

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 96-2068

                 NATIONAL LABOR RELATIONS BOARD,

                           Petitioner,

                                v.

                   GOODLESS ELECTRIC CO., INC.,

                           Respondent.

                                           

          ON APPLICATION FOR ENFORCEMENT OF AN ORDER OF
                THE NATIONAL LABOR RELATIONS BOARD

                                           

                              Before

                     Torruella, Chief Judge,                                                     

                  Bownes, Senior Circuit Judge,                                                        

                    and Lynch, Circuit Judge.                                                      

                                           

     Jay M. Presser, with whom Skoler, Abbott &amp; Presser, P.C. was                                                                       
on brief for respondent.
     Susan  M.   Pavsner,  Attorney,   with  whom   Frederick  L.                                                                           
Feinstein,  General   Counsel,  Linda  Sher,   Associate  General                                                     
Counsel, Aileen  A. Armstrong, Deputy Associate  General Counsel,                                       
and  Howard  E.  Perlstein,  Deputy  Assistant  General  Counsel,                                    
National Labor Relations Board, were on brief for petitioner.

                                           

                        September 5, 1997
                                           

          TORRUELLA,  Chief Judge.  In February 1994, Local Union                    TORRUELLA,  Chief Judge.                                           

No. 7  of the  International Brotherhood  of Electrical  Workers,

AFL-CIO  ("Union") filed charges  of unfair labor  practices with

the  National Labor Relations  Board ("NLRB" or  "Board") against

Defendant-Cross-Petitioner  Goodless  Electric  Co. ("Goodless").

On March  2, 1995, an  administrative law judge ("ALJ")  issued a

decision finding no  labor violations and  recommending dismissal

of the charges.   The NLRB General Counsel appealed to a panel of

the NLRB, which, on April 30, 1996, reversed certain of the ALJ's

findings as they relate to the issues relevant to this appeal and

determined  that Goodless had violated provisions of the National

Labor Relations Act  ("NLRA" or "Act").  See  Goodless Elec. Co.,                                                                          

321 N.L.R.B. 64  (1996).  Before us are the  Board's petition for

enforcement of its order  and Goodless' petition for reversal  of

the Board's conclusions  of law.  For the  reasons stated herein,

we reverse and  deny the Board's petition for  enforcement of its

order.

                            BACKGROUND                                      BACKGROUND

          The  background   facts  are   essentially  undisputed.

Goodless  is   a  construction  industry   employer  engaged   in

electrical  contracting.   In June  1988, Goodless  agreed  to be

bound  by an existing collective bargaining agreement between the

multi-employer   National   Electrical   Contractors  Association

("NECA")  and  the  Union.    In July  1990,  Goodless  became  a

signatory  to  a new  three-year collective  bargaining agreement

between the  NECA and  the Union.   The agreement  authorized the

                               -2-

NECA to  bargain with the  Union on Goodless' behalf  unless that

authority  was withdrawn with  150 days' notice  of cancellation.

The relationship entered  into by Goodless and the  Union at this

point  constituted a Section  8(f)1 relationship under  the NLRA.

Under  Section 8(f), a  construction industry employer  may enter

into a  relationship with a  union whereby the union  bargains on

behalf of  the employer's employees  prior to a showing  that the

union has  garnered the support  of a majority of  the employees.

The  question on which the issues in this appeal hinge relates to

the circumstances  under which  a Section  8(f) relationship  may
                                                  

1  Section 8(f) of the Act, 29 U.S.C.   158(f) (1976), provides:

          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   (not
          established, maintained,  or assisted  by any
          action  defined  in  subsection (a)  of  this
          section as an unfair  labor practice) 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.

                               -3-

become a Section 9(a)2 relationship.   Under Section 9(a), once a

union  has  become  the  representative  of  a  majority  of  the

employees  in an  appropriate bargaining  unit,  the employer  is

required to bargain with the  union as the employees'  bargaining

representative.  The  NLRB has held that Section  8(f) status may

change  to Section  9(a)  status  by virtue  of  either a  Board-

certified election or  as the result of the  employer's voluntary

recognition  of the union  as the majority  collective bargaining

agent.   Voluntary recognition  requires the  union's 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.  See James Julian,  Inc., 310 N.L.R.B.                                                             

1247, 1252 (1993).

