FSI

National Labor Relations Board - Board Decisions

Aug 26, 2010

355 N.L.R.B. 606 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 123
606
J & R Flooring, Inc. d/b/a J. Picini Flooring1 and
Freeman’s Carpet Service, Inc. and FCS Floor-
ing, Inc. and Flooring Solutions of Nevada, Inc.,
d/b/a FSI and International Union of Painters
and Allied Trades, District Council 15. Cases
28–CA–21229, 28–CA–21230, 28–CA–21231, and
28–CA–21233
August 26, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND PEARCE
On September 5, 2007, Administrative Law Judge
Lana H. Parke issued the attached decision. The Charg-
ing Party Union filed exceptions and a supporting brief,
and the Respondents filed answering briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.
I. INTRODUCTION
The consolidated complaint alleges that the Respon-
dents have violated Section 8(a)(5) and (1) of the Act by
refusing to grant 9(a) recognition to the Union based on
card checks conducted pursuant to voluntary recognition
clauses in collective-bargaining agreements executed
under Section 8(f). The judge dismissed the consolidated
complaint in its entirety.
We affirm the judge’s dismissal of the allegations in-
volving Respondents J. Picini Flooring (J. Picini), Free-
man’s Carpet Service, Inc. (Freeman’s Carpet Service),
and FCS Flooring, Inc. (FCS), for the reasons stated by
her. However, we reverse the judge’s dismissal of the
allegations involving Respondent FSI (FSI), and we find
that FSI violated the Act as alleged.
II. BACKGROUND
A. Legal Framework
The relationships between each of the Respondents
and the Union were originally established under Section
8(f), which permits employers and unions in the con-
struction industry to enter into a collective-bargaining
agreement without regard to whether the union’s major-
ity status has been previously established under Section

1 On January 4, 2008, the Board granted the Charging Party Union’s
motion to sever Case 28–CA–21226, involving Respondent Custom
Floors, Inc., from this proceeding and to remand it to the Regional
Director to dismiss the complaint in that case pursuant to a non-Board
settlement. The caption has been modified accordingly.
9(a).2 A principal distinction between an 8(f) and 9(a)
bargaining relationship is that the former may be termi-
nated by either the union or employer upon the expira-
tion of their collective-bargaining agreement, while the
latter continues after contract expiration, unless and until
the union is shown to have lost majority support. Madi-
son Industries, 349 NLRB 1306, 1307 (2007).
A union whose status as a bargaining representative is
initially governed by Section 8(f) can attain the status of
a majority bargaining representative under Section 9(a)
through a Board election or “from voluntary recognition
accorded to a union by the employer of a stable work
force where that recognition is based on a clear showing
of majority support among the unit employees, e.g., a
valid card majority.” John Deklewa & Sons, 282 NLRB
1375, 1387 fn. 53 (1987), enfd. sub nom. Iron Workers
Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988), cert. de-
nied 488 U.S. 889 (1988).3
In nonconstruction industry settings, the Board has
held that parties in a 9(a) bargaining relationship may
prospectively agree to expand the established bargaining
unit by including employees from additional stores upon
a showing of majority support for the union among em-
ployees at those facilities. Kroger Co., 219 NLRB 388
(1975). Such agreements are “contractual commitments
by the Employer to forgo its right to resort to the use of
the Board’s election process in determining the Unions’
representation status.” Id. at 389. In Goodless Electric
Co.,4 the Board explicitly applied the Kroger rationale to
prospective agreements by parties in an 8(f) construction
industry bargaining relationship for recognition of a un-
ion’s 9(a) status based upon a future showing of majority
support among employees in the established 8(f) unit.
The Board found that the employer in Goodless violated
Section 8(a)(5) by refusing to honor the results of a card

