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,
___________________
Feinstein,
_________

General

Attorney,

Counsel,

with

whom

Linda Sher,
___________

Counsel, Aileen A. Armstrong, Deputy Associate

____________________
and

Howard E. Perlstein,
_____________________

Deputy

Assistant

Frederick L.
_____________

Associate

General

General Counsel,
General

Counsel,

National Labor Relations Board, were on brief for petitioner.

____________________

September 5, 1997
____________________

TORRUELLA,
TORRUELLA,

Chief Judge.
Chief Judge.
___________

In February 1994, Local Union

No. 7

of the

AFL-CIO

the

International Brotherhood

("Union") filed charges

National Labor Relations

Defendant-Cross-Petitioner

On March

2, 1995, an

decision finding no

of the charges.

of Electrical

of unfair labor

Board ("NLRB" or

Goodless

Electric

practices with

"Board") against

Co. ("Goodless").

administrative law judge ("ALJ")

labor violations and

Workers,

issued a

recommending dismissal

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

321 N.L.R.B. 64

("NLRA" or "Act").

(1996).

enforcement of its order

See
___

Before us are the

Goodless Elec. Co.,

__________________

Board's petition for

and Goodless' petition for reversal

of

the Board's conclusions

we reverse and

of law.

For the

reasons stated herein,

deny the Board's petition for

enforcement of its

order.

BACKGROUND
BACKGROUND

Goodless

The

background

is

electrical

bound

facts

construction

contracting.

are

essentially

industry

employer

In June

undisputed.

engaged

1988, Goodless

agreed

in

to be

by an existing collective bargaining agreement between the

multi-employer

("NECA")

and

signatory

to

between the

National

the

Union.

a new

NECA and

Electrical

In July

Contractors

1990,

three-year collective

the Union.

-2-

Goodless

Association

became

bargaining agreement

The agreement

authorized the

NECA to

bargain with the

authority

Union on Goodless' behalf

was withdrawn with

The relationship entered

constituted a Section

Under

Section 8(f), a

Union at this

8(f)1 relationship under

the NLRA.

construction industry employer

may enter

relationship with a

behalf of

of cancellation.

into by Goodless and the

point

into a

150 days' notice

unless that

union whereby the union

the employer's employees

bargains on

prior to a showing

that the

union has

The

garnered the support

of a majority of

the employees.

question on which the issues in this appeal hinge relates to

the circumstances

under which

a Section

8(f) relationship

may

____________________

Section 8(f) of the Act, 29 U.S.C.

It

shall not

be

an

158(f) (1976), provides:

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

construction

of

which

employees

established, maintained,
action

defined

in

section as an unfair
(1)

the

majority

organization has
the provisions

building

are

and

members

or assisted

subsection (a)

(not
by any

of

this

labor practice) because

status

of

not been

such

labor

established under

of section 159 of

this title

prior to the making of such agreement, or (2)

such

agreement requires

employment,

membership

as
in

a condition
such

of

labor

organization after the

the

beginning

of

seventh day following

such

employment

or

the

effective date of the agreement, whichever is

later. . .

. Provided, That nothing

subsection shall set

to

subsection

Provided
would

(a)

in this

aside the final proviso

(3)

further, That

of

this

section:

any agreement

which

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.

-3-

become a Section 9(a)2 relationship.

Under Section 9(a), once a

union

has

employees

become

in an

the

representative

appropriate bargaining

required to bargain with the

representative.

change

The

to Section

agent.

demand

9(a)

status

representative

as

as the majority

requires the

of

the

employees'

majority employee support.

the

is

bargaining

8(f) status may

either a

Board-

employer's voluntary

collective bargaining

union's unequivocal

employer's unequivocal grant

based on the

1247, 1252 (1993).

by virtue

of

the employer

union as the employees'

Voluntary recognition

recognition

majority

unit,

as the result of the

of the union

for, and the

NLRB has held that Section

certified election or

recognition

of

of, voluntary

collective

union's contemporaneous

bargaining

showing of

See James Julian, Inc., 310 N.L.R.B.

___ ___________________

____________________

Section 9(a), 29 U.S.C.