                                                  

2  Section 9(a), 29 U.S.C.   159(a), provides:

          Representatives  designated  or  selected for
          the purposes of  collective bargaining by the
          majority   of   the  employees   in   a  unit
          appropriate for  such purposes, shall  be the
          exclusive   representatives   of    all   the
          employees in  such unit  for the  purposes of
          collective bargaining in respect to rates  of
          pay,  wages, hours  of  employment, or  other
          conditions of employment:  Provided, That any
          individual employee  or a group  of employees
          shall have the  right at any time  to present
          grievances to their employer and to have such
          grievances adjusted, without the intervention
          of the bargaining  representative, as long as
          the adjustment is  not inconsistent with  the
          terms of a  collective-bargaining contract or
          agreement then in  effect:  Provided further,
          That the  bargaining representative  has been
          given  opportunity  to  be  present  at  such
          adjustment.

                               -4-

          On June 18, 1992, Goodless  notified NECA and the Union

that  NECA was  no  longer authorized  to negotiate  on Goodless'

behalf  and  that Goodless  did  not intend  to  be bound  by any

further contractual modifications or obligations beyond the then-

current agreement's  expiration date  of June  30,  1993.   Thus,

Goodless indicated that any relationship between Goodless and the

Union would expire as of June 30, 1993.

          In  July   1992,  a   Union  representative   contacted

Goodless' president  and indicated  that Goodless  would need  to

sign a  letter of assent.3  Goodless was  told that the letter of

assent was  needed in order  for Goodless  to continue  receiving

"target  money."4   Goodless' president  reviewed  the letter  of

assent and deleted some language contained in the letter.  He did

not, however, alter the following language:

          The Employer agrees that if a majority of its
          employees  authorize   the  Local   Union  to
          represent them in  collective bargaining, the
          Employer will  recognize the  Local Union  as
          the NLRA  Section 9(a)  collective bargaining
          agent for all employees performing electrical
          construction work within  the jurisdiction of
          the  Local Union  on all  present  and future
          jobsites.

Goodless signed the letter of assent on July 15, 1992.

                                                  

3   The 1988 NECA  agreement required employer-members to  sign a
letter of assent to be bound by the NECA agreement.  Goodless did
not sign a  letter of assent  until 1992; this  is the letter  at
issue  here.

4  Target money was financial assistance provided by the Union to
aid union  employers  in competition  with  non-union  electrical
contractors.

                               -5-

          At a  meeting with  Union representatives  on June  22,

1993, Goodless' president  again indicated that Goodless  did not

intend to continue its relationship with the Union after June 30,

1993.   The Union representatives encouraged Goodless to consider

changes regarding  service work  that NECA  had accepted  earlier

that month.  The meeting  ended with the participants agreeing to

meet on June 25.

          On  June 24, the Union's business agent, Douglas Bodman

("Bodman"), held  a meeting of  all Goodless employees.   At this

meeting, he indicated the progress of negotiations with Goodless.

After  informing the employees of Goodless'  claim that the Union

lacked  employee  support,   he  asked  the  employees   to  sign

authorization cards  as evidence  of their  desire for  continued

representation.  All employees signed the cards, which stated:

          I  authorize  Local  Union   No.  7  of   the
          International   Brotherhood   of   Electrical
          Workers   to  represent   me  in   collective
          bargaining   with  my   present  and   future
          employers on all present and future  jobsites
          within the jurisdiction  of the Union.   This
          authorization  is  non-expiring,  binding and
          valid until such  time as I submit  a written
          revocation.

          At the second meeting, on June 25, between Goodless and

the  Union, Goodless  maintained that the  company's relationship

with the  Union would end  with the expiration of  the agreement.

In response, Bodman  presented the authorization cards  signed by

all Goodless  employees.   Goodless' president  tossed the  cards

back at Bodman,  telling him that  he could "shove them  up [his]

ass."  Another  Union representative calmed tensions  and secured

                               -6-

from Goodless a six-month extension  of the 1990-1993 contract by

promising certain terms for Goodless.

          On December  13, Goodless  informed the  Union that  it

intended   to  withdraw  recognition   of  the  Union   upon  the

approaching  December  31  expiration  date.    On  December  17,

Goodless   sent  a  letter  to  all  employees  indicating  these

intentions  and inviting the employees to discuss the matter with

Goodless management prior to December 23.

