Raymond Interior Systems, Inc. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 13, 2015 Decided February 5, 2016

No. 12-1011

RAYMOND INTERIOR SYSTEMS, INC,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

SOUTHERN CALIFORNIA PAINTERS AND ALLIED TRADES

DISTRICT COUNCIL NO. 36, INTERNATIONAL UNION OF

PAINTERS AND ALLIED TRADES, AFL-CIO,

INTERVENOR

Consolidated with 12-1012, 12-1013, 12-1047

On Petitions for Review and Cross-Application

for Enforcement of an Order of

the National Labor Relations Board

James A. Bowles argued the cause for petitioner

Raymond Interior Systems, Inc. Yuliya S. Mirzoyan argued

the cause for petitioner Southwest Regional Council of

Carpenters. On the joint briefs was Daniel Shanley.

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Ellen Greenstone and Maria Keegan Myers were on the

brief for petitioner Southern California Painters and Allied

Trades District Council No. 36, International Union of

Painters and Allied Trades, AFL-CIO. Joseph E. Kolick Jr.

entered an appearance.

Gregory P. Lauro, Attorney, National Labor Relations

Board, argued the cause for respondent. With him on the

brief were John H. Ferguson, Associate General Counsel,

Linda Dreeben, Deputy Associate General Counsel, and Jill

A. Griffin, Supervisory Attorney.

Before: HENDERSON and TATEL, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: This case involves

petitions for review filed by Raymond Interior Systems, Inc.

(“Raymond”), and the United Brotherhood of Carpenters and

Joiners of America, Local Union No. 1506, an affiliate of the

Southwest Regional Council of Carpenters (the “Carpenters

Union” or “Carpenters”), and a cross-application to enforce

filed by the National Labor Relations Board (“Board” or

“NLRB”). The dispute here focuses on orders issued by the

Board on September 30, 2010, Raymond Interior Sys., 355

N.L.R.B. 1278 (2010), and December 30, 2011, Raymond

Interior Sys., 357 N.L.R.B. No. 166 (Dec. 30, 2011). The

Southern California Painters and Allied Trades District

Council No. 36, International Union of Painters and Allied

Trades, AFL-CIO (the “Painters Union” or “Painters”), the

charging party before the Board, also petitions for review

because, in its view, the sanctions issued by the Board against

Raymond and the Carpenters are insufficient.

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For many years, Raymond was a party to collective

bargaining agreements with the Painters, the most recent of

which was entered into pursuant to Section 8(f) of the

National Labor Relations Act (the “Act” or “NLRA”), 29

U.S.C. § 158(f). Section 8(f) allows construction-industry

employers to recognize a union as the bargaining agent of its

employees before a majority of employees have designated

the union as their representative. On September 30, 2006,

Raymond lawfully terminated its 8(f) agreement with the

Painters.

On September 12, 2006, Raymond and the Carpenters

executed a Confidential Settlement Agreement providing that,

upon expiration of the Painters agreement, Raymond would

apply the Carpenters 2006 Drywall/Lathing Master

Agreement (“2006 Master Agreement”) to Raymond’s

drywall-finishing work and employees “to the fullest extent

permitted by law.” The Confidential Settlement Agreement

incorporating the 2006 Master Agreement took effect on

October 1, 2006. On October 2, Raymond allegedly told its

drywall-finishing employees that they needed to join the

Carpenters Union “that day” if they wanted to continue

working. Later that day, after the union had secured

authorization cards from the employees, the Carpenters and

Raymond signed an agreement recognizing the Carpenters as

the majority representative of these employees pursuant to

Section 9(a) of the Act, 29 U.S.C. § 159(a).

The Painters filed an unfair labor practice charge with the

NLRB challenging Raymond’s recognition of the Carpenters

Union. A complaint was issued and the matter was heard by

an Administrative Law Judge (“ALJ”). Regarding the conduct

of Raymond and the Carpenters on October 2, 2006, the

Board adopted the findings of the ALJ that Raymond violated

Section 8(a)(1), (2), and (3) of the Act, 29 U.S.C. § 158(a)(1),

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(2), and (3), by conditioning continued employment of the

