PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

AMERICAN AUTOMATIC SPRINKLER

SYSTEMS, INCORPORATED,

Petitioner,

v.

No. 97-1821

NATIONAL LABOR RELATIONS BOARD,

Respondent,

ROAD SPRINKLER FITTERS LOCAL

UNION NO. 669, U.A., AFL-CIO,

Intervenor.

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v.

AMERICAN AUTOMATIC SPRINKLER

No. 97-2014

SYSTEMS, INCORPORATED,

Respondent,

ROAD SPRINKLER FITTERS LOCAL

UNION NO. 669, U.A., AFL-CIO,

Intervenor.

On Petition for Review and Cross-Application

for Enforcement of an Order

of the National Labor Relations Board.

(5-CA-24636)

Argued: September 23, 1998

Decided: December 17, 1998
Before WIDENER and LUTTIG, Circuit Judges, and MAGILL,

Senior Circuit Judge of the United States Court of Appeals for the

Eighth Circuit, sitting by designation.

_________________________________________________________________

Petition granted in part and denied in part and cross-application for

enforcement granted in part and denied in part by published opinion.

Judge Luttig wrote the opinion, in which Judge Widener and Senior

Judge Magill joined.

_________________________________________________________________

COUNSEL

ARGUED: Lawrence Edward Dube, Jr., DUBE & GOODGAL, P.C.,

Baltimore, Maryland, for American Automatic. Steven B. Goldstein,

NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for

Board. William W. Osborne, Jr., OSBORNE LAW OFFICES, P.C.,

Washington, D.C., for Intervenor. ON BRIEF: Frederick L. Feinstein, General Counsel, Linda Sher, Associate General Counsel,

Aileen A. Armstrong, Deputy Associate General Counsel, Margaret

Ann Gaines, Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Board. Marc D. Keffer,

OSBORNE LAW OFFICES, P.C., Washington, D.C., for Intervenor.

_________________________________________________________________

OPINION

LUTTIG, Circuit Judge:

Petitioner American Automatic Sprinkler Systems, Inc., petitions

for review of a decision and order of the National Labor Relations

Board concluding that American violated section 8(a)(1), (a)(3), and

(a)(5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1),

(a)(3), and (a)(5), by, inter alia, failing to bargain in good faith with

the union locals upon the expiration of collective-bargaining agreements, unilaterally changing working conditions, and discriminating

against certain individuals on the basis of union membership. The

NLRB cross-petitions for enforcement of its decision and order. For

 2
the reasons that follow, we conclude that American did not have a

legal obligation to negotiate with or recognize its collectivebargaining partners upon the expiration of their respective agreements, and thus did not violate section 8(a)(5) or (a)(1) by unilaterally

changing the conditions of employment. However, because we conclude that the Board's findings of unlawful discrimination against

union members in violation of section 8(a)(3) and (a)(1) are supported

by substantial evidence in the record as a whole, we enforce the

Board's order as to these findings. Accordingly, we grant in part and

deny in part American's petition for review, grant in part and deny in

part the Board's cross-petition for enforcement of its order, and

remand the case to the NLRB for entry of an appropriate remedial

order.

I.

American is an Owing Mills, Maryland, firm engaged in the fabrication, installation, and servicing of fire sprinkler systems. Road

Sprinkler Fitters Local Union No. 669, U.A., A.F.L.-C.I.O. is a sprinkler fitters' union with near nationwide geographic jurisdiction. Road

Sprinkler Fitters Local Union No. 536 has jurisdiction over Baltimore, Maryland, and surrounding areas.

Since it began operations in 1974, American has been a party to

successive collective-bargaining agreements with Local 669 and

Local 536 by virtue of its membership in a multiemployer bargaining

association, the National Fire Sprinkler Association ("NFSA" or "the

Association"). These negotiated collective-bargaining agreements

established the terms and conditions of employment for American's

journeymen and apprentice sprinkler fitter employees employed in the

respective territorial jurisdictions of Locals 669 and 536.

In 1987, American signed a form recognition agreement acknowledging Local 669 as the exclusive bargaining representative of its

sprinkler fitter employees working in Local 669's jurisdiction. The

agreement, which was accompanied by fringe benefit forms demonstrating majority union membership, stated:

[American] . . . has, on the basis of objective and reliable

information, confirmed that a clear majority of the sprinkler

 3
fitters in its employ have designated, are members of, and

are represented by . . . Local 669 . . . for purposes of collective bargaining. [American] therefore unconditionally

acknowledges and confirms that Local 669 is the exclusive

bargaining representative of its sprinkler fitter employees

pursuant to Section 9(a) of the National Labor Relations

Act.

American signed another such recognition agreement with Local 669

in 1988 that stated as follows:

[American] hereby freely and unequivocally acknowledges

that it has verified the Union's status as the exclusive bargaining representative of its employees pursuant to Section

9(a) of the National Labor Relations Act.

And, in 1991, NFSA, which was then American's bargaining representative, negotiated a collective-bargaining agreement with Local

669 that included a similar recognition clause. That agreement took

effect April 1, 1991, and expired on March 31, 1994. NFSA also

negotiated a collective-bargaining agreement on behalf of its members, including American, with Local 536. This agreement, which was

effective from June 1, 1991, to May 31, 1994, included an identical

recognition clause to that in the Local 669 agreement:

The National Fire Sprinkler Association for and on behalf

of its contractor members . . . recognizes [Local 536] as the

sole and exclusive bargaining representative for all journeymen sprinkler fitters and apprentices in the employ of said

employers [working in the City of Baltimore and its 10 surrounding miles], . . . pursuant to section 9(a) of the National

Labor Relations Act.

