National Labor Relations Board v. Haberman Construction Company

RANDALL, Circuit Judge,

concurring in part and dissenting in part:

I concur in parts I and II of the majority opinion but respectfully dissent with respect to the majority’s enforcement in part III of the portion of the Board’s remedial order which extends to projects not yet begun at the time of the unfair labor practices.

Issues concerning the enforceability of prehire contracts in the construction industry are some of the most difficult in the field of labor law. As the scholarly opinion of the majority demonstrates, the law bearing upon the question whether a prehire contract is enforceable with respect to future projects in a situation in which majority support for a union has once been established in a bargaining unit is highly problematic, largely due to the tension between competing principles developed by the Board in its prior cases.

In Higdon Construction Co., 434 U.S. 335, 98 S.Ct. 651, 54 L.Ed.2d 586 (1978), the Supreme Court settled a crucial issue concerning the effect of § 8(f) prehire contracts. There, the Court adopted the longstanding position of the Board that a § 8(f) prehire contract is voidable until such time as the union achieves majority support in the appropriate bargaining unit. Id. at 341, 98 S.Ct. at 655. The Court made clear, however, 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.” Id. at 350, 98 S.Ct. at 660. Because Haberman Construction Company (the Company) repudiated the Union-AGC contract at a time when a majority of the employees in the unit supported the Union, I fully agree with the majority that Higdon and the Board’s prior opinions compel the conclusion that the Company committed unfair labor practices. My disagreement with the majority concerns the propriety of the Board’s remedial order, which compels compliance with the Union-AGC contract and reinstatement of the discriminatees on projects not yet begun at the time of the unfair labor practices.

Citing Higdon, the Board held that the Company violated § 8(a)(5), (3) and (1) of the Act by unilaterally changing the terms of employment and announcing that it was going “open shop.” The Board agreed with the ALJ’s recommendation that the Company be ordered to bargain with the Union and comply with the Union-AGC contract.' However, the Board disagreed with the AU’s recommendation that, since the projects on which the discriminatees had been working were in all likelihood completed by the time of his decision, the discriminatees should be made whole only for losses incurred until the end of those projects. Rather, the Board ordered that the employees be reinstated to employment on projects not yet begun at the time of the unfair labor practices, and that they be made whole for all losses incurred because of the discrimination against them since the time of the unfair labor practices. The Board’s rationale for its reinstatement and make-whole order was set out in four sentences:

We are aware that, even absent the unfair labor practices, Respondent, which hired employees on a project-by-project basis, might have discharged the discriminatees in the normal course of business when the projects were completed. However, there is a distinct possibility that, absent its discrimination, Respondent would have retained, transferred, or rehired at least some of the discriminatees for new projects. Accordingly, to remedy fully Respondent’s unfair labor practices and protect the discriminatees’ rights, we shall order Respondent to reinstate the discriminatees to their former or substantially equivalent positions and to make them whole for any losses they suffered as a result of the discrimination against them .... The determination of which employees, if any, would have continued in Respondent’s employment and for how long can best be made at the compliance stage of the proceedings, to which we defer the matter.

236 N.L.R.B. No. 7 at 2-3 (footnotes omitted). Thus, the Board ordered reinstatement and contract compliance extending to projects not yet begun at the time of the unfair labor practices without as much as a single citation to its own past decisions or those of the courts.¹

The problem with the remedial aspect of the Board’s opinion concerns its apparent conflict with a principle articulated in past Board decisions — that a union must reestablish its majority status at each new jobsite before it can enforce a § 8(f) agreement. Less than eight months before its decision in this case, the Board, in Dee Cee Floor Covering, 232 N.L.R.B. 421 (1977), made its position on the presumption of continuing majority status arising from a § 8(f) contract clear. After recognizing the principle later validated in Higdon that “where a union fails to prove that it has obtained majority status among the employer’s employees, an employer may withdraw recognition from that union and/or make unilateral changes in the contractual working conditions without thereby violating Section 8(a)(5) of the Act,” id. at 422 (footnote omitted), the Board went on to conclude that the attainment of majority status on previous jobsites does not give rise to a presumption of continuing majority status “inasmuch as the Union must demonstrate its majority at each new jobsite in order to invoke the provisions of Section 8(a)(5) of the Act,” id. (footnote omitted). Because the union in Dee Cee Floor Covering was not entitled to a presumption of continuing majority status, the employer had no employees at its new jobsite when it abrogated its previous prehire agreement with the union, and, thus, the majority status of the union could not be shown, the Board held that the employer had not violated § 8(a)(5) of the Act.

