f) prehire bargaining rela-
tionships for the construction industry:

(1) a collective-bargaining agreement permitted by
Section 8(f) shall be enforced through the mechanics of
Section 8(a)(5) and Section 8(b)(3); (2) such agree-
ments will not bar the processing of valid petitions [for
Board certification] filed pursuant to Section 9(c) and
Section 9(e); (3) in processing such petitions, the ap-
propriate unit normally will be the single employer’s
employees covered by the agreement; and (4) upon the
expiration of such agreements, the signatory union will
enjoy no presumption of majority status, and either
party may repudiate the 8(f) bargaining relationship.

Critically, Deklewa also held, in line with the criteria
for 9(a) status stated above, that there are only two

2 I also accept that an employer’s polling of the unit employees be-
fore initial recognition may be a legitimate vehicle for demonstrating
majority status if the polling is done with proper safeguards for the
employees’ freedom of choice. See Precision Striping, 284 NLRB
1110, 1112 fn. 6 (1987).
means by which a union may elevate an 8(f) bargaining
relationship to 9(a) status with the additional rights and
protections that majority status affords: either through a
Board election or “from voluntary recognition accorded
to the union . . . based on a clear showing of majority
support among the unit employees, e.g., a valid card ma-
jority.” Id. at 1387 fn. 53. Furthermore, there is a pre-
sumption that a bargaining relationship in the construc-
tion industry is 8(f) rather than 9(a), and the burden of
proving a 9(a) relationship rests on the party seeking the
benefits of majority status.3
It is undisputed that a union holds 9(a) status if it pre-
vails in a Board election and receives certification as the
unit employees’ exclusive bargaining representative.
This method of attaining majority status also best serves
to protect the interest of the employees’ free choice to
determine their bargaining representative.
Controversy may arise, however, when the party as-
serting the 9(a) relationship seeks to establish it by dem-
onstrating, as permitted by the second test in Deklewa,
that the employer voluntarily granted the union majority
recognition. In NLRB v. Goodless Electric Co.,4 the
court examined the Board’s then-existing requirements
for transforming an 8(f) relationship into 9(a) status and
found that the Board had been applying a three-pronged
test for 9(a) voluntary recognition:

(1) the union must expressly and unequivocally de-
mand recognition as the employees’ Section 9(a) repre-
sentative; (2) the employer must expressly and un-
equivocally grant the requested recognition; and (3)
that demand and recognition must be based on a con-
temporaneous showing that the union enjoys majority
support of the employers’ workforce. [Emphasis in
original.]

I would adopt the Goodless Electric criteria for obtain-
ing 9(a) status with the additional requirement that, as
stated, the “contemporaneous showing” of majority
status may emanate only from a card check that the em-
ployer has conducted. As the Fourth Circuit correctly
pointed out in American Automatic Sprinkler Systems:5

The Board’s willingness to credit the employer’s vol-
untary recognition absent any contemporaneous show-
ing of majority support would reduce this time-honored
alternative to a Board-certified election to a hollow
form which, though providing the contracting parties
stability and repose, would offer scant protection of the
employee free choice that is a central aim of the Act.
3 H.Y. Floors & Gameline Painting, 331 NLRB 304 (2000).
4 124 F.3d 322, 328–329 (1st Cir. 1997).
5 163 F.2d 209, 222 (4th Cir. 1998).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 332
Cf. Higdon, 434 U.S. 335, 349 (651) (“Privileging un-
ions and employers to execute and observe pre-hire
agreements in an effort to accommodate the special cir-
cumstances in the construction industry may have
greatly convenienced unions and employers, but in no
sense can it be portrayed as an expression of the em-
ployees’ organizational wishes.”).

