Allied Mechanical Services, Inc. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 23, 2011 Decided February 17, 2012

No. 10-1328

ALLIED MECHANICAL SERVICES, INC.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF

THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED

STATES AND CANADA, AFL-CIO, UNION LOCAL 357,

INTERVENOR

Consolidated with 10-1385

On Petition for Review and Cross-Application for

Enforcement of

Orders of the National Labor Relations Board

David M. Buday argued the cause for petitioner. With him

on the briefs was Keith E. Eastland.

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Steven B. Goldstein, 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 Robert J.

Englehart, Supervisory Attorney.

Tinamarie Pappas was on the brief for intervenor.

Before: KAVANAUGH, Circuit Judge, and EDWARDS and

SILBERMAN, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: This appeal focuses on

two Decisions and Orders issued by the National Labor

Relations Board (“the Board” or “the NLRB”): Allied

Mechanical Services, Inc., 341 N.L.R.B. 1084 (2004) (“Allied”),

and Allied Mechanical Services, Inc., 351 N.L.R.B. 79 (2007)

(“Allied Supp.”). Allied Mechanical Services, Inc. (“Allied” or

“the Company”) has petitioned for review to challenge certain

aspects of the Board’s actions, and the Board has cross-

petitioned for enforcement.

In Allied, the Board determined that the Company had

violated sections 8(a)(3) and 8(a)(1) of the National Labor

Relations Act (“the Act”), see 29 U.S.C. § 158(a)(3), (a)(1)

(2006), by refusing to consider and hire four job applicants

because of their union membership and by refusing to reinstate

ten strikers upon their unconditional offers to return to work.

The Company does not contest these determinations on appeal.

In Allied Supp., the Board found that Allied and Local

Union 357 of the United Association of Journeymen and

Apprentices of the Plumbing and Pipefitting Industry of the

United States and Canada, AFL-CIO (“the Union” or “Local

357”) had a section 9(a) bargaining relationship, see 29 U.S.C.

§ 159(a) (2006), and that Allied therefore violated sections

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8(a)(5) and (1) of the Act, 29 U.S.C. § 158(a)(5), (a)(1), by

unilaterally changing its job-application procedures, by refusing

to furnish information to the Union, and by withdrawing

recognition from the Union. The Board ordered Allied to cease

and desist from its unlawful activities and to recognize and,

upon request, bargain with the Union. Allied Supp., 351

N.L.R.B. at 82–87.

The principal question before the court is whether the

relationship between the Company and the Union – which has

extended over two decades – is governed by section 8(f), 29

U.S.C. § 158(f), or section 9(a) of the Act. Under sections 9(a)

and 8(a)(5), employers are obligated to bargain 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.” 29 U.S.C. § 159(a); see also id.

§ 158(a)(5) (making it an unfair labor practice to refuse to

bargain with a union selected in accordance with section 9(a)).

“[S]ection 8(f) creates a limited exception to this majority

support requirement for the construction industry. 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, Inc. v. NLRB, 330 F.3d 531,

534 (D.C. Cir. 2003) (citation omitted). An employer is not

obliged to enter an 8(f) bargaining relationship. And if an

employer purports to enter an 8(f) relationship, but never

executes an agreement with the union, the employer is free to

withdraw from the relationship. In addition, “an employer may

refuse to bargain after a section 8(f) agreement expires because

the union enjoys no presumption that it ever had majority

support.” Id. (citation omitted). Allied contends that the

Company and the Union never entered into anything more than

an 8(f) relationship, from which the Company was free to

withdraw. We disagree.

We hold that substantial evidence in the record, reasoned

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decisionmaking, and established case law support the Board’s

finding that Allied and the Union were parties to a 9(a)

bargaining relationship. In April 1990, the Union requested

recognition as the majority representative of Allied’s employees

and offered to give proof of its majority status. Allied declined

to recognize the Union. The Union then filed unfair labor

practice charges. In December 1990, the Board’s General

Counsel issued a Complaint against the Company. The

Complaint stated that the Union represented a majority of

Allied’s employees, and it sought a “Gissel bargaining order.”

See NLRB v. Gissel Packing Co., 395 U.S. 575, 614–15 (1969).

Rather than contest the Complaint, Allied signed an agreement

settling the matter. The settlement agreement provided that

Allied would recognize and bargain in good faith with the Union

as the exclusive collective bargaining representative of the unit

employees. The Board’s decision – that the circumstances

surrounding the execution of the settlement agreement, as well

as the agreement itself, established a 9(a) bargaining relationship

– is eminently reasonable. Finding no merit in Allied’s petition

for review, we hereby grant the Board’s cross-petition for

enforcement.

I. BACKGROUND

A. The Facts

Allied employs plumbers and pipefitters in southwestern

Michigan. The instant dispute arose in 1990, when Local 337

engaged in a campaign to organize Allied’s plumbing and

pipefitting employees. On April 24, 1990, Local 337 asserted to

Allied that the Union represented a majority of the Company’s

employees. The Union demanded that Allied recognize the

Union as the employees’ collective bargaining representative

and offered to give proof of its majority status to a third party.

The Company, however, declined to recognize the Union.

