The opinion
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
AMERICAN AUTOMATIC SPRINKLER
SYSTEMS, INCORPORATED,
Petitioner,
v.
No. 97-1821
NATIONAL LABOR RELATIONS BOARD,
Respondent,
ROAD SPRINKLER FITTERS LOCAL
UNION NO. 669, U.A., AFL-CIO,
Intervenor.
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
AMERICAN AUTOMATIC SPRINKLER
No. 97-2014
SYSTEMS, INCORPORATED,
Respondent,
ROAD SPRINKLER FITTERS LOCAL
UNION NO. 669, U.A., AFL-CIO,
Intervenor.
On Petition for Review and Cross-Application
for Enforcement of an Order
of the National Labor Relations Board.
(5-CA-24636)
Argued: September 23, 1998
Decided: December 17, 1998
Before WIDENER and LUTTIG, Circuit Judges, and MAGILL,
Senior Circuit Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
_________________________________________________________________
Petition granted in part and denied in part and cross-application for
enforcement granted in part and denied in part by published opinion.
Judge Luttig wrote the opinion, in which Judge Widener and Senior
Judge Magill joined.
_________________________________________________________________
COUNSEL
ARGUED: Lawrence Edward Dube, Jr., DUBE & GOODGAL, P.C.,
Baltimore, Maryland, for American Automatic. Steven B. Goldstein,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Board. William W. Osborne, Jr., OSBORNE LAW OFFICES, P.C.,
Washington, D.C., for Intervenor. ON BRIEF: Frederick L. Fein-
stein, General Counsel, Linda Sher, Associate General Counsel,
Aileen A. Armstrong, Deputy Associate General Counsel, Margaret
Ann Gaines, Supervisory Attorney, NATIONAL LABOR RELA-
TIONS BOARD, Washington, D.C., for Board. Marc D. Keffer,
OSBORNE LAW OFFICES, P.C., Washington, D.C., for Intervenor.
_________________________________________________________________
OPINION
LUTTIG, Circuit Judge:
Petitioner American Automatic Sprinkler Systems, Inc., petitions
for review of a decision and order of the National Labor Relations
Board concluding that American violated section 8(a)(1), (a)(3), and
(a)(5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1),
(a)(3), and (a)(5), by, inter alia, failing to bargain in good faith with
the union locals upon the expiration of collective-bargaining agree-
ments, unilaterally changing working conditions, and discriminating
against certain individuals on the basis of union membership. The
NLRB cross-petitions for enforcement of its decision and order. For
2
the reasons that follow, we conclude that American did not have a
legal obligation to negotiate with or recognize its collective-
bargaining partners upon the expiration of their respective agree-
ments, and thus did not violate section 8(a)(5) or (a)(1) by unilaterally
changing the conditions of employment. However, because we con-
clude that the Board's findings of unlawful discrimination against
union members in violation of section 8(a)(3) and (a)(1) are supported
by substantial evidence in the record as a whole, we enforce the
Board's order as to these findings. Accordingly, we grant in part and
deny in part American's petition for review, grant in part and deny in
part the Board's cross-petition for enforcement of its order, and
remand the case to the NLRB for entry of an appropriate remedial
order.
I.
American is an Owing Mills, Maryland, firm engaged in the fabri-
cation, installation, and servicing of fire sprinkler systems. Road
Sprinkler Fitters Local Union No. 669, U.A., A.F.L.-C.I.O. is a sprin-
kler fitters' union with near nationwide geographic jurisdiction. Road
Sprinkler Fitters Local Union No. 536 has jurisdiction over Balti-
more, Maryland, and surrounding areas.
Since it began operations in 1974, American has been a party to
successive collective-bargaining agreements with Local 669 and
Local 536 by virtue of its membership in a multiemployer bargaining
association, the National Fire Sprinkler Association ("NFSA" or "the
Association"). These negotiated collective-bargaining agreements
established the terms and conditions of employment for American's
journeymen and apprentice sprinkler fitter employees employed in the
respective territorial jurisdictions of Locals 669 and 536.
In 1987, American signed a form recognition agreement acknowl-
edging Local 669 as the exclusive bargaining representative of its
sprinkler fitter employees working in Local 669's jurisdiction. The
agreement, which was accompanied by fringe benefit forms demon-
strating majority union membership, stated:
[American] . . . has, on the basis of objective and reliable
information, confirmed that a clear majority of the sprinkler
3
fitters in its employ have designated, are members of, and
are represented by . . . Local 669 . . . for purposes of collec-
tive bargaining. [American] therefore unconditionally
acknowledges and confirms that Local 669 is the exclusive
bargaining representative of its sprinkler fitter employees
pursuant to Section 9(a) of the National Labor Relations
Act.
American signed another such recognition agreement with Local 669
in 1988 that stated as follows:
[American] hereby freely and unequivocally acknowledges
that it has verified the Union's status as the exclusive bar-
gaining representative of its employees pursuant to Section
9(a) of the National Labor Relations Act.
And, in 1991, NFSA, which was then American's bargaining repre-
sentative, negotiated a collective-bargaining agreement with Local
669 that included a similar recognition clause. That agreement took
effect April 1, 1991, and expired on March 31, 1994. NFSA also
negotiated a collective-bargaining agreement on behalf of its mem-
bers, including American, with Local 536. This agreement, which was
effective from June 1, 1991, to May 31, 1994, included an identical
recognition clause to that in the Local 669 agreement:
The National Fire Sprinkler Association for and on behalf
of its contractor members . . . recognizes [Local 536] as the
sole and exclusive bargaining representative for all journey-
men sprinkler fitters and apprentices in the employ of said
employers [working in the City of Baltimore and its 10 sur-
rounding miles], . . . pursuant to section 9(a) of the National
Labor Relations Act.