drywall-finishing employees on their immediate membership

in the Carpenters Union, and by unlawfully assisting the

union in obtaining authorization cards. The Board also agreed

that, on October 2, Raymond violated 8(a)(1) and (2) by

granting recognition to the Carpenters, and that the union

violated Section 8(b)(1)(A) of the Act, 29 U.S.C. §

158(b)(1)(A), by accepting recognition, at a time when the

Carpenters did not represent an uncoerced majority of the

drywall-finishing employees. The Board additionally agreed

that, on October 2, Raymond violated Section 8(a)(3) of the

Act, and the Carpenters violated Section 8(b)(2), 29 U.S.C. §

158(b)(2), by applying the Carpenters 2006 Master

Agreement to the employees when the union did not represent

an uncoerced majority of the employees. Finally, the Board

agreed that, on October 2, the Carpenters violated Section

8(b)(1)(A) of the Act by failing to properly inform the

drywall-finishing employees of their rights to decline union

membership, NLRB v. Gen. Motors Corp., 373 U.S. 734, 742

(1963), and to seek a reduction in union fees for monies spent

on activities not germane to the collective bargaining, contract

administration, and grievance adjustment, Commc’n Workers

of Am. v. Beck, 487 U.S. 735, 745 (1988). The Board found it

unnecessary to consider the ALJ’s findings that Raymond

violated the Act on October 1 when the Confidential

Settlement Agreement took effect. Following a motion for

reconsideration, the Board again refused to rule on the legality

of the Confidential Settlement Agreement, but clarified that

its orders should not be interpreted as requiring a Board

certification before Raymond could lawfully recognize the

Carpenters pursuant to Section 8(f).

Raymond and the Carpenters contend that the Board’s

findings with respect to the October 2 unfair labor practices

are not supported by substantial evidence. We disagree for the

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reasons set forth below. Raymond and the Carpenters also

contend that the Board erred in failing to address their

contention that, on October 1, by virtue of their Confidential

Settlement Agreement, the company and union had a lawful

Section 8(f) agreement that could not, without more, be

vitiated by unfair labor practices that allegedly occurred on

October 2. We agree. The Board’s failure to address this

matter cannot withstand review. We therefore grant in part the

Board’s application for enforcement, grant in part the

petitions for review filed by Raymond and the Carpenters, and

remand the case for further consideration by the Board.

Finally, we decline to consider the Painters’ principal

claim that the Board abused its discretion in declining to

require Raymond to provide alternate benefits coverage

because our decision to remand on the remedy issue may

render the claim moot. We find no merit in the other claims

raised by the Painters Union.

I. BACKGROUND

Raymond is a California-based specialty wall and ceiling

contractor in the building and construction industry.

Raymond’s employees include its drywall-finishing

employees, who perform drywall-finishing services in

connection with Raymond’s various commercial and

residential projects.

Since at least the 1960s, Raymond has been an employer-

member of the Western Wall and Ceiling Contractors

Association, Inc. (“the Association”), a multi-employer

association of companies in the building and construction

industry. Employer-members choose to join various

“conferences” within the Association, and each conference

then negotiates and executes collective bargaining agreements

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with various unions on behalf of the employer-members. At

all relevant times, Raymond was an employer-member of the

Drywall/Lathing Conference, which negotiates with the

Carpenters Union. Prior to October 1, 2006, Raymond was

also an employer-member of the California Finishers

Conference, which negotiates with the Painters Union.

From 1960 to 2006, the California Finishers Conference

– on behalf of employers including Raymond – negotiated

and executed collective bargaining agreements with the

Painters Union to apply to drywall-finishing employees. The

most recent relevant agreement (“Painters Agreement”)

expired on September 30, 2006, and Raymond resigned from

the California Finishers Conference. Importantly, it is

undisputed that the Painters Agreement was entered into

under Section 8(f) of the Act, which, as explained below,

meant that the Painters did not enjoy a presumption of

majority support from the drywall-finishing employees after

the agreement expired. For this reason, there is no dispute that

Raymond lawfully disassociated itself from the Painters

Union after September 30, 2006.

The Drywall/Lathing Conference negotiated collective

bargaining agreements with the Carpenters to apply to various

Raymond employees. The 2006 Master Agreement ran from

July 1, 2006, to June 30, 2010. This agreement contained a

union-security clause, which required employees, as a

condition of employment, to apply for union membership by

the eighth day of employment. The 2006 Master Agreement

also provided that, in the event that an employer ceased to be

signatory to a contract with the Painters Union covering

drywall-finishing employees, then the 2006 Master

Agreement would cover those drywall-finishing employees.

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A. The Application of the Master Agreement to the

Drywall-Finishing Employees on October 1, 2006

On May 24, 2006, Raymond sent the Painters a letter

stating that Raymond would not renew the Painters

Agreement after it expired. Apparently, this fact became “well

known” and, soon afterward, the Carpenters expressed to

Raymond that it should apply the 2006 Master Agreement to

Raymond’s drywall-finishing employees once the Painters

Agreement expired. On September 12, 2006, Raymond and

the Carpenters signed a Confidential Settlement Agreement,

in which Raymond promised to apply the 2006 Master

Agreement to its drywall-finishing employees at the

expiration of the Painters Agreement. Raymond also promised

to execute a “Memorandum Agreement,” a short-form version

of the 2006 Master Agreement, although it never did so.

On October 1, 2006, immediately upon expiration of the

Painters Agreement, Raymond and the Carpenters began

covering Raymond’s drywall-finishing employees under the

2006 Master Agreement pursuant to the terms of the

Confidential Settlement Agreement. There is no allegation

that Raymond and the Carpenters committed any unfair labor

practices prior to this date.