On December 13, 1990, in response to unfair labor practice

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charges filed by the Union, the Board’s General Counsel issued

a Complaint against the Company. The Complaint stated that a

majority of Allied’s employees had designated the Union as its

collective bargaining representative through authorization cards,

and that Allied had committed serious violations of the Act

effectively undermining the Union’s status. See I Joint App.

(“J.A.”) 407–09. The Complaint sought a Gissel bargaining

order on the grounds that the Company’s unlawful conduct was

so serious and substantial in character that the possibility

of erasing the effects of these unfair labor practices and

of conducting a fair election after the use of traditional

remedies is slight and the employees’ sentiments

regarding representation, having been expressed through

authorization cards, would, on balance, be better

protected by the entry of a remedial order requiring

[Allied] as of April 24, 1990, to recognize and bargain

with the [Union] as the exclusive collective bargaining

representative of its [unit] employees . . . than by

traditional remedies.

Id. at 409. The Complaint further demanded that Allied

[r]ecognize and, upon request, bargain in good faith with

the [Union] as the exclusive collective bargaining

representative of the [unit] employees . . . respecting

rates of pay, wages, hours, and other terms and

conditions of employment; and if an understanding is

reached, embody it in a signed agreement.

Id. at 410.

In its answer to the Complaint, Allied stated that it had “no

factual basis upon which to admit or deny” that the Union

represented a majority of the employees in an appropriate

bargaining unit. The answer additionally demanded proof of the

Union’s majority status, and there is nothing to indicate that the

Company did not receive the proof. Instead, on July 30, 1991,

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the Company signed a settlement agreement which was

approved by the Board’s Regional Director. The Complaint was

then withdrawn.

The agreement included a non-admission clause stating that

“[t]he Charged Party does not, by the execution of this

Agreement, admit that it has, in fact, violated the Act.” Id. at

417. More particularly, however, the settlement agreement

provided that Allied would

recognize and, upon request, bargain in good faith with

[the Union] as the exclusive collective bargaining

representative of the [unit] employees . . . with respect to

rates of pay, wages, hours, and other terms and

conditions of employee [sic], and if an understanding is

reached, embody it in a signed collective bargaining

agreement.

Id. at 419. There is nothing in the Board’s Complaint, Allied’s

responses to the Complaint, or the settlement agreement to

suggest that the Board, the Company, or the Union assumed that

the relationship between Allied and the Union was governed by

section 8(f).

During 1992 and 1993, ten Allied employees engaged in an

economic strike. See Allied Mech. Servs., Inc., 320 N.L.R.B. 32,

32 (1995), enforced 113 F.3d 623 (6th Cir. 1997) (“Allied

1995”). Nine of the strikers eventually made unconditional

offers to return to work, but Allied refused to reinstate them.

Charges were filed with the Board, and a Complaint was issued

against the Company. The Board found violations of sections

8(a)(3) and (1) of the Act, and ordered the Company to reinstate

and make whole the nine strikers. See id. at 33–34. On May 16,

1997, the Sixth Circuit enforced the Board’s order. Allied 1995,

113 F.3d at 624.

During the course of the Allied 1995 litigation, more

problems arose between the Company and the Union, giving rise

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to further litigation. See Allied Mech. Servs., Inc., 332 N.L.R.B.

1600 (2001) (“Allied 2001”). The Union again filed unfair labor

practice charges, and a Complaint was issued, alleging that

Local 337 had been the section 9(a) representative of Allied’s

unit employees since the 1991 settlement, and that Allied had

committed multiple violations of the Act. Allied denied both

that Local 337 was the section 9(a) representative of its

employees and that it had violated the Act.

The decision of the Administrative Law Judge (“ALJ”) in

Allied 2001 stated that the Union was the “certified”

representative of Allied’s employees. Id. at 1600 n.1, 1607,

1608, 1611. Allied filed an exception and argued before the

Board that, while it had “voluntarily recognized the Union”

pursuant to the 1991 settlement agreement, there was “no

evidence to support the Union being a Section 9(a) or a certified

bargaining representative of the employees” of Allied. I J.A.

192, 221–23.

The Board found, inter alia, that Allied had violated section

8(a)(5) of the Act, see Allied 2001, 332 N.L.R.B. at 1601, but

made no explicit finding as to whether the parties’ relationship

was governed by section 8(f) or section 9(a). The parties dispute

whether collateral estoppel bars Allied from now arguing that it

was in an 8(f) relationship with the Union: The Board argues

that the decision in Allied 2001 was necessarily predicated on a

finding of a section 9(a) relationship, see Resp’t’s Br. at 53–56;

Allied counters that collateral estoppel does not apply here, see

Pet’r’s Br. at 17. In light of the decision that we reach in this

case, it is unnecessary for us to resolve the parties’ dispute over

collateral estoppel. The Board’s decision in Allied 2001 is

currently on appeal, so we will have nothing further to say about

the matters at issue in that case.

On March 1, 1998, the United Association of Journeymen

and Apprentices of the Plumbing and Pipefitting Industry of the

United States and Canada, AFL-CIO, merged Local 337 with

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Local 513 to create Local 357. Local 337 was then succeeded

by Local 357.

