United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 19, 2007
_______________________
Charles R. Fulbruge III
No. 06-60232 Clerk
_______________________
THE STRAND THEATRE OF SHREVEPORT CORPORATION,
Petitioner - Cross-Respondent,
versus
NATIONAL LABOR RELATIONS BOARD,
Respondent - Cross-Respondent.
Petition for Review and Cross Petition for Enforcement
of an Order of the National Labor Relations Board
Before JONES, Chief Judge, and BENAVIDES and STEWART, Circuit
Judges.
EDITH H. JONES, Chief Judge:
The Strand Theatre of Shreveport (“Strand”) petitions for
review of a decision and order of the National Labor Relations
Board (“Board”) concluding that Strand violated § 8(a)(1), (a)(3),
and (a)(5) of the National Labor Relations Act (“NLRA”), 29 U.S.C.
§ 158(a)(1), (a)(3), and (a)(5), by unilaterally terminating its
use of the Union’s hiring hall, refusing to bargain with the Union,
and eliminating the “Regular Employee” position. The Board cross-
petitions for enforcement of its order. Because Strand had a 9(a)
collective-bargaining agreement with Stage Employees Local 298
(“Union”), Strand waived its argument that the Regular Employee was
a statutory supervisor, and the Union did not consent to the
elimination of the Regular Employee position, we DENY Strand’s
petition for review and GRANT enforcement of the Board’s order.
I. BACKGROUND
Strand, a producer of theatrical plays in Shreveport,
Louisiana, since 1925, began using stagehand labor referred by the
Union in 1984 after completing a thorough restoration of the
theater. Beginning in 1993, Strand and the Union entered into
three successive three-year agreements, each of which provided that
“STRAND recognizes LOCAL as the exclusive representative of all
employees performing work covered by this agreement with respect to
wages, hours and working conditions.” The agreement also created
the full-time position of Regular Employee, a position held by
Stephen Palmer.
In 2002, Strand and the Union agreed to successive one-
year extensions of the agreement, the last of which was set to
expire on August 15, 2004. Against a backdrop of Strand’s cost
cutting efforts, the parties began negotiating a successor
agreement on July 22, 2004. That same day Strand placed Palmer,
the Regular Employee, on administrative leave. When negotiations
proved unacceptable to Strand, it announced that it would not enter
into another collective-bargaining agreement with the Union because
a nonunion labor supplier, Athalon Group, would significantly
reduce labor costs. When the agreement ended, Strand eliminated
2
the Regular Employee position, stopped using Union employees, and
began to hire Athalon to staff its theater jobs.
The Union filed unfair labor charges contesting each of
these actions. After a hearing, an Administrative Law Judge
(“ALJ”) found that the relationship between Strand and the Union
had “matured” into a 9(a) relationship; Stephen Palmer was not a
statutory supervisor; the parties did not agree to eliminate the
Regular Employee position; and Strand therefore violated the NLRA.
The Board adopted and affirmed the ALJ’s decision. See 346 NLRB
No. 51 (Feb. 27, 2006). Finding that the record clearly
established a 9(a) relationship, the Board did not rely on the
ALJ’s finding that the parties’ relationship had matured into a
9(a) relationship. The Board otherwise essentially agreed with the
ALJ. Strand now petitions for review of the Board’s order, and the
Board cross-petitions for enforcement of its order.
II. STANDARD OF REVIEW
This court will uphold the Board’s decision “if it is
reasonable and supported by substantial evidence on the record
considered as a whole.” J. Vallery Elec., Inc. v. NLRB, 337 F.3d
446, 450 (5th Cir. 2003) (internal quotation marks and citation
omitted). Our deference to the Board’s expertise extends to its
findings of fact and application of law. Id. Nevertheless, the
court reviews the Board’s legal conclusions, including its
interpretation of a collective-bargaining agreement, de novo. Id.;
3
Brown & Root, Inc. v. NLRB, 333 F.3d 628, 633 (5th Cir. 2003). We
will enforce the Board’s order if its “construction of the statute
is ‘reasonably defensible.’” NLRB v. Superior Prot., Inc.,
401 F.3d 282, 287 (5th Cir.), cert. denied, __ U.S. __, 126 S. Ct.
244 (2005) (quoting NLRB v. Motorola, Inc., 991 F.2d 278, 282 (5th
Cir. 1993)).