In late January, 1994, American notified both Local 669 and 536

that it was withdrawing bargaining authority from the NFSA and

intended thereafter to bargain independently with the unions. Within

days, Local 536 requested that the Company identify dates and times

to bargain. The Company never responded to this initial communication or to three telephone messages to the same effect.

 4
The Company eventually met with the Local on May 31, 1994, the

day the NFSA agreement expired. At that time, however, the Company offered no proposal and filed the Local's proposal without

reviewing it. The Company's Vice-President Mike McCusker submitted its first proposal to the Local on July 25, 1994. The proposal was

less than a page long in its entirety, and, in addition to drastically cutting wages and benefits, it would have effectively eliminated union

representation. The proposal included no recognition clause, no

description of the bargaining unit, no contract term, and no provisions

addressing dues check-off, union security, grievances and arbitration,

overtime, or lunch time, holiday or vacation pay. The proposal

required employees to furnish all of their own tools, irrespective of

cost, created a new non-unit position of "helper," and eliminated the

union apprenticeship program and territorial jurisdiction.

After three brief "bargaining sessions" in which the Company

expressed no willingness to deviate in any way from its initial proposal, McCusker informed the union negotiating representative on

August 9, 1994, that the parties were at an "impasse" because the

union had rejected its "final offer." Further, McCusker indicated that

the Company would begin implementing the terms of its proposal on

August 11. When the union stated its wish to continue negotiations,

the Company did not respond, and instead began implementing the

terms of its proposal through negotiations with individual employees.

McCusker's negotiations with Local 669 proceeded in similar fashion. There were three negotiating sessions in which the Company

expressed no willingness to compromise on its substantially identical

proposal or even consider the Local's proposal. As occurred with

Local 536, the sessions ended with the Company's abrupt declaration

of impasse and its rejection of further entreaties by the union.

In the weeks following American's declarations of impasse, the

Company required all employees to submit individual applications for

work and entered into individualized negotiations. Executives of the

Company told employees and union members that the Company was

going "nonunion," and suggested that it would be able to give better

offers to individuals who resigned their union cards. During this time

period, one of the general contractors for whom the Company was

 5
working as a subcontractor complained repeatedly that the Company

was behind schedule due to labor shortages.

As a consequence of the Company's actions, Locals 669 and 536

and their individual members filed charges with the Regional Director

of the NLRB, who in turn issued a series of complaints against the

Company. The Administrative Law Judge to whom the complaints

were referred found that the Company had violated section 8(a)(5)

and (a)(1) of the NLRA by bargaining in bad faith with the Locals

and prematurely declaring an impasse, bypassing both Locals and

dealing directly with individual employees, and unilaterally making

changes in mandatory subjects of bargaining and the scope of the bargaining units.1 The ALJ further found that the Company had violated

section 8(a)(1) of the NLRA by telling employees it was going "nonunion," telling an employee that he could not work as a foreman

because of his father's union affiliation, and impliedly promising an

employee a wage increase if he resigned his union membership card.

Finally, the ALJ found that the Company had violated section 8(a)(3)

and (a)(1) of the Act by refusing to hire or reinstate, discharging and

constructively discharging, and imposing onerous working conditions

on, members of both Locals.

On appeal, the Board affirmed the conclusions of the ALJ, finding

additional violations with respect to the treatment of certain individual employees. The Board ordered the Company to bargain with both

Locals, rescind the unilateral changes, make employees and Locals'

funds whole for any losses directly attributable to the Company's uni-

_________________________________________________________________

1 Section 8(a), 29 U.S.C. § 158(a), provides, in relevant part, as follows:

It shall be an unfair labor practice for an employer--

 (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;

 (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or

discourage membership in any labor organization. . ..

 (5) to refuse to bargain collectively with the representatives of

his employees, subject to the provisions of section 159(a) of this

title.

 6
lateral changes, offer certain individuals immediate employment in

their former jobs, or to the jobs to which they would have been

assigned, and make these individuals whole for any losses suffered as

a result of the discrimination against them.

American petitions for review of the Board's findings and order,

and the Board cross-petitions for enforcement of its order.

II.

A.

We consider first American's contention that it was not under a

legal obligation to bargain collectively with Locals 669 and 536 and

thus could not have violated section 8(a)(5) and (a)(1) of the Act by

bargaining in bad faith and making unilateral changes in the conditions of employment.

An employer is obligated under section 8(a)(5) to bargain collectively with a union that has been "designated and selected for the purposes of collective bargaining by the majority of employees,"

pursuant to section 9(a) of the Act, 29 U.S.C. § 159(a). An employer

who is party to an agreement with a union "designated and selected"

in accordance with section 9(a) may not repudiate the contract during

its term and may not refuse to bargain with the union following expiration of the contract, unless the employer proves either that a majority of its employees did not in fact support the union or that it doubted

in good faith the union's majority status. NLRB v. Curtin Matheson

Scientific, Inc., 494 U.S. 775, 778 (1990); NLRB v. Gissell Packing

Co., 395 U.S. 575, 597 n.11 (1969). Conversely, in the usual case it

is an unfair labor practice under section 8(a)(1) and (2) for an

employer, and section 8(b)(1)(A) for a union, to enter into a

collective-bargaining agreement when only a minority of employees

has "designated and selected" the union as its bargaining representative. See NLRB v. Local 103, Int'l Ass'n of Bridge, Structural and

Ornamental Iron Workers (Higdon), 434 U.S. 335, 344 (1978)

("There could be no clearer abridgment of § 7 of the Act, assuring

employees the right `to bargain collectively through representatives of

their own choosing' or `to refrain from' such activity than to grant

exclusive bargaining status to an agency selected by a minority of its

 7
employees, thereby impressing that agent upon the nonconsenting

majority." (internal quotations and citation omitted)); Garment

Workers v. NLRB, 366 U.S. 731, 737 (1961) (same).

