James Julian, Inc.

National Labor Relations Board - Board Decisions

May 6, 1993

310 N.L.R.B. 1247 (N.L.R.B. 1993)

1247
310 NLRB No. 220
JAMES JULIAN, INC.
1 The only issues raised in the request for review were whether the
Regional Director erred in finding that the current contract between
the Employer and the Intervenor (United Steelworkers of America)
was an 8(f) contract and, therefore, did not bar processing of the in-
stant petition; and whether the Regional Director erred in retro-
actively applying the Board’s decision in John Deklewa & Sons, 282
NLRB 1375 (1987). In adopting the Regional Director’s conclusion
with regard to the 8(f) status of the Employer’s current contract with
the Intervenor, the Board does not find it necessary to determine the
correctness of the Regional Director’s additional finding that the pre-
1970 project agreements were also 8(f) agreements.
Even if those project agreements were reached pursuant to Sec.
9(a), it has not been established that any presumption of continued
majority support which might thereby have been created was appli-
cable to the substantially altered and expanded multistate unit cre-
ated by the subsequent agreements (including the agreement asserted
to be a bar to this petition), which by their terms applied not to spe-
cific projects but to all work performed by the Employer in the spec-
ified geographic area.
James Julian, Inc. and International Union of Oper-
ating Engineers, Locals 37 and 77, AFL–CIO,
Petitioner. Case 5–RC–13826
May 6, 1993
ORDER DENYING REVIEW
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel, which has considered the Employer’s request for
review of the Regional Director’s Decision and Direc-
tion of Election (pertinent portions are attached). The
request for review is denied as it raises no substantial
issues warranting review. The Employer’s request to
stay the election is also denied as moot.1
APPENDIX
REGIONAL DIRECTOR’S DECISION AND
DIRECTION OF ELECTION
3James Julian, Inc. (the Employer or the Company) is a
Delaware corporation with an office and its principal place
of business in Wilmington, Delaware. The Employer is a
contractor, engaged in the heavy and highway construction
industry, which operates in the States of Maryland, Dela-
ware, and Pennsylvania. For many years, since the early
1960s, the Employer has maintained a collective-bargaining
relationship with the United Steelworkers of America, AFL–
CIO (the Steelworkers or USWA), or with the labor organi-
zations that were predecessors of the USWA. The most re-
cent collective-bargaining agreement is effective for the pe-
riod from April 8, 1991, to February 11, 1994. As described
in this decision, the Employer and the Steelworkers maintain
that the USWA is the 9(a) majority representative of the Em-
ployer’s employees, and therefore this current agreement (In-
tervenor’s Exh. 1) is a bar to the petition filed in this case.
The petition was filed by International Union of Operating
Engineers, Locals 37 and 77, AFL–CIO (the Operating Engi-
neers or IUOE). The petition was filed December 2, 1992,
during the term of the current contract between the Employer
and the USWA. Nonetheless the Operating Engineers assert
the petition is not subject to the ‘‘contract bar’’ rules. Rather,
IUOE asserts that the Steelworkers and the Employer have
had, at most, an 8(f) relationship, in which the Steelworkers
have never established majority status among the Employer’s
employees. Therefore the IUOE argues that the Steelworkers
have never achieved status as the employees’ 9(a) majority
representative, and under the rules of John Deklewa & Sons,
282 NLRB 1375 (1987), its representation petition is timely
filed and the current collective-bargaining agreement does
not bar its petition.
Operating Engineers amended the petition at the hearing,
and all parties agree that the following unit is appropriate for
purposes of collective bargaining:
All full-time and regular part-time field construction
employees including master mechanics and apprentices
employed by the Employer at construction sites located
in the following Maryland counties: Garrett County, Al-
legheny County, Washington County, Frederick County,
Carroll County, Baltimore County, Harford County,
Howard County, Montgomery County, Anne Arundel
County, Prince George’s County, Calvert County,
Charles County, and St. Mary’s County, and Baltimore
City, excluding engineering staff, security personnel,
timekeepers, office clerical employees, guards and su-
pervisors as defined in the Act.
There are approximately 30 employees in this proposed unit.
The parties acknowledged that the Employer’s current collec-
tive-bargaining agreement with the USWA contains the same
job classifications as are listed in the above unit, although
that agreement covers a broader geographic area; specifically,
the current agreement, which the Employer and USWA inter-
pose as a contract bar, covers the Employer’s employees in
the States of Delaware and Maryland. Nevertheless, as noted,
the parties agree that a unit limited to the above-noted Mary-
land counties is appropriate and that an election may be con-
ducted in the narrower unit if the current contract is not
found to be a bar.
The Employer’s Bargaining Relationship with the
Steelworkers and the Predecessors of the Steelworkers
The Employer offered the testimony of Joseph Julian, its
president, and James L. Hoban, its human resource manager,
as witnesses. Joseph Julian has been employed with the
Company since 1958. He is the son of James Julian, the
Company’s founder, and has been involved in various phases
of the Company’s business, including industrial relations an
the negotiation of collective-bargaining agreements, during
that period. Human Resources Manager Hoban has served in
that capacity for approximately 16 years, and has served as
the Employer’s chief labor negotiator in bargaining with the
USWA. Both men testified as to events in which they were
personally involved on behalf of the Employer as well as to
reports made to them by other company representatives
charged with the Company’s legal and personnel affairs. Al-
though portions of their testimony reflect hearsay state-
ments—particularly with respect to events that occurred ap-
proximately 30 years ago—and IUOE objected on this basis,
1248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I find their testimony sufficiently reliable and base my find-
ings on their assertions and statements.