2 Sec. 8(f) provides, in pertinent part:
It shall not be an unfair labor practice under subsections (a)
and (b) of this section for an employer engaged primarily in the
building and construction industry to make an agreement covering
employees engaged (or who, upon their employment, will be en-
gaged) in the building and construction industry with a labor or-
ganization of which building and construction employees are
members . . . because (1) the majority status of such labor organi-
zation has not been established under the provisions of [Sec.] 9
. . . prior to the making of such agreement.
3 In such circumstances, the party asserting a collective-bargaining
relationship under Sec. 9(a)—the General Counsel in the present case--
bears the burden of affirmatively proving that such a relationship exists.
Id. at 1385 fn. 41.
4 321 NLRB 64 (1996), revd. and remanded 124 F.3d 322 (1st Cir.
1997), reaffd. 332 NLRB 1035 (2000), again revd. and remanded 285
F.3d 102 (1st Cir. 2002), complaint dismissed at 337 NLRB 1259
(2002).
J. PICINI FLOORING 607
check conducted pursuant to such a prospective recogni-
tion clause in its 8(f) contract with the union.
The General Counsel in this case contends that the Re-
spondents have committed the same violation as in
Goodless.5 As we will discuss below, the determinative
issue, as framed by the judge’s decision and the excep-
tions and briefs of the parties, is whether each of the Re-
spondents relied in good faith on a reasonable interpreta-
tion of the prospective recognition clause in their 8(f)
contract when they refused to recognize the Union’s 9(a)
representative status.
The Board has repeatedly held that “[w]here . . . the
dispute is solely one of contract interpretation, and there
is no evidence of animus, bad faith, or an intent to un-
dermine the union, we will not seek to determine which
of two equally plausible contract interpretations is cor-
rect.” Atwood & Morill Co., 289 NLRB 794, 795
(1988). 6 In such cases, the Board will not find an 8(a)(5)
violation, leaving the parties to resolve their contract
dispute in an appropriate alternative forum.
B. Facts
1. Respondents J. Picini, Freeman’s Carpet Service,
and FCS
Respondents J. Picini, Freeman’s Carpet Service, and
FCS (collectively the non-FSI Respondents) were parties
to a multiemployer 8(f) collective-bargaining agreement
(the Master Agreement) between the Union and the In-
dependent Floorcovering Contractors of Nevada that
expired on January 31, 2007. Article 4 of the Master
Agreement contained a procedure for establishing a 9(a)
bargaining relationship by voluntary recognition based
on a card showing of majority support for the Union.
Article 4 included an agreement to have any disputes
concerning the provision decided by expedited arbitra-
tion.7

5 Member Schaumber participated in neither Goodless nor Kroger,
and does not pass on whether either case was correctly decided. How-
ever, he recognizes those decisions as extant Board law and applies
them for institutional reasons.
6 Similarly, the Board has stated that
[W]hen an employer has a sound arguable basis for ascribing a par-
ticular meaning to his contract and his action is in accordance with the
terms of the contract as he construes it, the Board will not enter the
dispute to serve the function of arbitrator in determining which party’s
interpretation is correct.
NCR Corp., 271 NLRB 1212, 1213 (1984). See also, e.g., Phelps
Dodge Magnet Wire Corp., 346 NLRB 949, 951–952 (2006); Crest
Litho, 308 NLRB 108, 110 (1992); Vickers, Inc., 153 NLRB 561, 570
(1965).
7 Art. 4 stated in pertinent part:
The Employer agrees that if a majority of its employees authorize the
Union to represent them in collective bargaining, the Employer will
recognize the Union as the NLRA Section 9(a) majority collective-
By letter dated December 13, 2006, the non-FSI Re-
spondents, together with Custom Floors, Inc. and four
other employers, notified the Union that they intended to
terminate the Master Agreement upon its expiration and
to withdraw bargaining authority from the Independent
Floorcovering Contractors of Nevada. The letter also
stated that the employers were willing to bargain on a
separate multiemployer basis for a successor agreement.
The parties met six times in January, but were unable
to reach agreement. At a negotiation session on January
31, 2007,8 the termination date of the Master Agreement,
the Union’s representatives announced for the first time
that they had arranged for a card check to be performed
that day to establish the Union’s 9(a) representative
status through the procedures set out in article 4. They
stated further that they had selected a third party from a
local church to check authorization cards against em-
ployee names on the employers’ December 2006 trust
fund remittance reports.
Attorney Gregory Smith, who represented the eight
employers, immediately objected, protesting that the em-
ployers had not participated in the selection of the third
party or received assurances of that party’s neutrality.
Union Representative John Smirk responded, “[M]aybe
you need to read the language again because that’s not
what the contract says. It says nothing of mutually
agreeing upon who that third party is.”
Smith also complained that the December remittance
reports were not current and might include employees
who had voluntarily quit or been terminated.9 Smirk
responded that the December remittance report was “the
last remittance report that was on file from the contrac-
tors and that [is] the list that we [are] going to use.”
Kenny Freeman of Respondent Freeman’s Carpet Ser-
vice stated that he had been told by two of his employees
that the Union had refused demands for the return of
their authorization cards. He argued that the cards from
these two employees should not be counted. Smirk de-
nied that any employees had requested that he return
their cards.10