The notion articulated in Dee Cee Floor Covering, that a union must reestablish its majority status at each new jobsite before it can enforce a § 8(f) agreement, has appeared in the Board’s decisions for years. See, e. g., Local Union No. 103 (Higdon Contracting Co.), 216 N.L.R.B. 45, 46 (1975); Roberts & Schaefer, 193 N.L.R.B. 860, 860 n.3 (1971); Ruttmann Construction Co., 191 N.L.R.B. 701, 702 (1971).² However, tension clearly exists between the principle of Dee Cee Floor Covering and the language in Higdon and prior Board precedent that once majority status is achieved in a bargaining unit “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.” 434 U.S. at 350, 98 S.Ct. at 660.

The conflict between the principle of Dee Cee Floor Covering and the principle that when a union achieves majority support in a unit the § 8(f) contract attains the status of a regular collective bargaining agreement is critical in this case because of the nature of the Board’s remedial authority. Section 10(c) of the Act, 29 U.S.C. § 160(c), requires the Board upon finding that an unfair labor practice has been committed “to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of [the Act].” The remedial power of the Board is “a broad discretionary one, subject to limited judicial review.” Fibreboard Corp. v. NLRB, 379 U.S. 203, 216, 85 S.Ct. 398, 406, 13 L.Ed.2d 233 (1964). See also NLRB v. J. H. Rutter-Rex Mfg. Co., 396 U.S. 258, 262-63, 90 S.Ct. 417, 419-20, 24 L.Ed.2d 405 (1969); NLRB v. Pilot Freight Carriers, Inc., 604 F.2d 375, 377 (5th Cir. 1979). The Board’s duty under § 10(c) is to make “the employees whole and thus restor[e] the economic status quo that would have obtained but for the company’s wrongful [acts].” NLRB v. Rutter-Rex, 396 U.S. at 263, 90 S.Ct. at 420. See also Franks v. Bowman Transportation Co., 424 U.S. 747, 769, 96 S.Ct. 1251, 1266, 47 L.Ed.2d 444 (1976); NLRB v. Hyde, 339 F.2d 568, 572 (9th Cir. 1964). While the Board’s mandate is to “take measures designed to recreate the conditions and relationships that would have been had there been no unfair labor practice,” Carpenters v. NLRB, 365 U.S. 651, 657, 81 S.Ct. 875, 879, 6 L.Ed.2d 1 (1961) (Harlan, J., concurring), the Board’s remedial orders must be appropriate and adapted to the situation which calls for redress, NLRB v. United Mine Workers, 355 U.S. 453, 458, 78 S.Ct. 386, 389, 2 L.Ed.2d 401 (1958), and they are unenforceable to the extent that they become punitive rather than remedial, see Carpenters v. NLRB, 365 U.S. 651, 654-55, 81 S.Ct. 875, 877, 6 L.Ed.2d 1 (1961); Republic Steel Corp. v. NLRB, 311 U.S. 7, 11-12, 61 S.Ct. 77, 79, 85 L.Ed. 6 (1940); Consolidated Edison Co. v. NLRB, 305 U.S. 197, 236, 59 S.Ct. 206, 219, 83 L.Ed. 126 (1938); NLRB v. Florida Medical Center, Inc., 576 F.2d 666, 673 (5th Cir. 1978). Thus, the courts have refused to enforce remedies which seek to ameliorate conditions which would have existed in any event and are, therefore, not dependent upon the existence of an unfair labor practice. See, e. g., NLRB v. Solboro Knitting Mills, Inc., 572 F.2d 936, 945-46 (2nd Cir.), cert. denied, 439 U.S. 864, 99 S.Ct. 188, 58 L.Ed.2d 174 (1978); Trico Products Corp. v. NLRB, 489 F.2d 347, 353 (2nd Cir. 1973); NLRB v. Charley Toppino & Sons, Inc., 358 F.2d 94, 96 (5th Cir. 1966); Nabors v. NLRB, 323 F.2d 686, 690 (5th Cir. 1963), cert. denied, 376 U.S. 911, 84 S.Ct. 666, 11 L.Ed.2d 609 (1964).

