USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-2068
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
GOODLESS ELECTRIC CO., INC.,
Respondent.
____________________
ON APPLICATION FOR ENFORCEMENT OF AN ORDER OF
THE NATIONAL LABOR RELATIONS BOARD
____________________
Before
Torruella, Chief Judge, ___________
Bownes, Senior Circuit Judge, ____________________
and Lynch, Circuit Judge. _____________
_____________________
Jay M. Presser, with whom Skoler, Abbott & Presser, P.C. was ______________ ______________________________
on brief for respondent.
Susan M. Pavsner, Attorney, with whom Frederick L. ___________________ _____________
Feinstein, General Counsel, Linda Sher, Associate General _________ ___________
Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, ____________________
and Howard E. Perlstein, Deputy Assistant General Counsel, _____________________
National Labor Relations Board, were on brief for petitioner.
____________________
September 5, 1997
____________________
TORRUELLA, Chief Judge. In February 1994, Local Union TORRUELLA, Chief Judge. ___________
No. 7 of the International Brotherhood of Electrical Workers,
AFL-CIO ("Union") filed charges of unfair labor practices with
the National Labor Relations Board ("NLRB" or "Board") against
Defendant-Cross-Petitioner Goodless Electric Co. ("Goodless").
On March 2, 1995, an administrative law judge ("ALJ") issued a
decision finding no labor violations and recommending dismissal
of the charges. The NLRB General Counsel appealed to a panel of
the NLRB, which, on April 30, 1996, reversed certain of the ALJ's
findings as they relate to the issues relevant to this appeal and
determined that Goodless had violated provisions of the National
Labor Relations Act ("NLRA" or "Act"). See Goodless Elec. Co., ___ __________________
321 N.L.R.B. 64 (1996). Before us are the Board's petition for
enforcement of its order and Goodless' petition for reversal of
the Board's conclusions of law. For the reasons stated herein,
we reverse and deny the Board's petition for enforcement of its
order.
BACKGROUND BACKGROUND
The background facts are essentially undisputed.
Goodless is a construction industry employer engaged in
electrical contracting. In June 1988, Goodless agreed to be
bound by an existing collective bargaining agreement between the
multi-employer National Electrical Contractors Association
("NECA") and the Union. In July 1990, Goodless became a
signatory to a new three-year collective bargaining agreement
between the NECA and the Union. The agreement authorized the
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NECA to bargain with the Union on Goodless' behalf unless that
authority was withdrawn with 150 days' notice of cancellation.
The relationship entered into by Goodless and the Union at this
point constituted a Section 8(f)1 relationship under the NLRA.
Under Section 8(f), a construction industry employer may enter
into a relationship with a union whereby the union bargains on
behalf of the employer's employees prior to a showing that the
union has garnered the support of a majority of the employees.
The question on which the issues in this appeal hinge relates to
the circumstances under which a Section 8(f) relationship may
____________________
1 Section 8(f) of the Act, 29 U.S.C. 158(f) (1976), provides:
It shall not be an unfair labor practice
under subsections (a) and (b) of this section
for an employer engaged primarily in the
building and construction industry to make an
agreement covering employees engaged (or who,
upon their employment, will be engaged) in
the building and construction industry with a
labor organization of which building and
construction employees are members (not
established, maintained, or assisted by any
action defined in subsection (a) of this
section as an unfair labor practice) because
(1) the majority status of such labor
organization has not been established under
the provisions of section 159 of this title
prior to the making of such agreement, or (2)
such agreement requires as a condition of
employment, membership in such labor
organization after the seventh day following
the beginning of such employment or the
effective date of the agreement, whichever is
later. . . . Provided, That nothing in this
subsection shall set aside the final proviso
to subsection (a) (3) of this section:
Provided further, That any agreement which
would be invalid, but for clause (1) of this
subsection, shall not be a bar to a petition
filed pursuant to section 159(c) or 159(e) of
this title.
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become a Section 9(a)2 relationship. Under Section 9(a), once a
union has become the representative of a majority of the
employees in an appropriate bargaining unit, the employer is
required to bargain with the union as the employees' bargaining
representative. The NLRB has held that Section 8(f) status may
change to Section 9(a) status by virtue of either a Board-
certified election or as the result of the employer's voluntary
recognition of the union as the majority collective bargaining
agent. Voluntary recognition requires the union's unequivocal
demand for, and the employer's unequivocal grant of, voluntary
recognition as the employees' collective bargaining
representative based on the union's contemporaneous showing of
majority employee support. See James Julian, Inc., 310 N.L.R.B. ___ ___________________
1247, 1252 (1993).