In late January, 1994, American notified both Local 669 and 536
that it was withdrawing bargaining authority from the NFSA and
intended thereafter to bargain independently with the unions. Within
days, Local 536 requested that the Company identify dates and times
to bargain. The Company never responded to this initial communica-
tion or to three telephone messages to the same effect.
4
The Company eventually met with the Local on May 31, 1994, the
day the NFSA agreement expired. At that time, however, the Com-
pany offered no proposal and filed the Local's proposal without
reviewing it. The Company's Vice-President Mike McCusker submit-
ted its first proposal to the Local on July 25, 1994. The proposal was
less than a page long in its entirety, and, in addition to drastically cut-
ting wages and benefits, it would have effectively eliminated union
representation. The proposal included no recognition clause, no
description of the bargaining unit, no contract term, and no provisions
addressing dues check-off, union security, grievances and arbitration,
overtime, or lunch time, holiday or vacation pay. The proposal
required employees to furnish all of their own tools, irrespective of
cost, created a new non-unit position of "helper," and eliminated the
union apprenticeship program and territorial jurisdiction.
After three brief "bargaining sessions" in which the Company
expressed no willingness to deviate in any way from its initial pro-
posal, McCusker informed the union negotiating representative on
August 9, 1994, that the parties were at an "impasse" because the
union had rejected its "final offer." Further, McCusker indicated that
the Company would begin implementing the terms of its proposal on
August 11. When the union stated its wish to continue negotiations,
the Company did not respond, and instead began implementing the
terms of its proposal through negotiations with individual employees.
McCusker's negotiations with Local 669 proceeded in similar fash-
ion. There were three negotiating sessions in which the Company
expressed no willingness to compromise on its substantially identical
proposal or even consider the Local's proposal. As occurred with
Local 536, the sessions ended with the Company's abrupt declaration
of impasse and its rejection of further entreaties by the union.
In the weeks following American's declarations of impasse, the
Company required all employees to submit individual applications for
work and entered into individualized negotiations. Executives of the
Company told employees and union members that the Company was
going "nonunion," and suggested that it would be able to give better
offers to individuals who resigned their union cards. During this time
period, one of the general contractors for whom the Company was
5
working as a subcontractor complained repeatedly that the Company
was behind schedule due to labor shortages.
As a consequence of the Company's actions, Locals 669 and 536
and their individual members filed charges with the Regional Director
of the NLRB, who in turn issued a series of complaints against the
Company. The Administrative Law Judge to whom the complaints
were referred found that the Company had violated section 8(a)(5)
and (a)(1) of the NLRA by bargaining in bad faith with the Locals
and prematurely declaring an impasse, bypassing both Locals and
dealing directly with individual employees, and unilaterally making
changes in mandatory subjects of bargaining and the scope of the bar-
gaining units.1 The ALJ further found that the Company had violated
section 8(a)(1) of the NLRA by telling employees it was going "non-
union," telling an employee that he could not work as a foreman
because of his father's union affiliation, and impliedly promising an
employee a wage increase if he resigned his union membership card.
Finally, the ALJ found that the Company had violated section 8(a)(3)
and (a)(1) of the Act by refusing to hire or reinstate, discharging and
constructively discharging, and imposing onerous working conditions
on, members of both Locals.
On appeal, the Board affirmed the conclusions of the ALJ, finding
additional violations with respect to the treatment of certain individ-
ual employees. The Board ordered the Company to bargain with both
Locals, rescind the unilateral changes, make employees and Locals'
funds whole for any losses directly attributable to the Company's uni-
_________________________________________________________________
1 Section 8(a), 29 U.S.C. § 158(a), provides, in relevant part, as fol-
lows:
It shall be an unfair labor practice for an employer--
(1) to interfere with, restrain, or coerce employees in the exer-
cise of the rights guaranteed in section 157 of this title;
(3) by discrimination in regard to hire or tenure of employ-
ment or any term or condition of employment to encourage or
discourage membership in any labor organization. . ..
(5) to refuse to bargain collectively with the representatives of
his employees, subject to the provisions of section 159(a) of this
title.
6
lateral changes, offer certain individuals immediate employment in
their former jobs, or to the jobs to which they would have been
assigned, and make these individuals whole for any losses suffered as
a result of the discrimination against them.
American petitions for review of the Board's findings and order,
and the Board cross-petitions for enforcement of its order.
II.
A.
We consider first American's contention that it was not under a
legal obligation to bargain collectively with Locals 669 and 536 and
thus could not have violated section 8(a)(5) and (a)(1) of the Act by
bargaining in bad faith and making unilateral changes in the condi-
tions of employment.
An employer is obligated under section 8(a)(5) to bargain collec-
tively with a union that has been "designated and selected for the pur-
poses of collective bargaining by the majority of employees,"
pursuant to section 9(a) of the Act, 29 U.S.C. § 159(a). An employer
who is party to an agreement with a union "designated and selected"
in accordance with section 9(a) may not repudiate the contract during
its term and may not refuse to bargain with the union following expi-
ration of the contract, unless the employer proves either that a major-
ity of its employees did not in fact support the union or that it doubted
in good faith the union's majority status. NLRB v. Curtin Matheson
Scientific, Inc., 494 U.S. 775, 778 (1990); NLRB v. Gissell Packing
Co., 395 U.S. 575, 597 n.11 (1969). Conversely, in the usual case it
is an unfair labor practice under section 8(a)(1) and (2) for an
employer, and section 8(b)(1)(A) for a union, to enter into a
collective-bargaining agreement when only a minority of employees
has "designated and selected" the union as its bargaining representa-
tive. See NLRB v. Local 103, Int'l Ass'n of Bridge, Structural and
Ornamental Iron Workers (Higdon), 434 U.S. 335, 344 (1978)
("There could be no clearer abridgment of § 7 of the Act, assuring
employees the right `to bargain collectively through representatives of
their own choosing' or `to refrain from' such activity than to grant
exclusive bargaining status to an agency selected by a minority of its
7
employees, thereby impressing that agent upon the nonconsenting
majority." (internal quotations and citation omitted)); Garment
Workers v. NLRB, 366 U.S. 731, 737 (1961) (same).