          On  December 21, the  Union responded with  two letters

reminding Goodless  of the  language contained  in the  letter of

assent that bound Goodless to  recognize the Union as the Section

9(a)  collective-bargaining  representative   on  a  showing   of

majority support and indicating that, the Union  having made such

a showing at the June 25  meeting, the Union was now the  Section

9(a) bargaining representative and  Goodless could not  repudiate

the relationship or negotiate directly with its employees.

          Union Business  Manager Bodman  composed a  form letter

for the  employees to send  to Goodless in response  to Goodless'

December 17 letter.   All  but one  Goodless employee  signed and

submitted this form letter, which stated in relevant part:

            I  intend  to continue  my  employment with
          Goodless Electric and  maintain my membership
          with [the Union].   I expect you  to continue
          to comply with my union contract and maintain
          the current wages and terms and conditions of
          employment.

            If   you  need   to   discuss  any   matter
          concerning wages  or terms and  conditions of
          employment, contact  my Union  Representative
          Douglas Bodman.

                               -7-

          On  December   30,  Goodless  announced  new  terms  of

employment  to  take effect  January  1,  1994.   On  January  1,

Goodless also  ceased to  recognize the  Union as the  employees'

collective bargaining agent.

          Because Goodless  was no longer a signatory to the NECA

agreement,  the apprentices working for Goodless were informed by

the Joint  Apprentice Training  Committee (JATC)5  on January  6,

1994,  that  they  would  be  subject  to  termination  from  the

apprenticeship  program if they  continued to work  for Goodless.

As a  result, the  apprentices terminated  their employment  with

Goodless en masse.

          As a  result  of these  unilateral  modifications,  the

Union filed  charges  of unfair  labor practices  with the  NLRB,

alleging that the relationship between the Union and Goodless had

been transformed from a Section 8(f)  relationship into a Section

9(a) relationship upon the Union's showing of majority support in

June  1993.   Because the  relationship was  allegedly one  under

Section  9(a), the  Union argues that  Goodless was  obligated to

bargain  with it  as the  employees' representative.   The  Union

contends  that by  withdrawing  recognition of  the Union  as the

employees' collective bargaining agent  and unilaterally changing

the terms and conditions of employment, Goodless violated Section
                                                  

5   Under  the NECA  collective-bargaining  agreement, the  Joint
Apprentice  Training  Committee  ran  an  apprenticeship  program
consisting of three members of the Union and three members of the
contractors' association.   To be eligible to  train apprentices,
an  employer had  to "be  signatory  to and  meet the  qualifying
requirements  as  set forth  in  the  basic labor  agreement  and
provide the necessary work experience for training."

                               -8-

8(a)(5)6 of  the National  Labor Relations Act.   The  Union also

insists that  Goodless constructively discharged  the apprentices

in violation of Section 8(a)(3).7
                                                  

6  Section 8(a)(5), 29 U.S.C.   158(a)(5), provides:

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

          (5)  to refuse  to bargain  collectively with
          the representatives of his employees, subject
          to the provisions of  section 159(a) of  this
          title.

7  Section 8(a)(3), 29 U.S.C.   158(a)(3), provides:

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

          (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:
          Provided, That nothing in this subchapter, or
          in any  other statute  of the United  States,
          shall  preclude an  employer  from making  an
          agreement  with  a  labor  organization  (not
          established, maintained,  or assisted  by any
          action  defined  in  this  subsection  as  an
          unfair  labor  practice)   to  require  as  a
          condition of employment membership therein on
          or after  the  thirtieth  day  following  the
          beginning of such employment or the effective
          date  of  such  agreement,  whichever is  the
          later, (i) if such labor organization is  the
          representative of  the employees  as provided
          in section  159(a)  of  this  title,  in  the
          appropriate     collective-bargaining    unit
          covered by such agreement when made, and (ii)
          unless following an election held as provided
          in section  159(e) of  this title  within one
          year  preceding the  effective  date of  such
          agreement,  the  Board shall  have  certified
          that at  least a  majority  of the  employees
          eligible to vote in such  election have voted
          to  rescind  the  authority   of  such  labor
          organization  to  make   such  an  agreement:
          Provided  further,  That  no  employer  shall

                               -9-

          The case was first heard  before an ALJ, who determined

that  the relationship  between  Goodless and  the Union  did not

change to a  Section 9(a) relationship.  Because the relationship

remained a Section  8(f) relationship, Goodless remained  free to

repudiate the relationship at the end of the contractual term and

thus  its  unilateral  changes to  the  terms  and conditions  of

employment  did not  violate either  Section  8(a)(3) or  Section

8(a)(5).