____________________
2 Section 9(a), 29 U.S.C. 159(a), provides:
Representatives designated or selected for
the purposes of collective bargaining by the
majority of the employees in a unit
appropriate for such purposes, shall be the
exclusive representatives of all the
employees in such unit for the purposes of
collective bargaining in respect to rates of
pay, wages, hours of employment, or other
conditions of employment: Provided, That any
individual employee or a group of employees
shall have the right at any time to present
grievances to their employer and to have such
grievances adjusted, without the intervention
of the bargaining representative, as long as
the adjustment is not inconsistent with the
terms of a collective-bargaining contract or
agreement then in effect: Provided further,
That the bargaining representative has been
given opportunity to be present at such
adjustment.
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On June 18, 1992, Goodless notified NECA and the Union
that NECA was no longer authorized to negotiate on Goodless'
behalf and that Goodless did not intend to be bound by any
further contractual modifications or obligations beyond the then-
current agreement's expiration date of June 30, 1993. Thus,
Goodless indicated that any relationship between Goodless and the
Union would expire as of June 30, 1993.
In July 1992, a Union representative contacted
Goodless' president and indicated that Goodless would need to
sign a letter of assent.3 Goodless was told that the letter of
assent was needed in order for Goodless to continue receiving
"target money."4 Goodless' president reviewed the letter of
assent and deleted some language contained in the letter. He did
not, however, alter the following language:
The Employer agrees that if a majority of its
employees authorize the Local Union to
represent them in collective bargaining, the
Employer will recognize the Local Union as
the NLRA Section 9(a) collective bargaining
agent for all employees performing electrical
construction work within the jurisdiction of
the Local Union on all present and future
jobsites.
Goodless signed the letter of assent on July 15, 1992.
____________________
3 The 1988 NECA agreement required employer-members to sign a
letter of assent to be bound by the NECA agreement. Goodless did
not sign a letter of assent until 1992; this is the letter at
issue here.
4 Target money was financial assistance provided by the Union to
aid union employers in competition with non-union electrical
contractors.
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At a meeting with Union representatives on June 22,
1993, Goodless' president again indicated that Goodless did not
intend to continue its relationship with the Union after June 30,
1993. The Union representatives encouraged Goodless to consider
changes regarding service work that NECA had accepted earlier
that month. The meeting ended with the participants agreeing to
meet on June 25.
On June 24, the Union's business agent, Douglas Bodman
("Bodman"), held a meeting of all Goodless employees. At this
meeting, he indicated the progress of negotiations with Goodless.
After informing the employees of Goodless' claim that the Union
lacked employee support, he asked the employees to sign
authorization cards as evidence of their desire for continued
representation. All employees signed the cards, which stated:
I authorize Local Union No. 7 of the
International Brotherhood of Electrical
Workers to represent me in collective
bargaining with my present and future
employers on all present and future jobsites
within the jurisdiction of the Union. This
authorization is non-expiring, binding and
valid until such time as I submit a written
revocation.
At the second meeting, on June 25, between Goodless and
the Union, Goodless maintained that the company's relationship
with the Union would end with the expiration of the agreement.
In response, Bodman presented the authorization cards signed by
all Goodless employees. Goodless' president tossed the cards
back at Bodman, telling him that he could "shove them up [his]
ass." Another Union representative calmed tensions and secured
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from Goodless a six-month extension of the 1990-1993 contract by
promising certain terms for Goodless.
On December 13, Goodless informed the Union that it
intended to withdraw recognition of the Union upon the
approaching December 31 expiration date. On December 17,
Goodless sent a letter to all employees indicating these
intentions and inviting the employees to discuss the matter with
Goodless management prior to December 23.
On December 21, the Union responded with two letters
reminding Goodless of the language contained in the letter of
assent that bound Goodless to recognize the Union as the Section
9(a) collective-bargaining representative on a showing of
majority support and indicating that, the Union having made such
a showing at the June 25 meeting, the Union was now the Section
9(a) bargaining representative and Goodless could not repudiate
the relationship or negotiate directly with its employees.