Section 8(f) of the NLRA, 29 U.S.C. § 158(f), created an exception
to this general prohibition. Enacted by Congress in 1959 to address
problems unique to the building and construction trades, section 8(f)
allows construction industry employers and unions to enter into "pre-
hire" agreements before a majority of employees has approved the
union as its bargaining representative.2
In John Deklewa & Sons, Inc., 282 NLRB 1375 (1987), enforced
sub nom. International Ass'n of Bridge, Structural & Ornamental
Iron Workers, Local 3 v. NLRB, 843 F.2d 770 (3rd Cir. 1988), the
Board substantially modified its then-existing interpretation of section
8(f) and introduced new rules governing the relationship between par-
ties to an 8(f) collective-bargaining agreement. Prior to Deklewa, the
rights of employers and unions in 8(f) relationships were governed by
the Board's decision in R.J. Smith Construction Co., 191 NLRB 693
(1971), enforcement denied sub nom. Local No. 150, Int'l Union of
_________________________________________________________________
2 Section 8(f) provides in relevant part:
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 cover-
ing 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 . . . because (1) the majority status of such labor orga-
nization 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, member-
ship 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.
8
Operating Eng'rs v. NLRB, 480 F.2d 1186 (D.C. Cir. 1973), and the
associated "conversion doctrine."
Pursuant to R.J. Smith, an 8(f) agreement"confer[red] no presump-
tion of majority status" on the signatory union and could be repudi-
ated at any time and for any reason by either party. Deklewa, 282
NLRB at 1378. Subsequent cases established, in reliance upon a sug-
gestion by the Board in R.J. Smith that such might occur, that a con-
version of an 8(f) relationship into a standard 9(a) relationship could
be accomplished by a showing that the union had at some point dur-
ing the term of the contract enjoyed majority support among an
appropriate unit of the employer's employees. Id . This majority sup-
port, the reasoning went, could be established by proof of any of a
number of objective evidentiary factors, the existence of which was
typically quite burdensome to litigate. Id. Once the Board determined
that conversion had occurred, the union was accorded"immediate and
complete 9(a) status, and any collective-bargaining agreement in
effect acquired the status of a collective-bargaining agreement
enforceable before the Board." Id. at 1379. As with any other 9(a)
relationship under the Act, the union would also enjoy a rebuttable
presumption of majority status at the expiration of the contract, and
the employer would be legally obligated under the NLRA to engage
in good faith collective bargaining. Id.
In Deklewa, the Board abandoned R.J. Smith and the conversion
doctrine, concluding that this analytical framework did "not fully
square with either 8(f)'s legislative history" or text, "inadequately ser-
ve[d] the fundamental statutory objectives of employee free choice
and labor relations stability," id. at 1380, and "entail[ed] evidentiary
determinations that are inexact, impractical, and generally insufficient
to support the conclusions they purport to demonstrate." Id. at 1384.
In its place, the Board established a new framework for 8(f) relation-
ships. The Board declared that an 8(f) agreement is binding and
enforceable during the duration of the contract, and cannot be unilat-
erally repudiated by either party to the agreement, id. at 1385, but
that, upon the contract's expiration, the signatory union will not enjoy
a presumption of majority and either party may repudiate the 8(f)
relationship, id. at 1386. Most significantly for our purposes today,
the Board also announced that 8(f) representatives would no longer
be able to establish "conversion" to 9(a) status except by means of a
9
Board-certified election, id. at 1383-85, or voluntary recognition
based upon a clear showing of majority support. Id. at 1387 n.53.
Although the Supreme Court has yet to consider the Deklewa rules,
a majority of the Courts of Appeals has done so and each, with the
exception of our court, has ultimately adopted the Deklewa analytical
framework in its entirety.3
In this court's only previous consideration of these"new" rules, we
held last year, in Industrial Turnaround v. NLRB, 115 F.3d 248, 254
(4th Cir. 1997), that we were "precluded from adopting Deklewa as
the law of the Circuit because it stands in conflict with Clark v. Ryan,
818 F.2d 1102 (4th Cir. 1987), a prior panel opinion of this court."
The question before us in Industrial Turnaround , however, was
whether Deklewa effectively overruled the law of this circuit, estab-
lished in Clark, that "a pre-hire agreement may be repudiated at any
time by either party prior to the union's achievement of majority sta-
tus." Industrial Turnaround, 115 F.3d at 254. Both Clark and Jim
McNeff, Inc. v. Todd, 461 U.S. 260 (1983), the Supreme Court deci-
sion upon which Clark was based, likewise concluded only that "[a]
§ 8(f) prehire agreement is subject to repudiation until the union
establishes majority status." McNeff, 461 U.S. at 271. None of these
three decisions addressed the conversion doctrine at all, or, more
broadly, the question of how an 8(f) union can obtain 9(a) representa-
tive status under the National Labor Relations Act. This question is
thus one of first impression for this court. Accordingly, we are free
_________________________________________________________________
3 The Courts of Appeals for the First, Third, Seventh, Eighth, Ninth,
Tenth, and Eleventh Circuits have all adopted the Deklewa decision. See
NLRB v. Triple A Fire Protection, Inc., 136 F.3d 727, 735 (11th Cir.