159(a), provides:

Representatives

designated

the purposes of

collective bargaining by the

majority

of

the

appropriate for
exclusive

employees

selected for

in

such purposes, shall

representatives

employees in

or

such unit

of

for the

unit
be the

all

the

purposes of

collective bargaining in respect to rates

pay,

wages, hours

of

employment, or

conditions of employment:
individual employee
shall have the

of

other

Provided, That any

or a group

of employees

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

terms of a

collective-bargaining contract or

agreement then in
That the
given

the

effect:

Provided further,

bargaining representative

opportunity

to

adjustment.

-4-

be

present

has been
at

such

On June 18, 1992, Goodless

that

behalf

NECA was

and

no

notified NECA and the Union

longer authorized

that Goodless

did

to negotiate

not intend

to

on Goodless'

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

Goodless' president

sign a

needed in order

money."4

Union

and indicated

letter of assent.3

assent was

"target

1992,

representative

that Goodless

Goodless was

would need

to continue

reviewed

receiving

the letter

assent and deleted some language contained in the letter.

not, however, alter the following language:

The Employer agrees that if a majority of its

employees

authorize

represent them in
Employer will
the NLRA

the

Local

Union

to

collective bargaining, the

recognize the

Section 9(a)

Local Union

as

collective bargaining

agent for all employees performing electrical

construction work within

the jurisdiction of

the

present

Local Union

on all

to

told that the letter of

for Goodless

Goodless' president

contacted

and future

jobsites.

Goodless signed the letter of assent on July 15, 1992.

of

He did

____________________

The 1988 NECA

agreement required employer-members to

letter of assent to be bound by the NECA agreement.

not sign a
issue

letter of assent

until 1992; this

sign a

Goodless did

is the letter

at

here.

Target money was financial assistance provided by the Union to

aid union

employers

in competition

contractors.

-5-

with

non-union

electrical

At a

meeting with

1993, Goodless' president

Union representatives

on June

again indicated that Goodless

22,

did not

intend to continue its relationship with the Union after June 30,

1993.

The Union representatives encouraged Goodless to consider

changes regarding

that month.

service work

The meeting

that NECA

had accepted

earlier

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

lacked

informing the employees of Goodless'

employee

support,

authorization cards

representation.

he

as evidence

asked

the

of their

claim that the Union

employees

desire for

to

sign

continued

All employees signed the cards, which stated:

authorize

Local

International
Workers

Union

Brotherhood

to

represent

bargaining

No.

with

my

me

of

of

Electrical

in

collective

present

and

employers on all present and future

within the jurisdiction
authorization

is

valid until such

the

future
jobsites

of the Union.

non-expiring,

This

binding and

time as I submit

a written

revocation.

At the second meeting, on June 25, between Goodless and

the

Union, Goodless

with the

Union would end

In response, Bodman

all Goodless

Another

company's relationship

with the expiration of

the agreement.

presented the authorization cards

employees.

back at Bodman,

ass."

maintained that the

Goodless' president

telling him that

tossed the

he could "shove them

Union representative calmed tensions

-6-

signed by

cards

up [his]

and secured

from Goodless a six-month extension

of the 1990-1993 contract by

promising certain terms for Goodless.

On December

intended

approaching

Goodless

intentions

to

13, Goodless

withdraw

December

sent

recognition

31

letter

expiration

to

all

informed the

of

the

date.

employees

Union that

Union

On

it

upon

the

December

17,

indicating

these

and inviting the employees to discuss the matter with

Goodless management prior to December 23.

On

December 21, the

reminding Goodless

of the

language contained

assent that bound Goodless to

9(a)

Union responded with

collective-bargaining

in the

letter of

recognize the Union as the Section

representative

on

majority support and indicating that, the Union

a showing at the June 25

two letters

showing

having made such

meeting, the Union was now the

9(a) bargaining representative and

of

Goodless could not

Section

repudiate

the relationship or negotiate directly with its employees.

Union Business

for the

employees to send

December 17 letter.

All

Manager Bodman

composed a

to Goodless in response

but one

form letter

to Goodless'

Goodless employee

signed and

submitted this form letter, which stated in relevant part:

intend

to continue

my

employment with

Goodless Electric and

with [the Union].

maintain my membership

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

concerning wages

to

discuss

or terms and

employment, contact

my Union

any

matter

conditions of
Representative

Douglas Bodman.