The key issue with respect to the aspect of the Board’s remedial order which extends to projects not yet begun at the time of the unfair labor practices is whether the Board exceeded its authority to recreate the status quo ante. Under the cases which delineate the scope of the Board’s authority, it appears that if the. § 8(f) contract would have been unenforceable with respect to projects not yet begun at the time of the unfair labor practices, the Board, by ordering contract compliance and reinstatement, would have exceeded its authority.³ Thus, the question whether a § 8(f) contract which has become enforceable by virtue of majority support for the union in the appropriate bargaining unit is entitled to a presumption of majority support with respect to further projects is crucial.

In apparent recognition of the interplay between the limitation placed upon the Board’s remedial authority and the Board’s prior decisions concerning the propriety of a presumption of continuing majority status for future projects, two Members of the Board dissented in part from the Board’s remedial order in this case. Footnote five of the Board’s opinion sets out Member Penello’s position:

Member Penello would limit the remedy herein to the duration of the projects under way at the time Respondent repudiated its agreement with the Union. To do otherwise would, in his view, go beyond the intent of Sec. 8(f) of the Act. Because an 8(f) agreement does not create a presumption of majority status, a union, to enforce the contract, must show that it represents a majority of employees. [Higdon Construction Co.] Where, as here, an employer hires on a project-by-project basis, majority status can be shown for only those projects then under way. [Dee Cee Floor Covering]. Thus, Member Penello does not view an 8(f) agreement, in these circumstances, as enforceable beyond the projects under way. Had Respondent herein waited until the projects had been completed, it would be free to repudiate its agreement with the Union. In Member Penello’s view, the remedy ordered by the majority would interfere with Respondent’s privileges under Sec. 8(f) of the Act.

236 N.L.R.B. No. 7 at 3-4 n.5. The Company, in arguing before us that the Board exceeded its remedial authority, makes essentially the same argument as did Member Penello. Relying on the principle of Dee Cee Floor Covering, that a § 8(f) agreement does not create a presumption of majority status even where a majority of the bargaining unit supported the union on past projects, it contends that where an employer hires on a project-by-project basis, majority status can only be shown at projects under way at the time of the unfair labor practices. The Company argues that the Union-AGC contract was enforceable only on those projects under way in February of 1977 because, had the Company waited until those projects were completed and the employees were laid off in the normal course of business, it would have been free to repudiate the contract and offer new terms and conditions of employment. Citing record evidence that the discriminatees would have refused to work for the Company without Union benefits, it argues that the Union cannot show that it would have obtained majority status under the new conditions of employment, and, thus, the contract would be unenforceable.

In my view, the question raised by Member Penello and the Company is very troubling. The majority opinion disposes of the problem by means of a broad holding that once majority status is attained in a unit covered by a § 8(f) prehire contract, the contract is to be treated like any other collective bargaining agreement and that a rebuttable presumption of continuing majority status arises “despite both the potential- change in the unit’s employee composition and its eventual relocation to other, future projects.” Maj. at 312.⁴ The majority. opinion makes a plausible argument for the proposition that a presumption of continuing majority support attaches to a § 8(f) contract when backed by the support of a majority of the employees in a unit, and effectively points out some of the troublesome aspects of the principle that majority status must be reestablished on each new jobsite. Especially persuasive is its discussion of the conflict between the § 9(a) concept that an employer’s obligations are determined with respect to a bargaining unit and the concept that § 8(f) contracts mature only on a project-by-project basis. However, the majority’s analysis depends on its statement that Dee Cee Floor Covering is no longer good law and upon a broad reading of the language in Higdon quoted above.⁵ But it is important to note that the Board did not explicitly repudiate Dee Cee Floor Covering in its opinion in this case. The fact is that the Board never discussed Dee Cee Floor Covering in its opinion; indeed, the opinion does not deal in any way with the propriety of a presumption of continuing majority support. In my view, it is far from clear that the Board has actually repudiated the principle set out in Dee Cee Floor Covering.⁶ In addition, I am concerned that the majority opinion largely ignores the legislative history of § 8(f), which may lend considerable support to the proposition that a presumption of continuing majority status with respect to future projects may, at least in some situations, be inappropriate.⁷ In light of these considerations, I am uncomfortable with the majority’s broad holding. The most fundamental problem with the majority’s approach in this case, however, is that the majority supplies a rationale for the Board’s remedial order which the Board itself failed to provide.