          The NLRB  reversed the  ALJ's opinion  in ruling  that,

under existing NLRB  case law, the relationship  between Goodless

and  the Union  changed from  a  Section 8(f)  relationship to  a

Section  9(a)  relationship  upon  the  Union's  presentation  to

Goodless of the  employee-signed authorization cards.   The Board

held that  the letter of assent signed  by Goodless in June 1992,

in  which  it  stated  that,  should the  Union  garner  majority

support, Goodless would  recognize the Union as the  Section 9(a)

employee representative, amounted to a standing promise to extend

such  recognition  conditioned  only on  the  Union's  showing of

majority support.  When the Union showed majority support through
                                                  

          justify   any   discrimination   against   an
          employee   for  nonmembership   in  a   labor
          organization (A) if he has reasonable grounds
          for  believing that  such membership  was not
          available  to the employee  on the same terms
          and conditions generally  applicable to other
          members, or (B) if he has reasonable  grounds
          for believing that  membership was denied  or
          terminated for reasons other than the failure
          of the employee  to tender the periodic  dues
          and the initiation fees uniformly required as
          a   condition  of   acquiring  or   retaining
          membership.

                               -10-

the authorization  cards in  June 1993,  the Board  reasoned, the

condition  had been  met and  Goodless was  bound by  its earlier

promise  to  recognize the  Union  as the  Section  9(a) employee

representative.    The  Board then  found  violations  of Section

8(a)(3) for  Goodless' withdrawal of recognition of the Union and

of  Section  8(a)(5)  for  constructive  discharge  of  the  four

apprentices.  The Board ordered Goodless to cease and desist, and

also ordered that Goodless:  recognize the Union as the exclusive

bargaining agent of its  journeymen electricians and apprentices;

rescind changes  in employment terms  made on and  after December

31, 1993; and make whole all  employees who worked for it on  and

after December 31, 1993, for any loss of wages and other benefits

suffered with interest, make whole any fringe  benefit funds, and

reimburse employees  for any  losses or  expenses  they may  have

incurred because of Goodless'  failure to make payments  to those

funds.   Finding that  the NLRB misapplied  its own  precedent in

this case, we deny enforcement of its order.

                        STANDARD OF REVIEW                                  STANDARD OF REVIEW

          We  determine whether  the  Board's decision  correctly

applies the  law  and  whether  it is  supported  by  substantial

evidence on the record.   See Yesterday's Children, Inc. v. NLRB,                                                                          

115 F.3d 36, 44 (1st Cir. 1997); see also  Universal Camera Corp.                                                                           

v. NLRB, 340 U.S. 474,  488 (1951).  "We must  sustain inferences                 

that  the Board  draws  from  the facts  and  its application  of

statutory standards to those facts and inferences as long as they

are reasonable."   NLRB  v. Laverdiere's  Enter., 933  F.2d 1045,                                                          

                               -11-

1050 (1st  Cir. 1991).   The standard  is quite  deferential, and

does  not allow  us to  displace the  Board's choice  between two

conflicting views merely  because we may "justifiably have made a

different  choice  had  the  matter been  before  [us]  de novo."                                                                         

Universal Camera Corp., 340 U.S. at 488.  This standard, however,                                

is no rubber stamp:   We must  set aside a  Board decision if  we

cannot fairly  find that  it is either  supported by  substantial

evidence in  the record, id.,  or correctly applies  the relevant                                      

law, Shaw's  Supermarkets v. NLRB,  884 F.2d 34, 35-37  (1st Cir.                                           

1989);  see also  Laverdiere's  Enter., 933  F.2d  at 1050  ("The                                                

courts  of appeals  are  charged  with  'responsibility  for  the

reasonableness  and fairness  of Labor  Board  decisions,' and  a

court must set aside Board action when it 'cannot conscientiously

find that the  evidence supporting that decision  is substantial,

when viewed  in the light  the record in its  entirety furnishes,

including the  body of  evidence opposed to  the Board's  view.'"

