# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 13, 2015 Decided February 5, 2016

No. 12-1011

R AYMOND I NTERIOR S YSTEMS

, I NC

, P ETITIONER

v.

N ATIONAL L ABOR R ELATIONS B OARD

, R ESPONDENT

S OUTHERN C ALIFORNIA P AINTERS AND A LLIED T RADES
D ISTRICT C OUNCIL N O

. 36, I NTERNATIONAL U NION OF
P AINTERS AND A LLIED T RADES

, AFL-CIO,

I NTERVENOR

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 S outhwest Regional Council of Carpenters. On the joint briefs was Daniel Shanley

.2

Ellen Greenstone and Maria Keegan Myers were on the brief for petitioner Southern Ca lifornia 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: H ENDERSON and T ATEL

, Circuit Judges , and

E DWARDS

, Senior Circuit Judge

.

Opinion for the Court filed by Senior Circuit Judge

E DWARDS

.

E DWARDS

, Senior Circuit Judge : This case involves petitions for review filed by Ra ymond 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 Re lations 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 Un ion of Painters and Allied Trades, AFL-CIO (the “Painters Union” or “Painters”), the charging party before the Boar d, also petitions for review because, in its view, the sancti ons 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 (t he “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 Settlem ent 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 empl oyees “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 Ac t, 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 Carpen ters 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),4

(2), and (3), by conditioning continued employment of the drywall-finishing employees on their immediate membership in the Carpenters Union, a nd 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 violat ed 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 fo r 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 re fused to rule on the legality

of the Confidential Settlement Agreement, but clarified that

its orders should not be inte rpreted 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 Oc tober 2 unfair labor practices are not supported by substantial evidence. We disagree for the5

reasons set forth below. Raym ond 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 a llegedly occurred on October 2. We agree. The Boar d’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 Ra ymond 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 it s 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. B ACKGROUND

Raymond is a California-based specialty wall and ceiling

contractor in the buildi ng and construction industry. Raymond’s employees include its drywall-finishing employees, who perform drywal l-finishing services in connection with Raymond’s various commercial and residential projects.

Since at least the 1960s, Raymond has been an employermember of the Western Wall and Ceiling Contractors Association, Inc. (“the Asso ciation”), a multi-employer association of companies in the building and construction industry. Employer-members choose to join various

“conferences” within the Association, a nd each conference then negotiates and executes collective bargaining agreements6

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 Califor nia Finishers Conference – on behalf of employers in cluding Raymond – negotiated and executed collective bargaining agreements with the Painters Union to apply to dr ywall-finishing employees. The most recent relevant agreement (“Painters Agreement”) expired on September 30, 2006, and Raymond resigned from

the California Finishers Conf erence. 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 dryw all-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.7

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 th e 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, immediatel y upon expiration of the Painters Agreement, Raymond and the Carpenters began covering Raymond’s drywall-fi nishing employees under the 2006 Master Agreement pursua nt 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 em ployees to sign insurance and pension forms.8

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-S panish 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 representa tives 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’ magazi ne. 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 official s presented Raymond with the signed Authorization for Re presentation 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 excl usive collective bargaining representative under Section 9(a) of the Act for all employees9

covered by the Memorandum Agreement. There is no disputethat this Recognition Agreement covered Raymond’s drywallfinishing employees.

C. The Proceedings Before the Board

As a result of the above even ts, the Painters Union filed unfair labor practice charges w ith the Board. On January 30, 2008, following an investigation, the Board’s Regional

Director consolidated the char ges 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 th e charges related to October 1, 2006, the ALJ found that Raymond and the Carpenters, by applying the 2006 Master Agreemen t to the drywall-finishing employees, had violated Secti on 8(a)(1) and (3) and Section 8(b)(2) of the Act, respectiv ely. The ALJ also found that Raymond and the Carpenters vi olated Sectio n 8(a)(2) and Section 8(b)(1)(A), respectiv ely, when Raymond recognized the Carpenters as the employees’ bargaining representative on that day. Regarding the char ges related to October 2, 2006, the ALJ found four separate viol ations 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 Representati on forms, thus rendering assistance to the Carpenters, in violation of Section 8(a)(1) and (2). Third, Raymond and th e Carpenters’ execution of the Recognition Agreement, when the Carpenters did not have the support of an uncoerced majority of the employees, violated10

Section 8(a)(1) and (2) and S ection 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 Sec tion 8(b)(1)(A). Raymond, the Carpenters, and the Painters file d 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 Carp enters’ 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 cumu lative of the findings of unlawful conduct occurring on October 2, and would not materially affect the remedy in this proceeding.

Id. The Board nevertheless accep ted the ALJ’s determination that the application of th e 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 Carpente rs] 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), hol ding that two-member panels do not have au thority 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). Athree-member panel of the Board then adopted the twomember panel’s earlier decision. Raymond Interior Sys. , 355 N.L.R.B. 1278 (2010). Raymond, the Carpenters, and the Painters then sought review in th is court. However, in light of a pending motion for reconsider ation 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 certifica tion 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 c ourt, and the Boar d cross-applied

for enforcement.