At this time the Employer has two collective-bargaining
agreements with the USWA: the agreement noted above
which is interposed as a contract bar is effective for the
1991–1994 term covering employees in Maryland and Dela-
ware (Intervenor’s Exh. 1) and another agreement, through a
multiemployer bargaining association known as the Pennsyl-
vania Heavy and Highway Contractors Bargaining Associa-
tion (the Pennsylvania Association), covering the Employer’s
operations in the State of Pennsylvania. The latter contract,
through a written extension agreement (Employer’s Exh. 2),
is effective for the period January 1, 1992, through Decem-
ber 31, 1994.
James Julian stated that in the post-World War II period
the predecessor of the USWA was District 50 of the United
Mine Workers of America (UMWA). His testimony reveals
that District 50 split from the UMWA in the 1960s, became
known for a time as the Allied Technical Workers, and that
in 1972 District 50 merged with the Steelworkers. The Em-
ployer was party to collective-bargaining agreements with
these organizations throughout the period of time spanned by
James Julian’s testimony, and this decision will contain ref-
erences to these different labor organizations.
The Reading, Pennsylvania Project, 1961
Julian testified that the Employer was first approached by
District 50 in 1961, while constructing a sewer system in
Reading, Pennsylvania. He explained that District 50 rep-
resentatives met with the Employer seeking a collective-bar-
gaining agreement for that project. The Employer’s policy,
Julian stated, was not to deal with a labor union unless ‘‘we
were satisfied’’ the union represented a majority of employ-
ees on a particular project. After the Employer examined a
list submitted by District 50, and concluded that District 50
did not represent a majority, District 50 filed a representation
petition with the NLRB in Case 4–RC–4616 seeking a unit
of construction employees at the Reading project. However,
no election was ever conducted, as the project came to an
end.
The Downington, Pennsylvania Project, 1961
The Employer started a highway construction project in
Downington, Pennsylvania, at this time and again was ap-
proached by District 50 organizers claiming to represent a
majority of the Employer’s employees on that construction
site. An agreement was made for a check of District 50’s au-
thorization cards—after an earlier agreement for a card check
also involving a different local of the IUOE was cancelled—
and the Employer’s office manager and its legal counsel re-
viewed District 50’s cards. According to Joseph Julian, those
individuals—both of whom are now deceased—verified that
District 50 represented a majority of the Employer’s employ-
ees. Joseph Julian stated that he was in charge of the Em-
ployer’s labor relations at the time, and that he delegated to
the Company’s representatives the task of verifying District
50’s claim of majority status against the Employer’s per-
sonnel and income tax records. As a result, the Employer
signed a recognition agreement with District 50 and estab-
lished its bargaining relationship with that labor union. Julian
testified that the Employer entered into a collective-bar-
gaining agreement with District 50 for this project, although
the particular agreement is not in the record.
As an apparent consequence of the Employer’s granting
recognition to District 50, Local 542 of the IUOE filed a pe-
tition with the Board in NLRB Case 4–RC–4688. The Re-
gional Director issued a decision in that case in 1961, direct-
ing an election in two bargaining units, including the
Downington Bypass project where the Employer had recog-
nized District 50. The record fails to reveal if an election
was ever conducted among the employees at the Downington
Bypass construction site. Copies of records of the Board con-
cerning these two representation cases, offered in evidence
by the Employer, suggest—but do not show—that both cases
were dismissed without elections ever being conducted.
The Delaware Turnpike Project, 1961
Julian further testified that the Employer secured a con-
struction contract to build a portion of Interstate 95-Delaware
Turnpike in this 1961–1962 period. Employees who worked
for the Employer at the Downington Bypass site were hired
for the Interstate 95-Delaware Turnpike project, which
opened in August 1962, although the precise number of em-
ployees is not shown by the record. Julian stated that District
50 representatives approached the Employer, asking if the
Employer ‘‘would engage them in a contract’’ and
‘‘represent[ing] they had the cards signed.’’ (Tr. 39.) Julian,
who was the Employer’s labor relations spokesman, reiter-
ated the Employer’s policy of requiring a demonstration of
the Union’s majority status; he also noted that some employ-
ees expressed their support for continued representation by
District 50 in view of their involvement with the pension and
health benefits obtained as a result of the Employer’s collec-
tive-bargaining relationship with District 50 at the
Downington Bypass. Julian delegated to the office manager
the task of verifying District 50’s claim, and Julian testified
that ‘‘to the best of my knowledge that evidence was sup-
ported.’’ He added that the office manager was instructed to
verify the signatures on the authorization cards against W-2
tax forms, and that the office manager subsequently con-
firmed the authenticity of the cards and District 50’s majority
status.
The Employer executed a recognition agreement with Dis-
trict 50 dated July 26, 1962, recognizing that union as bar-
gaining agent for its hourly paid construction employees. The
agreement also committed the Employer, 10 days after its
signing, to ‘‘enter into negotiations for the purpose of con-
summating a prehire collective-bargaining agreement with
District 50, United Mine Workers of America; relating only
to Delaware Highway Contract No. 7002.’’ Addressing the
‘‘pre-hire’’ language of the recognition agreement, which he
characterized as ‘‘boilerplate,’’ Julian testified that the em-
ployees were actually employed at the time the recognition
agreement was signed, and he added that ‘‘I don’t think we
signed a pre-hire, I don’t recall, but I think we went directly
into a contract.’’ (Tr. 42.) The Employer was unable to lo-
cate a copy of a collective-bargaining agreement for this
project, although Julian stated ‘‘there is no doubt whatso-
ever’’ a collective-bargaining agreement was executed.
1249JAMES JULIAN, INC.