B. The Instant Litigation

During 1998, Allied declined to offer ten strikers

reinstatement, despite their unconditional offers to return to

work. The Company also declined to hire four job applicants

because of their union membership. The Board found that this

conduct violated sections 8(a)(3) and 8(a)(1) of the Act. Allied,

341 N.L.R.B. at 1084–85; Allied Supp., 351 N.L.R.B. at 79.

Allied does not contest these findings.

Allied also does not dispute having engaged in other

conduct during 1998, the legality of which turns on the nature of

the relationship governing the parties. First, in June 1998, the

Union requested information from Allied, which Allied supplied

only in part. Allied Supp., 351 N.L.R.B. at 81. Second, in July

1998, Allied withdrew recognition from the Union. Id. Finally,

in August 1998, Allied revised its job-application procedure to

require applicants to apply in person at its office in Kalamazoo,

Michigan, without providing notice to the Union. Id.

In June 1999, the Board issued the instant Complaint.

Allied, 341 N.L.R.B. at 1089. On February 8, 2000, the ALJ

concluded, inter alia, that (1) Allied’s relationship with the

Union was governed by section 8(f); (2) Because Local 337’s

members had not been given the opportunity to vote on the

merger, Local 357 did not succeed to Local 337’s bargaining

rights; and (3) Allied had bargained for a reasonable period of

time as required by the 1991 settlement. See id. at 1098–99.

However, the ALJ found that Allied had violated the Act by

refusing to reinstate strikers and by refusing to hire job

applicants because of their union membership. Id. at 1125.

In 2004, the Board found that Local 357 did not succeed to

Local 337’s bargaining rights pursuant to the merger. The

Board, therefore, concluded that Allied was not required to

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bargain with Local 357. Id. at 1084. The Board declined to

determine whether the relationship between Allied and the

Union was governed by section 8(f) or section 9(a). Id. at

1084–85.

In 2007, the Board issued a Supplemental Decision and

Order revising its initial decision. Relying on Raymond F.

Kravis Center for the Performing Arts, 351 N.L.R.B. 143

(2007), enforced 550 F.3d 1183 (D.C. Cir. 2008), the Board

found that the absence of a vote on the merger did not permit

Allied to withdraw recognition, see Allied Supp., 351 N.L.R.B.

at 80. The Board also determined that Allied had a section 9(a)

bargaining relationship with the Union, because (1) the 1991

agreement and extrinsic evidence indicated as much, and (2)

Allied 2001 collaterally estopped the Company from arguing

otherwise. Id. at 82–84. The Board thus determined that Allied

had violated the Act when it unilaterally changed its application

procedure, refused to furnish information to the Union, and

withdrew recognition from the Union. See id. at 84.

On May 30, 2008, a two-member Board denied Allied’s

motion for reconsideration. Allied Mech. Servs., Inc., 352

N.L.R.B. 662 (2008). Allied petitioned this court for

review. On June 17, 2010, the Supreme Court issued its

decision in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635

(2010), making it clear that a panel of the Board must “maintain

a membership of three in order to exercise the delegated

authority of the Board,” id. at 2644. This court then remanded

the case for further proceedings before the Board. See Allied

Mech. Servs., Inc., 356 N.L.R.B. No. 1 (Oct. 14, 2010). On

remand, a properly constituted panel of the Board ruled that,

“[h]aving considered [Allied’s] motion for reconsideration and

the parties’ briefs, the Board has decided to deny the motion for

reconsideration for the reasons set forth in the Order reported at

352 NLRB 662 (2008), which is incorporated herein by

reference.” Id. Allied then filed the instant petition for review.

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II. ANALYSIS

A. Standard of Review

This court reviews the Board’s factual findings for

substantial evidence, upholds the Board’s application of law to

facts “unless arbitrary or otherwise erroneous,” N.Y. &

Presbyterian Hosp. v. NLRB, 649 F.3d 723, 729 (D.C. Cir.

2011) (citations omitted) (internal quotation marks omitted), and

gives “substantial deference” to inferences the Board draws

from the facts, Halle Enters., Inc. v. NLRB, 247 F.3d 268, 271

(D.C. Cir. 2001) (citation omitted) (internal quotation marks

omitted). Furthermore, where “‘the statute is silent or

ambiguous with respect to the specific issue, the question for the

court is whether the [Board’s] answer is based on a permissible

construction of the statute.’” NLRB v. United Food &

Commercial Workers Union, Local 23, 484 U.S. 112, 123

(1987) (quoting Chevron U.S.A. Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 843 (1984)); see also Hammontree

v. NLRB, 925 F.2d 1486, 1491 (D.C. Cir. 1991) (en banc).

The “function of striking [the] balance to effectuate national

labor policy is often a difficult and delicate responsibility, which

the Congress committed primarily to the National Labor

Relations Board, subject to limited judicial review.” ABC, Inc.

v. Writers Guild, 437 U.S. 411, 431 (1978) (alteration in

original) (citations omitted) (internal quotation marks omitted);

see also NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775,

786 (1990) (“This Court has emphasized often that the NLRB

has the primary responsibility for developing and applying

national labor policy.” (citations omitted)); Exxel/Atmos, Inc. v.

NLRB, 28 F.3d 1243, 1249 (D.C. Cir. 1994) (“It is up to the

Board, not the courts, to make labor policy.” (citation omitted)).