(citations  omitted) (quoting Universal Camera Corp., 340 U.S. at                                                              

488, 490)).

                            DISCUSSION                                      DISCUSSION

I.  Statutory structure          I.  Statutory structure

          Section 9(a), 29 U.S.C.   159(a), of the National Labor

Relations Act designates the manner  in which a union becomes the

exclusive bargaining  representative of a  unit of employees.   A

representative selected by a majority of the employees in a unit,

to which the  section applies, shall be the  employees' exclusive

bargaining representative.   See 29 U.S.C.    159(a).  Generally,                                          

                               -12-

it is a violation  of Section 8(a) of the NLRA for an employer to

treat  a union as the exclusive  bargaining representative of its

employees prior  to that  union's being designated  as such  by a

majority of the employees.  See 29 U.S.C.   158(a) &amp; (f).                                         

          The  construction industry,  however,  tends to  employ

workers for short durations and on  discrete projects, making the

designation or  selection of  a  union representative  difficult.

See generally S. Rep. No. 86-187 (1959).   To remedy this problem                       

and    allow   construction    workers   collective    bargaining

representation, Congress enacted  Section 8(f) of the  NLRA.  See                                                                           

id.   Section  8(f)  essentially  provides an  exception  to  the             

prohibitions   on   employer   recognition   of  a   non-majority

representative in the construction industry.  Section 8(f) allows

a  construction  industry  employer  to  enter  into  a  specific

agreement of limited duration with a union whereby the union acts

as the employees'  collective bargaining agent.  See  29 U.S.C.                                                                

158(f).   Employees  are allowed,  however, to  petition for  the

selection of a different agent as their representative.  Id.                                                                      

II.  Board precedent          II.  Board precedent

          Prior  to the Board's decision in  John Deklewa &amp; Sons,                                                                           

Inc.,  282  N.L.R.B. 1375  (1987),  Board precedent  held  that a              

Section   8(f)  relationship  could  change  to  a  Section  9(a)

relationship  under the  "conversion doctrine."   The  conversion

doctrine required only a  union's showing of majority  support at

some point during  the relevant period to convert  a Section 8(f)

relationship  into a Section 9(a) relationship.  "The achievement

                               -13-

of majority  support required  no notice,  no simultaneous  union

claim of majority, and no assent  by the employer to complete the

conversion process."   Id.  at 1378.   Upon such  conversion, the                                    

employer was required under Section  9(a) to recognize the  union

as the employees' exclusive bargaining agent.   Id. at 1379.  The                                                             

conversion created an irrebuttable presumption of majority status

for the duration of the agreement.  Id.                                                 

          Along  came   Deklewa,  however,  in  which  the  Board                                         

overturned its  "conversion doctrine," on the ground  that it did

not serve the  "statutory objectives of employee  free choice and

labor  relations  stability."   Id.    In  its place,  the  Board                                             

established four cardinal principles to govern this area:

          (1)    a   collective-bargaining    agreement
          permitted   by   Section    8(f)   shall   be
          enforceable through the mechanisms of Section
          8(a)(5)   and  Section   8(b)(3);  (2)   such
          agreements  will  not bar  the  processing of
          valid   petitions   [for   a  Board-certified
          election] filed pursuant  to Section 9(c) and
          Section   9(e);   (3)  in   processing   such
          petitions, the appropriate unit normally will
          be the single employer's employees covered by
          the agreement; and (4) upon the expiration of
          such  agreements,  the signatory  union  will
          enjoy no presumption  of majority status, and
          either   party   may   repudiate   the   8(f)
          bargaining relationship.

Id.  at 1377-78.    As  part of  the  new  structure, neither  an             

employer nor  a union who  is a party to  Section 8(f) agreements

may unilaterally repudiate their  relationship during the express

period of the agreement.  Id. at 1387.  The Board also determined                                       

that, at no  time during the  duration of the agreement  does the

                               -14-

union enjoy a  presumption, rebuttable or otherwise,  of majority

status.  Id.                      