B. The Events of October 2

On October 2, 2006, Raymond held a meeting with the

drywall-finishing employees at the company’s Orange,

California, facility. The purpose of the meeting was to inform

the drywall-finishing employees of the transition from the

Painters to the Carpenters, the new wage packages and

benefits, and the need for employees to sign insurance and

pension forms.

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The meeting took place in Raymond’s training room,

which was set up with chairs, a stage, and two projection

screens. Spanish-speaking employees were directed to seats

on which translation headsets had been placed. These

employees received English-to-Spanish translation services

throughout the meeting. Once all employees were seated, the

company and the Carpenters each gave a PowerPoint

presentation, which was followed by a question-and-answer

session. Allegedly, at some point during the meeting,

Raymond told the employees they needed to join the

Carpenters “that day” if they wanted to continue working.

Following the meeting, employees went outside the

training room, where representatives from the Carpenters

Union were waiting. The union agents handed the employees

materials that included an “Application for Membership”

form, a “Supplemental Dues and CLIC Authorization” form,

and an “Authorization for Representation” form. Once the

employees filled out and returned the forms, they received a

copy of the Carpenters’ magazine. The magazine explained

the employees’ rights to decline union membership and to

seek a reduction in union fees for monies spent on activities

not germane to the union’s duties to serve as the employees’

agent in collective bargaining (“Beck rights”). A majority of

the employees filled out and returned the materials that had

been distributed.

Later that day, union officials presented Raymond with

the signed Authorization for Representation forms, which,

according to the union, supported its claim that a majority of

the drywall-finishing employees had elected the Carpenters to

represent them. Raymond and the Carpenters then executed a

“Recognition Agreement,” which stated that the company

recognized the union as the exclusive collective bargaining

representative under Section 9(a) of the Act for all employees

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covered by the Memorandum Agreement. There is no dispute

that this Recognition Agreement covered Raymond’s drywall-

finishing employees.

C. The Proceedings Before the Board

As a result of the above events, the Painters Union filed

unfair labor practice charges with the Board. On January 30,

2008, following an investigation, the Board’s Regional

Director consolidated the charges and issued a complaint,

alleging that Raymond and the Carpenters had committed

unfair labor practices within the meaning of the Act. A

hearing was then held before an ALJ, at which Raymond, the

Carpenters, and the Painters participated.

On November 10, 2008, the ALJ issued his findings and

recommended order. Regarding the charges related to October

1, 2006, the ALJ found that Raymond and the Carpenters, by

applying the 2006 Master Agreement to the drywall-finishing

employees, had violated Section 8(a)(1) and (3) and Section

8(b)(2) of the Act, respectively. The ALJ also found that

Raymond and the Carpenters violated Section 8(a)(2) and

Section 8(b)(1)(A), respectively, when Raymond recognized

the Carpenters as the employees’ bargaining representative on

that day. Regarding the charges related to October 2, 2006,

the ALJ found four separate violations of the Act. First,

Raymond – by telling employees to join the Carpenters “that

day” – unlawfully conditioned employment on immediate

union membership, in violation of Section 8(a)(1) and (3).

Second, this statement coerced the employees into signing the

Authorization for Representation forms, thus rendering

assistance to the Carpenters, in violation of Section 8(a)(1)

and (2). Third, Raymond and the Carpenters’ execution of the

Recognition Agreement, when the Carpenters did not have the

support of an uncoerced majority of the employees, violated

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Section 8(a)(1) and (2) and Section 8(b)(1)(A), respectively.

Finally, the Carpenters failed to inform the employees of their

Beck rights prior to obligating them to pay union dues and

fees, in violation of Section 8(b)(1)(A). Raymond, the

Carpenters, and the Painters filed exceptions to these findings.

On September 30, 2009, a two-member panel of the

Board largely adopted the ALJ’s findings and recommended

order. Raymond Interior Sys., 354 N.L.R.B. 757 (2009). The

Board declined, however, to review the ALJ’s findings

regarding Raymond and the Carpenters’ application of the

2006 Master Agreement to the drywall-finishing employees,

and Raymond’s recognition of the Carpenters as bargaining

representative, on October 1. Id. at 757. The Board held:

Those findings would be cumulative of the findings of

unlawful conduct occurring on October 2, and would not

materially affect the remedy in this proceeding.

Id. The Board nevertheless accepted the ALJ’s determination

that the application of the 2006 Master Agreement was

unlawful because “the parties were applying that same

agreement . . . on October 2,” which was when the employer

and the union committed unfair labor practices. Id. at 758

(citing Duane Reade, Inc., 338 N.L.R.B. 943, 944 (2003),

enforced 99 F. App’x 240 (D.C. Cir. 2004)). As a result, the

Board ordered Raymond and the Carpenters to, inter alia,

“[c]ease and desist from . . . enforcing . . . the [2006 Master

Agreement] as to [the] drywall-finishing employees . . . ,

unless or until [the Carpenters] has been certified by the

Board.” Id. at 758, 759.