Therefore, we must accord considerable deference to policy

judgments of the Board. See Curtin Matheson, 494 U.S. at 786;

Pittsburgh Press Co. v. NLRB, 977 F.2d 652, 662 (D.C. Cir.

1992) (“We are mindful of the deference we owe the Board’s

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expertise and judgment . . . .” (citation omitted)).

B. Summary Enforcement of the Board’s Findings of

8(a)(3) and 8(a)(1) Violations

Because Allied does not contest the Board’s determinations

that it violated sections 8(a)(3) and (1) by refusing to reinstate

ten strikers and hire four union applicants, we summarily

enforce the Board’s findings and order on these charges. See

Grondorf, Field, Black & Co. v. NLRB, 107 F.3d 882, 885 (D.C.

Cir. 1997); Int’l Union of Petroleum & Indus. Workers v. NLRB,

980 F.2d 774, 778 n.1 (D.C. Cir. 1992).

C. Bargaining Relationships Under Sections 9(a) and 8(f)

Under section 9(a), a union that has been “designated or

selected for the purposes of collective bargaining by the

majority of the employees in a unit appropriate for such

purposes, shall be the exclusive representative[] of all the

employees in such unit for the purposes of collective bargaining

in respect to rates of pay, wages, hours of employment, or other

conditions of employment.” 29 U.S.C. § 159(a). Section

8(a)(5) makes it an unfair labor practice for an employer “to

refuse to bargain collectively with the representative[] of [its]

employees, subject to the provisions of [section 9(a)].” 29

U.S.C. § 158(a)(5). And section 8(a)(1) makes it an unfair labor

practice for an employer “to interfere with, restrain, or coerce

employees in the exercise of the rights guaranteed in [section

7].” See id. § 158(a)(1); id. § 157 (2006).

The Board explained the principal differences between

sections 8(f) and 9(a) as follows:

Section 8(f) . . . permits unions and employers in the

construction industry to enter into collective-bargaining

agreements without the union having to establish that it

has the support of a majority of the employees in the

covered unit. The provision therefore creates an

12

exception to Section 9(a)’s general rule requiring a

showing of majority support of unit employees for the

union. Section 8(f) also creates an exception to the

general rule that an employer and a union lacking

majority support of unit employees commit unfair labor

practices by entering into a bargaining relationship with

respect to those employees.

. . . [A]n 8(f) relationship may be terminated by

either the union or the employer upon the expiration of

their collective-bargaining agreement. By contrast, a

9(a) relationship (and the associated obligation to

bargain) continues after contract expiration, unless and

until the union is shown to have lost majority support.

Similarly, an 8(f) contract does not bar a representation

petition under Section 9, while a contract made with a

9(a) representative does bar such a petition.

Allied Supp., 351 N.L.R.B. at 81 (citations omitted) (quoting

Madison Indus. Inc., 349 N.L.R.B. 1306, 1307 (2007)).

It is undisputed that companies and unions in the

construction industry may be parties to section 9(a) bargaining

relationships. See, e.g., M & M Backhoe Serv., Inc. v. NLRB,

469 F.3d 1047, 1050 (D.C. Cir. 2006). Indeed, the Board has

made it clear that “unions [do not] have less favored status with

respect to construction industry employers than they possess

with respect to those outside the construction industry.” John

Deklewa & Sons, Inc., 282 N.L.R.B. 1375, 1387 n.53 (1987),

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

Ornamental Iron Workers, Local 3 v. NLRB, 843 F.2d 770 (3d

Cir. 1988). However, bargaining relationships in the

construction industry are presumed to be covered by section

8(f). Any party who asserts that a company and union in the

construction industry are parties to a section 9(a) relationship

carries the burden of proving it. Deklewa, 282 N.L.R.B. at 1385

n.41.

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In Staunton Fuel & Material, Inc., d/b/a Central Illinois

Construction, 335 N.L.R.B. 717 (2001), the Board held that,

when a union and employer execute a collective bargaining

agreement that appears to convert an 8(f) bargaining relationship

into a 9(a) bargaining relationship,

[a] recognition agreement or contract provision will be

independently sufficient to establish a union’s 9(a)

representation status where the language unequivocally

indicates that (1) the union requested recognition as the

majority or 9(a) representative of the unit employees; (2)

the employer recognized the union as the majority or 9(a)

bargaining representative; and (3) the employer’s

recognition was based on the union’s having shown, or

having offered to show, evidence of its majority support.

Id. at 719–20 (footnote omitted). However, the Board’s decision

in Central Illinois was called into question by this court’s

decision in Nova Plumbing, Inc. v. NLRB:

Section 8(f) represents a real benefit to both employers

and unions in the construction industry, allowing them to

establish bargaining relationships without regard to a

union’s majority status. But the Board cannot, as it did

here and in Central Illinois, allow this relatively

easy-to-establish option to be converted into a section

9(a) agreement that lacks support of a majority of

employees. Otherwise the Board would be giving

employers and unions “the power to completely frustrate

employee realization of the premise of the Act – that its

prohibitions will go far to assure freedom of choice and

majority rule in employee selection of representatives.”

