United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 13, 2015 Decided February 5, 2016 

No. 12-1011 

RAYMOND INTERIOR SYSTEMS, INC, 

PETITIONER

v. 

NATIONAL LABOR RELATIONS BOARD, 

RESPONDENT

SOUTHERN CALIFORNIA PAINTERS AND ALLIED TRADES 

DISTRICT COUNCIL NO. 36, INTERNATIONAL UNION OF 

PAINTERS AND ALLIED TRADES, AFL-CIO, 

INTERVENOR

Consolidated with 12-1012, 12-1013, 12-1047 

On Petitions for Review and Cross-Application 

 for Enforcement of an Order of 

the National Labor Relations Board 

James A. Bowles argued the cause for petitioner 

Raymond Interior Systems, Inc. Yuliya S. Mirzoyan argued 

the cause for petitioner Southwest Regional Council of 

Carpenters. On the joint briefs was Daniel Shanley. 
2 

Ellen Greenstone and Maria Keegan Myers were on the 

brief for petitioner Southern California Painters and Allied 

Trades District Council No. 36, International Union of 

Painters and Allied Trades, AFL-CIO. Joseph E. Kolick Jr. 

entered an appearance. 

Gregory P. Lauro, Attorney, National Labor Relations 

Board, argued the cause for respondent. With him on the 

brief were John H. Ferguson, Associate General Counsel, 

Linda Dreeben, Deputy Associate General Counsel, and Jill 

A. Griffin, Supervisory Attorney. 

Before: HENDERSON and TATEL, Circuit Judges, and 

EDWARDS, Senior Circuit Judge. 

 Opinion for the Court filed by Senior Circuit Judge 

EDWARDS. 

 EDWARDS, Senior Circuit Judge: This case involves 

petitions for review filed by Raymond Interior Systems, Inc. 

(“Raymond”), and the United Brotherhood of Carpenters and 

Joiners of America, Local Union No. 1506, an affiliate of the 

Southwest Regional Council of Carpenters (the “Carpenters 

Union” or “Carpenters”), and a cross-application to enforce 

filed by the National Labor Relations Board (“Board” or 

“NLRB”). The dispute here focuses on orders issued by the 

Board on September 30, 2010, Raymond Interior Sys., 355 

N.L.R.B. 1278 (2010), and December 30, 2011, Raymond 

Interior Sys., 357 N.L.R.B. No. 166 (Dec. 30, 2011). The 

Southern California Painters and Allied Trades District 

Council No. 36, International Union of Painters and Allied 

Trades, AFL-CIO (the “Painters Union” or “Painters”), the 

charging party before the Board, also petitions for review 

because, in its view, the sanctions issued by the Board against 

Raymond and the Carpenters are insufficient. 
3 

For many years, Raymond was a party to collective 

bargaining agreements with the Painters, the most recent of 

which was entered into pursuant to Section 8(f) of the 

National Labor Relations Act (the “Act” or “NLRA”), 29 

U.S.C. § 158(f). Section 8(f) allows construction-industry 

employers to recognize a union as the bargaining agent of its 

employees before a majority of employees have designated 

the union as their representative. On September 30, 2006, 

Raymond lawfully terminated its 8(f) agreement with the 

Painters. 

On September 12, 2006, Raymond and the Carpenters 

executed a Confidential Settlement Agreement providing that, 

upon expiration of the Painters agreement, Raymond would 

apply the Carpenters 2006 Drywall/Lathing Master 

Agreement (“2006 Master Agreement”) to Raymond’s 

drywall-finishing work and employees “to the fullest extent 

permitted by law.” The Confidential Settlement Agreement 

incorporating the 2006 Master Agreement took effect on 

October 1, 2006. On October 2, Raymond allegedly told its 

drywall-finishing employees that they needed to join the 

Carpenters Union “that day” if they wanted to continue 

working. Later that day, after the union had secured 

authorization cards from the employees, the Carpenters and 

Raymond signed an agreement recognizing the Carpenters as 

the majority representative of these employees pursuant to 

Section 9(a) of the Act, 29 U.S.C. § 159(a). 