Raymond, the Carpenters, and the Painters sought review

in the U.S. Court of Appeals for the Ninth Circuit. After the

Supreme Court issued its decision in New Process Steel, L.P.

11

v. NLRB, 560 U.S. 674 (2010), holding that two-member

panels do not have authority to decide Board cases, the Ninth

Circuit remanded the case to the Board. Raymond Interior

Sys. v. NLRB, No. 10-70209 (9th Cir. Aug. 26, 2010). A

three-member panel of the Board then adopted the two-

member panel’s earlier decision. Raymond Interior Sys., 355

N.L.R.B. 1278 (2010). Raymond, the Carpenters, and the

Painters then sought review in this court. However, in light of

a pending motion for reconsideration before the Board, we

dismissed the case as “incurably premature.” Carpenters v.

NLRB, No. 10-1315 (D.C. Cir. May 25, 2012). On December

30, 2011, the Board largely denied the motion for

reconsideration. Raymond Interior Sys., 357 N.L.R.B. No.

166 (Dec. 30, 2011). Notably, however, in its decision, the

Board clarified that its orders should not be interpreted as

requiring a Board certification before Raymond could

lawfully recognize the Carpenters pursuant to Section 8(f). Id.

at 1 n.5. Raymond, the Carpenters, and the Painters then filed

petitions for review in this court, and the Board cross-applied

for enforcement.

II. ANALYSIS

A. The Governing Legal Principles

Under the Act, unions and employers may establish

collective bargaining relationships pursuant to Board

certification, voluntary recognition, or by execution of an 8(f)

agreement. As we recently explained:

“Under sections 9(a) and 8(a)(5) of the [NLRA],

employers are obligated to bargain only with unions that

have been ‘designated or selected for the purposes of

collective bargaining by the majority of the employees in

a unit appropriate for such purposes.’” Nova Plumbing,

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Inc. v. NLRB, 330 F.3d 531, 533 (D.C. Cir. 2003)

(quoting 29 U.S.C. § 159(a)); see also 29 U.S.C.

§ 158(a)(5) (“It shall be an unfair labor practice for an

employer . . . to refuse to bargain collectively with the

representatives of his employees, subject to the

provisions of section [9(a)].”); see also Int’l Ladies’

Garment Workers’ Union v. NLRB, 366 U.S. 731, 738-39

(1961). “A union can achieve the status of a majority

collective bargaining representative through either Board

certification or voluntary recognition by the

employer. . . .” Raymond F. Kravis Ctr. for Performing

Arts, Inc. v. NLRB, 550 F.3d 1183, 1188 (D.C. Cir.

2008).

Section 8(f) of the NLRA, 29 U.S.C. § 158(f), carves

out a limited exception to section 9(a)’s majority support

requirement within the construction industry. Section 8(f)

provides, in pertinent part:

It shall not be an unfair labor practice . . . for an

employer engaged primarily in the building and

construction industry to make an agreement covering

employees engaged (or who, upon their employment,

will be engaged) in the building and construction

industry with a labor organization of which building

and construction employees are members . . .

because [ ] the majority status of such labor

organization has not been established under the

provisions of section [ ]9 prior to the making of such

agreement . . . .

29 U.S.C. § 158(f). “Under this exception, a contractor

may sign a ‘pre-hire’ agreement with a union regardless

of how many employees authorized the union’s

representation.” Nova Plumbing, 330 F.3d at 534; see

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also Allied Mech. Servs., Inc. v. NLRB, 668 F.3d 758, 761

(D.C. Cir. 2012). The Congress enacted this limited

exception because construction employers must know

their labor costs up front in order to generate accurate

bids and must have available a supply of skilled

craftsmen ready for quick referral. In addition, traditional

union organization is not conducive to the brief, project-

to-project periods workers spend in the employ of any

single contractor.

A union that is party to a section 8(f) agreement

serves as the section 9(a) exclusive bargaining

representative of the unit it purports to represent for the

duration of the section 8(f) agreement. Viola Indus.-

Elevator Div., Inc., 286 N.L.R.B. 306, 306 (1987),

enforced 979 F.2d 1384 (10th Cir. 1992); John Deklewa

& Sons, Inc., 282 N.L.R.B. 1375, 1385 (1987) (Deklewa),

enforced sub nom. Int’l Ass’n of Bridge, Structural &

Ornamental Iron Workers, Local 3 v. NLRB, 843 F.2d

770 (3d Cir. 1988). But its section 9(a) status is limited in

significant respects. A union party to a section 9(a)

agreement is entitled to a conclusive presumption of

majority status for up to three years, during which time

decertification petitions are barred. But under section

8(f), a union is entitled to no such presumption and

parties may therefore file decertification petitions at any

time during a section 8(f) relationship. Moreover, when a

section 9(a) agreement expires, the presumption of

majority support requires the employer to continue

bargaining with the union unless the union has in fact lost

majority support or the employer has a good-faith reason

to believe such support has been lost. But “because the

union enjoys no presumption that it ever had majority

support” under section 8(f), the employer can refuse to

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bargain once a section 8(f) agreement expires. Nova

Plumbing, 330 F.3d at 534.