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

to this general prohibition. Enacted by Congress in 1959 to address

problems unique to the building and construction trades, section 8(f)

allows construction industry employers and unions to enter into "prehire" agreements before a majority of employees has approved the

union as its bargaining representative.2 

In John Deklewa & Sons, Inc., 282 NLRB 1375 (1987), enforced

sub nom. International Ass'n of Bridge, Structural & Ornamental

Iron Workers, Local 3 v. NLRB, 843 F.2d 770 (3rd Cir. 1988), the

Board substantially modified its then-existing interpretation of section

8(f) and introduced new rules governing the relationship between parties to an 8(f) collective-bargaining agreement. Prior to Deklewa, the

rights of employers and unions in 8(f) relationships were governed by

the Board's decision in R.J. Smith Construction Co., 191 NLRB 693

(1971), enforcement denied sub nom. Local No. 150, Int'l Union of

_________________________________________________________________

2 Section 8(f) provides in relevant part:

It shall not be an unfair labor practice under subsections (a) and

(b) of this section for an employer engaged primarily in the

building and construction industry to make an agreement 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 (1) the majority status of such labor organization has not been established under the provisions of section

159 of this title prior to the making of such agreement, or (2)

such agreement requires as a condition of employment, membership in such labor organization after the seventh day following

the beginning of such employment or the effective date of the

agreement, whichever is later, . . .: Provided , That nothing in this

subsection shall set aside the final proviso to subsection (a)(3) of

this section: Provided further, That any agreement which would

be invalid, but for clause (1) of this subsection, shall not be a bar

to a petition filed pursuant to section 159(c) or 159(e) of this

title.

 8
Operating Eng'rs v. NLRB, 480 F.2d 1186 (D.C. Cir. 1973), and the

associated "conversion doctrine."

Pursuant to R.J. Smith, an 8(f) agreement"confer[red] no presumption of majority status" on the signatory union and could be repudiated at any time and for any reason by either party. Deklewa, 282

NLRB at 1378. Subsequent cases established, in reliance upon a suggestion by the Board in R.J. Smith that such might occur, that a conversion of an 8(f) relationship into a standard 9(a) relationship could

be accomplished by a showing that the union had at some point during the term of the contract enjoyed majority support among an

appropriate unit of the employer's employees. Id . This majority support, the reasoning went, could be established by proof of any of a

number of objective evidentiary factors, the existence of which was

typically quite burdensome to litigate. Id. Once the Board determined

that conversion had occurred, the union was accorded"immediate and

complete 9(a) status, and any collective-bargaining agreement in

effect acquired the status of a collective-bargaining agreement

enforceable before the Board." Id. at 1379. As with any other 9(a)

relationship under the Act, the union would also enjoy a rebuttable

presumption of majority status at the expiration of the contract, and

the employer would be legally obligated under the NLRA to engage

in good faith collective bargaining. Id.

In Deklewa, the Board abandoned R.J. Smith and the conversion

doctrine, concluding that this analytical framework did "not fully

square with either 8(f)'s legislative history" or text, "inadequately serve[d] the fundamental statutory objectives of employee free choice

and labor relations stability," id. at 1380, and "entail[ed] evidentiary

determinations that are inexact, impractical, and generally insufficient

to support the conclusions they purport to demonstrate." Id. at 1384.

In its place, the Board established a new framework for 8(f) relationships. The Board declared that an 8(f) agreement is binding and

enforceable during the duration of the contract, and cannot be unilaterally repudiated by either party to the agreement, id. at 1385, but

that, upon the contract's expiration, the signatory union will not enjoy

a presumption of majority and either party may repudiate the 8(f)

relationship, id. at 1386. Most significantly for our purposes today,

the Board also announced that 8(f) representatives would no longer

be able to establish "conversion" to 9(a) status except by means of a

 9
Board-certified election, id. at 1383-85, or voluntary recognition

based upon a clear showing of majority support. Id. at 1387 n.53.

Although the Supreme Court has yet to consider the Deklewa rules,

a majority of the Courts of Appeals has done so and each, with the

exception of our court, has ultimately adopted the Deklewa analytical

framework in its entirety.3

In this court's only previous consideration of these"new" rules, we

held last year, in Industrial Turnaround v. NLRB, 115 F.3d 248, 254

(4th Cir. 1997), that we were "precluded from adopting Deklewa as

the law of the Circuit because it stands in conflict with Clark v. Ryan,

818 F.2d 1102 (4th Cir. 1987), a prior panel opinion of this court."

The question before us in Industrial Turnaround , however, was

whether Deklewa effectively overruled the law of this circuit, established in Clark, that "a pre-hire agreement may be repudiated at any

time by either party prior to the union's achievement of majority status." Industrial Turnaround, 115 F.3d at 254. Both Clark and Jim

McNeff, Inc. v. Todd, 461 U.S. 260 (1983), the Supreme Court decision upon which Clark was based, likewise concluded only that "[a]

§ 8(f) prehire agreement is subject to repudiation until the union

establishes majority status." McNeff, 461 U.S. at 271. None of these

three decisions addressed the conversion doctrine at all, or, more

broadly, the question of how an 8(f) union can obtain 9(a) representative status under the National Labor Relations Act. This question is

thus one of first impression for this court. Accordingly, we are free

_________________________________________________________________

3 The Courts of Appeals for the First, Third, Seventh, Eighth, Ninth,

Tenth, and Eleventh Circuits have all adopted the Deklewa decision. See

NLRB v. Triple A Fire Protection, Inc., 136 F.3d 727, 735 (11th Cir.