The Painters filed an unfair labor practice charge with the 

NLRB challenging Raymond’s recognition of the Carpenters 

Union. A complaint was issued and the matter was heard by 

an Administrative Law Judge (“ALJ”). Regarding the conduct 

of Raymond and the Carpenters on October 2, 2006, the 

Board adopted the findings of the ALJ that Raymond violated 

Section 8(a)(1), (2), and (3) of the Act, 29 U.S.C. § 158(a)(1), 
4 

(2), and (3), by conditioning continued employment of the 

drywall-finishing employees on their immediate membership 

in the Carpenters Union, and by unlawfully assisting the 

union in obtaining authorization cards. The Board also agreed 

that, on October 2, Raymond violated 8(a)(1) and (2) by 

granting recognition to the Carpenters, and that the union 

violated Section 8(b)(1)(A) of the Act, 29 U.S.C. § 

158(b)(1)(A), by accepting recognition, at a time when the 

Carpenters did not represent an uncoerced majority of the 

drywall-finishing employees. The Board additionally agreed 

that, on October 2, Raymond violated Section 8(a)(3) of the 

Act, and the Carpenters violated Section 8(b)(2), 29 U.S.C. § 

158(b)(2), by applying the Carpenters 2006 Master 

Agreement to the employees when the union did not represent 

an uncoerced majority of the employees. Finally, the Board 

agreed that, on October 2, the Carpenters violated Section 

8(b)(1)(A) of the Act by failing to properly inform the 

drywall-finishing employees of their rights to decline union 

membership, NLRB v. Gen. Motors Corp., 373 U.S. 734, 742 

(1963), and to seek a reduction in union fees for monies spent 

on activities not germane to the collective bargaining, contract 

administration, and grievance adjustment, Commc’n Workers 

of Am. v. Beck, 487 U.S. 735, 745 (1988). The Board found it 

unnecessary to consider the ALJ’s findings that Raymond 

violated the Act on October 1 when the Confidential 

Settlement Agreement took effect. Following a motion for 

reconsideration, the Board again refused to rule on the legality 

of the Confidential Settlement Agreement, but clarified that 

its orders should not be interpreted as requiring a Board 

certification before Raymond could lawfully recognize the 

Carpenters pursuant to Section 8(f). 

Raymond and the Carpenters contend that the Board’s 

findings with respect to the October 2 unfair labor practices 

are not supported by substantial evidence. We disagree for the 
5 

reasons set forth below. Raymond and the Carpenters also 

contend that the Board erred in failing to address their 

contention that, on October 1, by virtue of their Confidential 

Settlement Agreement, the company and union had a lawful 

Section 8(f) agreement that could not, without more, be 

vitiated by unfair labor practices that allegedly occurred on 

October 2. We agree. The Board’s failure to address this 

matter cannot withstand review. We therefore grant in part the 

Board’s application for enforcement, grant in part the 

petitions for review filed by Raymond and the Carpenters, and 

remand the case for further consideration by the Board. 

Finally, we decline to consider the Painters’ principal 

claim that the Board abused its discretion in declining to 

require Raymond to provide alternate benefits coverage 

because our decision to remand on the remedy issue may 

render the claim moot. We find no merit in the other claims 

raised by the Painters Union. 

I. BACKGROUND

Raymond is a California-based specialty wall and ceiling 

contractor in the building and construction industry. 

Raymond’s employees include its drywall-finishing 

employees, who perform drywall-finishing services in 

connection with Raymond’s various commercial and 

residential projects. 

Since at least the 1960s, Raymond has been an employermember of the Western Wall and Ceiling Contractors 

Association, Inc. (“the Association”), a multi-employer 

association of companies in the building and construction 

industry. Employer-members choose to join various 

“conferences” within the Association, and each conference 

then negotiates and executes collective bargaining agreements 
6 

with various unions on behalf of the employer-members. At 

all relevant times, Raymond was an employer-member of the 

Drywall/Lathing Conference, which negotiates with the 

Carpenters Union. Prior to October 1, 2006, Raymond was 

also an employer-member of the California Finishers 

Conference, which negotiates with the Painters Union. 

From 1960 to 2006, the California Finishers Conference 

– on behalf of employers including Raymond – negotiated 

and executed collective bargaining agreements with the 

Painters Union to apply to drywall-finishing employees. The 

most recent relevant agreement (“Painters Agreement”) 

expired on September 30, 2006, and Raymond resigned from 

the California Finishers Conference. Importantly, it is 

undisputed that the Painters Agreement was entered into 

under Section 8(f) of the Act, which, as explained below, 

meant that the Painters did not enjoy a presumption of 

majority support from the drywall-finishing employees after 

the agreement expired. For this reason, there is no dispute that 

Raymond lawfully disassociated itself from the Painters 

Union after September 30, 2006.

The Drywall/Lathing Conference negotiated collective 

bargaining agreements with the Carpenters to apply to various 

Raymond employees. The 2006 Master Agreement ran from 

July 1, 2006, to June 30, 2010. This agreement contained a 

union-security clause, which required employees, as a 

condition of employment, to apply for union membership by 

the eighth day of employment. The 2006 Master Agreement 

also provided that, in the event that an employer ceased to be 

signatory to a contract with the Painters Union covering 

drywall-finishing employees, then the 2006 Master 

Agreement would cover those drywall-finishing employees. 
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 the 2006 Master Agreement to 

Raymond’s drywall-finishing employees once the Painters 

Agreement expired. On September 12, 2006, Raymond and 

the Carpenters signed a Confidential Settlement Agreement, 

in which Raymond promised to apply the 2006 Master 

Agreement to its drywall-finishing employees at the 

expiration of the Painters Agreement. Raymond also promised 

to execute a “Memorandum Agreement,” a short-form version 

of the 2006 Master Agreement, although it never did so. 