          Because of the unique situation in which a Section 8(f)

relationship arises, Board case law  since Deklewa has set  forth                                                            

only two means  by which a union  may obtain Section 9(a)  status

during the course of a Section 8(f) relationship:  (1) through  a

Board-certified  election, or (2) through an employer's voluntary

grant of  recognition of  the union  as the  employees' exclusive

majority bargaining agent.   Unless and  until a relationship  is

proved  to  be  otherwise, a  bargaining  relationship  between a

construction industry employer and a union is presumed to be 8(f)

rather than 9(a).  See  Comtel Sys. Technology, 305 N.L.R.B. 287,                                                        

289 (1991).   The burden of proving a 9(a)  relationship rests on

the party asserting its  existence.  Casale Indus., 311  N.L.R.B.                                                            

287, 288  (1993).   Because the Board  determined below  that the

Union  had met  its burden  of proving  that Goodless  granted it

voluntary recognition, we focus our inquiry on the latter ground.

          The NLRB has held that "a party may prove the existence

of a  9(a) relationship .  . .  through . .  . a  union's express

demand for, and an employer's voluntary grant of,  recognition to

the union as bargaining representative based on a contemporaneous

showing of union support among a majority of the  employees in an

appropriate  unit."   J &amp; R  Tile, Inc., 291  N.L.R.B. 1034, 1036                                                 

(1988).    There  must be  "positive  evidence"  that the  "union

unequivocally  demanded   recognition  as  the   employees'  9(a)

                               -15-

representative and that the employer unequivocally accepted it as

such."  Id.                     

          The cases in  which the Board has applied this approach

fall into two  categories, the first finding that the acts of the

union  and   the   employer  transformed   their   Section   8(f)

relationship into  a Section  9(a) relationship,  and the  second

determining  that the parties failed to meet the requirements for

such a transformation.  A consistent theme running throughout the

cases  in the first category  is the requirement  that all of the

following three parts  of the voluntary recognition  test be met:

(1) the union must expressly and unequivocally demand recognition

as the employees'  Section 9(a) representative; (2)  the employer

must expressly and unequivocally grant the requested recognition;

and  (3)  that  demand  and   recognition  must  be  based  on  a

contemporaneous showing that the union enjoys majority support of                         

the employers' workforce.

          Board case law emphasizes that the third requirement is

essential.  In addition to  an actual showing of majority support

through the  presentation of employee-signed  authorization cards

to an  employer,  see  Hayman  Electric, 214  N.L.R.B.  879,  886                                                 

(1994),  or through an  employer-conducted poll prior  to initial

recognition,  see  Precision  Piping,  284  N.L.R.B.  1110,  1112                                              

(1987), the  Board has found  as sufficient to satisfy  the third

requirement  a  union's  claim  of  majority  support  that  went

unchallenged  by the  employer  for  a period  of  more than  six

months.  See, e.g., Triple  A Fire Protection, Inc., 312 N.L.R.B.                                                             

                               -16-

1088,  1089 (1993)  (declining  to  question  whether  the  union

actually achieved the majority status  it claimed at the time the

employer recognized  it when  the challenge  to such status  came

over four years after the agreement); Casale Indus., 311 N.L.R.B.                                                             

951,  953  (1993)  (refusing to  permit  employer's  challenge to

union's majority status arising six years after the union claimed

to  have  obtained  that  status  and  limiting  the  window  for

challenge  to  six  months  from  the  time  majority  status  is

claimed); Golden  West Elec. Co., 307 N.L.R.B.  1494, 1495 (1992)                                          

(holding that  employer's act of  reading and signing,  and later

acknowledging its agreement with, a letter stating that the union

represented a majority of employees was sufficient showing of the

union's majority  status to  find a  Section 9(a)  relationship).

Similarly, the Board found the  third requirement to be met where

an employer's admission or acknowledgement that the union enjoyed

majority support among its  employees was given contemporaneously

with the demand for recognition  and was provided without further

inquiry into the  union's actual status.  See  Golden West Elec.,                                                                          

307  N.L.R.B. at  1495 (relying  on the  employer's admission  of

majority status  to satisfy the  burden of  showing Section  9(a)

status).  From this case law it is clear that when a union claims

it has  attained majority status  and the parties, based  on that

claim, agree  to a Section  9(a) relationship, the  employer must

challenge that status  within a  reasonable period  of time  (six

months), or be bound by its agreement.