1998); NLRB v. Viola Indus.-Elevator Div., Inc., 979 F.2d 1384, 1393-95

(10th Cir.) (en banc); C.E.K. Indus. Mechanical Contractors, Inc. v.

NLRB, 921 F.2d 350, 357 (1st Cir. 1990); NLRB v. Bufco Corp., 899

F.2d 608, 609, 611 (7th Cir. 1990); NLRB v. W.L. Miller Co., 871 F.2d

745, 748 (8th Cir. 1989); Mesa Verde Constr. Co. v. Northern California

Dist. Council of Laborers, 861 F.2d 1124, 1129-34 (9th Cir. 1988) (en

banc); International Ass'n of Bridge, Structural & Ornamental Iron

Workers v. NLRB, 843 F.2d 770 (3rd Cir. 1988).

 10
to adopt the Board's construction of the Act on this score, provided

it is reasonable. Holly Farms Corp., 517 U.S. at 409.4

B.

The Board abandoned the conversion doctrine because it concluded

that the rule fostered neither industry stability nor employee free

choice. The Board was correct that labor relations stability in the construction industry was one of the primary objectives of the 1959

amendments to the NLRA. See McNeff, 461 U.S. at 266 (reviewing

legislative history of the 1959 Amendments and concluding that Congress in enacting section 8(f) sought to address instability created by

the "uniquely temporary, transitory and sometimes seasonal nature of

much of the employment in the construction industry"); see also

Higdon, 434 U.S. at 348-49 (discussing same history and concluding

that section 8(f) "greatly convenienced unions and employers" by "accommodat[ing] the special circumstances in the construction industry"). Cf. Colgate-Palmolive-Peet Co. v. NLRB, 338 U.S. 355, 362

(1949) ("To achieve stability of labor relations was the primary objective of Congress in enacting the National Labor Relations Act."). We

believe that it was self-evidently reasonable for the Board to conclude

in 1987, after more than fifteen years of experience attempting to

_________________________________________________________________

4 We recognize that by adhering to our refusal in Industrial Turnaround

to adopt the Board's position regarding unilateral repudiation, while at

the same time embracing the Board's abandonment of the conversion

doctrine, we would establish as the law of this Circuit a hybrid approach

considered and rejected by the Board in Deklewa . Nonetheless, as we

have explained, we are precluded from revisiting as a panel the Circuit's

established precedent on the repudiation issue. And, in any event, as

counsel for the Board explicitly stated at oral argument, this case does

not require reconsideration of the rules governing an employer's unilateral repudiation of an 8(f) agreement during its term because the Board

has not alleged any such action on the part of the Company. Thus, in this

case we need only determine, as counsel persuasively urged, whether the

Board's conclusions in Deklewa as to the means by which an 8(f) union

can attain 9(a) status, thereby entitling it to"all the rights of a majority

representative, including a presumption of majority support upon expiration of a collective bargaining agreement and the correlative duty to bargain with respect to a new contract," NLRB v. Triple A Fire Protection,

Inc., 136 F.3d 727, 731 (11th Cir. 1998), are permissible.

 11
implement and enforce the R.J. Smith rules, that the statutory aim of

labor relations stability was frustrated by a rule pursuant to which "an

effective conversion [could] take place, without notice, at virtually

any time after the signing of an 8(f) agreement, but[where] it may

take years of fractious litigation to establish whether conversion actually did occur." Deklewa, 282 NLRB at 1383. See also Mesa Verde

Constr. Co. v. Northern California Dist. Council of Laborers, 861

F.2d at 1134 ("The [conversion] doctrine does not further industry

stability. Its complex nature inevitably fosters litigation . . . to establish whether conversion ever took place, among whom, and at what

time.").

At the same time, and perhaps most importantly, we believe that

the Board also reasonably concluded that the conversion doctrine

impeded the often competing statutory aim of protecting employee

free choice by allowing proof of union membership to serve as an evidentiary proxy for union support, even where the very 8(f) agreement

sought to be converted required union membership as a condition of

employment. Id. at *12. Cf. Authorized Air Conditioning Co., Inc. v.

NLRB, 606 F.2d 899, 906 (9th Cir. 1979) ("It is well established that

union membership is not always an accurate barometer of union support."). The text and statutory framework of the NLRA offer considerable support for the conclusion that the conversion doctrine was

simply incompatible with the legislative goal of preserving employee

free choice. While the Amendments to the Act were undoubtedly

motivated, in large part, by Congress' desire to ensure stability in the

construction industry, Congress was nevertheless careful in enacting

section 8(f) to preserve its longstanding statutory policy of advancing

employee free choice. Cf. Higdon, 434 U.S. at 346 ("As for § 8(b)(7),

which, along with § 8(f), was added in 1959, its major purpose was

to implement one of the Act's principal goals -- to ensure that

employees were free to make an uncoerced choice of bargaining

agent."). As a result, Congress included in section 8(f) a proviso, the

subsection's second, specifying that an 8(f) agreement may not act as

a bar to employees' rights under section 9(c) and 9(e) to petition to

"reject or change their collective-bargaining representative."5

_________________________________________________________________

5 The second proviso reads in full:

Provided further: That any agreement which would be invalid,

but for clause (1) of this subsection, shall not be a bar to a petition filed pursuant to section 159(c) or 159(e) of this title.