330 F.3d at 537 (quoting Int’l Ladies’ Garment Workers’ Union

v. NLRB, 366 U.S. 731, 738–39 (1961)).

Nova Plumbing rests on a simple principle: An employer

and union in the construction industry are not free to “convert”

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an 8(f) relationship into a 9(a) bargaining relationship “that

lacks support of a majority of employees.” Id. at 537. Nova

Plumbing recognizes, however, that “[contract language and

intent] are perfectly legitimate factors that the Board may

consider in determining whether the Deklewa presumption has

been overcome.” Id. (citation omitted). “Standing alone

. . . contract language and intent cannot be dispositive at least

where . . . the record contains strong indications that the parties

had only a section 8(f) relationship.” Id. (emphasis added).

“A union can achieve the [section 9(a)] status of a

majority collective bargaining representative through either

Board certification or voluntary recognition by the

employer – in a contract, for example.” Kravis, 550 F.3d at

1188 (citation omitted). In addition, the Board can order an

employer to bargain with a union as a remedy for the employer’s

unfair labor practices, where there is a “showing that at one

point the union had a majority,” and the Board finds that “the

possibility of erasing the effects of past practices and of ensuring

a fair election . . . by the use of traditional remedies, though

present, is slight and that employee sentiment once expressed

through cards would, on balance, be better protected by a

bargaining order.” Gissel, 395 U.S. at 614–15; see also United

Dairy Farmers Coop. Ass’n v. NLRB, 633 F.2d 1054, 1067 (3d

Cir. 1980) (“[T]he Supreme Court in Gissel . . . held that Section

9(a)’s requirement that representatives be ‘designated or

selected’ by a majority of the employees did not preclude

determination of majority will by means other than elections.

The Court explicitly recognized the authority of the Board to

issue a bargaining order . . . .” (citation omitted)).

Once a union achieves section 9(a) status, an employer

will be found to have violated section 8(a)(5) if it breaches its

duty to bargain with the union, fails to provide information

necessary for the union to act as the employee representative, or

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unilaterally changes conditions of employment. See M & M

Backhoe, 469 F.3d at 1051.

If an employer and union convert from an 8(f) to a 9(a)

bargaining relationship based on the union’s offer to provide

evidence of its majority status, the employer cannot thereafter

withdraw from the relationship “solely because the employer

never took the union up on its offer.” Id. So long as the union

had evidence to support its majority status, the employer is not

free to walk away from the 9(a) relationship. “To rule otherwise

would be to allow the employer to frustrate the employees’

section 7 rights by turning its back to the union’s evidence.” Id.

(citing Gissel, 395 U.S. at 596–98).

Allied’s claim in this case is quite simple. The Company

does not appear to dispute that if it was in a 9(a) bargaining

relationship with the Union, the unfair labor practices found by

the Board would justify a Gissel bargaining order. Rather,

Allied argues that it had nothing more than an 8(f) relationship

with the Union and, therefore, it was free to withdraw

recognition. Allied thus essentially concedes that the nature of

the relationship between the Company and Union determines the

outcome of this case.

D. The Nature of the Relationship Between Allied and

the Union

1. The Scenario Painted by the Facts in This Case

Before assessing the parties’ positions regarding the

nature of the relationship between Allied and the Union, it is

important to point out that the circumstances that gave rise to the

dispute in Nova Plumbing are not presented in this case. Nova

Plumbing involved “a construction company’s refusal to extend

its contract with a labor union.” Nova Plumbing, 330 F.3d at

533. The Board found that the parties’ collective bargaining

agreement was governed by section 9(a), not section 8(f). In

reaching this conclusion, “the Board relied solely on a contract

16

provision suggesting that the company and the union intended

a 9(a) relationship despite strong record evidence that the union

may not have enjoyed majority support as required by section

9(a).” Id. The situation in this case is quite different.

Before the Company signed the 1991 settlement

agreement, the Union and Allied had not established an 8(f)

relationship through the execution of a pre-hire agreement or a

collective bargaining contract. Rather, the dispute in this case

arose when the Union claimed that it represented a majority of

the employees, offered to prove its majority status, and

demanded that Allied recognize the Union as the employees’

collective bargaining representative. After Allied refused to

bargain, the Union filed unfair labor practice charges. The

Board’s General Counsel then issued a Complaint asserting that

the Union had established its majority status through

authorization cards. The Complaint sought a Gissel bargaining

order, which is a remedy for a refusal to bargain in situations

covered by section 9(a).

Rather than litigate the unfair labor practice charges that

had been filed against it, Allied signed a settlement agreement,

in which it agreed to recognize and bargain with the Union. The

Board then relied on both “the relevant extrinsic evidence” and

the settlement agreement in determining that Allied and the

Union had a 9(a) relationship. Allied Supp., 351 N.L.R.B. at 82.

2. The Evidence Supporting the Board’s Finding of

a 9(a) Relationship Between Allied and the

Union

Allied’s principal claim is that the 1991 settlement

agreement created a bargaining relationship under section 8(f).

We reject this claim as utterly implausible. The Board’s

General Counsel could not have premised the Complaint against

Allied on a charge that the Company had violated section 8(f).