1998); NLRB v. Viola Indus.-Elevator Div., Inc., 979 F.2d 1384, 1393-95
(10th Cir.) (en banc); C.E.K. Indus. Mechanical Contractors, Inc. v.
NLRB, 921 F.2d 350, 357 (1st Cir. 1990); NLRB v. Bufco Corp., 899
F.2d 608, 609, 611 (7th Cir. 1990); NLRB v. W.L. Miller Co., 871 F.2d
745, 748 (8th Cir. 1989); Mesa Verde Constr. Co. v. Northern California
Dist. Council of Laborers, 861 F.2d 1124, 1129-34 (9th Cir. 1988) (en
banc); International Ass'n of Bridge, Structural & Ornamental Iron
Workers v. NLRB, 843 F.2d 770 (3rd Cir. 1988).
10
to adopt the Board's construction of the Act on this score, provided
it is reasonable. Holly Farms Corp., 517 U.S. at 409.4
B.
The Board abandoned the conversion doctrine because it concluded
that the rule fostered neither industry stability nor employee free
choice. The Board was correct that labor relations stability in the con-
struction industry was one of the primary objectives of the 1959
amendments to the NLRA. See McNeff, 461 U.S. at 266 (reviewing
legislative history of the 1959 Amendments and concluding that Con-
gress in enacting section 8(f) sought to address instability created by
the "uniquely temporary, transitory and sometimes seasonal nature of
much of the employment in the construction industry"); see also
Higdon, 434 U.S. at 348-49 (discussing same history and concluding
that section 8(f) "greatly convenienced unions and employers" by "ac-
commodat[ing] the special circumstances in the construction indus-
try"). Cf. Colgate-Palmolive-Peet Co. v. NLRB, 338 U.S. 355, 362
(1949) ("To achieve stability of labor relations was the primary objec-
tive of Congress in enacting the National Labor Relations Act."). We
believe that it was self-evidently reasonable for the Board to conclude
in 1987, after more than fifteen years of experience attempting to
_________________________________________________________________
4 We recognize that by adhering to our refusal in Industrial Turnaround
to adopt the Board's position regarding unilateral repudiation, while at
the same time embracing the Board's abandonment of the conversion
doctrine, we would establish as the law of this Circuit a hybrid approach
considered and rejected by the Board in Deklewa . Nonetheless, as we
have explained, we are precluded from revisiting as a panel the Circuit's
established precedent on the repudiation issue. And, in any event, as
counsel for the Board explicitly stated at oral argument, this case does
not require reconsideration of the rules governing an employer's unilat-
eral repudiation of an 8(f) agreement during its term because the Board
has not alleged any such action on the part of the Company. Thus, in this
case we need only determine, as counsel persuasively urged, whether the
Board's conclusions in Deklewa as to the means by which an 8(f) union
can attain 9(a) status, thereby entitling it to"all the rights of a majority
representative, including a presumption of majority support upon expira-
tion of a collective bargaining agreement and the correlative duty to bar-
gain with respect to a new contract," NLRB v. Triple A Fire Protection,
Inc., 136 F.3d 727, 731 (11th Cir. 1998), are permissible.
11
implement and enforce the R.J. Smith rules, that the statutory aim of
labor relations stability was frustrated by a rule pursuant to which "an
effective conversion [could] take place, without notice, at virtually
any time after the signing of an 8(f) agreement, but[where] it may
take years of fractious litigation to establish whether conversion actu-
ally did occur." Deklewa, 282 NLRB at 1383. See also Mesa Verde
Constr. Co. v. Northern California Dist. Council of Laborers, 861
F.2d at 1134 ("The [conversion] doctrine does not further industry
stability. Its complex nature inevitably fosters litigation . . . to estab-
lish whether conversion ever took place, among whom, and at what
time.").
At the same time, and perhaps most importantly, we believe that
the Board also reasonably concluded that the conversion doctrine
impeded the often competing statutory aim of protecting employee
free choice by allowing proof of union membership to serve as an evi-
dentiary proxy for union support, even where the very 8(f) agreement
sought to be converted required union membership as a condition of
employment. Id. at *12. Cf. Authorized Air Conditioning Co., Inc. v.
NLRB, 606 F.2d 899, 906 (9th Cir. 1979) ("It is well established that
union membership is not always an accurate barometer of union sup-
port."). The text and statutory framework of the NLRA offer consid-
erable support for the conclusion that the conversion doctrine was
simply incompatible with the legislative goal of preserving employee
free choice. While the Amendments to the Act were undoubtedly
motivated, in large part, by Congress' desire to ensure stability in the
construction industry, Congress was nevertheless careful in enacting
section 8(f) to preserve its longstanding statutory policy of advancing
employee free choice. Cf. Higdon, 434 U.S. at 346 ("As for § 8(b)(7),
which, along with § 8(f), was added in 1959, its major purpose was
to implement one of the Act's principal goals -- to ensure that
employees were free to make an uncoerced choice of bargaining
agent."). As a result, Congress included in section 8(f) a proviso, the
subsection's second, specifying that an 8(f) agreement may not act as
a bar to employees' rights under section 9(c) and 9(e) to petition to
"reject or change their collective-bargaining representative."5
_________________________________________________________________
5 The second proviso reads in full:
Provided further: That any agreement which would be invalid,
but for clause (1) of this subsection, shall not be a bar to a peti-
tion filed pursuant to section 159(c) or 159(e) of this title.