bargaining agent for all employees performing work within the juris-
diction of this agreement. The Employer agrees furthermore upon
demand to submit to a third-party card check to determine the major-
ity status of the Union. Any disputes concerning this provision shall
be resolved by expedited arbitration under the terms of this Agree-
ment.
8 All dates are in 2007, unless otherwise specified.
9 The remittance reports were approximately 35 days old.
10 Employee Robert Phillips testified that he demanded the return of
his card from Union Representatives Jack Mallory and Robert Black.
According to Phillips, they did not return his card but told him that he
could obtain it at the local union office. Phillips did not pursue the
matter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 608
Smith and the employers then left the meeting, and the
Union conducted the card check. Third party Maria
Couch certified that the Union represented a majority of
the unit employees of four of the eight employers, spe-
cifically the three non-FSI Respondents and Custom
Floors. Couch’s card check consisted of matching the
names on the authorization cards with those on the em-
ployers’ December remittance reports; she did not at-
tempt to determine the authenticity of the signatures.
Following the card check and on the same date, the
Union sent a letter to Smith by facsimile and registered
mail stating:

We are disappointed in your decision to not continue
negotiations today. The Union continued with the
process of having a third party certify that the Union is
in fact the 9(a) collective-bargaining representative of
the employees of your clients.

The letter was copied to each of the eight employers. The
letter did not state the results of the card check or identify
the employers for whom the Union was claiming majority
status. Further, at no time prior to the hearing did the Union
inform the employers or their counsel of the results of the
card check, provide them with a copy of the certification, or
offer to allow them to inspect the authorization cards.
At the hearing, the parties stipulated that, based on
payroll reports covering January 31, and without compar-
ing signatures or applying the Steiny/Daniel eligibility
formula,11 the Union had obtained authorization cards
from the following numbers of employees employed as
of January 31 for each of the non-FSI Respondents:
FCS 12 out of 20
Freeman’s Carpet Service 19 out of 30
J. Picini 43 out of 48