 12
Deklewa, at *10. Cf. Higdon, 434 U.S. at 344 (explaining the purpose

of the second proviso by noting that although "[p]rivileging unions

and employers to execute and observe pre-hire agreements in an effort

to accommodate the special circumstances in the construction industry may have greatly convenienced unions and employers, . . . in no

sense can it be portrayed as an expression of the employees' organizational wishes"). The conversion doctrine flouted the legislative purpose -- and language -- of the second proviso by allowing even

instantaneous conversions (i.e., where the signing of an 8(f) agreement was accompanied by an existing majority employee complement) to result in full 9(a) status and the attendant "contract bar" to

election challenge. See NLRB v. Dominick's Finer Foods, Inc., 28

F.3d 678, 683 (7th Cir. 1994) ("Under the [contract bar] rule, a collective bargaining agreement protects an existing bargaining relationship

from challenge for the contract term. . . . This rule was formulated by

the Board in an effort to reconcile the NLRA's goals of promoting

industrial stability and employee freedom of choice." (internal quotations and citation omitted)). Especially given that the conversion doctrine rendered the proviso's explicit language "nugatory," Deklewa,

282 NLRB at 1383, we think it was eminently reasonable for the

Board to abandon the doctrine, which as the Ninth Circuit has

explained "[r]ather than protect[ing] the free choice of employees to

choose or reject a union, . . . often prevent[ed] them from ever voting

for or against a particular" representative. Mesa Verde, 861 F.2d at

113.

Even as it jettisoned the conversion doctrine, the Board in Deklewa

concluded that construction industry unions should not be disfavored

in their ability to obtain the full protections-- and presumptions --

of the Act. Accordingly, the Board established that 8(f) unions, like

their counterparts in nonconstruction industries, would not be precluded from achieving 9(a) status through either Board-certified election or voluntary recognition based upon a clear showing of majority

support. Deklewa, 282 NLRB at 1387 n.53. Here, too, we believe that

the Board's construction of the Act as it pertains to the ability of construction industry employees to choose their own collectivebargaining representatives is a defensible one. There is nothing in

either the text or the statutory framework of the Act that purports to

limit in any way the rights of employees in the construction industry

to designate and select their own bargaining representatives pursuant

 13
to section 9(a). The Board has long recognized that construction

industry unions could obtain exclusive representative status before

entering into a collective-bargaining agreement through the traditional

means of Board-certified election or "by other voluntary designation,

pursuant to Section 9(a)." Island Const. Co. , 135 NLRB 13 (1962).

And, again, the text of 8(f), which in its second proviso protects the

right of employees subject to an 8(f) agreement to reject or change

their bargaining representatives through the Act's petition processes,

supports the conclusion that Congress meant to preserve employee

free choice in the construction industry, as elsewhere. This interpretation of the section's text also finds support in the Supreme Court's

acknowledgment in Higdon that a union party to an 8(f) agreement

retained the ability to obtain full 9(a) representative status. Higdon,

434 U.S. at 349-50 (stating that "[i]t is . .. undisputed that when the

union successfully seeks majority support, the prehire agreement

attains the status of a collective-bargaining agreement executed by the

employer with a union representing a majority of the employees in the

unit") (emphasis added)). Even at the time of the Supreme Court's

decision in Higdon, it had long been established that a union could

"successfully seek[ ] majority support" -- and thus attain 9(a) representative status -- not only through a Board-certified election, but

also by means of voluntary recognition based on a clear showing of

majority support. See, e.g., NLRB v. Gissell Packing Co., 395 U.S.

575 (1969); United Mine Workers v. Arkansas Oak Flooring Co., 351

U.S. 62, 71 (1956).

Similarly, nothing in the legislative history of the Act can be read

to suggest that Congress intended in any way to disadvantage construction industry employees in their attempts to organize or bargain

collectively. In fact, Congress was in part motivated by concern that

"construction industry unions often would not be able to establish

majority support with respect to many bargaining units." McNeff, 461

U.S. at 266. See also Higdon, 434 U.S. at 345 (reviewing the legislative history of section 8(f) and concluding that"[t]he Senate Report

also noted that `[r]epresentational elections in a large segment of the

industry are not feasible to demonstrate . . . majority status due to the

short periods of actual employment by specific employers'" (citation

omitted)). It is certainly reasonable to conclude that Congress, in

attempting to enable construction industry employees to reap the benefits of collective-bargaining, did not at the same time intend to strip

 14
those employees of the full protections of the Act where they were

"able to establish majority support." Thus, the Board's construction of

the Act conforms to both its text and legislative history, as well as to

Supreme Court dicta interpreting the same.

Because we agree with the Board that the conversion doctrine

impeded the Act's principal aim of advancing employee free choice,

and because we can discern nothing in either the text or legislative

history of the 1959 amendments or, for that matter, the statutory

framework of the Act, to suggest that employees in the construction

industry should in any way be disfavored in their ability to secure

union representation or the Act's protections, we accept as reasonable

and adopt the Board's interpretation that 8(f) unions can attain full

9(a) status only through the traditional means available to unions in

nonconstruction industries.

C.

Because the Board does not argue that either Local 669 or 536

attained 9(a) status through a certified election, we turn therefore to

the question whether either satisfied the requirements for attaining

such exclusive representative status through voluntary recognition.6

_________________________________________________________________

6 The Board argues that American's challenge to the Locals' 9(a) status

is time-barred because it occurs more than six months after voluntary

recognition was granted. In Casale Indus., 311 NLRB 951, 953 (1993),

the Board held that "a challenge to majority status must be made within

a reasonable period of time after Section 9(a) recognition is granted."

