A cautionary tale of woe for our Philadelphia contracting
community that is signatory to an IUPAT agreement and is considering signing
with the Carpenters union to perform drywall installation.
In a published opinion, the court granted in part the
Board’s cross-application for enforcement, and remanded one issue to the Board
for further consideration. In doing so, the court granted in part the
separate petitions for review filed by the Employer, a construction-industry
contractor operating in California, and the Southwest Regional Council of
Carpenters. The court found it unnecessary to reach the question raised
by the Painters Union in a third petition for review.
For many years, the Employer was a party to
collective-bargaining agreements with the Painters Union, the most recent of
which was a pre-hire agreement under Section 8(f) of the Act that covered
drywall employees. In September 2006, the Employer lawfully terminated
that agreement and instead signed a confidential settlement agreement with the
Carpenters Union providing that it would apply the Carpenters’ 2006 master
agreement to drywall employees. That agreement took effect on October
1. On October 2, the Employer told its drywall employees that they needed
to join the Carpenters Union “that day” if they wanted to continue
working. Later that day, after the Carpenters Union secured signed
authorization cards from employees, the Employer signed an agreement
recognizing the Carpenters Union as the majority representative of the
employees under Section 9(a) of the Act. The Painters Union filed a
charge challenging that recognition.
Regarding the October 2 events, the Board found the
Employer unlawfully conditioned continued employment on membership in the
Carpenters Union, and unlawfully assisted the Union in obtaining signed
authorization cards. The Board also found that the Employer unlawfully
recognized the Carpenters Union and applied its 2006 master agreement to the
employees, and, in turn, that the Union unlawfully accepted recognition and
applied the master agreement, all at a time when the Union did not represent an
uncoerced employee majority. Further, the Board found that the Carpenters
Union unlawfully failed to properly inform employees of their Beck
rights to decline union membership and pay agency fees.
The Employer filed a motion for reconsideration, which
the Carpenters Union joined. Among other rulings, the Board rejected the
contention that it needed to decide whether the confidential settlement
agreement the parties reached in September had constituted a valid Section 8(f)
agreement that would not have been invalidated by the subsequent unlawful
conduct. The Board explained that such a finding “would not affect our
determination that [the Employer], on October 2, 2006, unlawfully recognized
the Carpenters as the [Section] 9(a) representative of its drywall finishing
employees.”
On review, the court upheld the Board’s findings that, on
October 2, the Employer and the Carpenters Union violated the Act, holding that
those findings were supported by settled law and the credited evidence.
The court, however, held that the Board’s refusal to address the legality of
the September confidential settlement agreement and its potential status as a
Section 8(f) agreement was error. Discussing cases concerning the general
principle that “when a collective bargaining agreement is not a byproduct of
unfair labor practices and does not otherwise hinder the policies of the Act,
the Board [is] without authority to require [the parties] to desist from giving
effect to the [agreement],” the court determined the issue should be remanded
to the Board for further consideration. Regarding the Painters Union’s
petition for review, the court stated it would not pass on it because its
principal claim—that the Board’s remedy should include alternate benefits
coverage equivalent to that specified in 2006 master agreement that was
incorporated into the September confidential settlement agreement—could be
rendered moot on remand.
The court’s decision is here (link is external).
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