Congress has entrusted to the Board the task of “ ‘applying the general provisions of the Act to the complexities of industrial life,’ ” NLRB v. Weingarten, Inc., 420 U.S. 251, 266, 95 S.Ct. 959, 968, 43 L.Ed.2d 171 (1975) (citations omitted), quoting NLRB v. Erie Resistor Corp., 373 U.S. 221, 236, 83 S.Ct. 1139, 1149, 10 L.Ed.2d 308 (1963). “Its special competence in this field is the justification for the deference accorded its determination[s].” NLRB v. Weingarten, 420 U.S. at 266, 95 S.Ct. at 968. It is clear, however, that “[w]hen the Board so exercises the discretion given to it by Congress, it must ‘disclose the basis of its order’ and ‘give clear indication- that it has exercised the discretion with which Congress has empowered it.’ ” NLRB v. Metropolitan Life Insurance Co., 380 U.S. 438, 443, 85 S.Ct. 1061, 1064, 13 L.Ed.2d 951 (1965). When the Board has failed adequately to articulate the reasons for its decision, the proper course for a reviewing court is to order a remand so that the Board may explicate its rationale. Id. See also NLRB v. Weingarten, 420 U.S. at 268-69, 95 S.Ct. at 969 (Burger, C. J., dissenting); Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271 (1941); Pacific Southwest Airlines v. NLRB, 587 F.2d 1032, 1039 (9th Cir. 1978). A remand is particularly appropriate when the Board’s order appears to conflict with its past decisions and no satisfactory explanation is provided. See, e. g., NLRB v. Weingarten, 420 U.S. at 268-69, 95 S.Ct. at 969 (Burger, C. J., dissenting); Memorial Hospital of Roxborough v. NLRB, 545 F.2d 351, 357 (3rd Cir. 1976); NLRB v. International Union of Operating Engineers, 460 F.2d 589, 604-05 (5th Cir. 1972). While the Board is certainly authorized to change its mind and “modify its construction of the Act in light of its cumulative experience,” Beth Israel Hospital v. NLRB, 437 U.S. 483, 508, 98 S.Ct. 2463, 2477, 57 L.Ed.2d 370 (1978), “when it does it must at least carefully explain its reasons, justify the change and follow controlling law.” Seafarers v. NLRB, 101 L.R.R.M. 2628, 2631 (D.C.Cir.1979). As the Supreme Court made clear in NLRB v. Metropolitan Life Insurance Co., 380 U.S. 438, 443-44, 85 S.Ct. 1061, 1064, 13 L.Ed.2d 951, it is highly improper for “reviewing courts to substitute counsel’s rationale or their discretion for that of the Board.”

In my view, there are several possible explanations for the Board’s remedial order in this case.⁸ But, after the expenditure of tremendous time and effort by the members of this court, the bottom line is that we do not know the reason why the Board acted as it did; the Board has abdicated its role of leadership and has left us with “the burden of justifying [its decision] for reasons which we arrive at by inference and surmise.” NLRB v. Weingarten, 420 U.S. at 269, 95 S.Ct. at 976 (Burger, C. J., dissenting).⁹

In my opinion, the majority has filled the gap left by the Board with an explanation of the Board’s actions which may or may not accurately reflect the Board’s intent, and with a legal rationale which may or may not accurately reflect the intent of Congress and the past decisions of the Board and the courts. While the majority opinion represents a valiant effort to bring order to an extremely confusing field in which the Board has consistently offered little guidance, I cannot join it because, in the final analysis, it substitutes this court’s own rationale for that of the Board. I would remand the contract compliance and reinstatement portions of the Board’s remedial order, which extend beyond the jobs in progress at the time of the unfair labor practices, to the Board and order that it explicate the rationale for its decision in light of its own precedent and that of the courts.