Section 8(f) merely permits unions and employees in the

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construction industry to enter into collective bargaining

agreements without the union’s having to establish that it has the

support of a majority of the employees in the covered unit. If a

union and an employer enter into an 8(f) relationship and

execute an agreement, the contract may be terminated by either

party upon expiration. However, neither an employer nor a

union is ever obliged to enter into an 8(f) relationship, and

neither an employer nor a union is obliged to renew an 8(f)

agreement. In this case, Allied had no obligations whatsoever

under section 8(f), because the Union and the Company had no

8(f) agreement in place.

The settlement agreement had nothing to do with

establishing a section 8(f) relationship, nor did the Complaint it

settled allege a violation of section 8(f). Put simply, the 1991

settlement agreement resolved a Complaint that was premised

on the assumption that the employer was obligated to bargain

with a union that had majority status, and thus should be in a

section 9(a) relationship with the employer. As the Board said:

“[A] settlement agreement establishing only an 8(f) relationship

would make little sense, as it would bear no relationship to the

allegations of the complaint” it settled. Allied Supp., 351

N.L.R.B. at 82. The non-admission clause contained in the 1991

agreement does not refute these premises; it merely provides

that by executing the agreement, Allied was not admitting to

having violated the Act. Allied specifically agreed to recognize

and bargain with the Union without any section 8(f) caveats.

Furthermore, on the record here, the Board’s decision

clearly rests on a showing of union support among a majority of

employees in an appropriate unit, as required by Nova Plumbing.

Allied points to M & M Backhoe in support of its argument that

the Union’s majority status was not established. M & M Backhoe

states: “We held in Nova Plumbing that an offer of proof could

not substitute for actual proof.” 469 F.3d at 1050. We think

that this statement is dicta, both because it reflects an

18

overreading of Nova Plumbing and it is unnecessary to the

decision in M & M Backhoe. The precise holding of Nova

Plumbing is that an employer and union in the construction

industry are not free to “convert” an 8(f) relationship into a 9(a)

bargaining relationship “that lacks support of a majority of

employees.” 330 F.3d at 537. That standard has been met here.

As noted above, in the instant case, the Union requested

recognition as the majority representative of Allied’s employees

and offered to give proof of its majority status. The Complaint

stated that the Union represented a majority of Allied’s

employees, and it sought a Gissel bargaining order. Indeed, the

Complaint explicitly states that employee sentiments had been

expressed “through authorization cards.” I J.A. 409. Allied

demanded proof of the Union’s majority status, and there is

nothing to indicate it did not receive such proof. Instead, the

Company signed an agreement settling the unfair labor practice

charges pending against the Company. On these facts, the Board

reasonably found an 8(a)(5) violation and issued a Gissel

bargaining order.

Allied argues that “even if the July 1991 settlement could

be considered evidence of majority support, the Union’s April

24, 1990 demand letter offering to make the required showing

preceded the parties’ agreement by more than fourteen months,”

thus precluding it from being considered a contemporaneous

showing of majority support. Pet’r’s Br. at 41. We agree with

the Board, however, that “the very premise of a Gissel

bargaining order is that, because of the employer’s unfair labor

practices, it is likely that the union will not be able to show that

it has maintained its majority at the time the Board’s remedies

are implemented.” Resp’t’s Br. at 53; see Gissel, 395 U.S. at

612–14. The settlement agreement parrots the language of

Gissel, showing that Allied’s agreement to bargain with the

Union was predicated on the previous existence of majority

status. See Gissel, 395 U.S. at 614 (allowing the Board to order

an employer to bargain with a union as a remedy for the

19

employer’s unfair labor practices where there is, inter alia, a

“showing that at one point the union had a majority”).

The settlement agreement surely was not a full collective

bargaining agreement or a section 8(f) pre-hire agreement, as

Allied contends. It was, instead, merely a promise by the

employer to recognize and bargain with the Union with the aim

of reaching a collective bargaining agreement. Nor was the

1991 agreement ever understood to be a collective bargaining

agreement of any sort. In fact, it was the absence of a collective

bargaining agreement that resulted in the various work

stoppages that occurred after the settlement agreement was

executed. As the Sixth Circuit noted in enforcing the Board’s

order in Allied 1995, Allied employees had struck in 1992 and

1993 “to protest the Company’s . . . failure to negotiate a

contract with the Union.” Allied 1995, 113 F.3d at 627. If the

1991 agreement had been understood to constitute a collective

bargaining agreement, those employees would have had no need

to strike for one in the years following it.

Allied argues that the settlement agreement was sufficient

to satisfy the terms of section 8(f), simply because it was an

“agreement.” See Pet’r’s Br. at 52–53. This is a specious claim.