Union Business Manager Bodman composed a form letter
for the employees to send to Goodless in response to Goodless'
December 17 letter. All but one Goodless employee signed and
submitted this form letter, which stated in relevant part:
I intend to continue my employment with
Goodless Electric and maintain my membership
with [the Union]. I expect you to continue
to comply with my union contract and maintain
the current wages and terms and conditions of
employment.
If you need to discuss any matter
concerning wages or terms and conditions of
employment, contact my Union Representative
Douglas Bodman.
-7-
On December 30, Goodless announced new terms of
employment to take effect January 1, 1994. On January 1,
Goodless also ceased to recognize the Union as the employees'
collective bargaining agent.
Because Goodless was no longer a signatory to the NECA
agreement, the apprentices working for Goodless were informed by
the Joint Apprentice Training Committee (JATC)5 on January 6,
1994, that they would be subject to termination from the
apprenticeship program if they continued to work for Goodless.
As a result, the apprentices terminated their employment with
Goodless en masse.
As a result of these unilateral modifications, the
Union filed charges of unfair labor practices with the NLRB,
alleging that the relationship between the Union and Goodless had
been transformed from a Section 8(f) relationship into a Section
9(a) relationship upon the Union's showing of majority support in
June 1993. Because the relationship was allegedly one under
Section 9(a), the Union argues that Goodless was obligated to
bargain with it as the employees' representative. The Union
contends that by withdrawing recognition of the Union as the
employees' collective bargaining agent and unilaterally changing
the terms and conditions of employment, Goodless violated Section
____________________
5 Under the NECA collective-bargaining agreement, the Joint
Apprentice Training Committee ran an apprenticeship program
consisting of three members of the Union and three members of the
contractors' association. To be eligible to train apprentices,
an employer had to "be signatory to and meet the qualifying
requirements as set forth in the basic labor agreement and
provide the necessary work experience for training."
-8-
8(a)(5)6 of the National Labor Relations Act. The Union also
insists that Goodless constructively discharged the apprentices
in violation of Section 8(a)(3).7
____________________
6 Section 8(a)(5), 29 U.S.C. 158(a)(5), provides:
It shall be an unfair labor practice for an
employer --
(5) to refuse to bargain collectively with
the representatives of his employees, subject
to the provisions of section 159(a) of this
title.
7 Section 8(a)(3), 29 U.S.C. 158(a)(3), provides:
It shall be an unfair labor practice for an
employer --
(3) by discrimination in regard to hire or
tenure of employment or any term or condition
of employment to encourage or discourage
membership in any labor organization:
Provided, That nothing in this subchapter, or
in any other statute of the United States,
shall preclude an employer from making an
agreement with a labor organization (not
established, maintained, or assisted by any
action defined in this subsection as an
unfair labor practice) to require as a
condition of employment membership therein on
or after the thirtieth day following the
beginning of such employment or the effective
date of such agreement, whichever is the
later, (i) if such labor organization is the
representative of the employees as provided
in section 159(a) of this title, in the
appropriate collective-bargaining unit
covered by such agreement when made, and (ii)
unless following an election held as provided
in section 159(e) of this title within one
year preceding the effective date of such
agreement, the Board shall have certified
that at least a majority of the employees
eligible to vote in such election have voted
to rescind the authority of such labor
organization to make such an agreement:
Provided further, That no employer shall
-9-
The case was first heard before an ALJ, who determined
that the relationship between Goodless and the Union did not
change to a Section 9(a) relationship. Because the relationship
remained a Section 8(f) relationship, Goodless remained free to
repudiate the relationship at the end of the contractual term and
thus its unilateral changes to the terms and conditions of
employment did not violate either Section 8(a)(3) or Section
8(a)(5).
The NLRB reversed the ALJ's opinion in ruling that,
under existing NLRB case law, the relationship between Goodless
and the Union changed from a Section 8(f) relationship to a
Section 9(a) relationship upon the Union's presentation to
Goodless of the employee-signed authorization cards. The Board
held that the letter of assent signed by Goodless in June 1992,
in which it stated that, should the Union garner majority
support, Goodless would recognize the Union as the Section 9(a)
employee representative, amounted to a standing promise to extend
such recognition conditioned only on the Union's showing of
majority support. When the Union showed majority support through
____________________
justify any discrimination against an
employee for nonmembership in a labor
organization (A) if he has reasonable grounds
for believing that such membership was not
available to the employee on the same terms
and conditions generally applicable to other
members, or (B) if he has reasonable grounds
for believing that membership was denied or
terminated for reasons other than the failure
of the employee to tender the periodic dues
and the initiation fees uniformly required as
a condition of acquiring or retaining
membership.