III. DISCUSSION
A. Section 9(a) Agreement
Section 9(a) of the NLRA requires employers to bargain
with unions that have been “designated or selected for the purposes
of collective bargaining by the majority of the employees in a unit
appropriate for such purposes.” 29 U.S.C. § 159(a); see also Nova
Plumbing, Inc. v. NLRB, 330 F.3d 531, 533 (D.C. Cir. 2003).
However, the Act treats construction-industry employers differently
with respect to the majority-support requirement. Id. Section
8(f) allows a contractor to sign “pre-hire” agreements with a union
regardless of the union’s majority status. 29 U.S.C. § 158(f);
Nova Plumbing, 330 F.3d at 534; In re Staunton Fuel & Material,
Inc., 335 NLRB 717, 718 (2001). The reason for this limited excep-
tion lies in the unique nature of the construction industry, which
is organized differently because employees frequently work for
multiple employers for short periods of time. See Nova Plumbing,
330 F.3d at 534; Am. Automatic Sprinkler Sys., Inc. v. NLRB,
4
163 F.3d 209, 214 (4th Cir. 1998); NLRB v. Catalytic Indus. Maint.
Co., 964 F.2d 513, 515 n.1 (5th Cir. 1992).
Sections 8(f) and 9(a) also differ in their treatment of
the employer’s bargaining obligation after a contract expires. See
Staunton Fuel, 335 NLRB at 718; see also Nova Plumbing, 330 F.3d at
533. A construction-industry employer may refuse to bargain after
the expiration of an 8(f) agreement because the union never enjoyed
the presumption of majority support. Id. at 534; Am. Automatic
Sprinkler, 163 F.3d at 215. In contrast, a non-construction
employer must continue bargaining with a union after a 9(a)
agreement expires because the union is entitled to a continuing
presumption of majority status. Nova Plumbing, 330 F.3d at 534;
Am. Automatic Sprinkler, 163 F.3d at 214; Staunton Fuel, 335 NLRB
at 718; Barrington Plaza & Tragniew, Inc., 185 NLRB 962, 963
(1970), enforced in part sub nom. NLRB v. Tragniew, Inc., 470 F.2d
669 (9th Cir. 1972). This presumption can be rebutted by the
employer with evidence that the union has lost majority support.
See Staunton Fuel, 335 NLRB at 718; see also Tri-State Health
Serv., Inc. v. NLRB, 374 F.3d 347, 352 (5th Cir. 2004); Nova
Plumbing, 330 F.3d at 534; Am. Automatic Sprinkler, 163 F.3d at
214.
5
Notably, an 8(f) union can achieve 9(a) status with proof
of majority support.1 Staunton Fuel, 335 NLRB at 718; Decorative
Floors, Inc., 315 NLRB 188, 189 (1994). The Board has “presume[d]
that all collective bargaining agreements in the [construction]
industry are 8(f) contracts and therefore require[s] parties
asserting the existence of a section 9(a) relationship to prove
affirmatively that such a relationship exists.” Nova Plumbing,
330 F.3d at 536 (citation omitted). An 8(f) union can overcome
this presumption and achieve 9(a) status where the record shows
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.” Staunton Fuel, 335 NLRB at 720.
Citing Staunton Fuel, Strand argues that it did not have
a section 9(a) collective-bargaining agreement with the Union
because the agreement does not show that the Union represents a
1
The Board has abandoned the “conversion doctrine,” which allowed an
8(f) pre-hire agreement to convert into a 9(a) agreement other than through a
Board election or voluntary recognition. Catalytic, 964 F.2d at 520 (citing John
Deklewa & Sons, Inc., 282 NLRB 1375 (1987), enforced sub nom. Int’l Ass’n of
Bridge, Structural & Ornamental Iron Workers, Local 3 v. NLRB, 843 F.2d 770
(3d Cir. 1988)). Although other circuits have adopted Deklewa, see Am. Automatic
Sprinkler, 163 F.3d at 215 & n.3, the Fifth Circuit has not yet resolved this
issue and we need not do so today. See Catalytic, 964 F.2d at 521 & n.11.
6
majority of employees.2 Although the agreement states that the
Union is the exclusive bargaining representative of Strand
employees, the record lacks evidence of a card check, petition, or
election showing the Union’s majority status. Strand’s contention
is that 8(f) cases are equally applicable outside the construction
industry and that a non-construction union must claim 9(a) status
through the same process as an 8(f) construction union. See id. at
718; see also Am. Automatic Sprinkler, 163 F.3d at 218.