-7-

On

December

30,

Goodless

announced

new

terms

of

employment

to

Goodless also

take effect

ceased to

January

1,

recognize the

1994.

On

January

Union as the

1,

employees'

collective bargaining agent.

Because Goodless

agreement,

the apprentices working for Goodless were informed by

the Joint

1994,

Apprentice Training

that

they

apprenticeship

As a

was no longer a signatory to the NECA

would

be

Committee (JATC)5

subject

program if they

result, the

to

termination

continued to work

apprentices terminated

on January

from

6,

the

for Goodless.

their employment

with

Goodless en masse.

As a

Union filed

result

charges

of these

of unfair

unilateral

modifications,

labor practices

with the

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

Section

9(a), the

bargain

with it

contends

relationship was

Union argues that

as the

that by

allegedly one

Goodless was

obligated to

employees' representative.

withdrawing

recognition of

employees' collective bargaining agent

under

The

the Union

Union

as the

and unilaterally changing

the terms and conditions of employment, Goodless violated Section

____________________

Under

the NECA

Apprentice

Training

collective-bargaining
Committee

ran

an

agreement, the
apprenticeship

Joint

program

consisting of three members of the Union and three members of the

contractors' association.
an

employer had

requirements

as

to "be

To be eligible to
signatory

set forth

in

the

to and

train apprentices,
meet the

basic labor

agreement

provide the necessary work experience for training."

-8-

qualifying

and

8(a)(5)6 of

insists that

the National

Labor Relations Act.

Goodless constructively discharged

The

the apprentices

in violation of Section 8(a)(3).7

____________________

Section 8(a)(5), 29 U.S.C.

It shall be

158(a)(5), provides:

an unfair labor practice

for an

employer --

(5)

to refuse

to bargain

Union also

collectively with

the representatives of his employees, subject

to the provisions of

section 159(a) of

this

title.

Section 8(a)(3), 29 U.S.C.

It shall be

158(a)(3), provides:

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

membership

to

in

encourage
any

or

labor

discourage

organization:

Provided, That nothing in this subchapter, or

in any
shall

other statute
preclude an

agreement

with

of the United

employer
labor

established, maintained,
action

defined

unfair

labor

in

from making

organization
or assisted

this

practice)

States,

subsection
to

an
(not

by any
as

require

as

an
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
in section

159(a)

the employees
of

this

as provided

title,

in

the

appropriate

collective-bargaining

unit

covered by such agreement when made, and (ii)

unless following an election held as provided
in section
year

159(e) of

preceding the

agreement,
that at

the

this title
effective

Board shall

least a

majority

eligible to vote in such

to

rescind

organization
Provided

the
to

further,

That

date of

such

have

certified

of the

employees

election have voted

authority
make

within one

such
no

of
an

such

labor

agreement:

employer

shall

-9-

The case was first heard

before an ALJ, who determined

that

the relationship

change to a

between

Goodless and

Section 9(a) relationship.

remained a Section

the Union

did not

Because the relationship

8(f) relationship, Goodless remained

free to

repudiate the relationship at the end of the contractual term and

thus

its

employment

unilateral

changes to

the

did not

violate either

terms

Section

and conditions

8(a)(3) or

of

Section

8(a)(5).

The NLRB

under existing NLRB

and

the Union

Section

9(a)

Goodless of the

held that

reversed the

ALJ's opinion

case law, the relationship

changed from

relationship

upon

Section 8(f)

the

Union's

in ruling

between Goodless

relationship to

presentation

to

employee-signed authorization cards.

the letter of assent signed

that,

The Board

by Goodless in June 1992,

in

which

it

stated

that,

support, Goodless would

should the

Union

garner

recognize the Union as the

majority

Section 9(a)

employee representative, amounted to a standing promise to extend

such

recognition

majority support.

conditioned

only on

the

Union's

showing of

When the Union showed majority support through

____________________

justify

any

employee

for

discrimination
nonmembership

against
in

an
labor

organization (A) if he has reasonable grounds

for

believing that

available

such membership

to the employee

and conditions generally

on the same terms

applicable to other

members, or (B) if he has reasonable

for believing that

was not

grounds

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

membership.

-10-

or

retaining

the authorization

condition

promise

cards in

had been

to

met and

recognize the

representative.