12
Deklewa, at *10. Cf. Higdon, 434 U.S. at 344 (explaining the purpose
of the second proviso by noting that although "[p]rivileging unions
and employers to execute and observe pre-hire agreements in an effort
to accommodate the special circumstances in the construction indus-
try may have greatly convenienced unions and employers, . . . in no
sense can it be portrayed as an expression of the employees' organiza-
tional wishes"). The conversion doctrine flouted the legislative pur-
pose -- and language -- of the second proviso by allowing even
instantaneous conversions (i.e., where the signing of an 8(f) agree-
ment was accompanied by an existing majority employee comple-
ment) to result in full 9(a) status and the attendant "contract bar" to
election challenge. See NLRB v. Dominick's Finer Foods, Inc., 28
F.3d 678, 683 (7th Cir. 1994) ("Under the [contract bar] rule, a collec-
tive bargaining agreement protects an existing bargaining relationship
from challenge for the contract term. . . . This rule was formulated by
the Board in an effort to reconcile the NLRA's goals of promoting
industrial stability and employee freedom of choice." (internal quota-
tions and citation omitted)). Especially given that the conversion doc-
trine rendered the proviso's explicit language "nugatory," Deklewa,
282 NLRB at 1383, we think it was eminently reasonable for the
Board to abandon the doctrine, which as the Ninth Circuit has
explained "[r]ather than protect[ing] the free choice of employees to
choose or reject a union, . . . often prevent[ed] them from ever voting
for or against a particular" representative. Mesa Verde, 861 F.2d at
113.
Even as it jettisoned the conversion doctrine, the Board in Deklewa
concluded that construction industry unions should not be disfavored
in their ability to obtain the full protections-- and presumptions --
of the Act. Accordingly, the Board established that 8(f) unions, like
their counterparts in nonconstruction industries, would not be pre-
cluded from achieving 9(a) status through either Board-certified elec-
tion or voluntary recognition based upon a clear showing of majority
support. Deklewa, 282 NLRB at 1387 n.53. Here, too, we believe that
the Board's construction of the Act as it pertains to the ability of con-
struction industry employees to choose their own collective-
bargaining representatives is a defensible one. There is nothing in
either the text or the statutory framework of the Act that purports to
limit in any way the rights of employees in the construction industry
to designate and select their own bargaining representatives pursuant
13
to section 9(a). The Board has long recognized that construction
industry unions could obtain exclusive representative status before
entering into a collective-bargaining agreement through the traditional
means of Board-certified election or "by other voluntary designation,
pursuant to Section 9(a)." Island Const. Co. , 135 NLRB 13 (1962).
And, again, the text of 8(f), which in its second proviso protects the
right of employees subject to an 8(f) agreement to reject or change
their bargaining representatives through the Act's petition processes,
supports the conclusion that Congress meant to preserve employee
free choice in the construction industry, as elsewhere. This interpreta-
tion of the section's text also finds support in the Supreme Court's
acknowledgment in Higdon that a union party to an 8(f) agreement
retained the ability to obtain full 9(a) representative status. Higdon,
434 U.S. at 349-50 (stating that "[i]t is . .. undisputed that when the
union successfully seeks majority support, the prehire agreement
attains the status of a collective-bargaining agreement executed by the
employer with a union representing a majority of the employees in the
unit") (emphasis added)). Even at the time of the Supreme Court's
decision in Higdon, it had long been established that a union could
"successfully seek[ ] majority support" -- and thus attain 9(a) repre-
sentative status -- not only through a Board-certified election, but
also by means of voluntary recognition based on a clear showing of
majority support. See, e.g., NLRB v. Gissell Packing Co., 395 U.S.
575 (1969); United Mine Workers v. Arkansas Oak Flooring Co., 351
U.S. 62, 71 (1956).
Similarly, nothing in the legislative history of the Act can be read
to suggest that Congress intended in any way to disadvantage con-
struction industry employees in their attempts to organize or bargain
collectively. In fact, Congress was in part motivated by concern that
"construction industry unions often would not be able to establish
majority support with respect to many bargaining units." McNeff, 461
U.S. at 266. See also Higdon, 434 U.S. at 345 (reviewing the legisla-
tive history of section 8(f) and concluding that"[t]he Senate Report
also noted that `[r]epresentational elections in a large segment of the
industry are not feasible to demonstrate . . . majority status due to the
short periods of actual employment by specific employers'" (citation
omitted)). It is certainly reasonable to conclude that Congress, in
attempting to enable construction industry employees to reap the ben-
efits of collective-bargaining, did not at the same time intend to strip
14
those employees of the full protections of the Act where they were
"able to establish majority support." Thus, the Board's construction of
the Act conforms to both its text and legislative history, as well as to
Supreme Court dicta interpreting the same.
Because we agree with the Board that the conversion doctrine
impeded the Act's principal aim of advancing employee free choice,
and because we can discern nothing in either the text or legislative
history of the 1959 amendments or, for that matter, the statutory
framework of the Act, to suggest that employees in the construction
industry should in any way be disfavored in their ability to secure
union representation or the Act's protections, we accept as reasonable
and adopt the Board's interpretation that 8(f) unions can attain full
9(a) status only through the traditional means available to unions in
nonconstruction industries.
C.
Because the Board does not argue that either Local 669 or 536
attained 9(a) status through a certified election, we turn therefore to
the question whether either satisfied the requirements for attaining
such exclusive representative status through voluntary recognition.6
_________________________________________________________________
6 The Board argues that American's challenge to the Locals' 9(a) status
is time-barred because it occurs more than six months after voluntary
recognition was granted. In Casale Indus., 311 NLRB 951, 953 (1993),
the Board held that "a challenge to majority status must be made within
a reasonable period of time after Section 9(a) recognition is granted."
