
USCA1 Opinion

	




                            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 & 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) & (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 & 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 & 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 &  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 &  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 &  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-