On October 1, 2006, immediately upon expiration of the 

Painters Agreement, Raymond and the Carpenters began 

covering Raymond’s drywall-finishing employees under the 

2006 Master Agreement pursuant to the terms of the 

Confidential Settlement Agreement. There is no allegation 

that Raymond and the Carpenters committed any unfair labor 

practices prior to this date. 

B. The Events of October 2 

On October 2, 2006, Raymond held a meeting with the 

drywall-finishing employees at the company’s Orange, 

California, facility. The purpose of the meeting was to inform 

the drywall-finishing employees of the transition from the 

Painters to the Carpenters, the new wage packages and 

benefits, and the need for employees to sign insurance and 

pension forms. 
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-Spanish translation services 

throughout the meeting. Once all employees were seated, the 

company and the Carpenters each gave a PowerPoint 

presentation, which was followed by a question-and-answer 

session. Allegedly, at some point during the meeting, 

Raymond told the employees they needed to join the 

Carpenters “that day” if they wanted to continue working.

Following the meeting, employees went outside the 

training room, where representatives from the Carpenters 

Union were waiting. The union agents handed the employees 

materials that included an “Application for Membership” 

form, a “Supplemental Dues and CLIC Authorization” form, 

and an “Authorization for Representation” form. Once the 

employees filled out and returned the forms, they received a 

copy of the Carpenters’ magazine. The magazine explained 

the employees’ rights to decline union membership and to 

seek a reduction in union fees for monies spent on activities 

not germane to the union’s duties to serve as the employees’ 

agent in collective bargaining (“Beck rights”). A majority of 

the employees filled out and returned the materials that had 

been distributed. 

Later that day, union officials presented Raymond with 

the signed Authorization for Representation forms, which, 

according to the union, supported its claim that a majority of 

the drywall-finishing employees had elected the Carpenters to 

represent them. Raymond and the Carpenters then executed a 

“Recognition Agreement,” which stated that the company 

recognized the union as the exclusive collective bargaining 

representative under Section 9(a) of the Act for all employees 
9 

covered by the Memorandum Agreement. There is no dispute 

that this Recognition Agreement covered Raymond’s drywallfinishing employees. 

C. The Proceedings Before the Board 

As a result of the above events, the Painters Union filed 

unfair labor practice charges with the Board. On January 30, 

2008, following an investigation, the Board’s Regional 

Director consolidated the charges and issued a complaint, 

alleging that Raymond and the Carpenters had committed 

unfair labor practices within the meaning of the Act. A 

hearing was then held before an ALJ, at which Raymond, the 

Carpenters, and the Painters participated. 

On November 10, 2008, the ALJ issued his findings and 

recommended order. Regarding the charges related to October 

1, 2006, the ALJ found that Raymond and the Carpenters, by 

applying the 2006 Master Agreement to the drywall-finishing 

employees, had violated Section 8(a)(1) and (3) and Section 

8(b)(2) of the Act, respectively. The ALJ also found that 

Raymond and the Carpenters violated Section 8(a)(2) and 

Section 8(b)(1)(A), respectively, when Raymond recognized 

the Carpenters as the employees’ bargaining representative on 

that day. Regarding the charges related to October 2, 2006, 

the ALJ found four separate violations of the Act. First, 

Raymond – by telling employees to join the Carpenters “that 

day” – unlawfully conditioned employment on immediate 

union membership, in violation of Section 8(a)(1) and (3). 

Second, this statement coerced the employees into signing the 

Authorization for Representation forms, thus rendering 

assistance to the Carpenters, in violation of Section 8(a)(1) 

and (2). Third, Raymond and the Carpenters’ execution of the 

Recognition Agreement, when the Carpenters did not have the 

support of an uncoerced majority of the employees, violated 
10 

Section 8(a)(1) and (2) and Section 8(b)(1)(A), respectively. 

Finally, the Carpenters failed to inform the employees of their 

Beck rights prior to obligating them to pay union dues and 

fees, in violation of Section 8(b)(1)(A). Raymond, the 

Carpenters, and the Painters filed exceptions to these findings. 

On September 30, 2009, a two-member panel of the 

Board largely adopted the ALJ’s findings and recommended 

order. Raymond Interior Sys., 354 N.L.R.B. 757 (2009). The 

Board declined, however, to review the ALJ’s findings 

regarding Raymond and the Carpenters’ application of the 

2006 Master Agreement to the drywall-finishing employees, 

and Raymond’s recognition of the Carpenters as bargaining 

representative, on October 1. Id. at 757. The Board held: 

Those findings would be cumulative of the findings of 

unlawful conduct occurring on October 2, and would not 

materially affect the remedy in this proceeding. 