11 See Steiny & Co., 308 NLRB 1323 (1992), and Daniel Construc-
tion Co., 133 NLRB 264 (1961), modified at 167 NLRB 1078 (1967).
The Steiny/Daniel formula provides that, in addition to those eligible to
vote in Board-conducted elections under the standard criteria, unit
employees in the construction industry are eligible to vote if they have
not voluntarily quit or been discharged and if they have been employed
for at least 30 days within the 12 months preceding the eligibility date
of the election, or have had some employment in those 12 months and
have been employed for at least 45 days within the 24-month period
immediately preceding the eligibility date. In Steiny, the Board held
that this formula applies to all construction industry elections unless the
parties stipulate not to use it. 308 NLRB at 1327–1328 and fn. 16;
Signet Testing Laboratories, 330 NLRB 1 (1999). The Board has not
had occasion to decide whether the formula has any application in the
context of voluntary recognition agreements in the construction indus-
try, nor is it necessary to decide that question here for the reasons ex-
plained below.
Since January 31, the non-FSI Respondents have re-
fused to honor the results of the card check or to recog-
nize the Union as the 9(a) representative of their respec-
tive unit employees. They contend that the card check
was not valid or binding because it was an unreliable
indicator of the employees’ desire for union representa-
tion, both for the reasons stated by Smith and Freeman
on January 31 and for the additional reasons that the card
check was conducted without authenticating the card
signatures and without applying the Steiny/Daniel eligi-
bility formula. Consequently, they further contend that
the contractual duty to recognize and bargain with the
Union as the 9(a) representative of their respective unit
employees never was triggered. The non-FSI Respon-
dents also contend that article 4 is not a mandatory sub-
ject of bargaining, and they could, therefore, unilaterally
modify it without violating Section 8(a)(5) of the Act.
2. FSI
FSI was also bound to the Master Agreement, pursuant
to a memorandum of understanding. By letter dated De-
cember 13, 2006, the Union notified FSI that it desired to
modify the terms of the Master Agreement upon its expi-
ration, and proposed several dates to commence negotia-
tions for a successor agreement. On December 15, FSI
replied in writing that it intended to terminate the parties’
8(f) relationship upon the expiration of the Master
Agreement, and that it would not be bound to “any re-
negotiations, amendments, modifications, extensions or
renewals of the Agreement.”
On January 17, the Union wrote FSI, stating that it had
obtained authorization cards from a majority of FSI’s
unit employees and that it intended to establish a 9(a)
relationship through the third-party card check proce-
dures in article 4. The Union proposed that the card
check be performed on January 23. FSI Vice President
Bryan Price responded by letter dated January 18, stat-
ing, “We will not be available to make your meeting,
unilaterally set for January 23.” The Union thereafter
requested that Price provide dates and times that he
would be available. Price did not respond.
By facsimile delivered on January 25, the Union pro-
vided FSI with copies of signed authorization cards from
19 of FSI’s 22 unit employees, and again proposed meet-
ing dates on which to commence negotiations for a suc-
cessor agreement. Price responded on January 29, by
facsimile, stating, “I would like to meet, it just doesn’t
look good right now. I have an extremely busy day to-
morrow. Wednesday [January 31] maybe.”
On January 30, the Union informed FSI by facsimile
delivered at approximately 10 a.m. that it would conduct
a card check at noon at a local church, and requested
Price’s presence. Price did not attend. He testified that
J. PICINI FLOORING 609
he arrived at his office after 2 p.m. that day. He also
testified that FSI President Mary Price probably could
have attended the card check, but she did not do so be-
cause the communication from the Union was “addressed
to me, so it’s my issue.”
Father Joel Menchaca conducted the card check. He
certified that the Union had obtained authorization cards
from 20 of the 22 employees listed on FSI’s December
2006 trust fund remittance report. On January 30, the
Union hand delivered a copy of the certification to FSI’s
offices. On the same date, the Union filed a petition for a
Board election.12
The parties stipulated that, as of January 30, “based on
the card check procedure,” the Union had obtained au-
thorization cards from a majority of FSI’s unit employees
both as reported on the December trust fund remittance
report and as identified by payroll data supplied by FSI at
the hearing. The parties stipulated further:

This card check did not apply the Daniel-Steiny for-
mula. This card check did not include a comparison of
signatures. FSI does not dispute the eligibility of the
card signers contained in [the December trust fund re-
mittance report].

FSI defends its refusal to recognize and bargain with
the Union as the 9(a) representative of its unit employees
on essentially the same basis as the non-FSI Respon-
dents. Specifically, FSI argues that the card check did
not reliably reflect the employees’ desires for union rep-
resentation because the employee list was outdated and
may have included employees whose employment had
ended, the Union unilaterally selected the third party and
did not provide any assurances of his neutrality, the
Steiny/Daniel eligibility formula was not applied, and the
cards were not authenticated using signature exemplars.13
FSI also joined the non-FSI Respondents in contending
that article 4 does not involve a mandatory bargaining
subject.
In contrast to the non-FSI Respondents, however, FSI
did not voice any objections to the card check procedures
proposed by the Union prior to the January 30 card
check. In addition, Price admitted at the hearing that he
had “no doubt” that a majority of FSI employees had