The Board based its ruling in Casale on the language of section 10(b),

29 U.S.C. § 160(b), "that no complaint shall issue based upon any unfair

labor practice occurring more than six months prior to the filing of the

charge with the Board," the fact that in cases involving nonconstruction

industries, the Board will not entertain a claim that majority status was

lacking at the time of recognition if more than six months have elapsed,

Casale, 311 NLRB at 953, and its conclusion in Deklewa that "unions in

the construction industry should not be treated less favorably than those

in nonconstruction industries." Id. American counters that under the

NLRA, only the General Counsel of the Board can issue "complaints,"

and that 10(b) can therefore only bar untimely complaints filed by the

Board.

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In considering claims of "conversion" through voluntary recognition, both the Board and reviewing courts have required "the union's

_________________________________________________________________

American is correct that the two controlling authorities on which intervenor Local 669 primarily relies, Lodge No. 1424 v. NLRB (Bryan Mfg.),

362 U.S. 411 (1960), and NLRB v. Harvey Hubble, Inc., 783 F.2d 1121

(4th Cir. 1986), involved application of the six-month time bar to complaints filed by the General Counsel. Anticipating this objection, Local

669 claims additional support from the decisions of the Courts of

Appeals for the Tenth and Eleventh Circuits applying the Casale rule to

bar construction industry employer defenses to refusal-to-bargain

charges. See National Labor Relations Board v. Triple A Fire Protection,

136 F.3d 727, 737 (11th Cir. 1998); MFP Fire Protection, Inc. v. NLRB,

101 F.3d 1341 (10th Cir. 1996). See also NLRB v. Viola IndustriesElevator Div., 979 F.2d 1384, 1387 (10th Cir. 1992) (applying the 10(b)

time bar to an employer's affirmative defense that its grant of voluntary

recognition was the product of unlawful coercion).

It is not immediately clear to us that the Board's rule applying the

10(b) time-bar to nonconstruction industry employer defenses of invalid

voluntary recognition is a reasonable construction of a provision that, on

its face, applies only to complaints filed by the Board. However, we need

not decide that question today. Even assuming, arguendo, that the rule

as applied to employers in nonconstruction industries is reasonable, we

find that it is not so in the construction industry context. As one Board

member recognized in Triple A Fire Protection, Inc., 312 NLRB 1088,

1089 n.3 (1993), "the basis for applying a 10(b) limitations period in the

nonconstruction industry workplace, where minority recognition is

unlawful, does not hold in the construction industry, where there is no

statutory prohibition on minority recognition." Id. at *2 n.3. Thus, in the

nonconstruction industries, a defense of invalid voluntary recognition is

tantamount to a charge of unlawful conduct under the NLRA provisions

prohibiting employers and nonmajority unions from entering into

collective-bargaining agreements. This is not the case in the construction

industry, where 8(f) itself establishes the legality of such relationships.

The Board's single sentence in Deklewa that"nothing in this opinion

is meant to suggest that unions have less favored status with respect to

construction industry employers than . . . those outside the construction

industry," Deklewa, 282 NLRB at 1387 n.53, cannot suffice as a

response to this critical distinction. The Board itself recognized as much

shortly after Deklewa, when it held that it had not in that case upset the

 16
unequivocal demand for, and the employer's unequivocal grant of,

voluntary recognition as the employees' collective-bargaining representative based on the union's contemporaneous showing of majority

employee support." NLRB v. Goodless Elec. Co., Inc., 124 F.3d 322,

324 (1st Cir. 1997) (citing James Julian, Inc. , 310 NLRB 1247, 1252

(1993)); see also Brannan Sand & Gravel Co., 289 NLRB 977, 979-

80 (1988); J & R Tile, Inc., 291 NLRB 1034 (1988); American ThoroClean, 283 NLRB 1107, 1108-09 (1987). The Board has required that

the demand for and grant of voluntary recognition be unequivocal

because of the potential for confusion in the construction industry

over which type of relationship -- 8(f) or 9(a)-- the parties intended

to create by entering into the collective-bargaining agreement. The

requirement of a contemporaneous showing of majority support, on

the other hand, is not unique to the construction industry, and is consistent with the standard for voluntary recognition in the nonconstruction trades. See, e.g., NLRB v. Lyon & Ryan Ford, Inc., 647

F.2d 745, 751 (7th Cir. 1981) ("The essence of voluntary recognition

is the commitment of the employer to bargain upon some demonstrable showing of majority (status)." (citation and quotation marks omitted)); Georgetown Hotel v. NLRB, 835 F.2d 1467, 1470 (D.C. Cir.

1987) ("[V]oluntary recognition has been found to have occurred

when an employer agrees to recognize a union through a card check

or some other procedure and subsequently confirms the union's

majority status through that procedure.").

We reverse the Board's finding of an effective voluntary recognition of Local 669's 9(a) status because we believe that that finding

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rule of R.J. Smith that nothing in 10(b) or Bryan Mfg. "precludes inquiry

into the establishment of construction industry bargaining relationships

outside the 10(b) period . . . [where] [g]oing back to the beginning of the

parties' relationship here simply seeks to determine the majority or nonmajority based nature of the current relationship." Brannan Sand &

Gravel Co., 289 NLRB 977, 982 (1988). Recent decisions of the Board

and of the Tenth and Eleventh Circuits to the contrary notwithstanding,

we do not believe that section 10(b) can reasonably be interpreted to prohibit American, the party against whom the complaint has been filed,

from defending itself by challenging the validity of the evidence of effective voluntary recognition that is the basis of the Board's complaint.