Even while operative, a section 8(f) agreement is not

set in stone. If a union party to an 8(f) agreement

successfully seeks majority support, the prehire

agreement attains the status of a [section 9(a)] collective-

bargaining agreement executed by the employer with a

union representing a majority of the employees in the

unit. “Generally, a union seeking to convert its section

8(f) relationship to a section 9(a) relationship may either

petition for a representation election or demand

recognition from the employer by providing proof of

majority support.” M & M Backhoe Serv., Inc. v. NLRB,

469 F.3d 1047, 1050 (D.C. Cir. 2006). But “a vote to

reject the signatory union will void the 8(f) agreement

and will terminate the 8(f) relationship.” Deklewa, 282

N.L.R.B. at 1385.

United Bhd. of Carpenters & Joiners of Am. v. Operative

Plasterers’ & Cement Masons’ Int’l Ass’n of U.S. & Can.,

721 F.3d 678, 691-93 (D.C. Cir. 2013) (alterations and

ellipses in original) (citations omitted).

Employers and unions in lawful collective bargaining

relationships may execute collective bargaining agreements

that include union-security clauses requiring union

“membership” as a condition of employment. 29 U.S.C. §

158(a)(3), (f). However, the “burdens of membership upon

which employment may be conditioned are expressly limited

to the payment of initiation fees and monthly dues. It is

permissible to condition employment upon membership, but

membership, insofar as it has significance to employment

rights, may in turn be conditioned only upon payment of fees

and dues.” Gen. Motors Corp., 373 U.S. at 742. Furthermore,

15

if employees object, a union may not use their monies

collected pursuant to a union-security clause for activities

unrelated to collective bargaining, contract administration, or

grievance adjustment. Beck, 487 U.S. at 745. The Board has

therefore held that a union must provide employees with a

“Beck notice” – i.e., notice of the above rights – at or before

“the time the union first seeks to obligate . . . employees to

pay dues.” Cal. Saw & Knife Works, 320 N.L.R.B. 224, 233

(1995), enforced sub nom. Int’l Ass’n of Machinists &

Aerospace Workers v. NLRB, 133 F.3d 1012 (7th Cir. 1998).

Failure to do so constitutes a violation of Section 8(b)(1)(A)

of the Act. Id. at 235.

Any person may file an unfair labor practice charge with

the Board. 29 C.F.R. § 102.9. If the allegations appear to have

merit, the Regional Director issues a complaint. Id. § 102.15.

If the Board finds merit in the complaint, it must order the

offending parties to cease and desist from the unlawful

activity or take affirmative action that will effectuate the

policies of the Act. 29 U.S.C. § 160(c). Any person

“aggrieved by a final order of the Board granting or denying

. . . the relief sought” may obtain review in the court of

appeals. Id. § 160(f). The Board’s findings of fact are

conclusive if supported by substantial evidence, Allentown

Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 366 (1998),

and its choice of remedy is reviewed for an abuse of

discretion, Teamsters Local Union No. 639 v. NLRB, 924 F.2d

1078, 1085 (D.C. Cir. 1991).

B. The Board’s Findings Regarding the Conduct of

Raymond and the Carpenters on October 2, 2006

The ALJ found and the Board agreed that Raymond and

the Carpenters committed multiple unfair labor practices on

October 2, 2006. Raymond and the Carpenters challenge a

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number of the Board’s findings and the legal conclusions

emanating therefrom.

Raymond first challenges the Board’s finding that, on

October 2, Raymond told the drywall-finishing employees

that they had to join the Carpenters “that day.” Raymond

claims that the evidence simply does not support this finding.

We disagree.

The Board accepted the ALJ’s credibility determinations

in assessing the veracity of witnesses who testified at the

unfair labor practice hearing. Raymond, 354 N.L.R.B. at 757

n.2. We “will not reverse the Board’s adoption of the ALJ’s

credibility determination unless it is ‘hopelessly incredible,

self-contradictory, or patently unsupportable.’” SFO Good-

Nite Inn, LLC v. NLRB, 700 F.3d 1, 10 (D.C. Cir. 2012)

(citation omitted). The existence of potential inconsistencies

in credited testimony, without more, is not sufficient for the

court to overturn an ALJ’s credibility finding. See id. at 10-

11. Furthermore, the “mere fact that conflicting evidence

exists is insufficient to render a credibility determination

‘patently [u]nsupportable.’” Parsippany Hotel Mgmt. Co. v.