June 1993,

The

the Board

Goodless was

Union

Board then

as the

found

reasoned, the

bound by

Section

its earlier

9(a) employee

violations

of Section

8(a)(3) for

Goodless' withdrawal of recognition of the Union and

of

8(a)(5)

Section

apprentices.

for

constructive

discharge

of

the

four

The Board ordered Goodless to cease and desist, and

also ordered that Goodless:

recognize the Union as the exclusive

bargaining agent of its

rescind changes

journeymen electricians and apprentices;

in employment terms

31, 1993; and make whole all

made on and

after December

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

reimburse employees

for any

losses or

incurred because of Goodless'

funds.

Finding that

benefit funds, and

expenses

they may

failure to make payments

the NLRB misapplied

its own

have

to those

precedent in

this case, we deny enforcement of its order.

STANDARD OF REVIEW
STANDARD OF REVIEW

We

applies the

determine whether

law

and

evidence on the record.

whether

the

it is

Board's decision

supported

by

correctly

substantial

See Yesterday's Children, Inc. v. NLRB,

___ __________________________
____

115 F.3d 36, 44 (1st Cir. 1997); see also

________

v. NLRB, 340 U.S. 474,

____

488 (1951).

that

from

the Board

draws

Universal Camera Corp.

______________________

"We must

the facts

and

sustain inferences

its application

of

statutory standards to those facts and inferences as long as they

are reasonable."

NLRB
____

v. Laverdiere's Enter., 933

____________________

-11-

F.2d 1045,

1050 (1st

does

Cir. 1991).

not allow

The standard

us to

displace the

conflicting views merely

different

choice

had

is quite

Board's choice

cannot fairly

the

evidence in

We must

find that

matter been

before

courts

of appeals

reasonableness

supported by

charged

and fairness

with

of Labor

F.2d

the relevant

(1st Cir.

at 1050

'responsibility

Board

we

substantial

884 F.2d 34, 35-37

Laverdiere's Enter., 933

____________________

are

de novo."
_______

Board decision if

or correctly applies

law, Shaw's Supermarkets v. NLRB,

____________________
____

see also
________

[us]

This standard, however,

set aside a

it is either

the record, id.,

___

1989);

between two

because we may "justifiably have made a

Universal Camera Corp., 340 U.S. at 488.

______________________

is no rubber stamp:

deferential, and

("The

for

decisions,' and

the

court must set aside Board action when it 'cannot conscientiously

find that the

when viewed

in the light

including the

(citations

evidence supporting that decision

body of

the record in its

evidence opposed to

is substantial,

entirety furnishes,

the Board's

view.'"

omitted) (quoting Universal Camera Corp., 340 U.S. at

______________________

488, 490)).

DISCUSSION
DISCUSSION

I.
I.

Statutory structure
Statutory structure

Section 9(a), 29 U.S.C.

Relations Act designates the manner

exclusive bargaining

159(a), of the National Labor

in which a union becomes the

representative of a

unit of employees.

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,

-12-

it is a violation

treat

of Section 8(a) of the NLRA for an employer to

a union as the exclusive

employees prior

to that

majority of the employees.

bargaining representative of its

union's being designated

See 29 U.S.C.
___

as such

158(a) & (f).

by a

The

construction industry,

workers for short durations and on

designation or

selection of

however,

allow

construction

union representative

workers

collective

Section 8(f) of the

id.
___

provides an

prohibitions

8(f)

on

essentially

employer

recognition

construction

industry

employer

to

bargaining

NLRA.

exception

of

representative in the construction industry.

difficult.

To remedy this problem

representation, Congress enacted

Section

employ

discrete projects, making the

See generally S. Rep. No. 86-187 (1959).

_____________

and

tends to

to

See
___

the

non-majority

Section 8(f) allows

enter

into

specific

agreement of limited duration with a union whereby the union acts

as the employees'

158(f).

Employees

collective bargaining agent.

are allowed,

however, to

See
___

29 U.S.C.

petition for

the

selection of a different agent as their representative.