12 The Union withdrew its petition when the Region issued the con-
solidated complaint on March 30.
13 FSI also argues that by filing an election petition on the same day
that it conducted the card check, the Union admitted that it had not
established majority support through the card check. It additionally
argues that the cards of two employees were counted twice, once for
FSI and once for non-FSI Respondents for which these employees also
worked during the reporting period covered by the December remit-
tance report.
signed authorization cards. His complaint, instead, was
that “the whole time” he felt that “an election was the
fairest and the only way to determine whether or not this
is what the employees wanted.”14
C. Judge’s Decision
The judge applied the already discussed legal princi-
ples governing the means by which an 8(f) representative
may achieve 9(a) status by voluntary recognition based
on a clear showing of majority support among unit em-
ployees.
Although the judge acknowledged a “striking similar-
ity” between the language of article 4 and the voluntary
recognition clause that the Board found binding on the
employer in Goodless Electric, supra, she found that
Goodless was otherwise distinguishable. She observed
that the employer in Goodless examined and independ-
ently verified authorization cards signed by a majority of
its employees, and never contended that the union’s ma-
jority status should have been otherwise demonstrated.
In contrast, the judge found that here the Respondents
advocated methods for determining majority status that
differed from those proposed by the Union, while the
Union insisted on utilizing procedures it had devised.
The judge found that article 4 was silent as to these is-
sues, and that neither the General Counsel nor the Union
had persuasively explained how article 4 entitled the Un-
ion to unilaterally devise the procedures for conducting
the card check.
The judge found that “ultimately, the dispute between
each of the Respondents and the Union boils down to a
question of how Article 4 should be interpreted.” Rely-
ing on Atwood & Morrill, supra, 289 NLRB at 795, she
determined that this case involved the kind of contractual
dispute in which the Board refrains from making that
interpretation. The judge went on to explain that pursu-
ant to the language of article 4, when the Respondents
opposed the Union’s card check procedures, the Union’s
appropriate recourse was not to implement what
amounted to a default card check, but to address the dis-
agreement through the contractual grievance-arbitration
machinery.15 The judge concluded that until the proce-

14 Price admitted that he “pretty much” had no intention of meeting
with the Union during the week of January 29. He denied, however,
that he was unwilling to submit to a card check.
15 No party filed a grievance or invoked arbitration, although, as
noted, art. 4 provides that “Any disputes concerning this provision shall
be resolved by expedited arbitration under the terms of this Agree-
ment.”
The judge found no merit in the Union’s contention that the Respon-
dents, rather than the Union, were obligated to seek arbitration, observ-
ing that the Board has placed the burden of proving that a construction-
industry relationship falls under Sec. 9(a) rather than under Sec. 8(f) on
the party making that assertion. Deklewa, supra at 1385 fn. 41 (“In
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 610
dural disagreement was settled, either by mutual accord
or contractual dispute resolution, there could be no valid
and binding card check and, in the absence of majority
authorization achieved under the terms of article 4, the
Respondents were not obligated to recognize the Union
as the exclusive 9(a) collective-bargaining representative
of their respective unit employees.
The judge rejected the General Counsel’s argument
that the Respondents were motivated by bad faith or an
intent to undermine the Union when asserting their inter-
pretation of article 4. As to the non-FSI Respondents,
the judge found that when the Union conducted the card
check on January 31, two bona fide areas of controversy
remained: the identity of the third party and the em-
ployee eligibility formula. The judge observed that no
other evidence of animus by the non-FSI Respondents
had been advanced and, at the time of the hearing, those
Respondents were continuing to bargain with the Union
as the 8(f) representative of their respective unit employ-
ees, which the judge found to be inconsistent with ani-
mus.
As to FSI, the judge acknowledged that it did not ob-
ject to the procedures selected by the Union at the time
the Union announced its majority status and requested a
card check, and that FSI dodged the Union’s attempts to
meet during the final 2 weeks of the contract term. The
judge acknowledged further that FSI maintained that “an
election was the fairest and only way to determine [what]
the employees wanted.” The judge nevertheless found
that the record did not support a finding of bad faith, pos-
tulating that “neither a weak argument nor an avoidance
of the proposed card check proves union animus.”
Accordingly, the judge dismissed the 8(a)(5) complaint
in its entirety.
III. ANALYSIS
No party has excepted to the judge’s reliance on At-
wood & Morrill or to her finding that the dispute be-
tween each of the Respondents and the Union involves a
matter of contract interpretation. The Board’s general
practice is to limit our review of the judge’s decision to
issues raised by the exceptions. See, e.g., FES, 333
NLRB 66 fn. 1 (2001), enfd. 301 F.3d 83 (3d Cir. 2002).
The Union argues in its exceptions that the Respon-
dents acted in bad faith and with an intent to undermine
the Union when asserting their interpretation of article
4.16 Specifically, the Union contends that the Respon-