The Pottstown, Pennsylvania Project, 1962
Julian also testified about another contract which the Em-
ployer obtained, building a highway project known as the
Pottstown Bypass in Pennsylvania. The Employer began this
project as the Downington Bypass work was concluding, and
Julian testified that the Employer was again approached by
District 50 with ‘‘a request for a contract project agree-
ment.’’ (Tr. 6.) Julian stated the Employer again conducted
a card check, verifying the union’s cards, and as a result the
Employer and District 50 signed a recognition agreement on
September 24, 1962. That agreement also granted recognition
to District 50 as exclusive bargaining agent for non-
supervisory construction employees and committed the Em-
ployer to enter negotiations ‘‘for the purpose of consum-
mating a collective bargaining agreement with District 50
. . . . Relating only to Pa. Dept. of Highways, Contract L.R.
779(4).’’
As a result of the recognition agreement, the Employer
and District 50 negotiated a collective-bargaining agreement
dated October 3, 1962. (E. Exh. 7.) The agreement provides
that it ‘‘applies only to heavy and highway construction per-
form on Project 779(4) with the Pa. Dept. of Highways.’’
The agreement contains a union-security article, Article XI.
That provision, as to employees who were not members of
District 50 on the effective date of the agreement, required
nonmembers ‘‘on the eighth day following the effective date
of this Agreement become and remain members in good
standing’’ as a condition of employment; employees hired
after the effective date of the agreement, as a condition of
employment, ‘‘shall on the eighth day following the begin-
ning of such employment become and remain members in
good standing in the Union.’’ Julian did not recall the num-
ber of employees at the Contract 779(4) project, character-
izing it as a ‘‘sizeable’’ job not as large as the Downington
project.
The Employer Joins the Pennsylvania Association, 1963
Thereafter, in August 1963, the Employer became a mem-
ber of the Pennsylvania Association and authorized that mul-
tiemployer association to bargain with District 50 on the Em-
ployer’s behalf. (E. Exh. 8.) That authorization included the
obligation on the part of the Employer to assume and be-
come party to the existing multiemployer collective-bargain-
ing agreement between District 50 and the Pennsylvania As-
sociation, and by letter dated September 4, 1963, District 50
sent copies of that agreement, ‘‘covering work done in the
State of Pennsylvania.’’ Julian testified that at the time the
majority of the Employer’s work force was employed on the
Contract 779(4) project, in Pennsylvania, on the Pottstown
Bypass construction site. Julian testified that a copy of the
collective-bargaining agreement referenced in the September
4, 1963 letter could not be located in the Employer’s records.
The Interstate 95 Project, 1963
At this same time, as the Employer’s work on the Inter-
state 95-Delaware Turnpike project was ending, the Em-
ployer secured another construction contract for a different
portion of the Delaware Turnpike. A majority of the Employ-
er’s employees from the earlier Delaware Turnpike project
continued to work for the Employer on this new site, near
Wilmington, Delaware, and Julian testified the Employer
again recognized District 50 following verification of author-
ization cards by company personnel. He stated that the Em-
ployer signed a project agreement with District 50 for this
site, and noted as well that the Employer and its employees
were developing ‘‘a history’’ of involvement with District 50
and the pension and health benefits that came with continued
representation by that labor union.
The Boyertown, Pennsylvania Project
As a member of the Pennsylvania Association, the Em-
ployer obtained a highway construction contract at the same
time its employees were also engaged in the Interstate 95
Project near Wilmington. Julian noted that the Employer
shifted personnel between these locations, resulting in em-
ployees being covered by the multiemployer contract with
District 65 through the Pennsylvania Association and then by
the specific project agreement covering employees working
on the Interstate highway job near Wilmington.
The Interstate 95 Projects in Harford and Cecil
Counties of Maryland, 1970
Julian also testified that the Employer obtained construc-
tion contracts for work on Interstate 95 sections located in
Harford and Cecil Counties of Maryland. In dealing with
District 50, he testified, ‘‘specific project agreements’’ were
executed for the distinct construction contracts which the
Employer performed. Thus the record contains collective-bar-
gaining agreements entered June 1, 1970, for Interstate 95
Contract sections NE 350, NE 351, and NE 352, and Con-
tract sections NE 353, NE 354, and NE 355, all in Harford
County, Maryland, and a collective-bargaining agreement en-
tered October 12, 1970, for Interstate 95 Contract sections
NE 367 and NE 368, located in Cecil County, Maryland.
(Employer’s Exhs. 10 and 11.) Each of these agreements
specifies that it applies ‘‘only to work performed under’’ the
specific construction contracts in those Maryland counties.
The union-security clause contained in the collective-bargain-
ing agreement (E. Exh. 10) requires ‘‘as a condition of em-
ployment’’ that employees who are not members of District
50 ‘‘shall on the eighth day following the effective or execu-
tion date . . . become and remain members in good stand-
ing,’’ and that newly hired employees ‘‘shall on the eighth
day following the beginning of such employment become
and remain members in good standing in the Union.’’ Julian
testified these contracts were a result of the ‘‘fifth or sixth
time’’ the Company’s policy of verifying District 50’s claim
of majority status was utilized, and after ‘‘verification’’ the
Employer executed these project agreements. He noted that
by this time the Employer’s work force had expanded, and
that ‘‘[t]he majority of our work force was in Delaware and
Maryland was represented by District 50.’’ (Tr. 57.) The
record does not show when any of these highway construc-
tion projects were completed.
The First Maryland-Delaware Collective-Bargaining
Agreement, 1972 to 1974
Julian stated that the first multilocation collective-bargain-
ing agreement encompassing all the work performed by the
Employer in the States of Maryland and Delaware was en-
tered on June 5, 1972, for the period to December 31, 1974.