The Board based its ruling in Casale on the language of section 10(b),
29 U.S.C. § 160(b), "that no complaint shall issue based upon any unfair
labor practice occurring more than six months prior to the filing of the
charge with the Board," the fact that in cases involving nonconstruction
industries, the Board will not entertain a claim that majority status was
lacking at the time of recognition if more than six months have elapsed,
Casale, 311 NLRB at 953, and its conclusion in Deklewa that "unions in
the construction industry should not be treated less favorably than those
in nonconstruction industries." Id. American counters that under the
NLRA, only the General Counsel of the Board can issue "complaints,"
and that 10(b) can therefore only bar untimely complaints filed by the
Board.
15
In considering claims of "conversion" through voluntary recogni-
tion, both the Board and reviewing courts have required "the union's
_________________________________________________________________
American is correct that the two controlling authorities on which inter-
venor Local 669 primarily relies, Lodge No. 1424 v. NLRB (Bryan Mfg.),
362 U.S. 411 (1960), and NLRB v. Harvey Hubble, Inc., 783 F.2d 1121
(4th Cir. 1986), involved application of the six-month time bar to com-
plaints filed by the General Counsel. Anticipating this objection, Local
669 claims additional support from the decisions of the Courts of
Appeals for the Tenth and Eleventh Circuits applying the Casale rule to
bar construction industry employer defenses to refusal-to-bargain
charges. See National Labor Relations Board v. Triple A Fire Protection,
136 F.3d 727, 737 (11th Cir. 1998); MFP Fire Protection, Inc. v. NLRB,
101 F.3d 1341 (10th Cir. 1996). See also NLRB v. Viola Industries-
Elevator Div., 979 F.2d 1384, 1387 (10th Cir. 1992) (applying the 10(b)
time bar to an employer's affirmative defense that its grant of voluntary
recognition was the product of unlawful coercion).
It is not immediately clear to us that the Board's rule applying the
10(b) time-bar to nonconstruction industry employer defenses of invalid
voluntary recognition is a reasonable construction of a provision that, on
its face, applies only to complaints filed by the Board. However, we need
not decide that question today. Even assuming, arguendo, that the rule
as applied to employers in nonconstruction industries is reasonable, we
find that it is not so in the construction industry context. As one Board
member recognized in Triple A Fire Protection, Inc., 312 NLRB 1088,
1089 n.3 (1993), "the basis for applying a 10(b) limitations period in the
nonconstruction industry workplace, where minority recognition is
unlawful, does not hold in the construction industry, where there is no
statutory prohibition on minority recognition." Id. at *2 n.3. Thus, in the
nonconstruction industries, a defense of invalid voluntary recognition is
tantamount to a charge of unlawful conduct under the NLRA provisions
prohibiting employers and nonmajority unions from entering into
collective-bargaining agreements. This is not the case in the construction
industry, where 8(f) itself establishes the legality of such relationships.
The Board's single sentence in Deklewa that"nothing in this opinion
is meant to suggest that unions have less favored status with respect to
construction industry employers than . . . those outside the construction
industry," Deklewa, 282 NLRB at 1387 n.53, cannot suffice as a
response to this critical distinction. The Board itself recognized as much
shortly after Deklewa, when it held that it had not in that case upset the
16
unequivocal demand for, and the employer's unequivocal grant of,
voluntary recognition as the employees' collective-bargaining repre-
sentative based on the union's contemporaneous showing of majority
employee support." NLRB v. Goodless Elec. Co., Inc., 124 F.3d 322,
324 (1st Cir. 1997) (citing James Julian, Inc. , 310 NLRB 1247, 1252
(1993)); see also Brannan Sand & Gravel Co., 289 NLRB 977, 979-
80 (1988); J & R Tile, Inc., 291 NLRB 1034 (1988); American Thoro-
Clean, 283 NLRB 1107, 1108-09 (1987). The Board has required that
the demand for and grant of voluntary recognition be unequivocal
because of the potential for confusion in the construction industry
over which type of relationship -- 8(f) or 9(a)-- the parties intended
to create by entering into the collective-bargaining agreement. The
requirement of a contemporaneous showing of majority support, on
the other hand, is not unique to the construction industry, and is con-
sistent with the standard for voluntary recognition in the non-
construction trades. See, e.g., NLRB v. Lyon & Ryan Ford, Inc., 647
F.2d 745, 751 (7th Cir. 1981) ("The essence of voluntary recognition
is the commitment of the employer to bargain upon some demonstra-
ble showing of majority (status)." (citation and quotation marks omit-
ted)); Georgetown Hotel v. NLRB, 835 F.2d 1467, 1470 (D.C. Cir.
1987) ("[V]oluntary recognition has been found to have occurred
when an employer agrees to recognize a union through a card check
or some other procedure and subsequently confirms the union's
majority status through that procedure.").
We reverse the Board's finding of an effective voluntary recogni-
tion of Local 669's 9(a) status because we believe that that finding
_________________________________________________________________
rule of R.J. Smith that nothing in 10(b) or Bryan Mfg. "precludes inquiry
into the establishment of construction industry bargaining relationships
outside the 10(b) period . . . [where] [g]oing back to the beginning of the
parties' relationship here simply seeks to determine the majority or non-
majority based nature of the current relationship." Brannan Sand &
Gravel Co., 289 NLRB 977, 982 (1988). Recent decisions of the Board
and of the Tenth and Eleventh Circuits to the contrary notwithstanding,
we do not believe that section 10(b) can reasonably be interpreted to pro-
hibit American, the party against whom the complaint has been filed,
from defending itself by challenging the validity of the evidence of effec-
tive voluntary recognition that is the basis of the Board's complaint.