                               -17-

          The  Board  has  also  held  that  notwithstanding  the

parties' intention  to enter  into a  Section 9(a)  relationship,

their relationship is not entitled  to Section 9(a) status if the

union has not actually achieved majority status prior to the time

of the demand.   See  Comtel Sys.  Tech., 305  N.L.R.B. 287,  289                                                  

(1991)  (determining  no  Section  9(a)  relationship  would   be

established  unless union made  a showing of  majority support of

single-unit employer's employees prior  to that employer's  entry

into  a  multi-employer  bargaining relationship  claimed  to  be

governed by  Section 9(a)); see also J &amp;  R Tile, 291 N.L.R.B. at                                                          

1037  (declining to find that predecessor  employer and union had

entered into Section  9(a) relationship where no showing was made

that the union  had obtained majority support at the  time of the

parties'  agreement  and  no indication  was  presented  that the

parties  intended  a  Section 9(a)  relationship);  James Julian,                                                                           

Inc.,  310 N.L.R.B. at 1253 (describing the finding regarding the              

predecessor employer  in  J &amp;  R Tile  as based  on  the lack  of                                               

evidence that "the collective-bargaining agreement was entered on

the basis  of a demonstrated  showing of the  union's majority").

Thus,  Board precedent indicates that the  union's demand for and

the  employer's grant  of recognition  must be  predicated  on at

least  an  unchallenged  claim,  if  not  an actual  showing,  of

contemporaneous majority support.8                         
                                                  

8    In   fact,  the  Board's  General  Counsel   has  noted  its
understanding of Deklewa and progeny as providing that failure to                                  
show majority support at  the time of the demand  will defeat any                                            
attempts at  a Section  9(a) relationship.   The  General Counsel
interpreted Deklewa and progeny as holding that, "to prove that a                             

                               -18-

          Applying these  principles to  the undisputed facts  in

the  instant appeal, we simply cannot  find that the requirements

set forth by the Board in Deklewa and subsequent cases  have been                                           

satisfied.   Quite  simply, the  requirement  that a  demand  and

recognition be  based on  a contemporaneous  showing of  majority                                                     

support was  never satisfied.   The record  does not  support the

conclusion that, when the Union presented the letter of assent to

Goodless in  June 1992,  in which  it allegedly  sought Goodless'

recognition,  it made a contemporaneous claim of majority support

on which  Goodless' recognition  of the  union's majority  status                                                                           

could be made.9   A showing of  majority support at least  a year
                                                  

relationship   in  the  construction  industry  is  a  Section  9
relationship, there must  be (1) a union demand  to be recognized
as the Section  9 representative; (2)  an employer acceptance  of
the union's  demand; and (3) majority status  at the time of such
demand and  acceptance."  Advice  Ltr. from NLRB Gen.  Counsel to
Regional Director of  Region 9, Feb. 27, 1989, 1989 WL 241614, at
*2  (Feb.  27, 1989).    In  determining  that, under  the  facts
presented  to it,  no Section  9(a)  relationship could  be found
because "there  has been no  showing that the Union  represents a
majority of the employees in the appropriate unit," it noted:

          Even  if the Union does, in fact, represent a
          majority of the Employer's  employees, J &amp;  R                                                                 
          Tile makes clear that 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.

Id.             

9  In its brief, the Board suggests that Decorative Floors, Inc.,                                                                          
315  N.L.R.B. 188,  189 (1994),  and Hayman  Electric,  Inc., 314                                                                      
N.L.R.B. 879,  887 n.8  (1994), support  the opposite  conclusion
regarding  the  requirement  of a  showing  of  majority support.

                               -19-

later can hardly  be considered a showing  made contemporaneously

with,   and  as  a  prerequisite  to,   the  Union's  demand  for

recognition.

          Moreover, the cases that presume majority support still

require  contemporaneity.    The  record  raises  serious  doubts

regarding whether Goodless  in fact conceded  that the Union  had

obtained  majority support.   The Board concluded  that Goodless'

unartful statement  at the  June 25 meeting  was evidence  of its

recognition of  the union's majority status.   Even assuming that

the  Board's interpretation of the meaning of Goodless' statement

is  sound, its case law unmistakably  holds that nevertheless the

showing  of  majority  status must  be  contemporaneous  with the

demand and recognition of that  status.  These preconditions to a

9(a) recognition are clearly lacking here.