The reference to “agreement” in section 8(f) has been

understood to mean pre-hire agreements or complete collective

bargaining agreements – i.e., agreements that specify terms and

conditions of hire and employment. See Bufco Corp. v. NLRB,

147 F.3d 964, 966 n.2 (D.C. Cir. 1998) (“The collective

bargaining agreements were pre-hire agreements negotiated

under § 8(f) of the National Labor Relations Act, 29 U.S.C. §

158(f).”); Donald Schriver, Inc. v. NLRB, 635 F.2d 859, 873

(D.C. Cir. 1980) (“[A]n § 8(f) prehire agreement[ is] the

standard means of initiating collective bargaining in the

construction industry.” (footnote omitted)); see also, e.g., Nat’l

Treasury Emps. Union v. Fed. Labor Relations Auth., 452 F.3d

793, 794 (D.C. Cir. 2006) (noting the “collective bargaining

20

agreement” at issue “govern[ed] the terms and conditions of

employment”). The 1991 agreement contained no such

provisions – to the contrary, it provided that the parties would

bargain “with respect to rates of pay, wages, hours, and other

terms and conditions of employ[ment].” I J.A. 419.

Finally, Allied attempts to derive significance from the

fact that on June 1, 1995, the Union made a written proposal for

a contract with a section 8(f) recognition clause. The Union’s

demand for section 8(f) status during collective bargaining four

years after the 1991 settlement agreement, however, surely does

not indicate that the 1991 agreement was a section 8(f)

agreement. As the Board said:

Local 337’s written proposal, in subsequent contract

negotiations, for an 8(f) recognitional clause sheds little

light on the nature of the relationship created under the

settlement agreement, as the record does not reveal Local

337’s reasons for offering this proposal, and parties

routinely offer concessions in negotiations to obtain other

desired benefits. Moreover, any probative value of this

contract proposal is largely negated by the fact that Local

337 also made a request, albeit orally, for 9(a)

recognition during negotiations.

Allied Supp., 351 N.L.R.B. at 83 n.19.

E. The Board’s Judgment Is Consistent with Nova

Plumbing

Allied contends that the court’s decision in Nova

Plumbing precludes enforcement of the Board’s decision here.

We disagree. As noted above, the record in this case is

materially different from the record in Nova Plumbing. First,

there are no “strong indications that the parties had only a

section 8(f) relationship.” Nova Plumbing, 330 F.3d at 537.

Quite the contrary.

21

Second, the Board’s decision in this case does not

implicate Nova Plumbing’s broader concern about the

possibility of employer-union collusion. This concern is

inapposite here. The 9(a) relationship between Allied and the

Union is predicated on a Board-approved settlement agreement

that resolved a Gissel Complaint. The NLRB Regional

Director’s approval of the settlement agreement protected

against the kind of collusion that might be present in a private-

settlement scenario.

Finally, “[b]efore the General Counsel issues a

complaint, he [or she] conducts an investigation in order to

ascertain, analyze, and apply the relevant facts. According to

the Board’s regulations, a complaint will issue only if the charge

appears to have merit. If investigation reveals that there has

been no violation of the Act or evidence is insufficient to

substantiate the charge, no complaint will issue.” See Davis

Supermarkets, Inc. v. NLRB, 2 F.3d 1162, 1179 (D.C. Cir. 1993)

(citations omitted) (internal quotation marks omitted). We

presume “that agency officials and those who assist them have

acted properly.” United Steelworkers v. Marshall, 647 F.2d

1189, 1217 (D.C. Cir. 1980) (as amended Jan. 30, 1981)

(citation omitted); see also La. Ass’n of Indep. Producers &

Royalty Owners v. FERC, 958 F.2d 1101, 1119 (D.C. Cir. 1992)

(per curiam) (“Under the well-settled presumption of

administrative regularity, courts assume administrative officials

to be men [and women] of conscience and intellectual discipline,

capable of judging a particular controversy fairly on the basis of

its own circumstances.” (alteration in original) (citation omitted)

(internal quotation marks omitted)); Braniff Airways, Inc. v.

Civil Aeronautics Bd., 379 F.2d 453, 460 (D.C. Cir. 1967) (“A

strong presumption of regularity supports the inference that

when administrative officials purport to decide weighty issues

within their domain they have conscientiously considered the

issues and adverted to the views of their colleagues.” (citations

omitted)). It is therefore unlikely – and even illogical – to

22

suppose that the Board’s General Counsel would have asserted

that a majority of Allied’s unit employees had designated the

Union as their representative through authorization cards, and

that a Gissel bargaining order was necessary to remedy the

Company’s unfair labor practices, without first investigating the

Union’s claim of majority status and satisfying itself that a

Gissel bargaining order was appropriate.

Allied’s claims to the contrary are entirely unconvincing.

The employer knew that it could seek proof of the Union’s

majority status, did so, and never claimed that the proof was not

forthcoming before signing the settlement agreement. With so

many safeguards in place, we cannot conclude that the potential

for collusion was afoot. In short, we find that the concern raised

by the court in Nova Plumbing has no play in this case.

F. Deference Is Due to the Board’s Judgment in This

Case

Substantial evidence review “gives the agency the benefit

of the doubt, since it requires not the degree of evidence which

satisfies the court that the requisite fact exists, but merely the

degree which could satisfy a reasonable factfinder.” Allentown

Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 377 (1998)

(citation omitted). And it does not allow a court to “supplant the

agency’s findings merely by identifying alternative findings that

could be supported by substantial evidence.” Arkansas v.

Oklahoma, 503 U.S. 91, 113 (1992); see also Robinson v. Nat’l

Transp. Safety Bd., 28 F.3d 210, 215 (D.C. Cir. 1994)

(explaining that an agency decision “may be supported by

substantial evidence even though a plausible alternative

interpretation of the evidence would support a contrary view”

(citations omitted) (internal quotation marks omitted)).