II. A NALYSIS

A. The Governing Legal Principles

Under the Act, unions and employers may establish collective bargaining relationships pursuant to Board certification, voluntary recogniti on, 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 ba rgain only with unions that have been ‘designated or se lected for the purposes of collective bargaining by the ma jority 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 th e status of a majority collective bargaining represen tative through either Board

certification or voluntar y 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 sec tion 9(a)’s majority support requirement within the constr uction 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 orga nization of which building and construction employ ees are members . . . because [ ] the majority status of such labor organization has not been established under the provisions of section [ ]9 pr ior 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; see13

also Allied Mech. Se rvs., Inc. v. NLRB , 668 F.3d 758, 761 (D.C. Cir. 2012). The Congr ess 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 refe rral. In addition, traditional union organization is not conduc ive to the brief, projectto-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 sectio n 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 ar e barred. But under section 8(f), a union is entitled to no such presumption and parties may therefore file d ecertification petitions at any time during a section 8(f) re lationship. Moreover, when a section 9(a) agreement expi res, the presumption of majority support requires th e employer to continue bargaining with the union unle ss 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 to14

bargain once a section 8(f) agreement expires. Nova Plumbing , 330 F.3d at 534.

Even while operative, a sect ion 8(f) agreement is not set in stone. If a union party to an 8(f) agreement successfully seeks majority support, the prehireagreement attains the status of a [section 9(a)] collectivebargaining agreement executed by the employer with a union representing a majority of the employees in the unit. “Generally, a union seek ing 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 employe r 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 w ill void the 8(f) agreement and will terminate the 8(f) relationship.” Deklewa , 282

N.L.R.B. at 1385.

United Bhd. of Carpenters & Jo iners 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 lawf ul 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 c onditioned are e xpressly limited to the payment of initiation fees and monthly dues. It is permissible to condition empl oyment upon membership, but membership, insofar as it has significance to employment rights, may in turn be conditio ned 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-se curity clause for activities unrelated to collective bargaini ng, contract administration, or grievance adjustment. Beck , 487 U.S. at 745. The Board has

therefore held that a union mu st 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 th e 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 an d desist from the unlawful activity or take affirmative act ion 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 obt ain 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 a16

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 simp ly 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 pa tently unsupportable.’” SFO GoodNite Inn, LLC v. NLRB , 700 F.3d 1, 10 (D.C. Cir. 2012) (citation omitted). The existen ce 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 rende r 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 testifyi ng, was that of a veracious

witness.” Raymond , 354 N.L.R.B. at 778. Not only did Ramos “recount[] [Raymond’s] alleged th reat to the listening drywall finishers,” but he also testif ied that, “without the immediate prospect of another job, [he di d] not . . . report for work the next day.” Id. at 778-79. To the ALJ, it was “unmistakably17

clear” that Ramos believed th at 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 c onfirmed Ramos’s testimony.

Raymond also challenges th e 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 ag ent lest they lose their jobs. Raymond argues that, while it s statement telling the employees to join the union “t hat day” may well have induced employees to sign the “Applicat ion for Membership” form, it

would not have coerced them to sign the “Authorization for Representation” form. Raymond argues that the employees

could differentiate between th e 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 “totalit y 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 om itted). 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. , 31818

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 doc ument 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 di fferences 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 employeesbecome obligated to make payments pursuant to a unionsecurity clause. Cal. Saw & Knife , 320 N.L.R.B. at 233. Here, there is no dispute that the dr ywall-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 fo rm provides for “Monthly dues19

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 Settlem ent 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 Oc tober 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 MasterAgreement to the drywallfinishing 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 unl ess 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 subs equent acts of unlawful assistance. We deny this asp ect 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 Ca rpenters as the 9(a) representative of its dr ywall 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 on21

that date. They further contended that the unfair labor practices that were allegedl y 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 attemp t 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 prin ciple that, as a general matter, when a collective bargaining agreement is not a byproduct of unfair labor practi ces 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 decisi on 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 unf air labor practices.” Id. at 887-88. The Board rejected this conclusion and explained:

[I]t has long been establis hed by Board and court cases that employer acts of unlawful assistance occurring after

the execution of a lawful cont ract, and during the contract term, do not justify a remedial order suspending22

recognition of the assisted uni on during the contract term or directing that the c ontract 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 addresse d this line of authority in

its decision in this case.

Before this court, Board counsel argued that Zidell is inapposite because it is factua lly 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 particip ated 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’ co llective bargaining contract,

the execution and maintena nce of which are not under attack, we do not believe th at an order requiring the parties to suspend their ba rgaining relationship pending an election is necessary to e ffectuate the policies of the Act. Accordingly, as there is no basis for a finding that the contract between the part ies 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, Ra ymond and the Carpenters executed a lawful 8(f) agreem ent 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 th e 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 c overage 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 Painte rs 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 Raym ond and the Carpenters were free to enter into an 8(f) arrangement after October 2. The Board did not err in reaching th is 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 disc retion 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 interveni ng 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 rema nd that Raymond and the Carpenters entered into a valid section 8(f) agreement on October 1 that endured despite the subsequent unfair labor25

practices, the Painters Union can raise no viable challenge to the Board’s decision to allow Raymond to maintain the benefits in place si nce 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 Boar d in the first instance to determine whether any adjustment in its remedial order is required.

III. C ONCLUSION

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 cons ideration consistent with this

decision.

So ordered

.