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the authorization cards in June 1993, the Board reasoned, the
condition had been met and Goodless was bound by its earlier
promise to recognize the Union as the Section 9(a) employee
representative. The Board then found violations of Section
8(a)(3) for Goodless' withdrawal of recognition of the Union and
of Section 8(a)(5) for constructive discharge of the four
apprentices. The Board ordered Goodless to cease and desist, and
also ordered that Goodless: recognize the Union as the exclusive
bargaining agent of its journeymen electricians and apprentices;
rescind changes in employment terms made on and after December
31, 1993; and make whole all employees who worked for it on and
after December 31, 1993, for any loss of wages and other benefits
suffered with interest, make whole any fringe benefit funds, and
reimburse employees for any losses or expenses they may have
incurred because of Goodless' failure to make payments to those
funds. Finding that the NLRB misapplied its own precedent in
this case, we deny enforcement of its order.
STANDARD OF REVIEW STANDARD OF REVIEW
We determine whether the Board's decision correctly
applies the law and whether it is supported by substantial
evidence on the record. See Yesterday's Children, Inc. v. NLRB, ___ __________________________ ____
115 F.3d 36, 44 (1st Cir. 1997); see also Universal Camera Corp. ________ ______________________
v. NLRB, 340 U.S. 474, 488 (1951). "We must sustain inferences ____
that the Board draws from the facts and its application of
statutory standards to those facts and inferences as long as they
are reasonable." NLRB v. Laverdiere's Enter., 933 F.2d 1045, ____ ____________________
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1050 (1st Cir. 1991). The standard is quite deferential, and
does not allow us to displace the Board's choice between two
conflicting views merely because we may "justifiably have made a
different choice had the matter been before [us] de novo." _______
Universal Camera Corp., 340 U.S. at 488. This standard, however, ______________________
is no rubber stamp: We must set aside a Board decision if we
cannot fairly find that it is either supported by substantial
evidence in the record, id., or correctly applies the relevant ___
law, Shaw's Supermarkets v. NLRB, 884 F.2d 34, 35-37 (1st Cir. ____________________ ____
1989); see also Laverdiere's Enter., 933 F.2d at 1050 ("The ________ ____________________
courts of appeals are charged with 'responsibility for the
reasonableness and fairness of Labor Board decisions,' and a
court must set aside Board action when it 'cannot conscientiously
find that the evidence supporting that decision is substantial,
when viewed in the light the record in its entirety furnishes,
including the body of evidence opposed to the Board's view.'"
(citations omitted) (quoting Universal Camera Corp., 340 U.S. at ______________________
488, 490)).
DISCUSSION DISCUSSION
I. Statutory structure I. Statutory structure
Section 9(a), 29 U.S.C. 159(a), of the National Labor
Relations Act designates the manner in which a union becomes the
exclusive bargaining representative of a unit of employees. A
representative selected by a majority of the employees in a unit,
to which the section applies, shall be the employees' exclusive
bargaining representative. See 29 U.S.C. 159(a). Generally, ___
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it is a violation of Section 8(a) of the NLRA for an employer to
treat a union as the exclusive bargaining representative of its
employees prior to that union's being designated as such by a
majority of the employees. See 29 U.S.C. 158(a) & (f). ___
The construction industry, however, tends to employ
workers for short durations and on discrete projects, making the
designation or selection of a union representative difficult.