Id. The Board nevertheless accepted the ALJ’s determination 

that the application of the 2006 Master Agreement was 

unlawful because “the parties were applying that same 

agreement . . . on October 2,” which was when the employer 

and the union committed unfair labor practices. Id. at 758 

(citing Duane Reade, Inc., 338 N.L.R.B. 943, 944 (2003), 

enforced 99 F. App’x 240 (D.C. Cir. 2004)). As a result, the 

Board ordered Raymond and the Carpenters to, inter alia, 

“[c]ease and desist from . . . enforcing . . . the [2006 Master 

Agreement] as to [the] drywall-finishing employees . . . , 

unless or until [the Carpenters] has been certified by the 

Board.” Id. at 758, 759. 

 Raymond, the Carpenters, and the Painters sought review 

in the U.S. Court of Appeals for the Ninth Circuit. After the 

Supreme Court issued its decision in New Process Steel, L.P. 
11 

v. NLRB, 560 U.S. 674 (2010), holding that two-member 

panels do not have authority to decide Board cases, the Ninth 

Circuit remanded the case to the Board. Raymond Interior 

Sys. v. NLRB, No. 10-70209 (9th Cir. Aug. 26, 2010). A 

three-member panel of the Board then adopted the 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 this court. However, in light of 

a pending motion for reconsideration before the Board, we 

dismissed the case as “incurably premature.” Carpenters v. 

NLRB, No. 10-1315 (D.C. Cir. May 25, 2012). On December 

30, 2011, the Board largely denied the motion for 

reconsideration. Raymond Interior Sys., 357 N.L.R.B. No. 

166 (Dec. 30, 2011). Notably, however, in its decision, the 

Board clarified that its orders should not be interpreted as 

requiring a Board certification before Raymond could 

lawfully recognize the Carpenters pursuant to Section 8(f). Id. 

at 1 n.5. Raymond, the Carpenters, and the Painters then filed 

petitions for review in this court, and the Board cross-applied 

for enforcement. 

II. ANALYSIS

A. The Governing Legal Principles 

 Under the Act, unions and employers may establish 

collective bargaining relationships pursuant to Board 

certification, voluntary recognition, or by execution of an 8(f) 

agreement. As we recently explained: 

“Under sections 9(a) and 8(a)(5) of the [NLRA], 

employers are obligated to bargain only with unions that 

have been ‘designated or selected for the purposes of 

collective bargaining by the majority of the employees in 

a unit appropriate for such purposes.’” Nova Plumbing, 
12 

Inc. v. NLRB, 330 F.3d 531, 533 (D.C. Cir. 2003) 

(quoting 29 U.S.C. § 159(a)); see also 29 U.S.C. 

§ 158(a)(5) (“It shall be an unfair labor practice for an 

employer . . . to refuse to bargain collectively with the 

representatives of his employees, subject to the 

provisions of section [9(a)].”); see also Int’l Ladies’ 

Garment Workers’ Union v. NLRB, 366 U.S. 731, 738-39 

(1961). “A union can achieve the status of a majority 

collective bargaining representative through either Board 

certification or voluntary recognition by the 

employer. . . .” Raymond F. Kravis Ctr. for Performing 

Arts, Inc. v. NLRB, 550 F.3d 1183, 1188 (D.C. Cir. 

2008). 

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

out a limited exception to section 9(a)’s majority support 

requirement within the construction industry. Section 8(f) 

provides, in pertinent part: 

It shall not be an unfair labor practice . . . for an 

employer engaged primarily in the building and 

construction industry to make an agreement covering 

employees engaged (or who, upon their employment, 

will be engaged) in the building and construction 

industry with a labor organization of which building 

and construction employees are members . . . 

because [ ] the majority status of such labor 

organization has not been established under the 

provisions of section [ ]9 prior to the making of such 

agreement . . . . 

29 U.S.C. § 158(f). “Under this exception, a contractor 

may sign a ‘pre-hire’ agreement with a union regardless 

of how many employees authorized the union’s 

representation.” Nova Plumbing, 330 F.3d at 534; see 
13 

also Allied Mech. Servs., Inc. v. NLRB, 668 F.3d 758, 761 

(D.C. Cir. 2012). The Congress enacted this limited 

exception because construction employers must know 

their labor costs up front in order to generate accurate 

bids and must have available a supply of skilled 

craftsmen ready for quick referral. In addition, traditional 

union organization is not conducive to the brief, 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 section 8(f) agreement. Viola Indus.-

Elevator Div., Inc., 286 N.L.R.B. 306, 306 (1987), 

enforced 979 F.2d 1384 (10th Cir. 1992); John Deklewa 

& Sons, Inc., 282 N.L.R.B. 1375, 1385 (1987) (Deklewa),

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

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

770 (3d Cir. 1988). But its section 9(a) status is limited in 

significant respects. A union party to a section 9(a) 

agreement is entitled to a conclusive presumption of 

majority status for up to three years, during which time 

decertification petitions are barred. But under section 

8(f), a union is entitled to no such presumption and 

parties may therefore file decertification petitions at any 

time during a section 8(f) relationship. Moreover, when a 

section 9(a) agreement expires, the presumption of 

majority support requires the employer to continue 

bargaining with the union unless the union has in fact lost 

majority support or the employer has a good-faith reason 

to believe such support has been lost. But “because the 

union enjoys no presumption that it ever had majority 

support” under section 8(f), the employer can refuse to 
14 

bargain once a section 8(f) agreement expires. Nova 

Plumbing, 330 F.3d at 534. 