(E. Exh. 12.) By this time District 50 was affiliated with the
1250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Allied and Technical Workers Union (ATW). Julian noted
that the practice of executing project-specific collective-bar-
gaining agreements with District 50 was becoming adminis-
tratively inefficient, and that the Employer entered into a sin-
gle collective-bargaining agreement in order to coordinate its
relationship with District 50. Julian explained that the reason
for this alteration of the Company’s policy was because by
1972 the Employer had signed project agreements with Dis-
trict 50 throughout a 10-year period, and that the Employer
and District 50 were establishing a history with one another
(Tr. 62–63). He was not able to recall which, if any, of the
Maryland or Delaware project agreements were in effect,
however, as of June 1972, when the first multilocatian col-
lective-bargaining agreement was signed.
There is no evidence that a card check—or any other dem-
onstration of District 50’s majority status—was conducted in
the time period after the 1970 project agreements (Employ-
er’s Exhs. 10 and 11) were signed and before the June 5,
1972 multistate agreement was executed. Moreover, after the
June 1972 agreement was signed the Employer did not con-
duct any card checks to verify the majority status of the
USWA; rather, according to Julian, the Employer stopped the
practice because ‘‘it was obvious at that point in time that
the majority of our employees were represented by and elect-
ed to be represented by the United Steel Workers.’’ (Tr. 91.)
As discussed below, since 1972 the Employer has entered
into a series of multistate collective-bargaining agreements.
Julian added that when these statewide collective-bargaining
agreements expired, the Employer regarded itself obligated to
continue to negotiate with the ATW for successor contracts,
and did so ‘‘because we considered it a contract with the ma-
jority of our employees who had elected to be with the
United Steelworkers and the ATW.’’ (Tr. 63.) The 1972–
1974 contract refers, by its terms, to all work performed by
the Employer in the States of Maryland and Delaware. The
union-security language of this contract, as in the project
agreements summarized above, contains the same obligation
for nonmembers to become members ‘‘on the eighth day fol-
lowing the effective or execution date of the Agreement,’’
and that newly hired employees had a similar obligation, ‘‘on
the eighth day following the beginning of such employment
become and remain members in good standing of the
Union.’’
The record shows that some time during the term of the
1972–1974 collective-bargaining agreement, and in acknowl-
edgement of the fact that District 50 merged with the USWA
on or about August 1972, the Employer and the USWA
signed an amendment to their collective-bargaining agree-
ment. The amendment substitutes USWA as the ‘‘contracting
party’’ in the agreement; provides for the transmittal of dues
and fees to USWA; and notes that the 1972–1974 agreement
otherwise remains in full force and effect ‘‘according to its
terms.’’ Thomas Jones, a staff representative with the
USWA, testified that the merger of USWA and District 50
resulted in the latter being designated as USWA Local
15253, with that Local continuing to be recognized as the
successor of District 50.
After the 1972–1974 collective-bargaining agreement, the
Employer entered into successor contracts covering the work
performed in Maryland and Delaware. The record does not
disclose the location of any work performed by the Employer
under these agreements, the dates of any projects, nor the
number of employees involved. These agreements were in ef-
fect for the following periods:
January 1, 1975 to December 31, 1976. (E. Exh. 13.)
The agreement is with the United Steelworkers, and
contains, at Article XI, the same eight-day union secu-
rity obligation for employees.
January 1, 1977 to December 31, 1978. (E. Exh. 14.)
Also with the Steelworkers, the agreement at Article XI
has the same eight-day union security obligation for
employees.
Extension Agreement, extending the above-noted col-
lective-bargaining agreement to February 28, 1979. (E.
Exh. 15.)
January 1, 1979 to December 31, 1980. (E. Exh. 16.)
The same eight-day unio- security obligation is con-
tained at Article XI.
January 1, 1981 to December 31, 1982. (E. Exh. 17.)
The same eight-day union security obligation is found
at Article XI.
Extension Agreement, extending the above-noted col-
lective-bargaining agreement to February 11, 1985.
(Employer’s Exh. 20.)
Amended Collective-Bargaining Agreement, extend-
ing the two collective-bargaining agreements noted
above to February 11, 1988. (E. Exh. 18.) The same
eight-day union-security obligation is repeated at Arti-
cle XI.
Supplemental Collective-bargaining Agreement, ef-
fective February 11, 1988 to February 11, 1991. (E.
Exh. 19.) Article XI contains the same eight-day union-
security obligation.
With respect to these collective-bargaining agreements for
the Maryland-Delaware area, Julian asserted that the Em-
ployer has maintained an agreement with the USWA—
through complete agreements or extension agreements—at all
times since 1972 to 1991, and at no time was there a ‘‘gap’’
between the agreements. He testified that health and welfare
fund contributions have been paid for all covered employees
continually since 1961, and that union dues have also been
deducted for hourly paid employees since 1961 and paid to
the USWA (or its predecessors). During this period, through
the contract expiring in 1991, Julian also testified that the
Employer regarded itself as obligated to bargain with the
USWA. (Tr. 74.) He noted that when the contract expiring
February 11, 1991, reached its termination date, there was a
period of time when the Employer did not reach a successor
contract with the USWA; however, he added, the Employer
sussequently determined that it had a continuing duty to bar-
gain with the USWA. As noted above, the current collective-
bargaining agreement applicable to the employees in the
Delaware-Maryland area (Intervenor’s Exh. 1) is effective for
the period April 8, 1991, to February 11, 1994. That agree-
ment, like the other agreements summarized above, contains
at Article XI the same 8-day union-security language found
in all the preceding collective-bargaining agreements.