See generally S. Rep. No. 86-187 (1959). To remedy this problem _____________
and allow construction workers collective bargaining
representation, Congress enacted Section 8(f) of the NLRA. See ___
id. Section 8(f) essentially provides an exception to the ___
prohibitions on employer recognition of a non-majority
representative in the construction industry. Section 8(f) allows
a construction industry employer to enter into a specific
agreement of limited duration with a union whereby the union acts
as the employees' collective bargaining agent. See 29 U.S.C. ___
158(f). Employees are allowed, however, to petition for the
selection of a different agent as their representative. Id. ___
II. Board precedent II. Board precedent
Prior to the Board's decision in John Deklewa & Sons, ____________________
Inc., 282 N.L.R.B. 1375 (1987), Board precedent held that a ____
Section 8(f) relationship could change to a Section 9(a)
relationship under the "conversion doctrine." The conversion
doctrine required only a union's showing of majority support at
some point during the relevant period to convert a Section 8(f)
relationship into a Section 9(a) relationship. "The achievement
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of majority support required no notice, no simultaneous union
claim of majority, and no assent by the employer to complete the
conversion process." Id. at 1378. Upon such conversion, the ___
employer was required under Section 9(a) to recognize the union
as the employees' exclusive bargaining agent. Id. at 1379. The ___
conversion created an irrebuttable presumption of majority status
for the duration of the agreement. Id. ___
Along came Deklewa, however, in which the Board _______
overturned its "conversion doctrine," on the ground that it did
not serve the "statutory objectives of employee free choice and
labor relations stability." Id. In its place, the Board ___
established four cardinal principles to govern this area:
(1) a collective-bargaining agreement
permitted by Section 8(f) shall be
enforceable through the mechanisms of Section
8(a)(5) and Section 8(b)(3); (2) such
agreements will not bar the processing of
valid petitions [for a Board-certified
election] filed pursuant to Section 9(c) and
Section 9(e); (3) in processing such
petitions, the appropriate unit normally will
be the single employer's employees covered by
the agreement; and (4) upon the expiration of
such agreements, the signatory union will
enjoy no presumption of majority status, and
either party may repudiate the 8(f)
bargaining relationship.
Id. at 1377-78. As part of the new structure, neither an ___
employer nor a union who is a party to Section 8(f) agreements
may unilaterally repudiate their relationship during the express
period of the agreement. Id. at 1387. The Board also determined ___
that, at no time during the duration of the agreement does the
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union enjoy a presumption, rebuttable or otherwise, of majority
status. Id. ___
Because of the unique situation in which a Section 8(f)
relationship arises, Board case law since Deklewa has set forth _______
only two means by which a union may obtain Section 9(a) status
during the course of a Section 8(f) relationship: (1) through a
Board-certified election, or (2) through an employer's voluntary
grant of recognition of the union as the employees' exclusive
majority bargaining agent. Unless and until a relationship is
proved to be otherwise, a bargaining relationship between a
construction industry employer and a union is presumed to be 8(f)
rather than 9(a). See Comtel Sys. Technology, 305 N.L.R.B. 287, ___ ______________________
289 (1991). The burden of proving a 9(a) relationship rests on
the party asserting its existence. Casale Indus., 311 N.L.R.B. _____________
287, 288 (1993). Because the Board determined below that the
Union had met its burden of proving that Goodless granted it
voluntary recognition, we focus our inquiry on the latter ground.
The NLRB has held that "a party may prove the existence
of a 9(a) relationship . . . through . . . a union's express
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 the employees in an
appropriate unit." J & R Tile, Inc., 291 N.L.R.B. 1034, 1036 _________________
(1988). There must be "positive evidence" that the "union
unequivocally demanded recognition as the employees' 9(a)
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representative and that the employer unequivocally accepted it as
such." Id. ___
The cases in which the Board has applied this approach
fall into two categories, the first finding that the acts of the
union and the employer transformed their Section 8(f)
relationship into a Section 9(a) relationship, and the second
determining that the parties failed to meet the requirements for
such a transformation. A consistent theme running throughout the
cases in the first category is the requirement that all of the
following three parts of the voluntary recognition test be met:
(1) the union must expressly and unequivocally demand recognition
as the employees' Section 9(a) representative; (2) the employer
must expressly and unequivocally grant the requested recognition;
and (3) that demand and recognition must be based on a
contemporaneous showing that the union enjoys majority support of _______________
the employers' workforce.
Board case law emphasizes that the third requirement is
essential. In addition to an actual showing of majority support
through the presentation of employee-signed authorization cards
to an employer, see Hayman Electric, 214 N.L.R.B. 879, 886 ___ ________________
(1994), or through an employer-conducted poll prior to initial
recognition, see Precision Piping, 284 N.L.R.B. 1110, 1112 ___ _________________
(1987), the Board has found as sufficient to satisfy the third
requirement a union's claim of majority support that went
unchallenged by the employer for a period of more than six
months. See, e.g., Triple A Fire Protection, Inc., 312 N.L.R.B. ___ ____ _______________________________
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1088, 1089 (1993) (declining to question whether the union
actually achieved the majority status it claimed at the time the
employer recognized it when the challenge to such status came
over four years after the agreement); Casale Indus., 311 N.L.R.B. _____________
951, 953 (1993) (refusing to permit employer's challenge to
union's majority status arising six years after the union claimed
to have obtained that status and limiting the window for
challenge to six months from the time majority status is
claimed); Golden West Elec. Co., 307 N.L.R.B. 1494, 1495 (1992) ______________________
(holding that employer's act of reading and signing, and later
acknowledging its agreement with, a letter stating that the union
represented a majority of employees was sufficient showing of the
union's majority status to find a Section 9(a) relationship).