1 . The Board’s extremely brief and unenlightening explanation for its remedial order is typical of its general approach with respect to the issue of continuing majority status in the § 8(f) context. See, e. g., G. M. Masonry Co., 245 N.L.R.B. No. 54 (1979); V. M. Construction Co., 241 N.L.R.B. No. 84 (1979); Roberts & Schaefer Co., 193 N.L.R.B. 860 (1971).

2 . The Supreme Court’s statement in Higdon that “[t]he employer’s duty to bargain and hon- or the contract is contingent on the union’s attaining majority support at the various construction sites,” 434 U.S. at 345, 98 S.Ct. at 658, in conjunction with its citation to NLRB v. Irvin, 475 F.2d 1265 (3d Cir. 1973), lends considerable support to the argument that the Board’s past position has been that maturation of prehire agreements occurs only on a project-by-project basis. Though the Court’s statement can at least partially be explained away by other language employed by the Court in Higdon and by recognizing the limited project-only nature of the prehire contract in Irvin, the Court’s statement is highly significant, if only to illustrate the confusion which has heretofore obtained with respect to the issue of continuing majority support extending to new projects. It is telling that commentators have construed the Court’s statement as an adoption of the principle expressed in Dee Cee Floor Covering. See King & LaVaute, Current Trends in Construction Industry Labor Relations—The Double-Breasted Contractor and the Prehire Contract, 29 Syracuse L.Rev. 901, 934-40 (1978).

3 . The bargaining order issued by the Board does not present the same problems as do its contract restoration and reinstatement orders. It is settled law that the propriety of a bargaining order does not normally depend upon the existence of majority status throughout the period between the time of the unfair labor practices and the time for enforcement of the Board’s order. On the contrary, the relevant date for determining the extent of the Company’s duty to bargain and, thus, the propriety of a bargaining order is the time of the unfair labor-practices. Franks Brothers Co. v. NLRB, 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 1020 (1944). The Board therefore properly ordered bargaining.

4 . Contrary to the suggestion of the majority, the Company did not argue that at the expiration of the contract it could have cancelled the carpenters’ benefits, fired all of its employees and therefore refused to bargain. In fact, the Company’s primary argument was that had it waited until the end of the projects in progress in February of 1977, that is, until its employees were laid off in the normal course of business, it would have been free to repudiate the § 8(f) contract and offer new terms and conditions of employment. The record shows that the jobs under way in February of 1977 were soon to be completed, and no evidence was presented that any new projects were contemplated. Thus, it would appear that at the end of the jobs in progress, the Company would have been in the same position as was the employer in Dee Cee Floor Covering, in that the Company’s work force would have been reduced to zero. The Company’s argument, as I understand it, was that it would then have been free to offer its own terms of employment, which would not have included union benefits and that, therefore, the union would be unable to show its majority status since the union workers had already refused to work without the benefits.

It is important to note that the actions the Company contends it would have taken do not necessarily involve anti-union animus. The carpenters were hired on a project-by-project basis and were routinely laid off when no work was available. It is clear that the Act does not prohibit employment decisions based on economic realities, see, e. g., NLRB v. Computed Time Corp., 587 F.2d 790 (5th Cir. 1979); Independent Gravel Co. v. NLRB, 566 F.2d 1091 (8th Cir. 1977); NLRB v. Bogart Sportswear Mfg. Co., 485 F.2d 1203 (5th Cir. 1973); NLRB v. AAA Electric, Inc., 472 F.2d 444 (6th Cir. 1973), and this Circuit has held that anti-union animus should not lightly be inferred, see Syncro Corp. v. NLRB, 597 F.2d 922, 924 (5th Cir. 1979); Federal-Mogul Corp. v. NLRB, 566 F.2d 1245, 1259-60 (5th Cir. 1978). Under these principles, the Company would presumably be free to offer any terms of employment it desired, as long as it did not discriminate against union supporters. It is crucial to note that under the Company’s theory, the Company’s past history of employee carryover or transfer from completed to new jobs would be irrelevant because there would have been no projects onto which the employees could have been carried over or transferred. Similarly, that the Company followed a practice of rehirr ing employees for new projects would be irrelevant, because the conditions under which the employers had formerly been rehired would have changed to such an extent that union workers would be highly unlikely to accept employment.