II.
II.

Id.
___

Board precedent
Board precedent

Prior

Inc.,
____

Section

282

to the Board's decision in

N.L.R.B. 1375

8(f)

relationship

relationship

under the

doctrine required only a

some point during

relationship

(1987),

could

John Deklewa & Sons,

____________________

Board precedent

change

to

"conversion doctrine."

held

Section

that a

9(a)

The

conversion

union's showing of majority

support at

the relevant period to convert

into a Section 9(a) relationship.

-13-

a Section 8(f)

"The achievement

of majority

support required

no notice,

claim of majority, and no assent

conversion process."

Id.
___

no simultaneous

union

by the employer to complete the

at 1378.

employer was required under Section

Upon such

conversion, the

9(a) to recognize the

as the employees' exclusive bargaining agent.

Id. at 1379.
___

union

The

conversion created an irrebuttable presumption of majority status

for the duration of the agreement.

Along

came

Deklewa,
_______

Id.
___

however,

in

which

the

Board

overturned its

not serve the

labor

"conversion doctrine," on the ground

"statutory objectives of employee

relations

stability."

Id.
___

In

that it did

free choice and

its place,

the

Board

established four cardinal principles to govern this area:

(1)

collective-bargaining

permitted

by

Section

agreement

8(f)

shall

be

enforceable through the mechanisms of Section

8(a)(5)

and

agreements
valid

Section

will

8(b)(3);

not bar

petitions

[for

election] filed pursuant

Section

9(e);

(3)

in

the
a

(2)

such

processing of
Board-certified

to Section 9(c) and

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

enjoy no presumption
either

party

may

union

will

of majority status, and

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

may unilaterally repudiate their

period of the agreement.

that, at no

relationship during the express

Id. at 1387.
___

time during the

Section 8(f) agreements

The Board also determined

duration of the agreement

does the

-14-

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

only two means

by which a union

since Deklewa has set

_______

may obtain Section 9(a)

during the course of a Section 8(f) relationship:

Board-certified

grant of

recognition of

to

be

status

(1) through

election, or (2) through an employer's voluntary

the union

majority bargaining agent.

proved

forth

otherwise, a

as the

Unless and

employees' exclusive

until a relationship

bargaining

relationship

is

between a

construction industry employer and a union is presumed to be 8(f)

rather than 9(a).

289 (1991).

See
___

Comtel Sys. Technology, 305 N.L.R.B. 287,

______________________

The burden of proving a 9(a)

the party asserting its

existence.

relationship rests on

Casale Indus., 311

_____________

N.L.R.B.

287, 288

Union

(1993).

had met

Because the Board

its burden

of proving

determined below

that Goodless

that the

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

demand for, and an employer's voluntary grant of,

union's express

recognition to

the union as bargaining representative based on a contemporaneous

showing of union support among a majority of the

appropriate

(1988).

unit."

There

unequivocally

J & R Tile, Inc., 291

_________________

must be

demanded

"positive

recognition

N.L.R.B. 1034, 1036

evidence"

as

the

employees in an

that the

employees'

"union

9(a)

-15-

representative and that the employer unequivocally accepted it as

such."

Id.
___

The cases in

fall into two

union

and

categories, the first finding that the acts of the

the

relationship into

determining

which the Board has applied this approach

employer

a Section

transformed

their

9(a) relationship,

Section

and the

8(f)

second

that the parties failed to meet the requirements for

such a transformation.

cases

A consistent theme running throughout the

in the first category

following three parts

is the requirement

that all of the

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

contemporaneous showing that the union enjoys majority support of

_______________

the employers' workforce.

Board case law emphasizes that the third requirement is

essential.

through the

to an

In addition to

an actual showing of majority support

presentation of employee-signed

employer,

see
___

Hayman Electric, 214

________________

authorization cards

N.L.R.B.

879,

886

(1994),

or through an

recognition,

see
___

employer-conducted poll prior

Precision Piping,
_________________

(1987), the

Board has found

requirement

unchallenged

months.

union's

by the

claim

employer

284

N.L.R.B.

as sufficient to satisfy

of

for

majority

a period

support

of

to initial

1110,

1112

the third

that

more than

went

six

See, e.g., Triple A Fire Protection, Inc., 312 N.L.R.B.