17
was based on an unreasonable construction of the Act. In support of
its concededly clear and unequivocal initial demand for voluntary rec-
ognition, Local 669 included fringe benefit reports demonstrating that
a majority of the Company's employees in the relevant jurisdiction
were members of the Local. American contends, however, that these
fringe benefit forms cannot suffice to satisfy the requirement of a con-
temporaneous showing of majority support because the parties' 8(f)
contract included a standard union security clause requiring employ-
ees, as a condition of employment, to join the union within seven days
of being hired. Where a union security clause is in effect, petitioner
argues, an employee's obligatory membership in the local cannot be
equated with -- and certainly cannot be taken as dispositive of --
support for the union. We agree.
Prior to its decision in Deklewa, the presence of a strictly-enforced
union security clause in an 8(f) contract was one of the evidentiary
factors the Board often cited as proof of conversion to 9(a) status. See
Deklewa, 282 NLRB at 1378. Even before Deklewa, however, at least
one court of appeals had determined that majority union membership
pursuant to an enforced union security clause was insufficient as a
matter of law to establish effective conversion. Precision Striping,
Inc. v. NLRB, 642 F.2d 1144, 1148 (9th Cir. 1981) (noting that "[a]
union security clause operates to compel new employees to join the
union, because union membership is the price for obtaining a job,"
and that "it is well established that union membership is not always
an accurate barometer of union support" (internal quotations and cita-
tions omitted)). In Deklewa itself, the Board not only recognized the
unreliability of union membership as a proxy for union support where
a security clause is in effect, but in fact based its decision to abandon
the conversion doctrine in part on the "highly questionable" nature of
just such an inference. Deklewa, 282 NLRB at 1384.
The Board's reluctance in Deklewa to permit a union to obtain 9(a)
status on the basis of such questionable evidence of majority support
rested on its commitment, and that of Congress, to the protection and
advancement of employees' free choice in designating and selecting
their bargaining representatives. Id. at 1383. The Board observed in
Deklewa that, by declaring in the second proviso of section 8(f) that
a pre-hire agreement "shall not be a bar to a petition filed pursuant
to section 9(c) or 9(e)," 29 U.S.C. § 158(f), "Congress sought to
18
assure that the rights and privileges accorded employers and unions
in the body of Section 8(f) would not operate to thwart or undermine
construction industry employees' representational desires." Deklewa,
282 NLRB at 1381. Yet the Board now concludes that the same statu-
tory objective of employee free choice that justified its abandonment
of the conversion doctrine is satisfied by the employer's voluntary
recognition of the union on the basis of the very same evidentiary fac-
tor the Board rejected as insufficient in Deklewa. This construction of
the Act simply is not rational. See Precision Striping, 642 F.2d at
1148. The effect of the Board's construction would be to allow non-
majority unions to enter into 8(f) collective-bargaining agreements
containing union security clauses and then bootstrap themselves,
within a matter of days and with the complicity of the employer, into
the full 9(a) status reserved under the Act for representatives that have
in fact secured and demonstrated majority support. As the Board rec-
ognized in Deklewa, such 9(a) status entails an irrebuttable presump-
tion of majority status during the contract's term that, under Board
rules, bars the very election petitions 8(f)'s second proviso explicitly
contemplates. Consistent with the Board's own logic in Deklewa, we
cannot conclude that an interpretation of 8(f) is reasonable that "effec-
tively renders [its] second proviso nugatory." Deklewa, 282 NLRB at
1382. As the Board observed in that case, "[s]uch [a] rule[ ] hardly
advance[s] the objective of employee free choice."7 Id.
_________________________________________________________________
7 The Board's decision to credit American's voluntary recognition of
the union's majority status based upon fringe benefit reports showing
majority membership is not only an unreasonable interpretation of the
NLRA, it is inconsistent with the rationale the Board provided in
Deklewa for allowing voluntary recognition of 9(a) status in the 8(f) con-
text at all. The Board stated in Deklewa that, in permitting construction
unions to achieve 9(a) status through voluntary recognition based on a
clear showing of majority support among the unit employees, it intended
simply to guarantee that these unions would not have"less favored sta-
tus" under the NLRA than those in nonconstruction industries. Deklewa,
282 NLRB at 1387 n.53. However, the rule established by the Board in
this case would in fact elevate construction unions to a privileged posi-
tion vis-a-vis nonconstruction unions with regard to their ability to
achieve 9(a) recognition and protection. That is, it is only by virtue of the
8(f) exception that construction unions which have not yet established
majority status are permitted not only to enter into collective-bargaining
19
As for Local 536, we conclude that there was not substantial evi-
dence in the record to support the Board's conclusion that the rela-
tionship between the NFSA -- and therefore American -- and Local
536 ever attained 9(a) status. The Board rested its affirmance of the
ALJ's finding of 9(a) status through voluntary recognition on two
pieces of evidence in the record. First, the Board pointed to Ameri-
can's assent to language in its multi-employer bargaining representa-
tive's contract with the Local recognizing it "as the sole and exclusive
bargaining representative for all journeymen sprinkler fitters . . . in
the employ of said employers, . . . pursuant to section 9(a) of the
National Labor Relations Act." Second, the Board relied upon testi-
mony that the union, in negotiating its 1991 collective-bargaining
agreement, asked the Association whether there was any dispute that
the Local "represented a majority of the employees," and received a
negative reply. American Automatic Sprinkler Systems, Inc., 323
NLRB No. 160 (1997), 1997 WL 436748, at *1 (N.L.R.B.).