NLRB, 99 F.3d 413, 426 (D.C. Cir. 1996). Rather, only in the

“most extraordinary circumstances” will it be appropriate for

the court to overturn such a determination. SFO, 700 F.3d at

10-11.

In this case, the ALJ afforded significant weight to the

testimony of one drywall-finishing employee, Jose Ramos,

whose “demeanor, while testifying, was that of a veracious

witness.” Raymond, 354 N.L.R.B. at 778. Not only did Ramos

“recount[] [Raymond’s] alleged threat to the listening drywall

finishers,” but he also testified that, “without the immediate

prospect of another job, [he did] not . . . report for work the

next day.” Id. at 778-79. To the ALJ, it was “unmistakably

17

clear” that Ramos believed that the company was “utterly

serious” in telling the employees that they had to join the

union on October 2. Id. at 778. Raymond offers no plausible

basis for this court to reject the ALJ’s credibility

determinations accepting the testimony of Ramos and other

witnesses who generally confirmed Ramos’s testimony.

Raymond also challenges the Board’s finding that the

company’s statement to the employees gave unlawful

assistance to the Carpenters because the statement was

intimidating and thus caused the employees to designate the

Carpenters as their bargaining agent lest they lose their jobs.

Raymond argues that, while its statement telling the

employees to join the union “that day” may well have induced

employees to sign the “Application for Membership” form, it

would not have coerced them to sign the “Authorization for

Representation” form. Raymond argues that the employees

could differentiate between the two forms, so there is no

actual evidence to support the Board’s finding. We are not

persuaded.

It is not necessary for the Board to point to “evidence of

actual intimidation” in support of its finding. Teamsters Local

Union No. 171 v. NLRB, 863 F.2d 946, 954 (D.C. Cir. 1988).

Rather, whether employees have been coerced is assessed by

reference to the “totality of the circumstances.” Fountainview

Care Ctr., 317 N.L.R.B. 1286, 1289 (1995), enforced 88 F.3d

1278 (D.C. Cir. 1996). The court is obliged to “recognize the

Board’s competence in the first instance to judge the impact

of utterances made in the context of the employer-employee

relationship.” Progressive Elec., Inc. v. NLRB, 453 F.3d 538,

544 (D.C. Cir. 2006) (citation omitted). And, as the Board has

held, “[w]here, as here, an employer imposes certain

requirements on its employees, it must bear the burden of any

ambiguity in its message.” Acme Tile & Terrazzo Co., 318

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N.L.R.B. 425, 427-428 & n.8 (1995) (considering whether

employer statements conditioned employment on union

membership), enforced 87 F.3d 558 (1st Cir. 1996).

Here, the ALJ noted that the Application for Membership

form and the Authorization for Representation form were

printed together on a single document and were distributed to

the employees as soon as the meeting ended. Raymond, 354

N.L.R.B. at 780. In these circumstances, the Board found that

the employees, having just been told to join the Carpenters

“that day” if they wanted to keep their jobs, “undoubtedly

completed and executed every form on the large document

without regard to the differences between them.” Id. Such a

finding is reasonable, and we will not disturb it here. See

Fountainview, 317 N.L.R.B. at 1289 (authorization forms

presented alongside job applications in a single document

gave “the impression that there was a link between [union

authorization] and the hiring process”).

Finally, as noted above, a union must provide employees

with a Beck notice at or before the time when the employees

become obligated to make payments pursuant to a union-

security clause. Cal. Saw & Knife, 320 N.L.R.B. at 233. Here,

there is no dispute that the drywall-finishing employees first

received a Beck notice when they were given copies of the

Carpenters’ magazine, which was after they had already

completed and returned the Carpenters’ forms. The Board

concluded that the forms “obligat[ed] [the employees] to pay

monthly dues.” Raymond, 354 N.L.R.B. at 781. The question

here, then, is whether the Carpenters effectively committed

the employees to pay dues without first explaining the legal

limits of the union-security provision.

Substantial evidence supports the Board’s finding. The

Application for Membership form provides for “Monthly dues

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in the amount of $____, per month, commencing

immediately,” which are “due and payable each month while

on application.” And the Supplemental Dues and CLIC

Authorization form states, “I hereby authorize the Southwest

Carpenters Vacation (‘Trust’) to deduct from my vacation

benefits supplemental dues . . . .” From these facts, the Board

reasonably concluded that, by filling out and signing the

forms, the employees became obligated to pay dues prior to

the time that they received a Beck notice.