Similarly, the Board found the third requirement to be met where
an employer's admission or acknowledgement that the union enjoyed
majority support among its employees was given contemporaneously
with the demand for recognition and was provided without further
inquiry into the union's actual status. See Golden West Elec., ___ _________________
307 N.L.R.B. at 1495 (relying on the employer's admission of
majority status to satisfy the burden of showing Section 9(a)
status). From this case law it is clear that when a union claims
it has attained majority status and the parties, based on that
claim, agree to a Section 9(a) relationship, the employer must
challenge that status within a reasonable period of time (six
months), or be bound by its agreement.
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The Board has also held that notwithstanding the
parties' intention to enter into a Section 9(a) relationship,
their relationship is not entitled to Section 9(a) status if the
union has not actually achieved majority status prior to the time
of the demand. See Comtel Sys. Tech., 305 N.L.R.B. 287, 289 ___ __________________
(1991) (determining no Section 9(a) relationship would be
established unless union made a showing of majority support of
single-unit employer's employees prior to that employer's entry
into a multi-employer bargaining relationship claimed to be
governed by Section 9(a)); see also J & R Tile, 291 N.L.R.B. at ________ ___________
1037 (declining to find that predecessor employer and union had
entered into Section 9(a) relationship where no showing was made
that the union had obtained majority support at the time of the
parties' agreement and no indication was presented that the
parties intended a Section 9(a) relationship); James Julian, _____________
Inc., 310 N.L.R.B. at 1253 (describing the finding regarding the ____
predecessor employer in J & R Tile as based on the lack of ___________
evidence that "the collective-bargaining agreement was entered on
the basis of a demonstrated showing of the union's majority").
Thus, Board precedent indicates that the union's demand for and
the employer's grant of recognition must be predicated on at
least an unchallenged claim, if not an actual showing, of
contemporaneous majority support.8 _______________
____________________
8 In fact, the Board's General Counsel has noted its
understanding of Deklewa and progeny as providing that failure to _______
show majority support at the time of the demand will defeat any ____________
attempts at a Section 9(a) relationship. The General Counsel
interpreted Deklewa and progeny as holding that, "to prove that a _______
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Applying these principles to the undisputed facts in
the instant appeal, we simply cannot find that the requirements
set forth by the Board in Deklewa and subsequent cases have been _______
satisfied. Quite simply, the requirement that a demand and
recognition be based on a contemporaneous showing of majority _____ _______________
support was never satisfied. The record does not support the
conclusion that, when the Union presented the letter of assent to
Goodless in June 1992, in which it allegedly sought Goodless'
recognition, it made a contemporaneous claim of majority support
on which Goodless' recognition of the union's majority status ________________________________
could be made.9 A showing of majority support at least a year
____________________
relationship in the construction industry is a Section 9
relationship, there must be (1) a union demand to be recognized
as the Section 9 representative; (2) an employer acceptance of
the union's demand; and (3) majority status at the time of such
demand and acceptance." Advice Ltr. from NLRB Gen. Counsel to
Regional Director of Region 9, Feb. 27, 1989, 1989 WL 241614, at
*2 (Feb. 27, 1989). In determining that, under the facts
presented to it, no Section 9(a) relationship could be found
because "there has been no showing that the Union represents a
majority of the employees in the appropriate unit," it noted:
Even if the Union does, in fact, represent a
majority of the Employer's employees, J & R ______
Tile makes clear that there must be explicit ____
proof presented contemporaneously with the
Union's demand and the Employer's voluntary
recognition. Thus, although the Employer's
ambiguous statements arguably may indicate
that it believed the Union had majority
support, those statements are insufficient to
confer 9(a) status upon the Union without
actual demonstration of that majority status.
Id. ___
9 In its brief, the Board suggests that Decorative Floors, Inc., _______________________
315 N.L.R.B. 188, 189 (1994), and Hayman Electric, Inc., 314 _______________________
N.L.R.B. 879, 887 n.8 (1994), support the opposite conclusion
regarding the requirement of a showing of majority support.