Even while operative, a section 8(f) agreement is not 

set in stone. If a union party to an 8(f) agreement 

successfully seeks majority support, the prehire 

agreement attains the status of a [section 9(a)] collectivebargaining agreement executed by the employer with a 

union representing a majority of the employees in the 

unit. “Generally, a union seeking to convert its section 

8(f) relationship to a section 9(a) relationship may either 

petition for a representation election or demand 

recognition from the employer by providing proof of 

majority support.” M & M Backhoe Serv., Inc. v. NLRB, 

469 F.3d 1047, 1050 (D.C. Cir. 2006). But “a vote to 

reject the signatory union will void the 8(f) agreement 

and will terminate the 8(f) relationship.” Deklewa, 282 

N.L.R.B. at 1385. 

United Bhd. of Carpenters & Joiners of Am. v. Operative 

Plasterers’ & Cement Masons’ Int’l Ass’n of U.S. & Can., 

721 F.3d 678, 691-93 (D.C. Cir. 2013) (alterations and 

ellipses in original) (citations omitted). 

Employers and unions in lawful collective bargaining 

relationships may execute collective bargaining agreements 

that include union-security clauses requiring union 

“membership” as a condition of employment. 29 U.S.C. § 

158(a)(3), (f). However, the “burdens of membership upon 

which employment may be conditioned are expressly limited 

to the payment of initiation fees and monthly dues. It is 

permissible to condition employment upon membership, but 

membership, insofar as it has significance to employment 

rights, may in turn be conditioned only upon payment of fees 

and dues.” Gen. Motors Corp., 373 U.S. at 742. Furthermore, 
15 

if employees object, a union may not use their monies 

collected pursuant to a union-security clause for activities 

unrelated to collective bargaining, contract administration, or 

grievance adjustment. Beck, 487 U.S. at 745. The Board has 

therefore held that a union must provide employees with a 

“Beck notice” – i.e., notice of the above rights – at or before 

“the time the union first seeks to obligate . . . employees to 

pay dues.” Cal. Saw & Knife Works, 320 N.L.R.B. 224, 233 

(1995), enforced sub nom. Int’l Ass’n of Machinists & 

Aerospace Workers v. NLRB, 133 F.3d 1012 (7th Cir. 1998). 

Failure to do so constitutes a violation of Section 8(b)(1)(A) 

of the Act. Id. at 235. 

Any person may file an unfair labor practice charge with 

the Board. 29 C.F.R. § 102.9. If the allegations appear to have 

merit, the Regional Director issues a complaint. Id. § 102.15. 

If the Board finds merit in the complaint, it must order the 

offending parties to cease and desist from the unlawful 

activity or take affirmative action that will effectuate the 

policies of the Act. 29 U.S.C. § 160(c). Any person 

“aggrieved by a final order of the Board granting or denying 

. . . the relief sought” may obtain review in the court of 

appeals. Id. § 160(f). The Board’s findings of fact are 

conclusive if supported by substantial evidence, Allentown 

Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 366 (1998), 

and its choice of remedy is reviewed for an abuse of 

discretion, Teamsters Local Union No. 639 v. NLRB, 924 F.2d 

1078, 1085 (D.C. Cir. 1991). 

B. The Board’s Findings Regarding the Conduct of 

Raymond and the Carpenters on October 2, 2006 

 The ALJ found and the Board agreed that Raymond and 

the Carpenters committed multiple unfair labor practices on 

October 2, 2006. Raymond and the Carpenters challenge a 
16 

number of the Board’s findings and the legal conclusions 

emanating therefrom. 

 Raymond first challenges the Board’s finding that, on 

October 2, Raymond told the drywall-finishing employees 

that they had to join the Carpenters “that day.” Raymond 

claims that the evidence simply does not support this finding. 

We disagree. 

 

 The Board accepted the ALJ’s credibility determinations 

in assessing the veracity of witnesses who testified at the 

unfair labor practice hearing. Raymond, 354 N.L.R.B. at 757 

n.2. We “will not reverse the Board’s adoption of the ALJ’s 

credibility determination unless it is ‘hopelessly incredible, 

self-contradictory, or patently unsupportable.’” SFO GoodNite Inn, LLC v. NLRB, 700 F.3d 1, 10 (D.C. Cir. 2012) 

(citation omitted). The existence of potential inconsistencies 

in credited testimony, without more, is not sufficient for the 

court to overturn an ALJ’s credibility finding. See id. at 10-

11. Furthermore, the “mere fact that conflicting evidence 

exists is insufficient to render a credibility determination 

‘patently [u]nsupportable.’” Parsippany Hotel Mgmt. Co. v. 