To summarize my view, the party asserting 9(a) status
has the burden either to present a Board certification or
evidence of a contemporaneous card majority to establish
9(a) status; otherwise, I would find that the bargaining
relationship falls within 8(f), as here.
By contrast, the Regional Director found in this case,
based merely on incantational language in the Interve-
nor’s collective-bargaining agreement with the Em-
ployer, that the contractual parties had intended to estab-
lish a 9(a) relationship and that no further analysis was
necessary. I find that the Regional Director erred in not
imposing the requirement set forth in both Goodless
Electric and American Automatic Sprinkler Systems that
the Intervenor actually demonstrate its majority status as
of the time that the Employer granted it recognition.
Based on its failure to make this showing, the Intervenor
has not met the burden of establishing 9(a) status.
Thus, it is clear that the Intervenor is not the 9(a) bar-
gaining representative of the unit employees. Contrary
to the Regional Director, I further conclude that Section
10(b) of the Act does not preclude the Petitioner from
challenging the Intervenor’s purported 9(a) status. The
10th Circuit in NLRB v. Triple C Maintenance, Inc., 219
F.3d 1147, 1151 (10th Cir. 2000), set forth a two-part test
for determining whether unions representing employees
in the construction industry held 9(a) status based on “(1)
whether the relationship between the union and the em-
ployer was governed by Section 8(f) or Section 9(a), and
(2) whether Section 10(b) precludes the employer from
attacking the formation of a 9(a) relationship.” Specifi-
cally, regarding the 10(b) prong of this test, the court
stated that:

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 construction indus-
try is governed by Section 8(f). Once the party assert-
ing a 9(a) relationship demonstrates that the employer
has recognized the 9(a) status of the union, then the
presumption in favor of Section 8(f) dies and a 9(a) re-
lationship 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 ma-
jority status for the duration of the contract or for a rea-
sonable period. In order to reconcile these two pre-
sumptions, we hold that if a party challenges the un-
ion’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 accor-
dance with the initial Section 8(f) presumption. [Foot-
note omitted.] After a reasonable period of time has
passed since the 9(a) recognition, and in keeping with
the 9(a) presumption of majority support, it is then rea-
sonable 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.

Id. at 1159.6 The Board has consistently held that the bur-
den of proving actual or constructive notice of the operative
facts that is sufficient to begin the running of the 10(b) pe-
riod “rests squarely” on the party asserting it.7 Critically, as
the court stressed in Triple C Maintenance, the limitations
period “does not begin to run until the parties have notice of
the alleged . . . Section 9(a) recognition.” Id. at fn. 7.
Application of these principles to the present case
leads to a different result than the Regional Director
reached. In finding that the Intervenor had 9(a) status,
the Regional Director, as stated, relied substantially on
the Board’s decision in Central Illinois Construction,8
which expressly adopted the 10th Circuit’s criteria for
the establishment of 9(a) relationships in the construction
industry set forth in Triple C Maintenance and NLRB v.
Oklahoma Installation Co., 219 F.3d 1160 (10th Cir.
2000). Yet, the Regional Director ignored the Tenth
Circuit’s holding in Triple C Maintenance that the union
asserting 9(a) status continues to have the burden to
prove its majority support if there is a challenge “within
a reasonable period of time from the date of recognition.”
219 F.3d at 1159.9 As stated, the burden rested on the

6 The court’s two-part test for resolving this issue is consistent with
the Fourth Circuit’s analysis in American Automatic Sprinkler Systems,
which melded the conjunctive criteria there into a single component.
As the court itself stated in Triple C Maintenance, “[a] close reading of
American Automatic Sprinkler reveals that its holding does not contra-
dict ours.” Id.
7 See, e.g., R.G. Burns Electric, 326 NLRB 440, 446 (1998).
8 I was not on the Board when Central Illinois Construction issued,
and I do not pass on the validity of the holding there.
9 The Regional Director instead found that, under Casale Industries,
311 NLRB 951, 952–953 (1993), the limitations period of Sec. 10(b)
would preclude any future challenge to the Intervenor’s purported
majority status. Casale, in my view, is distinguishable from the present
situation. Thus, as the Regional Director pointed out, “[t]he challenge
to 9(a) status in Casale was interposed not by a third party, but by a
participating union that had stipulated to the conduct of a non-Board
SAYLOR’S, INC. 333
Intervenor, as the party asserting the limitations bar in
this case, to establish either actual or constructive notice
of the alleged 9(a) recognition by the Petitioner. The
Intervenor has failed to meet this burden here. In reject-
ing the Intervenor’s 10(b) argument, I note that the re-
cord does not establish that either party to the relevant
collective-bargaining agreement ever gave a copy of the
agreement to the unit employees. The Intervenor, there-
fore, cannot establish that the unit employees it repre-
sents had notice of the asserted 9(a) provision. More-
over, even if the Intervenor did establish that the em-
ployees had such knowledge, this showing would not
necessarily impute constructive notice to the Petitioner,
particularly since it presently lacks any representative
status with respect to these employees.10
Thus, the Intervenor’s argument for finding a 10(b)
limitations bar in the present case rests, at best, on incan-
tational language in its collective-bargaining agreement
with the Employer that remains subject to challenge un-
der Triple C Maintenance. It is well established that the
10(b) limitations period serves as a shield to protect par-
ties from the filing of unfair labor practice charges based
on events occurring more than 6 months before the
charge date.11 I do not believe that Congress also in-
tended this section to become a sword to thwart em-
ployee free choice in the construction industry by barring
attacks, such as the Petitioner’s here, on the legitimacy of
the incumbent’s majority status.12