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later can hardly be considered a showing made contemporaneously
with, and as a prerequisite to, the Union's demand for
recognition.
Moreover, the cases that presume majority support still
require contemporaneity. The record raises serious doubts
regarding whether Goodless in fact conceded that the Union had
obtained majority support. The Board concluded that Goodless'
unartful statement at the June 25 meeting was evidence of its
recognition of the union's majority status. Even assuming that
the Board's interpretation of the meaning of Goodless' statement
is sound, its case law unmistakably holds that nevertheless the
showing of majority status must be contemporaneous with the
demand and recognition of that status. These preconditions to a
9(a) recognition are clearly lacking here.
In arriving at its conclusion, the Board relied upon
principles of contract law. See Goodless Elec. Co., 321 N.L.R.B. ___ __________________
at 66. In discussing Goodless' signing of the letter of assent,
the Board suggests that "the letter of assent constituted, for
the remainder of its term, both a continuing request by the Union
for 9(a) recognition and a continuing, enforceable promise by the
Respondent [Goodless] to grant voluntary recognition on that
____________________
While the Board is quite correct that neither of these opinions
required that the union demonstrate through extrinsic evidence
the existence of majority support, they were not so required
because in Hayman Electric, the union had made a claim of _______________ _____
majority support, which the employer failed to challenge, and in
Decorative Floors, the employer had signed a recognition __________________
agreement explicitly stating that the union had attained majority
status. The same is not true here.
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basis if the Union demonstrated majority support." Id. On this ___
point, we have noted that "[t]he prevailing rule, in this and
other circuits, provides that technical rules of contract
interpretation are not necessarily binding on the Board in the
collective bargaining context, even though it is free to apply
general contract principles so as to foster the established
federal labor policy favoring collective bargaining." NLRB v. ____
Boston Dist. Council of Carpenters, 80 F.3d 662, 665 (1st Cir. ___________________________________
1996). Furthermore, it is clear that general contract law
principles cannot supplant the requirement of a federal labor
policy such as that embodied in Section 9(a) requiring that
employees be represented by an organization approved by a
majority of employees.
In the unique circumstances surrounding a Section 8(f)
relationship between a construction industry employer and a
union, for ten years the Board has followed a specific and
discrete two-option rule for the transformation of that
relationship into a Section 9(a) relationship. Under the plain
terms of that rule, a finding in favor of Goodless is required.
We cannot accept the Board's departure from its own precedent in
this case in the absence of some cogent explanation, an
explanation that has not been forthcoming.10 See Shaw's ___ ______
Supermarkets, Inc., 884 F.2d at 35 ("Although the Board is not __________________
permanently bound by its precedent, when it wishes to deviate
____________________
10 Indeed, the Board does not acknowledge that its decision is a
departure from past precedent.
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from well-established precedent as significantly as it has done
here, it must, at least, explain the reasons for its
deviation.").11 Under Board precedent, the parties maintained a
Section 8(f) relationship because no contemporaneous showing of
majority support accompanied the Union's demand to Goodless.
Thus, Goodless did not violate Section 8(a)(5) by repudiating
that relationship or by unilaterally changing the terms and
conditions of employment under the circumstances of this appeal.
As a final matter, the Board's finding that the
apprentices were constructively discharged rested upon its
conclusion that Goodless committed unfair labor practices by
repudiating its relationship with the Union, and by unilaterally
implementing changes in the terms and conditions of employment.
Because we do not agree with that finding, we cannot enforce a
ruling predicated upon it. We therefore deny enforcement of the
Board's finding that Goodless violated Sections 8(a)(3) and (1)
by constructively discharging the apprentices.
CONCLUSION CONCLUSION
For the foregoing reasons, we reverse and remand to the reverse remand _______ ______
National Labor Relations Board for proceedings in accordance with
this opinion.
____________________
11 As a secondary matter, we do not think that the Union's
demand, let alone Goodless' recognition, could be considered
"unequivocal" when it was subject to a contingency whose
fulfillment had no temporal limitations. Indeed, the contingency
may never have been met. Without any reasonable, temporally
limiting principles, we cannot affirm the Board's conclusion that
a demand and recognition may be properly considered unequivocal
when subject to a contingency whose fulfillment may never occur.
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Costs to respondent.
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