 17
was based on an unreasonable construction of the Act. In support of

its concededly clear and unequivocal initial demand for voluntary recognition, Local 669 included fringe benefit reports demonstrating that

a majority of the Company's employees in the relevant jurisdiction

were members of the Local. American contends, however, that these

fringe benefit forms cannot suffice to satisfy the requirement of a contemporaneous showing of majority support because the parties' 8(f)

contract included a standard union security clause requiring employees, as a condition of employment, to join the union within seven days

of being hired. Where a union security clause is in effect, petitioner

argues, an employee's obligatory membership in the local cannot be

equated with -- and certainly cannot be taken as dispositive of --

support for the union. We agree.

Prior to its decision in Deklewa, the presence of a strictly-enforced

union security clause in an 8(f) contract was one of the evidentiary

factors the Board often cited as proof of conversion to 9(a) status. See

Deklewa, 282 NLRB at 1378. Even before Deklewa, however, at least

one court of appeals had determined that majority union membership

pursuant to an enforced union security clause was insufficient as a

matter of law to establish effective conversion. Precision Striping,

Inc. v. NLRB, 642 F.2d 1144, 1148 (9th Cir. 1981) (noting that "[a]

union security clause operates to compel new employees to join the

union, because union membership is the price for obtaining a job,"

and that "it is well established that union membership is not always

an accurate barometer of union support" (internal quotations and citations omitted)). In Deklewa itself, the Board not only recognized the

unreliability of union membership as a proxy for union support where

a security clause is in effect, but in fact based its decision to abandon

the conversion doctrine in part on the "highly questionable" nature of

just such an inference. Deklewa, 282 NLRB at 1384.

The Board's reluctance in Deklewa to permit a union to obtain 9(a)

status on the basis of such questionable evidence of majority support

rested on its commitment, and that of Congress, to the protection and

advancement of employees' free choice in designating and selecting

their bargaining representatives. Id. at 1383. The Board observed in

Deklewa that, by declaring in the second proviso of section 8(f) that

a pre-hire agreement "shall not be a bar to a petition filed pursuant

to section 9(c) or 9(e)," 29 U.S.C. § 158(f), "Congress sought to

 18
assure that the rights and privileges accorded employers and unions

in the body of Section 8(f) would not operate to thwart or undermine

construction industry employees' representational desires." Deklewa,

282 NLRB at 1381. Yet the Board now concludes that the same statutory objective of employee free choice that justified its abandonment

of the conversion doctrine is satisfied by the employer's voluntary

recognition of the union on the basis of the very same evidentiary factor the Board rejected as insufficient in Deklewa. This construction of

the Act simply is not rational. See Precision Striping, 642 F.2d at

1148. The effect of the Board's construction would be to allow nonmajority unions to enter into 8(f) collective-bargaining agreements

containing union security clauses and then bootstrap themselves,

within a matter of days and with the complicity of the employer, into

the full 9(a) status reserved under the Act for representatives that have

in fact secured and demonstrated majority support. As the Board recognized in Deklewa, such 9(a) status entails an irrebuttable presumption of majority status during the contract's term that, under Board

rules, bars the very election petitions 8(f)'s second proviso explicitly

contemplates. Consistent with the Board's own logic in Deklewa, we

cannot conclude that an interpretation of 8(f) is reasonable that "effectively renders [its] second proviso nugatory." Deklewa, 282 NLRB at

1382. As the Board observed in that case, "[s]uch [a] rule[ ] hardly

advance[s] the objective of employee free choice."7 Id.

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7 The Board's decision to credit American's voluntary recognition of

the union's majority status based upon fringe benefit reports showing

majority membership is not only an unreasonable interpretation of the

NLRA, it is inconsistent with the rationale the Board provided in

Deklewa for allowing voluntary recognition of 9(a) status in the 8(f) context at all. The Board stated in Deklewa that, in permitting construction

unions to achieve 9(a) status through voluntary recognition based on a

clear showing of majority support among the unit employees, it intended

simply to guarantee that these unions would not have"less favored status" under the NLRA than those in nonconstruction industries. Deklewa,

282 NLRB at 1387 n.53. However, the rule established by the Board in

this case would in fact elevate construction unions to a privileged position vis-a-vis nonconstruction unions with regard to their ability to

achieve 9(a) recognition and protection. That is, it is only by virtue of the

8(f) exception that construction unions which have not yet established

majority status are permitted not only to enter into collective-bargaining

 19
As for Local 536, we conclude that there was not substantial evidence in the record to support the Board's conclusion that the relationship between the NFSA -- and therefore American -- and Local

536 ever attained 9(a) status. The Board rested its affirmance of the

ALJ's finding of 9(a) status through voluntary recognition on two

pieces of evidence in the record. First, the Board pointed to American's assent to language in its multi-employer bargaining representative's contract with the Local recognizing it "as the sole and exclusive

bargaining representative for all journeymen sprinkler fitters . . . in

the employ of said employers, . . . pursuant to section 9(a) of the

National Labor Relations Act." Second, the Board relied upon testimony that the union, in negotiating its 1991 collective-bargaining

agreement, asked the Association whether there was any dispute that

the Local "represented a majority of the employees," and received a

negative reply. American Automatic Sprinkler Systems, Inc., 323

NLRB No. 160 (1997), 1997 WL 436748, at *1 (N.L.R.B.).