___ ____ _______________________________

-16-

1088,

1089 (1993)

(declining

to

question

actually achieved the majority status

employer recognized

it when

whether

the

union

it claimed at the time the

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

challenge

obtained

to

six

that

months

status

and

limiting

from

the

time

majority

claimed); Golden West Elec. Co., 307 N.L.R.B.

______________________

(holding that

employer's act of

the

window

status

for

is

1494, 1495 (1992)

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

Similarly, the Board found the

Section 9(a)

relationship).

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.

307

1495 (relying

N.L.R.B. at

majority status

status).

it has

to satisfy the

on the

See
___

Golden West Elec.,

_________________

employer's admission

burden of

showing Section

of

9(a)

From this case law it is clear that when a union claims

attained majority status

claim, agree

to a Section

challenge that status

and the parties, based

9(a) relationship, the

within a

reasonable period

months), or be bound by its agreement.

on that

employer must

of time

(six

-17-

The

Board

parties' intention

has

also

to enter

held

into a

their relationship is not entitled

that

notwithstanding

Section 9(a)

the

relationship,

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

established

no

Section

unless union made

9(a)

a showing of

single-unit employer's employees prior

into

multi-employer

governed by

1037

that the union

parties

be

majority support of

to that employer's

bargaining relationship

(declining to find that predecessor

parties'

would

claimed

entry

to

be

Section 9(a)); see also J & R Tile, 291 N.L.R.B. at

________ ___________

entered into Section

Inc.,
____

relationship

employer and union had

9(a) relationship where no showing was made

had obtained majority support at the

agreement

intended

and

no indication

Section 9(a)

was

time of the

presented

relationship);

that the

James Julian,
_____________

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

Thus,

the

of a demonstrated

showing of the

Board precedent indicates that the

employer's grant

least

an

of recognition

unchallenged

claim,

if

union's majority").

union's demand for and

must be

not

predicated

an actual

on at

showing,

of

noted

its

contemporaneous majority support.8

_______________
____________________

In

fact,

the

Board's

General

Counsel

has

understanding of Deklewa and progeny as providing that failure to

_______
show majority support at the time of the demand
____________

will defeat any

attempts at

General Counsel

a Section

9(a) relationship.

The

interpreted Deklewa and progeny as holding that, "to prove that a

_______

-18-

Applying these

the

principles to

instant appeal, we simply cannot

the undisputed facts

find that the requirements

set forth by the Board in Deklewa and subsequent cases

_______

satisfied.

Quite

recognition be

support was

simply, the

based on
_____

requirement

a contemporaneous
_______________

never satisfied.

in

The record

that a

have been

demand

showing of

does not

and

majority

support the

conclusion that, when the Union presented the letter of assent to

Goodless in

recognition,

June 1992,

in which

it allegedly

sought Goodless'

it made a contemporaneous claim of majority support

on which

Goodless' recognition

could be made.9

of the union's majority status

________________________________

A showing of

majority support at least

a year

____________________

relationship

in

the

construction

relationship, there must

as the Section
the union's
demand and

(Feb.

presented

acceptance."

Section

to be recognized

Ltr. from NLRB Gen.

In

determining

no Section

has been no

9(a)

Counsel to

that, under

the

relationship could

showing that the Union

facts

be found

represents a

if the Union does, in fact, represent a

majority of the Employer's

employees, J & R
______

Tile makes clear that there must

____
proof

presented

Union's demand
recognition.
ambiguous
that

it

of

at the time of such

majority of the employees in the appropriate unit," it noted:

Even

Region 9, Feb. 27, 1989, 1989 WL 241614, at

27, 1989).

because "there

Advice

an employer acceptance

demand; and (3) majority status

to it,

is

be (1) a union demand

9 representative; (2)

Regional Director of
*2

industry

be explicit

contemporaneously
and the

Employer's voluntary

Thus, although

statements
believed

the

with the

arguably
Union

the Employer's
may indicate
had

majority

support, those statements are insufficient to

confer

9(a)

status upon

the

Union without

actual demonstration of that majority status.

Id.
___

9
315

In its brief, the Board suggests that Decorative Floors, Inc.,

_______________________
N.L.R.B. 188,

N.L.R.B. 879,
regarding

189 (1994),

887 n.8

the

and Hayman Electric, Inc., 314

_______________________

(1994), support

requirement

of a

the opposite

showing

of

conclusion

majority support.

