The Strand Theatre of Shreveport (Strand) petitions the United States Court of Appeals for the Fifth Circuit to review a National Labor Relations Board (NLRB) decision that found Strand violated sections 8(a)(1), (a)(3), and (a)(5) of the National Labor Relations Act (NLRA) by unilaterally terminating its use of the Union’s hiring hall, refusing to bargain with the Union, and eliminating the 'Regular Employee' position. The NLRB cross-petitions for enforcement of its order. The court denies Strand’s petition and grants enforcement of the NLRB's order, emphasizing that Strand had a 9(a) collective-bargaining agreement with Stage Employees Local 298 (Union), which waived any argument regarding the Regular Employee's status as a statutory supervisor and noted that the Union did not consent to the position's elimination.
Background details indicate that Strand has utilized Union-referred stagehand labor since 1984 and entered into three successive collective-bargaining agreements with the Union, which recognized it as the exclusive representative of the employees. The agreements included a full-time Regular Employee position held by Stephen Palmer. Following cost-cutting measures and unsuccessful negotiations for a successor agreement in 2004, Strand eliminated the Regular Employee position, ceased employing Union workers, and hired a nonunion labor supplier, leading to unfair labor charges filed by the Union.
An Administrative Law Judge (ALJ) found that the relationship between Strand and the Union constituted a 9(a) relationship, concluded Palmer was not a statutory supervisor, and determined that there was no agreement to eliminate the Regular Employee position, thus affirming the NLRA violations. The NLRB adopted the ALJ’s findings. The court reviews the NLRB's decision under a standard that upholds it if reasonable and supported by substantial evidence, while legal conclusions are reviewed de novo.
In Brown v. Root, Inc. v. NLRB, the court emphasizes that it will uphold the National Labor Relations Board's (NLRB) order if its interpretation of the statute is reasonably defensible. Section 9(a) of the National Labor Relations Act (NLRA) mandates that employers must negotiate with unions that have been chosen by a majority of employees in the relevant bargaining unit. However, construction industry employers are treated differently under Section 8(f), which permits them to enter "pre-hire" agreements with unions regardless of the union's majority status, recognizing the transient employment nature in construction.
The differences between Sections 8(f) and 9(a) extend to the employer's obligations post-contract expiration; construction employers may refuse to bargain after an 8(f) agreement expires due to the lack of presumption of majority support, while non-construction employers must continue bargaining with unions under a 9(a) agreement. This presumption can be challenged by employers who provide evidence that the union has lost majority support. An 8(f) union can attain 9(a) status if it demonstrates majority support through specific actions and recognition from the employer.
Strand contends that it does not have a Section 9(a) agreement with the Union, asserting that the absence of evidence of majority support, such as a card check or election, challenges the union's representation claim. Strand argues that the processes applicable to 8(f) unions in the construction sector should similarly apply to non-construction unions seeking 9(a) status.
Strand's reliance on 8(f) construction-industry cases is inappropriate as it is not part of that industry, and the Union is not attempting to convert an 8(f) agreement into a 9(a) agreement. The Staunton Fuel case does not support Strand's assertion that 8(f) rulings apply to non-construction contexts or that non-construction unions must follow the same procedures as construction unions to establish 9(a) status. The principle holds that outside the construction industry, a union is presumed to have majority support, which does not need explicit confirmation in the agreement. Strand failed to demonstrate that the Union lost its majority support when it refused to bargain, leading the Board to reasonably conclude that Strand violated the Act by not bargaining with the Union after the agreement expired.
Additionally, Strand contested the Board's finding that it violated the Act by eliminating the Regular Employee position held by Stephen Palmer, claiming Palmer was a statutory supervisor unprotected by the NLRA. However, Strand waived this argument by not raising it prior to its post-hearing brief. Although evidence suggests Palmer's supervisory status, Strand did not argue it was properly raised beforehand. The Board cited the six-month limitation under NLRA § 10(b) to challenge the Union's 9(a) status, but the Board did not rely on this statute, thus preventing further examination of that argument. Strand's claim that the Union consented to eliminate the Regular Employee position was invalidated as it occurred after Strand unilaterally announced the position's removal. Such a unilateral change violates NLRA § 8(a)(5). The ALJ found that the Union faced a completed action without negotiation, and the Board concluded that Strand violated the Act by eliminating the position. Consequently, Strand's petition for review is denied, and the NLRB's order is enforced.