None of the collective-bargaining agreements or recogni-
tion agreements in this record contain any statement or other
expression that the USWA or any of the predecessor labor
unions represented a majority of the Employer’s employees
in a collective-bargaining unit.
1251JAMES JULIAN, INC.
The 1991 Negotiations Between the Employer
and USWA
In response to questions from the USWA’s representative
at the hearing, Julian testified that in early 1991, during ne-
gotiation of the current collective-bargaining agreement, dis-
cussions took place regarding the USWA’s majority status
and the necessity for a card check. Julian testified that the
subject was initiated by Tom Jones, the USWA’s representa-
tive, and that the Employer answered this point by asserting,
‘‘[f]ine, let’s do it correctly so that there is no question about
it.’’ Thomas Hoban, who chaired the Employer’s team in
those negotiations, added that Jones raised the subject of a
card check ‘‘a couple of times,’’ including the final bar-
gaining session, as a condition to settle their contract nego-
tiations. Hoban attributed Jones’ position to concern about
the Board’s Deklewa decision (Tr. 126), to which Hoban re-
plied there was no concern on the Employer’s part. Indeed,
Hoban testified he ‘‘had no doubt of their [USWA’s] major-
ity status as representative of our employees,’’ (Tr. 119),
based on Hoban’s familiarity with the employees and his
knowledge of the personnel records showing ‘‘full support
and cards from all of our employees.’’ (Tr. 121.) Hoban gave
Jones such an assurance in negotiations, stating: ‘‘I re-
sponded to him that I had no question that they did, I agreed
that they did represent the majority of our employees and
that I would do a card check without any question because
that was the fact of the matter, that they represented the em-
ployees.’’ (Tr. 122.) Hoban stated that he actually agreed to
such a card check in April 1991. Hoban added that the
USWA raised the subject of conducting a card check ‘‘on
one occasion, possibly two,’’ after the negotiation of the
1991–1994 contract. No card check was ever conducted,
however, before the petition was filed in this case.
Addressing this same issue, the USWA called Thomas
Jones as a witness. Jones testified that he participated in the
1991 contract negotiations with the Employer. He added to
Hoban’s account of the card-check issue only the assertion
that the USWA ‘‘never doubted that we area a 9A, we were
the majority group,’’ with respect to the Employer, and that
the subject of a card check was not raised in order to estab-
lish 9(a) status with the Employer. (Tr. 137, 139.) Rather,
Jones testified that the USWA sought a card check from a
relatively large company such as the Employer in order to
be able to influence and gain bargaining leverage in relation
to some of the other employer-members of the Pennsylvania
Association—those he characterized as under 8(f) rather than
9(a) agreements—to agree to card checks with the USWA.
The Postpetition Card Check
Hoban also testified that a card check was in fact con-
ducted after the petition in this case was filed, although the
precise date of the card check is not revealed by the record.
Thus, in response the hearing officer’s questions, Hoban ex-
plained that he checked authorization cards himself, review-
ing the photocopies of USWA dues-authorization cards main-
tained in the Employer’s files, i.e., authorizations which em-
ployees had previously signed as required by the then-current
agreement’s union-security clause. Hoban testified that
USWA representatives brought to this meeting a box of cards
in the USWA’s possession, which were the second part of
the two-part membership and dues-checkoff authorization
cards presented to employees. He explained that the cards
were compared against a list of employees who were em-
ployed as of April 1991, inasmuch as he agreed to the card
check at that time, and he confirmed the USWA had cards
from a majority of those employees. (Tr. 129.) The record
does not reveal the number of employees employed as of
April 1991, nor the number of cards which Hoban verified
to support USWA’s claim of majority statue. Hoban noted,
however, that he told the USWA representatives he did not
want to participate in a card check ‘‘in relation to the area
covered by the petition.’’ (Tr. 127.)
Nevertheless, Julian stated there was ‘‘absolutely no ques-
tion in my mind’’ that the USWA represented a majority of
the Employer’s employees, based on ‘‘too many negotiations
and too many votes after contracts,’’ as well as 31 years of
collecting dues, health and welfare and pension contributions
for employees represented by the USWA. Moreover, he
added that all the Employer’s current employees have exe-
cuted checkoff authorization cards on behalf of USWA as a
condition of employment under the terms of the current col-
lective-bargaining agreement.
Julian conceded that during the entire course of the Em-
ployer’s bargaining relationship with USWA or its prede-
cessors, the Union’s majority status has never been reviewed
or verified by any independent party unrelated to the Em-
ployer. He also agreed that there has never been a certifi-
cation of any labor union by the Board following a Board-
conducted secret-ballot election.
Positions of the Parties
A. The Employer argues that its collective-bargaining
agreements with the USWA have been premised on the
USWA’s ‘‘clearly established majority support,’’ and that the
current collective-bargaining agreement embodies a 9(a) rela-
tionship with the USWA that bars the IUOE petition. (Br.,
p. 9.) The Employer contends that for a 10-year period, when
confronted with demands for recognition, the Employer rou-
tinely verified the USWA’s majority status through card
checks prior to negotiating collective-bargaining agreements.
Thereafter, the Employer entered into the contract covering
employees in Maryland and Delaware in 1972, and has
‘‘continued to sign statewide agreements, and their current
agreement runs until 1994.’’ (Br., p. 11.) Based on these fac-
tors, the Employer argues, it has presented ‘‘direct evidence’’
of the USWA’s majority status and met its burden of estab-
lishing that a 9(a) relationship exists, citing Island Construc-
tion Co., 135 NLRB 13 (1962), J & R Tile, Inc., 291 NLRB
1034 (1988), and Golden West Electric, 307 NLRB 1494
(1992). Moreover, the Employer maintains, ‘‘additional’’ evi-
dence of the USWA’s majority is found among a combina-
tion of factors, including but not limited to the statements by
Julian, Hoban, and Jones that the USWA was the majority
representative; that the Employer has had dues-checkoff au-
thorizations and fringe benefit authorizations from a majority
of its employees; and has paid union dues and health and
welfare benefits on behalf of all the employees covered by
collective-bargaining agreements since 1961 to the present.
