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.
3
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
9
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,
12
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
13
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
16
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
18
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
19
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.
20
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
22
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:
23
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.
24
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.