light of the legislative history and the traditional prevailing practice in
the construction industry, we will require the party asserting the exis-
tence of a 9(a) relationship to prove it.”).
16 The Union has also excepted to what it perceives as the judge’s
finding that it was required to arbitrate the dispute over the proper
interpretation of art. 4. We find no merit in this exception. The judge
dents demonstrated bad faith by raising “frivolous” ob-
jections to the card check procedures and by refusing to
accept the results of the card checks even though, accord-
ing to the Union, each had knowledge, independent of
the card checks, of the Union’s majority status.
We agree with the judge, for the reasons she stated,
that the non-FSI Respondents acted in good faith pursu-
ant to a reasonable interpretation of article 4, and that the
allegations involving these Respondents should be dis-
missed.17 We find merit, however, in the Union’s argu-
ment that FSI acted in bad faith.

did not rely on deferral or contract exhaustion principles in recom-
mending dismissal of the consolidated complaint. She discussed arbi-
tration in the context of finding that the Board is not the proper forum
for determining which of the parties’ equally plausible interpretations
of art. 4 is more appropriate. She went on to find that until that issue is
resolved in an appropriate forum, whether it be through “mutual accord
or by recourse to contractual dispute resolution,” there can be no valid
and binding card check. The Union alternatively requests that this case
be deferred for resolution under the parties’ contractual griev-
ance/arbitration machinery or that the Board remand this case to the
judge to fully litigate the deferral issue. However, in these circum-
stances, where the non-FSI Respondents have relied in good faith on a
sound arguable interpretation of art. 4 in refusing to honor the card
check results, an arbitral ruling rejecting this interpretation would still
not raise their conduct to the level of an 8(a)(5) violation. Phelps
Dodge Magnet Wire Corp., supra, 346 NLRB at 951–952. Accord-
ingly, deferral is inappropriate, and there is no need to remand this case
to the judge.
Consistent with the motion filed by the non-FSI Respondents, in
which FSI has joined, we take administrative notice of the July 30,
2010 decision of the United States Court of Appeals for the Ninth Cir-
cuit in Painters & Allied Trades, District 15, Local 159 v. J&R Floor-
ing, Inc., No. 08-17089, 2010 U. S. App. LEXIS 15752. We find,
however, that that decision does not affect the outcome of this case.
17 In affirming the judge’s dismissal of the allegations involving the
non-FSI Respondents, we do not decide whether their interpretation of
art. 4 and what its “third-party card check” language required was
correct. Under Atwood & Morrill, supra, we need only find, and we do,
that their interpretation was reasonable.
We find unpersuasive the Union’s argument that the non-FSI Re-
spondents waived certain of their objections to the card check proce-
dures by not raising them contemporaneously with the card check.
Given the last-minute nature of the card check and the lack of notice,
the non-FSI Respondents and their counsel could not reasonably be
expected to perceive all of the possible shortcomings of the procedures
that the Union proposed and to formulate all of their objections imme-
diately.
The Union contends that the non-FSI Respondents were well aware
of the Union’s majority status at all times as a result of the voluntary
union membership of all of their respective unit employees, and conse-
quently that their reliance on the parties’ differing interpretations of art.
4 demonstrates bad faith. The Union submits that in right-to-work
states union membership establishes those members’ designation of the
union as their exclusive collective-bargaining representative. In Dek-
lewa, however, the Board specifically rejected reliance on evidence of
union membership to prove the 9(a) majority status of a bargaining
representative in the construction industry. 282 NLRB at 1384. This
holding has not been limited to nonright-to-work states.
J. PICINI FLOORING 611
Unlike the non-FSI Respondents, FSI had ample notice
of the Union’s demand for a card check and never raised
contemporaneous objections to the specified proce-
dures.18 Further, there are no exceptions to the judge’s
finding that Price deliberately dodged the Union’s at-
tempts to meet during the last 2 weeks of the contract
term. By doing so, Price thwarted any chance of the par-
ties resolving their differences over the meaning of the
“third-party card check” language in article 4. While
Price testified that he was willing to “start discussing
options” on January 31, we find that his insistence on
waiting until the date on which the Master Agreement
would expire to enter into meaningful discussion regard-
ing the card check evinces bad faith.
Also indicative of bad faith is Price’s testimony that
his position “the whole time” has been that “an election
was the fairest and the only way to determine whether or
not this is what the employees wanted.” Although article
4 left more than a few procedural issues unresolved, it
plainly provided for a means other than an election—a
card check—to determine whether the employees wanted
union representation. As noted, under extant Board
precedent, by agreeing to the card check method in the
voluntary recognition clause, FSI waived its right to in-
sist on the use of the Board’s election process to deter-
mine the Union’s representative status. Kroger, supra;
Goodless, supra. Accordingly, FSI could not on this
record maintain that it was entitled to test the employees’
desires through a Board election.
Finally, we note that Price had in his possession, since
January 25, copies of authorization cards proffered by the
Union, and he admitted at the hearing that he had “no
doubt” that a majority of the FSI employees had signed
the cards. In light of Price’s admission, FSI’s position
that various procedural defects rendered the card check
unreliable as an indicator of the employees’ desires for
union representation is without merit.19 Also unavailing