          In  arriving at its  conclusion, the Board  relied upon

principles of contract law.  See Goodless Elec. Co., 321 N.L.R.B.                                                             

at 66.  In discussing Goodless' signing of the letter of  assent,

the Board suggests  that "the letter  of assent constituted,  for

the remainder of its term, both a continuing request by the Union

for 9(a) recognition and a continuing, enforceable promise by the

Respondent  [Goodless]  to grant  voluntary  recognition on  that

                                                  

While the Board  is quite correct that neither  of these opinions
required that  the union demonstrate  through extrinsic  evidence
the  existence  of majority  support, they  were not  so required
because  in  Hayman Electric,  the  union  had  made a  claim  of                                                                       
majority  support, which the employer failed to challenge, and in
Decorative  Floors,  the  employer   had  signed  a   recognition                            
agreement explicitly stating that the union had attained majority
status.  The same is not true here.

                               -20-

basis if  the Union demonstrated majority support."  Id.  On this                                                                  

point, we  have noted  that "[t]he prevailing  rule, in  this and

other  circuits,  provides  that   technical  rules  of  contract

interpretation  are not necessarily  binding on the  Board in the

collective bargaining  context, even though  it is free  to apply

general  contract  principles  so as  to  foster  the established

federal  labor policy favoring  collective bargaining."   NLRB v.                                                                        

Boston Dist.  Council of Carpenters,  80 F.3d 662, 665  (1st Cir.                                             

1996).   Furthermore,  it  is  clear  that general  contract  law

principles cannot  supplant the  requirement of  a federal  labor

policy  such as  that  embodied in  Section  9(a) requiring  that

employees  be  represented  by  an  organization  approved  by  a

majority of employees.

          In  the unique circumstances surrounding a Section 8(f)

relationship  between a  construction  industry  employer  and  a

union,  for ten  years  the  Board has  followed  a specific  and

discrete  two-option   rule  for   the  transformation   of  that

relationship into  a Section 9(a) relationship.   Under the plain

terms of that rule, a  finding in favor of Goodless is  required.

We cannot accept the Board's  departure from its own precedent in

this  case  in   the  absence  of  some  cogent  explanation,  an

explanation   that  has  not  been  forthcoming.10    See  Shaw's                                                                           

Supermarkets, Inc.,  884 F.2d at  35 ("Although the Board  is not                            

permanently bound by  its precedent,  when it  wishes to  deviate

                                                  

10  Indeed, the Board does not acknowledge that its decision is a
departure from past precedent.

                               -21-

from well-established precedent  as significantly as it  has done

here,  it   must,  at  least,   explain  the   reasons  for   its

deviation.").11   Under Board precedent, the parties maintained a

Section 8(f) relationship  because no contemporaneous showing  of

majority support  accompanied the  Union's demand   to  Goodless.

Thus, Goodless  did not  violate Section  8(a)(5) by  repudiating

that  relationship  or  by unilaterally  changing  the  terms and

conditions of employment under the circumstances of this appeal.

          As  a  final  matter,  the  Board's  finding  that  the

apprentices  were  constructively   discharged  rested  upon  its

conclusion  that  Goodless committed  unfair  labor  practices by

repudiating  its relationship with the Union, and by unilaterally

implementing changes in  the terms and conditions  of employment.

Because we do  not agree with  that finding, we cannot  enforce a

ruling predicated upon it.   We therefore deny enforcement of the

Board's finding that  Goodless violated Sections 8(a)(3)  and (1)

by constructively discharging the apprentices.

                            CONCLUSION                                      CONCLUSION

          For the foregoing reasons, we reverse and remand to the                                                  reverse     remand                                                                    

National Labor Relations Board for proceedings in accordance with

this opinion.

                                                  

11   As a  secondary matter,  we do  not think  that the  Union's
demand,  let alone  Goodless'  recognition, could  be  considered
"unequivocal"   when  it  was  subject  to  a  contingency  whose
fulfillment had no temporal limitations.  Indeed, the contingency
may  never have  been met.    Without any  reasonable, temporally
limiting principles, we cannot affirm the Board's conclusion that
a demand and  recognition may be properly  considered unequivocal
when subject to a contingency whose fulfillment may never occur.

                               -22-

          Costs to respondent.

                               -23-