In addition to its argument keyed to the layoff of its carpenters at the end of the projects, the Company made the much weaker argument that at the expiration date of the contract its contractual and bargaining obligations would have ended, but the Company never asserted that it had a right to fire its employees. I agree that as long as the current projects were in progress, the contract would have been enforceable beyond its expiration date by virtue of majority support for the union in the bargaining unit. In my opinion, the perplexing issue is whether the end of the projects in progress would have freed the Company to ignore the contract and offer new but non-discriminatory terms of employment. It is this argument which the Board’s opinion did not resolve and which the majority answers by holding that Dee Cee Floor Covering is a dead letter.

5 . Because the facts in Higdon did not present an issue with respect to the propriety of a presumption of continuing majority status on new projects, a more narrow reading of the Higdon language is possible. In my view, one could plausibly read Higdon as establishing the enforceability of a § 8(f) contract which enjoys majority support without construing it to mean that the contract would remain enforceable in the face of new projects undertaken by an employer.

6 . The decisions of the Board upon which the majority relies for the proposition that the Board has repudiated the rationale of Dee Cee Floor Covering, G. M. Masonry Co., 245 N.L.R.B. No. 54 (1979), and V. M. Construction Co., 241 N.L.R.B. No. 84 (1979), provide little support for that inference. In my view, the Board did not reject the reasoning of Dee Cee Floor Covering in either case. V. M. Construction, like this case, involved the repudiation of a § 8(f) agreement at a time when a majority of the employees in the unit supported the union. As in this case, the Board held that under its prior decisions and that of the Supreme Court in Higdon, the employer was not privileged to repudiate the contract under those circumstances. The Board ordered compliance with the contract and bargaining which extended to projects not yet begun at the time of the unfair labor practices but, as in this case, the employer had a past history of employee transfer from project to project and carryover from completed to new projects. Thus, in my view V. M. Construction is essentially identical to this case with respect to the light it casts on the Board’s position on the continuing validity of Dee Cee Floor Covering.

In G. M. Masonry, the Board, in one sentence, adopted the findings and conclusions of the ALJ, who had held that a contract which applied only to a single project was unenforceable since majority support for the union was not attained on the project and who had relied heavily on Dee Cee Floor Covering. In my view, the single footnote accompanying the Board’s adoption of the ALJ’s opinion which, in its entirety, states that “[i]n adopting the Administrative Law Judge’s Decision, we disavow any inference which may appear therein suggesting that the rationale of [Dee Cee Floor Covering] is applicable to 9(a) bargaining relationships,” 245 N.L.R.B. No. 54 at 1 n.1, is simply too cryptic and ambiguous a statement upon which to rely for the proposition that Dee Cee Floor Covering has “met its well-deserved demise,” at 309. In fact, G. M. Masonry suffers from the same basic defect as does the Board’s opinion in this case, see infra, in that the Board’s rationale for decision is nowhere explicated in the opinion.

7 . The legislative history of § 8(f) documents the fact that it was enacted in response to the special characteristics and needs of the building and construction industry. The House and Senate Committee Reports on § 8(f) reveal Congress’ awareness of the transitory nature of employment in the industry:

The occasional nature of the employment relationship makes this industry markedly different from manufacturing and other types of enterprise. An individual employee typically works for many employers and for none of them continuously. Jobs are frequently of short duration, depending upon various stages of construction.

In. the building and construction industry it is customary for employers to enter into collective-bargaining agreements for periods of time running into the future, perhaps 1 year or in many instances as much as 3 years. Since the vast majority of building projects are of relatively short duration, such labor agreements sometimes apply to jobs which have not been started.

