Industry News - Construction

Tuesday, February 23, 2016

NLRB: Carpenters/IUPAT: Raymond Interior Systems, Inc., Board Case No. 21-CA-037649 (reported at 355 NLRB No. 209) (D.C. Cir. decided February 5, 2016)



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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