Oil Capital Electric, 308 NLRB 1149 (1992). Accordingly,
the Employer maintains, it has established that USWA is the
9(a) majority representative and the petition is barred by the
current collective-bargaining agreement with USWA.
1252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B. The USWA fully participated in the hearing and argued
that its current collective-bargaining agreement bars IUOE
petition. USWA did not file a posthearing brief.
C. IUOE contends the current Employer-USWA cntract is
not a bar under Deklewa because the USWA and the Em-
ployer have an 8(f) rather than a 9(a) relationship. IUOE ar-
gues that USWA and the Employer have not substantiated
their claim of majority status ‘‘at the time they entered into
an agreement . . . covering the Maryland/Delaware region in
1972.’’ (Br., p. 4.) Citing J & R Tile for the rule that
‘‘[a]bsent a Board-conducted election, the Board will require
positive evidence that the union sought and the Employer ex-
tended recognition to a union as the 9(a) representative of its
employees before concluding that that relationship between
the parties is 9(a) and not 8(f),’’ 291 NLRB at 1036, IUOE
argues that the testimony of Julian and Hoban with respect
to the card checks in the 1960s is hearsay and unreliable, and
in any event the record fails to prove that the USWA had
demonstrated majority status at the time the 1972 collective-
bargaing agreement was entered. IUOE also points to the
record testimony concerning the 1991 negotiations of the
current collective-bargaining contract, in which the USWA
demanded a card check as a condition of reaching agreement,
as well as the fact that no card check was conducted in 1991
nor at any other time since the 1970 USWA-Employer agree-
ments, as further support for its position.
Analysis
In Golden West Electric, 307 NLRB 1494, the Board dis-
cussed the legal standards and the evidence necessary to es-
tablish the existence of a 9(a) relationship in the construction
industry. In Golden West, an employer was a member of a
multiemployer association having a contract with the IBEW
for the 1987–1990 period. In September 1988 a union rep-
resentative presented a recognition agreement and a letter of
assent to the employer’s president, who signed the docu-
ments. The recognition agreement provided that ‘‘The Union
claims, and the Employer acknowledges and agrees, that a
majority of its employees has authorized the Union to rep-
resent them in collective bargaining.’’ The recognition agree-
ment also provided that the Employer ‘‘agrees to recognize
. . . the Union as the exclusive collective bargaining agent
for all employees performing electrical work on all present
and future jobsites within the jurisdiction of the Union.’’ In
addition the union agent presented authorization cards from
two of the three unit employees to the employer, and the
latter’s representatives acknowledged the authenticity of
those cards. Golden West Electric, supra.
Reiterating its holding in Deklewa, that ‘‘the relationship
between a union and a construction industry employer will
be presumed to be governed by Section 8(f) unless the Union
shows it is the 9(a) majority representative of the employees
in question,’’ and that ‘‘the party asserting a 9(a) relationship
in the construction industry has the burden of proving such
relationship exists,’’ the Board explained in Golden West
Electric that this burden could be met ‘‘by showing that a
construction industry employer voluntarily recognized a
union ‘based on a clear showing of majority support among
the unit employees, e.g., a valid card majority.’ [Deklewa] at
1387 fn. 53.’’ The Board added:
Subsequent cases have further explained that a union
can establish voluntary recognition by showing its ex-
press demand for, and an employer’s voluntary grant
of, recognition to the union as bargaining representative
based on a contemporaneous showing of union support
among a majority of employees in an appropriate unit.
Brannan Sand & Gravel Co., 289 NLRB 977, 979–980
(1988); American Thoro-Clean, 283 NLRB 1107,
1108–1109 (1987). Further in J & R Tile, 291 NLRB
1034, 1036 (1988), the Board held that, to establish
voluntary recognition, there must be positive evidence
that a union unequivocally demanded recognition as the
employees’ 9(a) representative and that the employer
unequivocally accepted it as such.
Golden West Electric, supra at 1495. In that case the
Board found evidence of ‘‘a clear intent of the parties . . .
to establish a 9(a) relationship founded on the Union’s ma-
jority status.’’ The Board concluded that the recognition
agreement by its terms unequivocally states that the union
claimed it represented a majority of the employees and the
employer acknowledged this was so. The recognition agree-
ment, and the testimony of the employer’s owner, therefore
demonstrated that both the union and the employer ‘‘were in
accord’’ that the union was seeking recognition as the unit
employees’ majority representative and that the Employer
was granting the union recognition as such. Moreover, the
Board pointed out, the union was ‘‘cognizant of the require-
ments for acquiring 9(a) status and, in approaching the Em-
ployer, conducted itself accordingly.’’ Supra at 1495.
In J & R Tile, 291 NLRB at 1035, the Board found insuf-
ficient evidence to establish a 9(a) relationship. In that case
a company was a member of a multiemployer association
and party to a collective-bargaining agreement with the
union; all five unit employees were union members and the
contract provided for pension and health and welfare benefits
to be paid to a union-sponsored fund on the employees’ be-
half. The employer purchased all the assets and business of
the company, hired all the five unit employees, and the
Board found the employer as a successor of the prior com-
pany. Thereafter the employer was approached by the union
to sign the existing multiemployer contract. Although the
union representative did not present authorization cards from
the unit employees, the union’s agent stated that all the unit
employees were union members and the agent testified that
both the union and the employer knew all the unit employees
were members. Moreover, the employer’s owner—who was
himself a union member—believed that all the employees
were union members, based on his having worked with those
employees for nearly 20 years.