H.R.Rep.No.741, 86th Cong., 1st Sess. 19 (1959); 1 Leg.Hist. 777. See also S.Rep.No. 187, 86th Cong., 1st Sess. 28 (1959), U.S.Code Cong. & Admin.News 1959, pp. 2441-2442; 1 Leg.Hist. 424. The Senate Report also noted that “ [Representation 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.” S.Rep.No.187, 86th Cong., 1st Sess. 55 (1959), U.S.Code Cong. & Admin.News 1959, p. 2373; 1 Leg.Hist. 451-52.

After a careful reading of the cases, I am convinced that the idea that a § 8(f) contract matures only on a project-by-project basis arose in response to the concerns expressed in the legislative history of § 8(f) with respect to the tremendous rate of employee turnover and potential for fluctuation in majority support on rapidly changing construction projects. In addition, it is my view that the notion evolved from a recognition that a § 8(f) contract, even in a situation in which a majority of the employees in the bargaining unit support the union, is still a prehire contract with respect to employees who will be hired on a future date. Thus, I disagree with the majority’s statement that the legislative history of § 8(f) contains “no indication of an intention to exempt the construction industry from the law concerning bargaining relations bottomed on section 9 of the Act.” At 305. Indeed, the majority’s approach ignores fhe fact that one of the crucial differences between the construction industry and other American industries which are characterized by rapid turnover of employees and jobs of short duration is that, for the construction industry, unlike other industries, Congress took the step of enacting a special provision to deal with the labor relations problems posed by the characteristics of that industry.

8 . The Board’s order is subject to at least three possible interpretations. First, the Board may have intended to treat a § 8(f) contract for which majority support in a bargaining unit has been attained as, in every sense, a § 9(a) contract. This interpretation would, of course, coincide with that of the majority opinion. Second, the Board may have intended to retreat from the principle of Dee Cee Floor Covering under circumstances in which a company has a prior history of substantial carryover, transfer, or rehire from project to project. If this interpretation of the Board’s opinion is accurate, the Board’s remedial order might well be consonant with the concerns expressed in the legislative history of § 8(f) and would have the advantage of leaving room for the Board to apply or refuse to apply the presumption on a more flexible, case-by-case basis. Third, the Board might have felt that a Company which had repudiated its bargaining and contract obligations, thus committing unfair labor practices, could not properly claim that, had it waited until the proper time, it could have followed another, legal course of action. The Board could have reasoned that the Company’s argument was too speculative or unlikely in the face of the action the Company actually took.

Each possible interpretation of the Board’s remedial order would require the application of a different type of analysis by this court, because each interpretation raises issues which the others do not. While we can speculate with respect to what the Board intended, in my view nothing in the Board’s opinion allows us to say what the Board meant with any reasonable degree of certainty. That, above all else, is the primary flaw in the Board’s remedial order.

9 . Counsel for the Board, obviously hard-pressed to explain and defend the Board’s position in view of the Board’s own reluctance to do that, adopted the novel and, indeed, ingenious approach of suggesting that the Board properly applied a presumption of continuing majority support, and that Dee Cee Floor Covering is distinguishable from the facts of this case on the basis that, in contrast to the situation in Dee Cee Floor Covering where there was no showing that the union would have majority status on the next project, this case involves a situation in which employees were normally carried over to new projects. Brief of Petitioner at 21, see also Reply Brief of Petitioner at 2. The amazing thing about Counsel’s argument is that it is an almost identical reproduction of the distinction made by Member Murphy in footnote five of the Board’s opinion, in which Member Murphy dissented from a portion of the Board’s remedial order. The distinction made by Member Murphy and urged now by Counsel for the Board may or may not be valid under the circumstances presented by this case. But Counsel’s action in requesting us to adopt the very distinction which the Board itself declined to adopt is significant in that it underscores the wisdom of the Supreme Court’s command that a reviewing court “ ‘may not accept appellate counsel’s post hoc rationalizations for agency action,’ ” NLRB v. Metropolitan Life, 380 U.S. at 444, 85 S.Ct. at 1064, quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 245, 9 L.Ed.2d 207 (1962), in lieu of an adequate articulation by the Board of the basis of its order.