18 As noted, the Union demanded that FSI submit to a card check by
letter dated January 17. The January 17 letter stated that the Union had
chosen a third party to conduct the card check. It also stated that in
order “to achieve a true and consistent card check,” eligibility would be
determined using FSI’s “most recent remittance report.” Yet, FSI
waited until February 16, after the card check had already been con-
ducted and the Master Agreement had expired, to object to the Union’s
failure to use a mutually-agreed upon third party, and FSI only raised
its remaining objections to the card check procedures well after issu-
ance of the consolidated complaint in this case.
19 We note, moreover, that FSI offered no evidence in support of its
argument that the card check did not reliably reflect the employees’
desires for union representation. Thus, FSI did not proffer any evi-
dence that: the authorization cards were coerced; the signatures were
not genuine; or the signatories did not constitute a majority of eligible
employees under the Steiny/Daniel formula. Further, insofar as the
record reveals, FSI never suggested procedures such as the calling of a
in light of Price’s testimony is FSI’s position that, by
filing a Board election petition, the Union conceded that
it had not established majority support through the card
check.
In sum, we find that the preponderance of the record
evidence establishes that FSI’s refusal to participate in
and then honor the results of the January 30 card check
and to recognize and bargain with the Union as the 9(a)
representative of its unit employees was motivated by
bad faith, and not by a bona fide dispute over the correct
interpretation of article 4.

[W]here the parties’ contract language commits the
employer to recognizing the union’s majority represen-
tative status in the future if the union demonstrates that
it has majority support, 9(a) recognition will be estab-
lished if and when the union subsequently meets that
condition within the term of the agreement.