NLRB, 99 F.3d 413, 426 (D.C. Cir. 1996). Rather, only in the 

“most extraordinary circumstances” will it be appropriate for 

the court to overturn such a determination. SFO, 700 F.3d at 

10-11. 

 In this case, the ALJ afforded significant weight to the 

testimony of one drywall-finishing employee, Jose Ramos, 

whose “demeanor, while testifying, was that of a veracious 

witness.” Raymond, 354 N.L.R.B. at 778. Not only did Ramos 

“recount[] [Raymond’s] alleged threat to the listening drywall 

finishers,” but he also testified that, “without the immediate 

prospect of another job, [he did] not . . . report for work the 

next day.” Id. at 778-79. To the ALJ, it was “unmistakably 
17 

clear” that Ramos believed that the company was “utterly 

serious” in telling the employees that they had to join the 

union on October 2. Id. at 778. Raymond offers no plausible 

basis for this court to reject the ALJ’s credibility 

determinations accepting the testimony of Ramos and other 

witnesses who generally confirmed Ramos’s testimony. 

 Raymond also challenges the Board’s finding that the 

company’s statement to the employees gave unlawful 

assistance to the Carpenters because the statement was 

intimidating and thus caused the employees to designate the 

Carpenters as their bargaining agent lest they lose their jobs. 

Raymond argues that, while its statement telling the 

employees to join the union “that day” may well have induced 

employees to sign the “Application for Membership” form, it 

would not have coerced them to sign the “Authorization for 

Representation” form. Raymond argues that the employees 

could differentiate between the two forms, so there is no 

actual evidence to support the Board’s finding. We are not 

persuaded. 

 It is not necessary for the Board to point to “evidence of 

actual intimidation” in support of its finding. Teamsters Local 

Union No. 171 v. NLRB, 863 F.2d 946, 954 (D.C. Cir. 1988). 

Rather, whether employees have been coerced is assessed by 

reference to the “totality of the circumstances.” Fountainview 

Care Ctr., 317 N.L.R.B. 1286, 1289 (1995), enforced 88 F.3d 

1278 (D.C. Cir. 1996). The court is obliged to “recognize the 

Board’s competence in the first instance to judge the impact 

of utterances made in the context of the employer-employee 

relationship.” Progressive Elec., Inc. v. NLRB, 453 F.3d 538, 

544 (D.C. Cir. 2006) (citation omitted). And, as the Board has 

held, “[w]here, as here, an employer imposes certain 

requirements on its employees, it must bear the burden of any 

ambiguity in its message.” Acme Tile & Terrazzo Co., 318 
18 

N.L.R.B. 425, 427-428 & n.8 (1995) (considering whether 

employer statements conditioned employment on union 

membership), enforced 87 F.3d 558 (1st Cir. 1996). 

 Here, the ALJ noted that the Application for Membership 

form and the Authorization for Representation form were 

printed together on a single document and were distributed to 

the employees as soon as the meeting ended. Raymond, 354 

N.L.R.B. at 780. In these circumstances, the Board found that 

the employees, having just been told to join the Carpenters 

“that day” if they wanted to keep their jobs, “undoubtedly 

completed and executed every form on the large document 

without regard to the differences between them.” Id. Such a 

finding is reasonable, and we will not disturb it here. See 

Fountainview, 317 N.L.R.B. at 1289 (authorization forms 

presented alongside job applications in a single document 

gave “the impression that there was a link between [union 

authorization] and the hiring process”). 

 Finally, as noted above, a union must provide employees 

with a Beck notice at or before the time when the employees 

become obligated to make payments pursuant to a unionsecurity clause. Cal. Saw & Knife, 320 N.L.R.B. at 233. Here, 

there is no dispute that the drywall-finishing employees first 

received a Beck notice when they were given copies of the 

Carpenters’ magazine, which was after they had already 

completed and returned the Carpenters’ forms. The Board 

concluded that the forms “obligat[ed] [the employees] to pay 

monthly dues.” Raymond, 354 N.L.R.B. at 781. The question 

here, then, is whether the Carpenters effectively committed 

the employees to pay dues without first explaining the legal 

limits of the union-security provision. 

 Substantial evidence supports the Board’s finding. The 

Application for Membership form provides for “Monthly dues 
19 

in the amount of $____, per month, commencing 

immediately,” which are “due and payable each month while 

on application.” And the Supplemental Dues and CLIC 

Authorization form states, “I hereby authorize the Southwest 

Carpenters Vacation (‘Trust’) to deduct from my vacation 

benefits supplemental dues . . . .” From these facts, the Board 

reasonably concluded that, by filling out and signing the 

forms, the employees became obligated to pay dues prior to 

the time that they received a Beck notice. 