As an initial matter, the language to which the employer concededly consented in the multiemployer collective-bargaining agreement

is conclusory, and evidences neither an "unequivocal demand for" nor

"unequivocal grant of" voluntary recognition based upon a contemporaneous showing of majority support. In fact, the form does not even

purport to establish recognition of the local as the majority representative, but rather only as the "sole and exclusive" representative. The

Board's reliance on "the uncontradicted evidence . . . that during 1991

negotiations for article 3, Local 536 specifically asked the Association

_________________________________________________________________

agreements, but to include union security clauses in those agreements. 29

U.S.C. § 158(f). In the nonconstruction industries, it has long been a violation of the Act for unions and employers to include such clauses in

their agreements before majority support is established. Bryan Mfg., 362

U.S. at 413 ("[I]t is an unfair labor practice for an employer and a labor

organization to enter into a collective-bargaining agreement which contains a union security clause, if at the time of original execution the union

does not represent a majority of the employees in the unit."). Because

voluntary recognition in both construction and nonconstruction industries

must be based on an actual showing of majority support, acceptance of

union membership pursuant to a union security clause as determinative

of such support would give 8(f) unions a considerable advantage over

their nonconstruction counterparts in attaining full 9(a) status.

 20
whether there was any dispute that it represented a majority of the

employees . . . [and] [t]he Association responded that there was no

dispute," id. (emphasis added), is equally unavailing. The "uncontradicted evidence" to which the Board refers is union negotiator Roy

Fique's testimony about his 1991 negotiations with the NFSA. That

testimony read literally, however, supports a proposition directly at

odds with the one the Board advances. Mr. Fique characterized the

exchange between himself and bargaining representatives of the

NFSA as follows:

So in bargaining, I brought that up, is there any dispute that

we are, you know, the representative of the employees, and

everybody at the table agreed that there was no doubt in

their mind that we represented the minority of employees.

J.A. at 438 (testimony of Roy Fique) (emphases added). It may be

that this was either a misstatement by Fique or a transcription error.

However, this statement, which on its face is an assertion of unanimous and unequivocal agreement as to the Local's minority status, is

literally the only evidence with which we have been presented that

supports a conclusion that the union unequivocally demanded and

received recognition as the majority representative. When not even

the parties themselves are in a position to represent that this statement

was a misstatement or transcription error, and neither the ALJ nor the

Board ever addressed the apparent discrepancy, we simply cannot

conclude that, without more, it can suffice as a union's "unequivocal

demand for" and the employer's "unequivocal grant of" voluntary recognition of majority status.

As for the requirement of a "contemporaneous showing of majority

support," there is simply no evidence at all in the record to support

a finding that it has been satisfied. Again, the Board can cite only the

exchange between Fique and the NFSA negotiators. Even were the

Board's characterization of Fique's testimony accurate, this conversation, while perhaps probative of the Company's willingness to recognize the union as the majority representative, does not support the

suggestion that its grant of voluntary recognition was based, in fact,

upon any showing of majority support, contemporaneous or otherwise. Fique's unsubstantiated request for recognition as the "major-

 21
ity" representative, so understood, cannot be transformed into the

required substantiation itself.

The Board's willingness to credit the employer's voluntary recognition absent any contemporaneous showing of majority support

would reduce this time-honored alternative to Board-certified election

to a hollow form which, though providing the contracting parties stability and repose, would offer scant protection of the employee free

choice that is a central aim of the Act. Cf. Higdon, 434 U.S. at 349

("Privileging unions and employers to execute and observe pre-hire

agreements in an effort to accommodate the special circumstances in

the construction industry may have greatly convenienced unions and

employers, but in no sense can it be portrayed as an expression of the

employees' organizational wishes."). In considering the Board's finding on this issue, we must concur with the Board's General Counsel

that,

[e]ven if the union does, in fact, represent a majority of the

Employer's employees, . . . there must be explicit proof

presented contemporaneously with the Union's demand and

the Employer's voluntary recognition. Thus, although the

Employer's ambiguous statements arguably may indicate

that it believed the Union had majority support, those statements are insufficient to confer 9(a) status upon the Union

without actual demonstration of that majority status.

Advice Ltr. from NLRB Gen. Counsel to Regional Director of Region

9, Feb. 27, 1989, 1989 WL 241614, at *2. (Feb. 27, 1989).

Accordingly, because we cannot conclude, consistent with the principles outlined a decade ago by the Board in Deklewa and accepted

by us today, that petitioner had an obligation under the Act to bargain

with either Local 669 or 536 upon the expiration of their respective

multiemployer agreements, we grant American's petition for review

as to the findings that it violated 8(a)(5) and (a)(1) by failing to bargain in good faith, unilaterally changing terms and conditions of

employment, and dealing directly with employees.

III.

Our holding above that the employer had no statutory obligation to

refrain from making unilateral changes to the conditions of employ-

 22
ment disposes of the Board's findings of constructive discharge.

Because each of these findings was premised on an employee resignation resulting from the employer's assertedly unlawful change to the

conditions of employment, our conclusion that those changes were in

fact lawful negates these findings completely. Accordingly, we grant

American's petition for review of the Board's findings of constructive

discharge. Finally, we deny American's petition for review with

respect to the Board's findings of section 8(a)(3) and (a)(1) violations

arising out of the discriminatory discharges, refusals to hire and reinstate, and imposition of onerous working conditions. There is ample

record evidence of American's anti-union animus and its efforts to rid

its workforce of active union members, despite those individuals'

demonstrated qualifications and in the face of repeated contractor

complaints about American's unsatisfactory job performance on

account of labor shortages. Based upon a careful review of the record,

we conclude that there was substantial evidence, particularly in light

of the deference due the ALJ's credibility determinations, to support

each finding of a section 8(a)(3) and (a)(1) violation as a result of a

discriminatory discharge, refusal to hire or reinstate, or imposition of

onerous working conditions.

CONCLUSION

For the foregoing reasons, we grant in part and deny in part American's petition for review of the Board's findings and order, grant in

part and deny in part the Board's cross-petition for enforcement of its

order, and remand for a remedial order consistent with this opinion.

IT IS SO ORDERED.

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