C. The Board’s Failure to Assess the Confidential

Settlement Agreement and its Incorporation of the

2006 Master Agreement

As previously explained, Raymond and the Carpenters

executed a Confidential Settlement Agreement on September

12, 2006, providing that, upon expiration of the Painters

Agreement, Raymond would apply the 2006 Master

Agreement to Raymond’s drywall-finishing employees “to the

fullest extent permitted by law.” The Confidential Settlement

Agreement took effect on October 1, 2006. The ALJ found

that Raymond and the Carpenters had violated Section 8(a)(1)

and (3) and Section 8(b)(2) of the Act, respectively, when

they applied the 2006 Master Agreement to the drywall-

finishing employees on October 1, and had violated Section

8(a)(2) and Section 8(b)(1)(A) of the Act, respectively, when

Raymond recognized the Carpenters as the employees’

bargaining representative on that day. The Board declined to

address the legality of the 2006 Master Agreement as of

October 1 because that agreement was the same agreement

that was unlawfully enforced on October 2. The Board thus

ordered Raymond and the Carpenters to, inter alia, cease and

desist from applying the 2006 Master Agreement to the

drywall-finishing employees unless and until the Carpenters

were certified by the Board.

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In a motion for reconsideration submitted to the Board,

Raymond, joined by the Carpenters, argued:

The Board’s Order is unwarranted if Raymond had a

pre-existing 8(f) agreement at the time of the alleged

Section 8(a)(2) violations found by the ALJ and adopted

by the Board. Extant Board precedent under Zidell

Exploration[s], Inc., 175 NLRB 887 (1969) holds that a

pre-existing 8(f) agreement is not invalidated by

subsequent acts of unlawful assistance.

Motion for Reconsideration, reprinted in Joint Appendix 24.

In rejecting this claim, the Board said:

Raymond also argues that the Board erred in failing

to decide whether the “Confidential Settlement

Agreement” (CSA) reached between Raymond and the

Carpenters 3 weeks before the unlawful assistance

constituted a valid 8(f) agreement that was not

invalidated by Raymond’s subsequent acts of unlawful

assistance. We deny this aspect of the motion, because a

finding that the [Confidential Settlement Agreement]

constituted a valid 8(f) agreement would not affect our

determination that Raymond, on October 2, 2006,

unlawfully recognized the Carpenters as the 9(a)

representative of its drywall finishing employees.

Raymond, 357 N.L.R.B. No. 166, at 2.

The Board’s decision is hard to fathom. As the Board

noted, Raymond and the Carpenters contended that the

Confidential Settlement Agreement and its incorporation of

the 2006 Master Agreement on October 1 resulted in a lawful

8(f) agreement covering the drywall-finishing employees on

21

that date. They further contended that the unfair labor

practices that were allegedly committed on October 2 could

not have vitiated the lawful 8(f) agreement that was effective

on October 1. In other words, Raymond and the Carpenters

claim that even if their attempt to execute a 9(a) agreement on

October 2 failed, this could not have nullified the preexisting

8(f) agreement. We agree that the Board erred in failing to

address this issue.

There is a long-standing principle that, as a general

matter, when a collective bargaining agreement is not a

byproduct of unfair labor practices and does not otherwise

hinder the policies of the Act, “the Board [is] without

authority to require [the parties] to desist from giving effect to

the [agreement].” Consol. Edison Co. v. NLRB, 305 U.S. 197,

236-38 (1938); see also NLRB v. Reliance Steel Prods. Co.,

322 F.2d 49, 56 (5th Cir. 1963); NLRB v. Kiekhaefer Corp.,

292 F.2d 130, 135-37 (7th Cir. 1961); NLRB v. Scullin Steel

Co., 161 F.2d 143, 147-48 (8th Cir. 1947). Indeed, the Board

applied this principle in Zidell Explorations, Inc., 175

N.L.R.B. 887 (1969), the decision cited by Raymond in its

Motion for Reconsideration.

In Zidell, after executing lawful 8(f) agreements with a

union, the employers involved in that case engaged in unfair

labor practices. The ALJ concluded that the 8(f) agreements

were “rendered unlawful nunc pro tunc by reason of the

postcontract employer unfair labor practices.” Id. at 887-88.

The Board rejected this conclusion and explained:

[I]t has long been established by Board and court cases

that employer acts of unlawful assistance occurring after

the execution of a lawful contract, and during the contract

term, do not justify a remedial order suspending

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recognition of the assisted union during the contract term

or directing that the contract be set aside.

Id. at 888 (citing Reliance Steel Prods., 322 F.2d 49; Scullin

Steel, 161 F.2d 143; Arden Furniture Indus., 164 N.L.R.B.

1163 (1967); M. Eskin & Son, 135 N.L.R.B. 666 (1962),

enforced sub nom. Confectionery & Tobacco Drivers &

Warehousemen’s Union, Local 805 v. NLRB, 312 F.2d 108

(2d Cir. 1963); and Lykes Bros., Inc., 128 N.L.R.B. 606

(1960)). The Board never addressed this line of authority in

its decision in this case.