C. The Board’s Failure to Assess the Confidential 

Settlement Agreement and its Incorporation of the 

2006 Master Agreement 

 As previously explained, Raymond and the Carpenters 

executed a Confidential Settlement Agreement on September 

12, 2006, providing that, upon expiration of the Painters 

Agreement, Raymond would apply the 2006 Master 

Agreement to Raymond’s drywall-finishing employees “to the 

fullest extent permitted by law.” The Confidential Settlement 

Agreement took effect on October 1, 2006. The ALJ found 

that Raymond and the Carpenters had violated Section 8(a)(1) 

and (3) and Section 8(b)(2) of the Act, respectively, when 

they applied the 2006 Master Agreement to the 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 unless and until the Carpenters 

were certified by the Board. 
20 

 In a motion for reconsideration submitted to the Board, 

Raymond, joined by the Carpenters, argued: 

The Board’s Order is unwarranted if Raymond had a 

pre-existing 8(f) agreement at the time of the alleged 

Section 8(a)(2) violations found by the ALJ and adopted 

by the Board. Extant Board precedent under Zidell 

Exploration[s], Inc., 175 NLRB 887 (1969) holds that a 

pre-existing 8(f) agreement is not invalidated by 

subsequent acts of unlawful assistance. 

Motion for Reconsideration, reprinted in Joint Appendix 24. 

In rejecting this claim, the Board said: 

Raymond also argues that the Board erred in failing 

to decide whether the “Confidential Settlement 

Agreement” (CSA) reached between Raymond and the 

Carpenters 3 weeks before the unlawful assistance 

constituted a valid 8(f) agreement that was not 

invalidated by Raymond’s subsequent acts of unlawful 

assistance. We deny this aspect of the motion, because a 

finding that the [Confidential Settlement Agreement] 

constituted a valid 8(f) agreement would not affect our 

determination that Raymond, on October 2, 2006, 

unlawfully recognized the Carpenters as the 9(a) 

representative of its drywall finishing employees. 

Raymond, 357 N.L.R.B. No. 166, at 2. 

The Board’s decision is hard to fathom. As the Board 

noted, Raymond and the Carpenters contended that the 

Confidential Settlement Agreement and its incorporation of 

the 2006 Master Agreement on October 1 resulted in a lawful

8(f) agreement covering the drywall-finishing employees on 
21 

that date. They further contended that the unfair labor 

practices that were allegedly committed on October 2 could 

not have vitiated the lawful 8(f) agreement that was effective 

on October 1. In other words, Raymond and the Carpenters 

claim that even if their attempt to execute a 9(a) agreement on 

October 2 failed, this could not have nullified the preexisting 

8(f) agreement. We agree that the Board erred in failing to 

address this issue. 

There is a long-standing principle that, as a general 

matter, when a collective bargaining agreement is not a 

byproduct of unfair labor practices and does not otherwise 

hinder the policies of the Act, “the Board [is] without 

authority to require [the parties] to desist from giving effect to 

the [agreement].” Consol. Edison Co. v. NLRB, 305 U.S. 197, 

236-38 (1938); see also NLRB v. Reliance Steel Prods. Co., 

322 F.2d 49, 56 (5th Cir. 1963); NLRB v. Kiekhaefer Corp., 

292 F.2d 130, 135-37 (7th Cir. 1961); NLRB v. Scullin Steel 

Co., 161 F.2d 143, 147-48 (8th Cir. 1947). Indeed, the Board 

applied this principle in Zidell Explorations, Inc., 175 

N.L.R.B. 887 (1969), the decision cited by Raymond in its 

Motion for Reconsideration. 

In Zidell, after executing lawful 8(f) agreements with a 

union, the employers involved in that case engaged in unfair 

labor practices. The ALJ concluded that the 8(f) agreements 

were “rendered unlawful nunc pro tunc by reason of the 

postcontract employer unfair labor practices.” Id. at 887-88. 

The Board rejected this conclusion and explained: 

[I]t has long been established by Board and court cases 

that employer acts of unlawful assistance occurring after 

the execution of a lawful contract, and during the contract 

term, do not justify a remedial order suspending 
22 

recognition of the assisted union during the contract term 

or directing that the contract be set aside. 

Id. at 888 (citing Reliance Steel Prods., 322 F.2d 49; Scullin 

Steel, 161 F.2d 143; Arden Furniture Indus., 164 N.L.R.B. 

1163 (1967); M. Eskin & Son, 135 N.L.R.B. 666 (1962), 

enforced sub nom. Confectionery & Tobacco Drivers & 

Warehousemen’s Union, Local 805 v. NLRB, 312 F.2d 108 

(2d Cir. 1963); and Lykes Bros., Inc., 128 N.L.R.B. 606 

(1960)). The Board never addressed this line of authority in 

its decision in this case. 