-19-

later can hardly

be considered a showing

made contemporaneously

with,

and

as

prerequisite

to,

the

Union's

demand

for

recognition.

Moreover, the cases that presume majority support still

require

contemporaneity.

regarding whether Goodless

obtained

recognition of

is

at the

record

raises

in fact conceded

majority support.

unartful statement

the

The

the union's majority status.

doubts

that the Union

The Board concluded

June 25 meeting

serious

had

that Goodless'

was evidence

of its

Even assuming that

Board's interpretation of the meaning of Goodless' statement

sound, its case law unmistakably

showing

of

majority

status must

demand and recognition of that

holds that nevertheless the

be

status.

contemporaneous

with the

These preconditions to a

9(a) recognition are clearly lacking here.

In

arriving at its

conclusion, the Board

relied upon

principles of contract law.

at 66.

See Goodless Elec. Co., 321 N.L.R.B.

___ __________________

In discussing Goodless' signing of the letter of

the Board suggests

that "the letter

assent,

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

required that
the

the union demonstrate

existence

because
majority

in

is quite correct that neither

of majority

Hayman Electric,
_______________

through extrinsic

support, they
the

of these opinions

union

were not
had

made a

evidence

so required
claim
_____

of

support, which the employer failed to challenge, and in

Decorative Floors,
__________________

the

employer

had

signed

recognition

agreement explicitly stating that the union had attained majority

status.

The same is not true here.

-20-

basis if

point, we

other

the Union demonstrated majority support."

have noted

circuits,

interpretation

that "[t]he prevailing

provides

that

technical

are not necessarily

collective bargaining

general

contract

principles

federal

labor policy favoring

so as

rule, in

rules

binding on the

context, even though

to

Id.
___

of

this and

contract

Board in the

it is free

foster

On this

to apply

the established

collective bargaining."

NLRB v.
____

Boston Dist. Council of Carpenters,

___________________________________

80 F.3d 662, 665

1996).

that general

Furthermore,

principles cannot

policy

such as

employees

be

it

is

clear

supplant the

that

requirement of

embodied in

represented

by

an

Section

(1st Cir.

contract

a federal

labor

9(a) requiring

organization

law

that

approved

by

majority of employees.

In

relationship

union,

discrete

the unique circumstances surrounding a Section 8(f)

between a

for ten

years

two-option

relationship into

construction

the

rule

industry

Board has

followed

for

transformation

the

a Section 9(a) relationship.

terms of that rule, a

employer

a specific

of

and

that

Under the plain

finding in favor of Goodless is

We cannot accept the Board's

and

required.

departure from its own precedent in

this

case

explanation

in

the

that

Supermarkets, Inc.,
__________________

permanently bound by

absence

has

not

of

some

been

884 F.2d at

cogent

explanation,

forthcoming.10

an

See
___

Shaw's
______

35 ("Although the Board

is not

its precedent,

when it

wishes to

deviate

____________________

10

Indeed, the Board does not acknowledge that its decision is a

departure from past precedent.

-21-

from well-established precedent

here,

it

must,

at

deviation.").11

least,

majority support

that

explain

the

reasons

has done

for

its

Under Board precedent, the parties maintained a

Section 8(f) relationship

Thus, Goodless

as significantly as it

because no contemporaneous showing

accompanied the

did not

relationship

or

Union's demand

violate Section

by unilaterally

to

8(a)(5) by

changing

of

Goodless.

repudiating

the

terms and

conditions of employment under the circumstances of this appeal.

As

apprentices

conclusion

repudiating

were

that

final

matter,

the

constructively

Goodless committed

Board's

finding

that

the

discharged

rested

upon

its

unfair

labor

practices by

its relationship with the Union, and by unilaterally

implementing changes in

the terms and conditions

of employment.

Because we do

not agree with

ruling predicated upon it.

Board's finding that

that finding, we cannot

enforce a

We therefore deny enforcement of the

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

demand,

secondary matter,
let alone

"unequivocal"

when

Goodless'
it

was

we do

not think

recognition, could
subject

to

fulfillment had no temporal limitations.

may

never have

been met.

that the

Without any

be

Union's

considered

contingency

whose

Indeed, the contingency

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.

-22-

Costs to respondent.

-23-