As a threshold matter, the Board noted that the availability
of 8(f) agreements in the construction industry ‘‘renders am-
biguous’’ a union’s demand to execute a collective-bar-
gaining agreement, and as a result ‘‘an employer in the
ccnstruction industry may not be certain whether a union, in
requesting recognition or presenting a collective-bargaining
agreement for execution, is seeking an 8(f) or a 9(a) relation-
ship.’’ The ‘‘ambiguity is exacerbated in the context of suc-
cessive collective-bargaining agreements when the employer
had previously established an 8(f) relationship with the
union.’’ J & R Tile, 291 NLRB at 1036. Thus the Board stat-
ed, ‘‘regardless of whether the contract in dispute is an initial
1253JAMES JULIAN, INC.
or successive collective-bargaining agreement, absent a
Board-conducted election, the Board will require positive
evidence that the union sought and the employer extended
recognition to a union as the 9(a) representative of its em-
ployees before concluding that the relationship between the
parties is 9(a) and not 8(f).’’ Id.
The Board then concluded that neither the predecessor nor
the successor employer in J & R Tile had a 9(a) relationship.
The Board found insufficient evidence of a 9(a) relationship
as to the predecessor, because there was no evidence the col-
lective-bargaining agreement was entered on the basis of a
demonstrated showing of the union’s majority. Additionally,
the Board determined that the fact the unit employees were
union members covered by the collective-bargaining agree-
ment did not establish 9(a) status. Similarly the Board found
there was no 9(a) relationship as to the successor employer.
In so finding, the Board stated it was ‘‘not dispositive’’ of
the status of the collective-bargaining agreement that all the
unit employees are union members, ‘‘or that an employer has
personal knowledge of its employees’ union membership.’’
Rather, the Board concluded, the ‘‘Union never expressly
stated that it desired to be the 9(a) representative as opposed
to the 8(f) representative, and the Employer did not expressly
designate the Union as the 9(a) representative.’’ Therefore, in
the absence of evidence showing that the Union ‘‘clearly and
unequivocally demanded recognition as the 9(a) representa-
tive of the Employer’s employees,’’ the Board found an 8(f)
relationship which did not bar a representation petition. J &
R Tile, 291 NLRB at 1037.
Applying this test to the facts of the case, I must find that
the Employer and USWA have not clearly and unequivocally
demonstrated a 9(a) relationship. Therefore, I find the current
collective-bargaining agreement is not a bar to the IUOE pe-
tition and I shall direct an election among the employees in
the unit.
The Bargaining Relationship: 1961–1970
The record shows that at the inception of the relationship
between the Employer and District 50, in the 1960s, through
and including the parties’ 1970 collective-bargaining agree-
ments, District 50 sought to organize and represent employ-
ees on specific construction projects. The Employer recog-
nized District 50 solely on that basis at the Downington,
Delaware Turnpike, Pottstown, Boyertown, Interstate 95-
Delaware and Interstate 95-Maryland projects. Julian testified
and the record shows that recognition was granted to District
50 at those project sites only after a card check by company
managers verified District 50’s claim of majority status at
those specific sites. Nevertheless, and despite the record testi-
mony establishing that card checks verifying District 50’s
majority status were conducted, the evidence is inconclusive
as to whether District 50 and the Employer established—or
intended to establish—9(a) relationships at those construction
sites through the 1970s.
The evidence in the record as to this period fails to estab-
lish that the parties intended to establish a 9(a) relation. The
recognition agreements entered in this period (E. Exhs. 5 and
6) do not contain any aknowledgement of District 50’s ma-
jority status. The recognition agreement for the Delaware
Turnpike project by its terms, commits the Employer and
District 50 to negotiate a ‘‘pre-hire’’ collective-bargaining
agreement, and both recognition agreements are expressly
limited only to the specific highway construction projects. A
copy of the resultant collective-bargaining agreement for the
Delaware Turnpike project could not be located for this hear-
ing, whereas the collective-bargaining agreement negotiated
for the Pottstown, Pennsylvania project is applicable only to
that particular location. This latter contract (E. Exh. 7) does
not contain any acknowledgement of District 50’s majority
status among the employees at that site. Similarly, the Em-
ployer’s grant of bargaining authority to the Pennsylvania
Association does not contain any statement with respect to
District 50’s majority status among employees in Pennsyl-
vania, Delaware, or Maryland, and a copy of the collective-
bargaining agreement resulting from the Employer’s affili-
ation with the Pennsylvania Association also could not be lo-
cated for this hearing. These documents do not show the Em-
ployer and District 50 intended to create 9(a) agreements.
The remaining collective-bargaining agreements for this
period are the first covering employees working in Maryland
and Delaware on portions of Interstate 95. These, too, are
project agreements applicable only to employees working at
specific locations on certain highway construction contracts,
and are in effect only for the duration of these projects. The
collective-bargaining agreements in evidence (Employer’s
Exhs. 10 and 11) do not contain any statement or acknowl-
edgement of District 50’s majority status. Although Julian
testified, without contradiction, that these—and all the above-
noted collective-bargaining agreements with District 50—
were entered only after verification of majority status, there
is simply no evidence that the Employer and District 50 in-
tended these agreements to create a 9(a) relationship. At best,
the record supports only the finding that the Employer and
District 50 entered collective-bargaining relationships of lim-
ited duration confined only to the specific construction-
project locations. The agreements, devoid of any acknowl-
edgement that District 50 previously demonstrated majority
status in card checks or that the parties intended to create
9(a) relationships, do not, in my opinion, establish the req-
uisite ‘‘positive’’ evidence that District 50 ‘‘unambiguously’’
demanded and the Employer ‘‘unequivocally’’ granted rec-
ognition as the 9(a) representative. Golden West Electric,
supra at 1495.