Before this court, Board counsel argued that Zidell is

inapposite because it is factually distinguishable. Counsel

pointed out that, “[i]n Zidell, unlike here, the ‘employer

alone’ was responsible for the unlawful conduct that occurred

subsequent to the creation of a Section 8(f) contract.” Br. for

Respondent at 49. Thus, according to counsel, Zidell should

be limited to situations in which the unlawfully assisted union

was not “found to have participated in, had any control over,

or even been aware of [the unlawful] conduct.” Id. (alteration

in original) (citation omitted). We decline to consider this

argument because it is merely a post-hoc rationalization

offered by Board counsel, not the Board. The Board never

addressed Zidell in denying the Motion for Reconsideration

filed by Raymond. Furthermore, even if we were to consider

this argument, the authorities cited by Zidell certainly do not

endorse the limitation suggested by Board counsel. See Zidell,

175 N.L.R.B. at 888 n.2.

In M. Eskin & Son, both the employer and the union

committed unfair labor practices after executing a lawful

agreement. 135 N.L.R.B. at 666, 670. Nevertheless, the Board

there refused to invalidate the preexisting contract,

explaining:

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As all the unfair labor practices . . . occurred during the

term of the Respondents’ collective bargaining contract,

the execution and maintenance of which are not under

attack, we do not believe that an order requiring the

parties to suspend their bargaining relationship pending

an election is necessary to effectuate the policies of the

Act. Accordingly, as there is no basis for a finding that

the contract between the parties was a consequence of the

unfair labor practices found, or that the contract thwarts

any policy of the Act, we reject the [ALJ’s]

recommendation for the issuance of a cease-recognition

order.

Id. at 671 (footnote omitted) (citing Scullin Steel, 161 F.2d at

147); see also Lykes Bros., 128 N.L.R.B. at 609-11 (same).

There is nothing in the Zidell decision to indicate that the

Board meant to disavow the holdings in M. Eskin & Son or

Lykes Brothers, nor is there anything to suggest the Board

meant to disregard or limit the principle endorsed in

Consolidated Edison Co. and its progeny.

If, as they contend, Raymond and the Carpenters

executed a lawful 8(f) agreement on October 1, then their

subsequent unfair labor practices that were committed when

they attempted to execute a 9(a) agreement on October 2

would appear to be irrelevant to the question of whether there

was a lawful 8(f) agreement in effect on October 1. Even if, as

the Board found, Raymond unlawfully recognized the

Carpenters on October 2, 2006, as the 9(a) representative of

its drywall-finishing employees, why would this nullify a

lawful, pre-existing 8(f) agreement? The Board inexcusably

failed to address this issue. We will therefore remand the case

for further consideration.

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D. The Petition for Review Filed by the Painters Union

The Painters Union has petitioned for review for the

limited purpose of challenging the Board’s sanctions against

Raymond and the Carpenters Union. In particular, the Painters

Union contends that the Board abused its discretion in

declining to require Raymond to provide alternate benefits

coverage equivalent to the coverage possessed under the 2006

Master Agreement, choosing instead to allow Raymond to

maintain the benefits already in place. See Raymond, 357

N.L.R.B. No. 166, at 1. The Painters Union also contends that

the Board erred in not precluding Raymond and the

Carpenters from entering an 8(f) agreement in the future. See

id. at 1 n.5.

In assessing the Painters’ claims, we want to make it

clear that nothing in our decision is meant to question the

Board’s determination that Raymond and the Carpenters were

free to enter into an 8(f) arrangement after October 2. The

Board did not err in reaching this conclusion and it need not

reconsider this matter on remand.

We decline to consider the Painters’ principal claim –

i.e., that the Board abused its discretion in declining to require

Raymond to provide alternate benefits coverage – because our

decision to remand on the remedy issue may render the claim

moot. Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523,

1528 (2013) (“If an intervening circumstance deprives the

plaintiff of a ‘personal stake in the outcome of the lawsuit,’ at

any point during litigation, the action can no longer proceed

and must be dismissed as moot.” (quoting Lewis v.

Continental Bank Corp., 494 U.S. 472, 477–78 (1990))). If

the Board concludes on remand that Raymond and the

Carpenters entered into a valid section 8(f) agreement on

October 1 that endured despite the subsequent unfair labor

25

practices, the Painters Union can raise no viable challenge to

the Board’s decision to allow Raymond to maintain the

benefits in place since the entire agreement would remain in

place. If the Board finds that Raymond and the Carpenters did

not enter into a valid section 8(f) agreement on October 1,

then it will be up to the Board in the first instance to

determine whether any adjustment in its remedial order is

required.

III. CONCLUSION

Consistent with the opinion above, we grant in part and

deny in part the Board’s cross-application for enforcement.

We also deny in part and grant in part the petitions for review

filed by Raymond and the Carpenters Union. We remand the

case to the Board for further consideration consistent with this

decision.

So ordered.