Before this court, Board counsel argued that Zidell is 

inapposite because it is factually distinguishable. Counsel 

pointed out that, “[i]n Zidell, unlike here, the ‘employer 

alone’ was responsible for the unlawful conduct that occurred 

subsequent to the creation of a Section 8(f) contract.” Br. for 

Respondent at 49. Thus, according to counsel, Zidell should 

be limited to situations in which the unlawfully assisted union 

was not “found to have participated in, had any control over, 

or even been aware of [the unlawful] conduct.” Id. (alteration 

in original) (citation omitted). We decline to consider this 

argument because it is merely a post-hoc rationalization 

offered by Board counsel, not the Board. The Board never 

addressed Zidell in denying the Motion for Reconsideration 

filed by Raymond. Furthermore, even if we were to consider 

this argument, the authorities cited by Zidell certainly do not 

endorse the limitation suggested by Board counsel. See Zidell, 

175 N.L.R.B. at 888 n.2. 

In M. Eskin & Son, both the employer and the union 

committed unfair labor practices after executing a lawful 

agreement. 135 N.L.R.B. at 666, 670. Nevertheless, the Board 

there refused to invalidate the preexisting contract, 

explaining: 
23 

As all the unfair labor practices . . . occurred during the 

term of the Respondents’ collective bargaining contract, 

the execution and maintenance of which are not under 

attack, we do not believe that an order requiring the 

parties to suspend their bargaining relationship pending 

an election is necessary to effectuate the policies of the 

Act. Accordingly, as there is no basis for a finding that 

the contract between the parties was a consequence of the 

unfair labor practices found, or that the contract thwarts 

any policy of the Act, we reject the [ALJ’s] 

recommendation for the issuance of a cease-recognition 

order. 

Id. at 671 (footnote omitted) (citing Scullin Steel, 161 F.2d at 

147); see also Lykes Bros., 128 N.L.R.B. at 609-11 (same). 

There is nothing in the Zidell decision to indicate that the 

Board meant to disavow the holdings in M. Eskin & Son or 

Lykes Brothers, nor is there anything to suggest the Board 

meant to disregard or limit the principle endorsed in 

Consolidated Edison Co. and its progeny. 

 If, as they contend, Raymond and the Carpenters 

executed a lawful 8(f) agreement on October 1, then their 

subsequent unfair labor practices that were committed when 

they attempted to execute a 9(a) agreement on October 2 

would appear to be irrelevant to the question of whether there 

was a lawful 8(f) agreement in effect on October 1. Even if, as 

the Board found, Raymond unlawfully recognized the 

Carpenters on October 2, 2006, as the 9(a) representative of 

its drywall-finishing employees, why would this nullify a 

lawful, pre-existing 8(f) agreement? The Board inexcusably 

failed to address this issue. We will therefore remand the case 

for further consideration. 
24 

D. The Petition for Review Filed by the Painters Union 

 The Painters Union has petitioned for review for the 

limited purpose of challenging the Board’s sanctions against 

Raymond and the Carpenters Union. In particular, the Painters 

Union contends that the Board abused its discretion in 

declining to require Raymond to provide alternate benefits 

coverage equivalent to the coverage possessed under the 2006 

Master Agreement, choosing instead to allow Raymond to 

maintain the benefits already in place. See Raymond, 357 

N.L.R.B. No. 166, at 1. The Painters Union also contends that 

the Board erred in not precluding Raymond and the 

Carpenters from entering an 8(f) agreement in the future. See 

id. at 1 n.5. 

 In assessing the Painters’ claims, we want to make it 

clear that nothing in our decision is meant to question the 

Board’s determination that Raymond and the Carpenters were 

free to enter into an 8(f) arrangement after October 2. The 

Board did not err in reaching this conclusion and it need not 

reconsider this matter on remand. 

We decline to consider the Painters’ principal claim – 

i.e., that the Board abused its discretion in declining to require 

Raymond to provide alternate benefits coverage – because our 

decision to remand on the remedy issue may render the claim 

moot. Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 

1528 (2013) (“If an intervening circumstance deprives the 

plaintiff of a ‘personal stake in the outcome of the lawsuit,’ at 

any point during litigation, the action can no longer proceed 

and must be dismissed as moot.” (quoting Lewis v. 

Continental Bank Corp., 494 U.S. 472, 477–78 (1990))). If 

the Board concludes on remand that Raymond and the 

Carpenters entered into a valid section 8(f) agreement on 

October 1 that endured despite the subsequent unfair labor 
25 

practices, the Painters Union can raise no viable challenge to 

the Board’s decision to allow Raymond to maintain the 

benefits in place since the entire agreement would remain in 

place. If the Board finds that Raymond and the Carpenters did 

not enter into a valid section 8(f) agreement on October 1, 

then it will be up to the Board in the first instance to 

determine whether any adjustment in its remedial order is 

required.

III. CONCLUSION

Consistent with the opinion above, we grant in part and 

deny in part the Board’s cross-application for enforcement. 

We also deny in part and grant in part the petitions for review 

filed by Raymond and the Carpenters Union. We remand the 

case to the Board for further consideration consistent with this 

decision. 

So ordered.