The Bargaining Relationship: 1970 to date
The record shows that the last time District 50 dem-
onstrated its majority through card checks was in 1970, at
the times the Employer was engaged in the construction of
portions of Interstate 95 in Maryland and Delaware. As
noted, the collective-bargaining agreements in evidence
which were signed following these care checks are project
agreements, limited by their terms to ‘‘cover work performed
only’’ at specific locations corresponding to highway con-
struction contracts with the State of Maryland in Cecil and
Harford Counties. Julian testified that the Employer’s work
force expanded in this 1970 period, and that ‘‘[t]he majority
of our work force was in Delaware and Maryland was rep-
resented by District 50.’’
The Employer and District 50 entered into a collective-
bargaining agreement in 1972 which significantly altered the
scope and duration of the bargaining relationship between
those parties. Whereas all the prior collective-bargaining
agreements covering employees in Maryland or Delaware
were project agreements, the 1972 collective-bargaining
1254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
agreement dramatically altered the scope of the bargaining
unit, so as to cover all work performed in those two States,
and established a fixed contract term, such that the multistate
agreement would expire on December 31, 1974. There is no
evidence of a card check or other contemporaneous dem-
onstration of majority status in the newly established two-
state unit, nor does the collective-bargaining agreement ac-
knowledge District 50’s majority status. There is no evidence
that District 50 expressly demanded recognition as the 9(a)
representative of the employees in this significantly broader,
two-state bargaining unit, and no evidence that the Employer
unequivocally granted recognition to District 50 as the 9(a)
representative. Consequently, as of the time the Employer
and District 50 entered into the 1972 collective-bargaining
agreement, I find there is insufficient ‘‘positive’’ evidence
that District 50 sought and the Employer unequivocally
granted recognition to District 50 as the employees’ 9(a) rep-
resentative. As there is no evidence of a card check or other
demonstration of District 50’s (or USWA’s) majority at any-
time after 1970, I find that the 1972 agreement, and all of
the successor collective-bargaining agreements, are 8(f) rath-
er than 9(a) agreements. I conclude, therefore, that the cur-
rent USWA-Employer collective-bargaining agreement does
not bar the IUOE petition in this case and I shall direct an
election among the employees in the stipulated unit.
Although the Employer strenuously argues that District 50
and its successor, USWA, are the majority representative of
the employees, I conclude that neither the Employer nor
USWA have been able to meet their burden of proof, by the
‘‘positive evidence’’ standard required under J & R Tile and
Golden West Electric, of a 9(a) relationship. Although Julian
and Hoban testified that a majority of the employees are, to
their personal knowledge, members of USWA, and that dur-
ing the course of the Employer’s bargaining relationship con-
tributions have been made to District 50-USWA sponsored
pension and health and welfare funds on behalf of all em-
ployees covered by collective-bargaining agreements, the
Board has made clear in J & R Tile and Golden West Elec-
tric that such evidence does not prove 9(a) status. Indeed, as
noted above in J & R Tile, the fact ‘‘that employees are
union members, or that an employer has personal knowledge
of its employees’ union membership [even in the absence of
a union-security obligation], is not dispositive of the status
of the collective-bargaining agreement.’’ 291 NLRB at 1037.
Accord: MK-Ferguson Co., 296 NLRB 776, 781 (1989);
McLean County Roofing, 290 NLRB 685, 686 (1988). Rath-
er, as stated in J & R Tile and as the record evidence in this
proceeding shows, ‘‘The Union never expressly stated that it
desired to be the 9(a) representative as opposed to the 8(f)
representative, and the Employer did not expressly designate
the Union as the 9(a) representative.’’ Id. Moreover, the
record shows that in the negotiation of the current agreement,
in 1991, the Employer and the USWA were cognizant of the
requirements to establish a 9(a) relationship but failed to
conduct a card check, seek a Board-conducted election, or
otherwise take the steps needed to prove 9(a) status. In these
circumstances, and with due regard to the Employer’s plea
that its ‘‘historically stable’’ 30-year bargaining relationship
is unjustifiably disrupted if the petition is not dismisssd, I
find that the Employer and USWA have not met their burden
under J & R Tile and Golden West Electric and have not
proved a 9(a) relationship.
I find that the Employer and USWA have not established
that the pre-1972 project agreements were intended to be, or
ever became, 9(a) agreements even though card checks were
conducted. I also find that the last demonstration of District
50’s majority occurred contemporaneously with the execution
of specific project agreements in 1970. When the Employer
and District 50 executed their 1972 collective-bargaining
agreement, they abandoned their practice of negotiating
project agreements. Instead, I find they created a new
multistate bargaining unit covering all employees working on
projects in Delaware and Maryland, but that they did so
without any contemporaneous demonstration of District 50’s
majority status. Although cognizant of the Deklewa decision
and the need for a card check to demonstrate majority status
in April 1991, no card check was conducted at that time or
at any time until after IUOE filed its petition in this case.
Accordingly, in the absence of positive evidence showing
that the 1972 agreement and all succeeding collective-bar-
gaining agreements were intended to be 9(a) contracts, I find
that the current collective-bargaining agreement does not bar
the petition. John Deklewa & Sons, 282 NLRB at 1377.