Substantial evidence supports the Board’s determination that,

based on “the relevant extrinsic evidence” and the settlement

agreement, Allied and the Union had a 9(a) relationship. Allied

Supp., 351 N.L.R.B. at 82.

23

First, as noted above, the Board’s General Counsel could

not have premised the Complaint that was issued against Allied

on a charge that Allied had violated section 8(f), because the

Union and employer had no section 8(f) agreement in

place. The Complaint and its settlement implicated section 9(a),

not section 8(f).

Second, the record supports the General Counsel’s

assertion that the Union had achieved majority status. On April

24, 1990, the Union asserted to Allied that it represented a

majority of the Company’s plumbing and pipefitting employees,

and demanded that Allied recognize the Union as the

employees’ bargaining agent. The Company refused the

Union’s demand. The Complaint filed against Allied

specifically alleged that on or about April 24, 1990, a majority

of Allied’s plumbing and pipefitting employees had designated

the Union as their exclusive collective bargaining representative

through authorization cards. Allied neither admitted nor denied

the Board’s allegation of majority support, based on an asserted

lack of “factual basis.” I J.A. 413. In other words, by its answer

to the Complaint, Allied essentially conceded that it had no basis

upon which to dispute the Board’s claim of majority status.

Finally, the Board reasonably rejected Allied’s claim that

Allied could withdraw from its 9(a) relationship with the Union

because it had bargained for a reasonable time. On this point,

the Board found

that the Respondent was not free to withdraw recognition

simply because it had bargained with Local 337 for a

reasonable period of time. Because the Respondent had

recognized and agreed to bargain with Local 337 under

a settlement agreement, Local 337 possessed an

irrebutable presumption of majority status for a

reasonable period of time. Although the reasonable

period had expired by the time that the Respondent

withdrew recognition, that fact alone did not privilege the

24

Respondent’s withdrawal of recognition. Rather, at that

point, the presumption of majority support became

rebuttable. Under the law at the time that the Respondent

withdrew recognition, the Respondent could rebut the

presumption of majority support and withdraw

recognition by showing either that the Union had actually

lost the support of a majority of the bargaining unit

employees or that the employer had good-faith doubt or

uncertainty, based on objective considerations, of the

Union’s continued majority status.

The Respondent failed to make such a showing.

Allied Supp., 351 N.L.R.B. at 84 (footnotes omitted).

In sum, the record in its entirety makes it clear that the

Board’s judgment in this case easily survives substantial

evidence review.

Administrative decisions by the Board demand a “very

high degree of deference.” United Steelworkers of Am., Local

Union 14534 v. NLRB, 983 F.2d 240, 244 (D.C. Cir. 1993).

Therefore, we must uphold the Board’s finding that the Act has

been violated, unless its adjudication “‘has no rational basis’ or

is ‘unsupported by substantial evidence.’” Bally’s Park Place,

Inc. v. NLRB, 646 F.3d 929, 935 (D.C. Cir. 2011) (quoting

United Mine Workers of Am., Dist. 31 v. NLRB, 879 F.2d 939,

942 (D.C. Cir. 1989)). “[T]he Board is to be reversed only when

the record is so compelling that no reasonable factfinder could

fail to find to the contrary.” Bally’s, 646 F.3d at 935 (citation

omitted) (internal quotation marks omitted). Where, as here, the

Board disagrees with the ALJ, “the standard of review with

respect to the substantiality of the evidence does not change,”

because “in the end it is the Board that is entrusted by Congress

with the responsibility for making findings under the statute.”

Id. at 935 n.4 (citation omitted) (internal quotation marks

omitted).

25

In examining specifically whether a section 8(f) or 9(a)

relationship was present, our inquiry is whether the Board’s

conclusion was “reasonable.” See Kravis, 550 F.3d at 1189

(deferring to the Board’s finding of section 9(a) status where the

Board “reasonably” reached its conclusion); see also NLRB v.

Local Union No. 103, Int’l Ass’n of Bridge, Structural &

Ornamental Iron Workers, 434 U.S. 335, 350 (1978) (“The

Board’s resolution of the conflicting claims in this case

represents a defensible construction of the statute and is entitled

to considerable deference. Courts may prefer a different

application of the relevant sections, but ‘[t]he function of

striking that balance to effectuate national labor policy is often

a difficult and delicate responsibility, which the Congress

committed primarily to the National Labor Relations Board,

subject to limited judicial review.’” (alteration in original)

(citations omitted)). Given the circumstances recited above,

there is little doubt that we owe deference to the Board’s

judgment in this case.

III. CONCLUSION

More than twenty years ago, Allied asked for proof of

majority status, then, via agreement, settled a Complaint seeking

a Gissel bargaining order. Allied agreed to bargain based on the

premise of a section 9(a) relationship. Years later, the Company

asserted that it had nothing more than a section 8(f) relationship

with the Union. Given the settlement agreement and the context

in which it was executed, the Board’s rejection of Allied’s

claims are well founded and deserve our deference.

Accordingly, we deny Allied’s petition for review and grant the

Board’s cross-petition for enforcement.