Strand’s exclusive reliance upon 8(f) construction-
industry cases is misplaced because Strand is not engaged in the
construction industry, and the Union here is not seeking the
“conversion” of an 8(f) agreement into a 9(a) agreement. Moreover,
Staunton Fuel does not hold, as asserted by Strand, that 8(f) cases
apply to non-construction cases or that non-construction unions
must follow the same procedure as construction unions to confirm
9(a) status. Strand’s argument flatly contradicts the principle
that except in the construction industry, a Union is entitled to a
presumption of majority support during and after the contract
period, and the agreement need not expressly reflect the Union’s
majority status. See Barrington Plaza, 185 NLRB at 963; Pekowski
Enters., Inc., 327 NLRB 413, 426 (1999). Strand has made no effort
2
The Board urges the court to summarily enforce its finding that
Strand violated NLRA § 8(a)(3) and (a)(1) by refusing to hire Union employees
because Strand failed to except to this finding. See 29 U.S.C. § 160(e). Strand
argues that it cannot be held liable for violations if there was no 9(a)
relationship to begin with. Strand acknowledges that if we decide the Union
enjoyed 9(a) status, we must uphold the Board’s decision that Strand violated
§ 8(a)(3) and (a)(1).
7
to show that the Union had lost majority support when Strand
refused to bargain. Therefore, the Board reasonably concluded that
in light of Strand’s years-long recognition of the Union as the
“exclusive representative” of employees, and the absence of proof
that majority support had been lost, Strand violated the Act by
refusing to bargain with the Union after the expiration of the
agreement.3
B. Regular Employee
Strand also seeks review of the Board’s decision that it
violated the Act by eliminating the Regular Employee position held
by Stephen Palmer on the theory that he was a statutory supervisor
unprotected by the NLRA. However, Strand waived this argument by
failing to raise it before filing its post-hearing brief to the
ALJ. See Trident Seafoods, Inc. v. NLRB, 101 F.3d 111, 116
(D.C. Cir. 1996) (citing Anthony Motor Co., Inc., 314 NLRB 443, 449
(1994)). Although Strand points to record evidence indicating
Palmer was a supervisor, it does not contend that it properly
raised the issue of Palmer’s status before its post-hearing brief.
3
The Board argues that the six-month limitation in NLRA § 10(b) bars
Strand from challenging the Union’s 9(a) relationship. See 29 U.S.C. § 160(b);
Local Lodge No. 1424 (Bryan Mfg. Co.) v. NLRB, 362 U.S. 411, 416-17, 80 S. Ct.
822, 826-27 (1960). However, the Board did not rely on § 10(b). Accordingly,
we will not address the Board’s argument because “we may not affirm an agency
decision on reasons other than those it provided.” Galvez-Vergara v. Gonzales,
484 F.3d 798, 803 n.6 (5th Cir. 2007); Jupiter Energy Corp. v. FERC, 407 F.3d
346, 349 (5th Cir. 2005); see also Nova Plumbing, 330 F.3d at 539 (“In any event,
we need not resolve this issue, for the Board did not rely on section 10(b) and
‘[w]e cannot sustain agency action on grounds other than those adopted by the
agency in the administrative proceedings.’” (quoting Macmillan Publ’g Co. v.
NLRB, 194 F.3d 165, 168 (D.C. Cir. 1999))).
8
This failure deprived the Board of a full and fair opportunity to
litigate the issue before the ALJ. See id.; see also NLRB v.
George Koch Sons, Inc., 950 F.2d 1324, 1336-37 (7th Cir. 1991);
Local 594, Int’l Union, United Auto., Aerospace & Agric. Implement
Workers of Am., UAW v. NLRB, 776 F.2d 1310, 1314 (6th Cir. 1985);
Union Elec. Co., 196 NLRB 830, 837 n.34 (1972).
Strand finally contends that the Union consented during
negotiations to eliminate the Regular-Employee position before the
agreement expired. This “concession”, however, followed after
Strand unilaterally informed the Union that the position had
already been eliminated. See NLRB v. Katz, 369 U.S. 736, 743, 82
S. Ct. 1107, 1111 (1962) (unilateral change in conditions of
employment violates § 8(a)(5)). The ALJ correctly found that the
Union was presented with a fait accompli, and the Board reasonably
concluded that Strand violated the Act by eliminating the Regular-
Employee position.
IV. CONCLUSION
Accordingly, Strand’s petition for review is DENIED; the
NLRB’s cross-petition for enforcement of its order is GRANTED.
PETITION FOR REVIEW DENIED; ENFORCEMENT GRANTED.
9