As an initial matter, the language to which the employer conced-
edly consented in the multiemployer collective-bargaining agreement
is conclusory, and evidences neither an "unequivocal demand for" nor
"unequivocal grant of" voluntary recognition based upon a contempo-
raneous showing of majority support. In fact, the form does not even
purport to establish recognition of the local as the majority representa-
tive, but rather only as the "sole and exclusive" representative. The
Board's reliance on "the uncontradicted evidence . . . that during 1991
negotiations for article 3, Local 536 specifically asked the Association
_________________________________________________________________
agreements, but to include union security clauses in those agreements. 29
U.S.C. § 158(f). In the nonconstruction industries, it has long been a vio-
lation of the Act for unions and employers to include such clauses in
their agreements before majority support is established. Bryan Mfg., 362
U.S. at 413 ("[I]t is an unfair labor practice for an employer and a labor
organization to enter into a collective-bargaining agreement which con-
tains a union security clause, if at the time of original execution the union
does not represent a majority of the employees in the unit."). Because
voluntary recognition in both construction and nonconstruction industries
must be based on an actual showing of majority support, acceptance of
union membership pursuant to a union security clause as determinative
of such support would give 8(f) unions a considerable advantage over
their nonconstruction counterparts in attaining full 9(a) status.
20
whether there was any dispute that it represented a majority of the
employees . . . [and] [t]he Association responded that there was no
dispute," id. (emphasis added), is equally unavailing. The "uncontra-
dicted evidence" to which the Board refers is union negotiator Roy
Fique's testimony about his 1991 negotiations with the NFSA. That
testimony read literally, however, supports a proposition directly at
odds with the one the Board advances. Mr. Fique characterized the
exchange between himself and bargaining representatives of the
NFSA as follows:
So in bargaining, I brought that up, is there any dispute that
we are, you know, the representative of the employees, and
everybody at the table agreed that there was no doubt in
their mind that we represented the minority of employees.
J.A. at 438 (testimony of Roy Fique) (emphases added). It may be
that this was either a misstatement by Fique or a transcription error.
However, this statement, which on its face is an assertion of unani-
mous and unequivocal agreement as to the Local's minority status, is
literally the only evidence with which we have been presented that
supports a conclusion that the union unequivocally demanded and
received recognition as the majority representative. When not even
the parties themselves are in a position to represent that this statement
was a misstatement or transcription error, and neither the ALJ nor the
Board ever addressed the apparent discrepancy, we simply cannot
conclude that, without more, it can suffice as a union's "unequivocal
demand for" and the employer's "unequivocal grant of" voluntary rec-
ognition of majority status.
As for the requirement of a "contemporaneous showing of majority
support," there is simply no evidence at all in the record to support
a finding that it has been satisfied. Again, the Board can cite only the
exchange between Fique and the NFSA negotiators. Even were the
Board's characterization of Fique's testimony accurate, this conversa-
tion, while perhaps probative of the Company's willingness to recog-
nize the union as the majority representative, does not support the
suggestion that its grant of voluntary recognition was based, in fact,
upon any showing of majority support, contemporaneous or other-
wise. Fique's unsubstantiated request for recognition as the "major-
21
ity" representative, so understood, cannot be transformed into the
required substantiation itself.
The Board's willingness to credit the employer's voluntary recog-
nition absent any contemporaneous showing of majority support
would reduce this time-honored alternative to Board-certified election
to a hollow form which, though providing the contracting parties sta-
bility and repose, would offer scant protection of the employee free
choice that is a central aim of the Act. Cf. Higdon, 434 U.S. at 349
("Privileging unions and employers to execute and observe pre-hire
agreements in an effort to accommodate the special circumstances in
the construction industry may have greatly convenienced unions and
employers, but in no sense can it be portrayed as an expression of the
employees' organizational wishes."). In considering the Board's find-
ing on this issue, we must concur with the Board's General Counsel
that,
[e]ven if the union does, in fact, represent a majority of the
Employer's employees, . . . 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 state-
ments are insufficient to confer 9(a) status upon the Union
without actual demonstration of that majority status.
Advice Ltr. from NLRB Gen. Counsel to Regional Director of Region
9, Feb. 27, 1989, 1989 WL 241614, at *2. (Feb. 27, 1989).
Accordingly, because we cannot conclude, consistent with the prin-
ciples outlined a decade ago by the Board in Deklewa and accepted
by us today, that petitioner had an obligation under the Act to bargain
with either Local 669 or 536 upon the expiration of their respective
multiemployer agreements, we grant American's petition for review
as to the findings that it violated 8(a)(5) and (a)(1) by failing to bar-
gain in good faith, unilaterally changing terms and conditions of
employment, and dealing directly with employees.
III.
Our holding above that the employer had no statutory obligation to
refrain from making unilateral changes to the conditions of employ-
22
ment disposes of the Board's findings of constructive discharge.
Because each of these findings was premised on an employee resigna-
tion resulting from the employer's assertedly unlawful change to the
conditions of employment, our conclusion that those changes were in
fact lawful negates these findings completely. Accordingly, we grant
American's petition for review of the Board's findings of constructive
discharge. Finally, we deny American's petition for review with
respect to the Board's findings of section 8(a)(3) and (a)(1) violations
arising out of the discriminatory discharges, refusals to hire and rein-
state, and imposition of onerous working conditions. There is ample
record evidence of American's anti-union animus and its efforts to rid
its workforce of active union members, despite those individuals'
demonstrated qualifications and in the face of repeated contractor
complaints about American's unsatisfactory job performance on
account of labor shortages. Based upon a careful review of the record,
we conclude that there was substantial evidence, particularly in light
of the deference due the ALJ's credibility determinations, to support
each finding of a section 8(a)(3) and (a)(1) violation as a result of a
discriminatory discharge, refusal to hire or reinstate, or imposition of
onerous working conditions.
CONCLUSION
For the foregoing reasons, we grant in part and deny in part Ameri-
can's petition for review of the Board's findings and order, grant in
part and deny in part the Board's cross-petition for enforcement of its
order, and remand for a remedial order consistent with this opinion.
IT IS SO ORDERED.
23