election that resulted in the grant of 9(a) recognition to the prevailing
union.” By contrast, there is no evidence that the Petitioner had any
knowledge that the Employer and the Intervenor were attempting to
confer 9(a) status when they executed the existing collective-bargaining
agreement. The presumption under 8(f) is that unions representing
construction industry employees do not enjoy majority status. I do not
believe that the 10(b) limitations period should be effectively used as a
vehicle to rebut this presumption. The better view, and the view of the
10th Circuit which the Board said it was adopting in Central Illinois, is
to apply the presumption to a bargaining relationship unless the party
seeking to establish 9(a) status can meet the relevant test set forth
above.
10 See, e.g., Nursing Center of Vineland, 318 NLRB 337, 338
(1995); Adair Standish Corp., 295 NLRB 985, 986 (1989).
11 See, e.g., Koppers Co., 163 NLRB 517 (1967).
12 The Board’s recent decisions in Pontiac Ceiling & Partition Co.,
337 NLRB 120 (2001), Reichenbach Ceiling & Partition Co., 337
NLRB 125 (2001), and Verkler, Inc., 337 NLRB 128 (2001), issued on
December 20, 2001, do not require a contrary result. Those cases did
not address the question of the sufficiency of notice of the alleged 9(a)
relationship in considering the contract bar issue. Under these circum-
stances, these cases cannot stand for the proposition that the Board so
quickly abandoned its clear statement in Central Illinois Construction
that it was adopting the criteria set forth by the Tenth Circuit. Further-
more, the Petitioner has specifically argued in this case that its petition
is not barred due to the absence of evidence that it had knowledge of
the Employer’s and the Intervenor’s intent to establish a 9(a) bargaining
relationship.
For these reasons, I conclude that existing precedent in
Central Illinois Construction does not support dismissal
of the instant petition. Accordingly, I would reverse the
Regional Director and process this petition in order to
provide the employees with the opportunity to decide
whether they wish to be represented by the Petitioner.
APPENDIX
DECISION AND ORDER
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, as amended (the Act), a hearing was held
before a hearing officer of the National Labor Relations Board
(the Board).
Pursuant to the provisions of Section 3(b) of the Act, the
Board has delegated its authority in this proceeding to the un-
dersigned.
Upon the entire record in this proceeding,1 I find:
1. The hearing officer’s rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
2. The Employer is engaged in commerce within the mean-
ing of the Act and it will effectuate the purposes of the Act to
assert jurisdiction herein.2
3. The labor organizations involved herein claim to repre-
sent certain employees of the Employer.3
4. No question affecting commerce exists concerning the
representation of certain employees of the Employer within the
meaning of Section 9(c)(1) and Sections 2(6) and (7) of the
Act.
Plasterers Local 67 (the Petitioner), filed the instant petition
on June 29, 2001, requesting certification of representative in a
bargaining unit comprised of all full-time and regular part-time
plasterers employed by Salyor’s, Inc. (the Employer) working
at and out of its facility; but excluding guards and supervisors
and all other employees as defined in the Act. Bricklayers
Local 9 (the Intervenor), asserts that the Employer is bound to a
9(a) collective-bargaining agreement with the Intervenor effec-
tive from June 22, 2000, through August 1, 2003, covering
plasterers, which bars the instant petition and requires its dis-
missal. The Petitioner does not contest the validity of the col-
1 The Petitioner and Intervenor filed briefs, which were carefully
considered.
2 The Employer did not participate in the hearing held on November
5, 2001, and, therefore, the parties were unable to stipulate to the Em-
ployer's activities in commerce. The uncontroverted record evidence
establishes that the Employer performed between 10–15 jobs as a plas-
tering contractor outside the State of Michigan. The gross revenues to
the Employer from these jobs, all of which were performed in the State
of Ohio, were estimated to be well in excess of $50,000.
3 Since the Employer did not participate in the hearing, testimony
was adduced from both the Petitioner and Intervenor concerning their
labor organization status. The record establishes that both the Peti-
tioner and Intervenor have numerous collective-bargaining relation-
ships and agreements with various employers and multiemployer asso-
ciations throughout the State of Michigan. Both organizations exist for
the purpose of dealing with employers concerning grievances, wages,
hours, and working conditions. Employees participate in both organi-
zations, wherein they elect officers, and both organizations have bylaws
governing their operations.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 334
lective-bargaining agreement, or that the Intervenor has main-
tained a collective-bargaining relationship with the Employer
since approximately August 1998. Instead, the Petitioner con-
tends that despite clear language in the contract establishing the
Intervenor’s 9(a) status, as a third party to the collective-
bargaining agreement it is not foreclosed from challenging the
Intervenor’s majority status by the filing of the instant petition
outside of 6 months from the creation of the collective-
bargaining relationship.
The Employer is a plastering contractor in the construction
industry and is owned by Jess Saylor. The Employer employs
approximately 40–50 plasterers who are covered by the existing
contract. Both the existing and expired contracts contain the
following recognition language:

The Employer which is a Section 9(a) Employer
within the meaning of the National Labor Relations Act,
hereby recognizes and acknowledges that the Union is the
exclusive representative of all of its Employees in the clas-
sifications of work falling within the jurisdiction of the
Union, as defined in Article II of this Agreement, for the
purpose of collective bargaining.
. . . .
The Union has submitted to the Employer evidence of
majority support, and the Employer is satisfied that the
Union represents a majority of the Employer’s Employees
in the bargaining unit described in the current collective
bargaining agreement between the Union and the Em-
ployer.
The Employer therefore voluntarily agrees to recog-
nize the Union as the exclusive bargaining representative
of all Employees in the contractually described bargaining
unit on all present and future jobsites within the jurisdic-
tion of the Union, unless and until such time the Union
loses its status as the Employees' exclusive representative
as a result of a NLRB election requested by the Employ-
ees.
The Employer and the Union acknowledge that they
have a 9(a) relationship as defined under the National La-
bor Relations Act and that this Recognition Agreement
confirms the on-going obligation of both parties to engage
in collective bargaining in good faith.

The Intervenor relies entirely upon the foregoing language to
establish that its bargaining relationship is governed by Section
9(a), thereby barring the instant petition that has been filed mid-
term of the existing contract. Showing that a construction in-
dustry employer has granted voluntary recognition under Sec-
tion 9(a) may be accomplished by an examination of either
contractual language standing alone, or surrounding circum-
stances. Proof by way of the former is governed by Central
Illinois Construction, 335 NLRB 717 (2001), in which the
Board expressly adopted the approach taken by the U.S. Court
of Appeals for the 10th Circuit in NLRB v. Triple C Mainte-
nance, Inc., 219 F.3d 1147 (10th Cir. 2000), and NLRB v. Okla-
homa Installation Co., 219 F.3d 1160 (10th Cir. 2000).
In Central Illinois, the Board held that a recognition agree-
ment or contract provision will be independently sufficient to
establish a union’s 9(a) status where the language unequivo-
cally indicates that (1) the union requested recognition as the
majority or 9(a) bargaining representative; (2) the employer
recognized the union as the majority or Section 9(a) representa-
tive; and (3) the employer’s recognition was based upon the
union having shown, or having offered to show, evidence of its
majority support.
Based on the foregoing language, under the standards expli-
cated in Staunton Fuel, the parties have clearly set forth their
intent to create a relationship authorized by Section 9(a) of the
Act. Although the language does not specifically state that the
Intervenor requested recognition, it states that the Employer
granted 9(a) recognition based upon evidence submitted by the
Intervenor, which clearly indicates that the Intervenor requested
recognition from the Employer. Nova Plumbing, 336 NLRB
633 (2001). It also clearly states that the Employer recognized
the Intervenor as the majority representative based on evidence
submitted by the Intervenor to the Employer that the Intervenor
represents a majority of the employees in the unit. Accordingly,
as of August 1998 the Intervenor was the exclusive collective-
bargaining representative of the Employer's employees pursu-
ant to Section 9(a) of the Act.
However, relying on a footnote in H .Y. Floors & Gameline
Painting, 331 NLRB 304 (2000), the Petitioner contends that
since it is a third party to the contract between the Employer
and the Intervenor, the contract should not bar the instant peti-
tion regardless of the limitations contained in Section 10(b) of
the Act. In H.Y. Floors, the Board found that an individual
employee-petitioner, a nonparty to a recognition agreement
between his employer and the union, was not estopped from
challenging 9(a) recognition of the union. Furthermore, the
Board found that the individual had timely challenged the un-
ion’s majority status by filing a decertification petition within 7
weeks of the initial grant of recognition, but in a footnote spe-
cifically did not pass on whether such a representation petition
must be filed within 6 months of the recognition as discussed in
Casale Industries, 311 NLRB 951, 952 fn. 8 (1993).
In Casale, the Board ruled, “if a construction industry em-
ployer extends 9(a) recognition to a union, and six months
elapse without a charge or petition, the Board should not enter-
tain a claim that majority status was lacking at the time of rec-
ognition.” Casale, supra at 953. However, the Board limited
its holding to situations where the parties clearly intended to
create a 9(a) relationship and distinguished cases where there is
no showing that the parties meant to forge a relationship under
9(a). See J & R Tile, 291 NLRB 1034 (1988); Brannon Sand &
Gravel Co., 289 NLRB 977 (1988); American Thoro-Clean,
283 NLRB 1107 (1987). The challenge to 9(a) status in Casale
was interposed not by a third party, but by a participating union
that had stipulated to the conduct of a non-Board election that
resulted in the grant of 9(a) recognition to the prevailing union.
Since the parties clearly intended to create a 9(a) relationship
in the instant case, Casale likewise governs an attack on the
Intervenor’s status. In Casale, 311 NLRB at 953, the Board
noted the Supreme Court’s admonishment in Machinists Local
Lodge 1424 v. NLRB (Bryan Mfg.Co.), 362 U.S. 411 (1960)
that:

SAYLOR’S, INC. 335
In nonconstruction industries, if an employer grants Section 9
recognition to a union and more than 6 months elapse, the
Board will not entertain a claim that majority status was lack-
ing at the time of recognition. A contrary rule would mean
that longstanding relationships would be vulnerable to attack,
and stability in labor relations would be undermined.

Because the Board in John Deklewa & Sons, 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),
ruled that unions in the construction industry should not be
treated less favorably than those in nonconstruction industries,
the Court’s concern for stability of labor relations in long-
standing bargaining relationship is no less applicable to the
instant Employer. More than 3 years has elapsed in the present
case since the grant of 9(a) recognition to the Intervenor. The
identity of the party attacking a long-standing bargaining rela-
tionship hardly minimizes the instability created by an untimely
challenge to the union’s majority status. Yet, the Petitioner
argues that since it was not aware of the 9(a) nature of that
relationship, it should not be subject to any time limitation in
raising a challenge to the Intervenor’s majority status. It is
noteworthy, however, that the Petitioner’s showing of interest
derives from employees who have been covered by successive
collective-bargaining agreements that clearly bestow 9(a) status
on the Intervenor. Obviously, the employees have been well
aware of the Intervenor’s status as the majority representative.
It is inconceivable that employees could have avoided the result
in Casale by authorizing a labor organization other than one
that had participated in the initial election to years later chal-
lenge that incumbent’s 9(a) status. Instead, it appears more
logical to sanction only timely challenges to majority status that
are made within 6 months of recognition, despite any reserva-
tions in H.Y. Floors.
Consequently, I find that the Petitioner’s attack on the Inter-
venor’s 9(a) status is untimely and that the current collective-
bargaining agreement acts as a bar to the instant petition.4
IT IS ORDERED, based on the foregoing and the entire record,
that the petition is dismissed.5

4 In its posthearing brief, the Petitioner contends that even if the in-
stant petition is barred, an election should nevertheless be ordered in a
unit of plasterers that fall outside the geographic coverage of the Inter-
venor’s contract. However, this issue was not litigated at the hearing
and the unit as described by the petition does not encompass such a
request. Furthermore, there is no record evidence that any of the Em-
ployer’s employees currently work outside the geographic confines of
the contract, or that the Petitioner has an adequate showing of interest
limited to any such employees. Consequently, if the Petitioner desires
a unit other than that covered by the Intervenor’s contract, it must file
such a petition commensurate with such a request and supported by the
requisite showing of interest.
5 Under the provisions of the Board’s Rules and Regulations, a re-
quest for review of this Decision and Order may be filed with the Na-
tional Labor Relations Board, addressed to the Executive Secretary,
Franklin Court, 1099 14th Street, N.W., Washington, D.C. 20570. This
request must be received by the Board in Washington by December 11,
2001.