United States Court of Appeals, District of Columbia Circuit
Road Sprinkler Fitters Local Union No. 669, U.A., AFL-CIO, Petitioner
National Labor Relations Board, Respondent Austin Fire Equipment, LLC, Intervenor
On Petition for Review of an Order of the National Labor Relations Board
Before: Tatel, Brown and Millett, Circuit Judges.
This petition for review was considered on the record from the National Labor Relations Board and on the briefs of the parties. See Fed. R. App. P. 34(a)(2); D.C. Cir. R. 34(j). The Court has accorded the issues full consideration and has determined that they do not warrant a published opinion. See D.C. Cir. R. 36(d). It is
ORDERED and ADJUDGED that the petition for review be denied.
In Staunton Fuel, the National Labor Relations Board established that a contract between a union and an employer can overcome the presumption that a construction-industry bargaining relationship is governed by section 8(f) of the National Labor Relations Act, 29 U.S.C. § 158(f), rather than section 9(a), id. § 159(a), if the contract's language "unequivocally indicates that (1) the union requested recognition as the majority or 9(a) representative of the unit employees; (2) the employer recognized the union as the majority or 9(a) bargaining representative; and (3) the employer's recognition was based on the union's having shown, or having offered to show, evidence of its majority support, " In re Staunton Fuel & Material, Inc., 335 N.L.R.B. 717, 720 (2001). The Board applied the Staunton Fuel test, and the appellant Union does not dispute that it provides the dispositive legal standard, so we assume its applicability here.
Austin Fire Equipment, LLC ("Austin Fire"), a company that installs building sprinklers, and Road Sprinkler Fitters Local Union No. 669, U.A., AFL-CIO ("the Union") entered into a collective bargaining agreement that says the following:
The employer executing this document below has, on the basis of objective and reliable information, confirmed that a clear majority of the sprinkler fitters in its employ are members of, and are represented by Road Sprinkler Fitters Local Union No. 669, U.A., AFL-CIO, for purposes of collective bargaining.
The employer therefore unconditionally acknowledges and confirms that Local Union 669 is the exclusive bargaining representative of its sprinkler fitter employees pursuant to Section 9(a) of the National Labor Relations Act.
Austin Fire Equipment, LLC, 359 N.L.R.B. No. 3 (2012).
The Board found that this language failed to satisfy the third Staunton Fuel requirement. We agree. Although the contract indicates that Austin Fire had evidence that a majority of the relevant employees were "represented by" the Union and were "members of" the Union, Staunton Fuel expressly holds that such evidence is insufficient to satisfy the third requirement:
[W]ith respect to the union's claim of majority support, there is a significant difference between a contractual statement that the union "represents" a majority of union employees-which would be accurate under either an 8(f) or a 9(a) agreement-and a statement to the effect that, for example, the union "has the support" or "has the authorization" of a majority to represent them. Similarly, a provision stating only that a majority of unit employees "are members" of the union would be consistent with a union security obligation under either an 8(f) or a 9(a) relationship and is therefore insufficient to confirm 9(a) status.
Staunton Fuel, 335 N.L.R.B. at 720 (internal citation omitted).
None of the Union's three arguments to the contrary is convincing. First, it cites cases predating Staunton Fuel that found evidence of majority membership or representation sufficient to establish a 9(a) agreement and argues that such evidence remains sufficient. But Staunton Fuel expressly stated that such evidence is no longer adequate and overruled its prior cases that relied on majority membership: "[t]o the extent that any of our . . . cases may be read to imply that an agreement indicating that the union 'represents a majority' or ...