Staunton Fuel & Material, 335 NLRB 717, 719 (2001) (re-
stating the holding in Goodless, 332 NLRB at 1039).20 We
find, consistent with Price’s admission, that the Union es-
tablished majority support under the terms of article 4 on
January 30. FSI’s contractual obligation to grant 9(a) rec-
ognition to the Union was triggered on that date. By refus-
ing, on and after that date, to recognize the results of the
card check and bargain with the Union as the 9(a) represen-
tative of its unit employees, FSI failed and refused to bar-
gain in good faith with the exclusive collective-bargaining

sample of its employees who signed cards to confirm that their signa-
tures were genuine and uncoerced.
Member Schaumber is unwilling to place the burden of proof on
FSI. In his view, the Union and the General Counsel have the initial
burden to demonstrate that the Union has secured authorization cards
from a majority of unit employees—a burden which is not ordinarily
satisfied by simply producing the authorization cards and, instead,
requires verification that the cards contain authentic signatures from a
majority of employees eligible to vote in an appropriate unit. Indeed,
Member Schaumber would go further than extant Board law (were
there a majority to do so) and require an additional showing that the
cards were collected under circumstances conducive to the protection
of employee free choice. Here, however, FSI has admitted that a ma-
jority of its unit employees signed authorization cards and it stipulated
that it “does not dispute the eligibility of the card signers.” Moreover,
as noted above, there is no suggestion or evidence of irregularity or
coercion in the collection of the cards. Therefore, Member Schaumber
concurs in finding a violation based solely on the particular facts of this
case.
20 Member Schaumber does not agree with the Board’s decision in
Staunton Fuel & Material, supra, to the extent it provides that where a
union requests 9(a) recognition from a construction employer, it is
sufficient to show that the employer’s recognition was based on the
union’s showing, or offer to show, substantiation of its majority sup-
port. In his view, to protect employees’ rights, a union demanding
recognition pursuant to the terms of the parties’ 8(f) agreement should
be required to show its evidence establishing majority support without
the employer having to demand it.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 612
representative of its unit employees within the meaning of
Section 8(d) and in violation of Section 8(a)(5) and (1) of
the Act.21
REMEDY
Having found that FSI has engaged in certain unfair
labor practices, we shall order it to cease and desist and
to take certain affirmative action designed to effectuate
the policies of the Act. Specifically, we shall order FSI
to recognize, and on request, bargain with the Union as
the exclusive collective-bargaining representative of its
unit employees and, if an understanding is reached, em-
body the understanding in a signed agreement.
ORDER
The National Labor Relations Board orders that the
Respondent, Flooring Solutions of Nevada, Inc., d/b/a
FSI, Las Vegas, Nevada, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with International Union of Painters and Al-
lied Trades, District Council 15 as the exclusive collec-
tive-bargaining representative of the employees in the
unit set forth below:

All full-time and regular part-time Floorcovering Han-
dlers, Apprentices, Journeymen, and Foremen employ-
ees, excluding all other employees, office clerical em-
ployees, professional employees, guards, and supervi-
sors as defined in the Act.

(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize, and on request, bargain with the Union
as the exclusive collective-bargaining representative of

21 Neither FSI nor the other Respondents excepted to the judge’s
failure to address their argument that even a clear breach of art. 4 would
not violate Sec. 8(a)(5) because this recognition agreement is not a
mandatory subject of bargaining. See Chemical Workers Local 1 v.
Pittsburgh Plate Glass Co., 404 U.S. 157, 183–186 (1971) (Act is
violated only when an employer “changes a term that is a mandatory
rather than permissive subject of bargaining”). It seems plain, how-
ever, that a contractual provision for the recognition of an incumbent
8(f) union as a 9(a) representative directly impacts the ability of unit
employees represented by that union to preserve their terms and condi-
tions of employment after expiration of the extant contract. We are
therefore satisfied that art. 4 falls within the category of subjects affect-
ing “wages, hours, and other terms and conditions of employment,”
within the meaning of Sec. 8(d). Member Schaumber finds it unneces-
sary to pass on this issue in the absence of exceptions to the judge’s
failure to address Respondents’ argument.
its unit employees and, if an understanding is reached,
embody the understanding in a signed agreement.
(b) Within 14 days after service by the Region, post at
its Las Vegas, Nevada facility copies of the attached no-
tice marked “Appendix.”22 Copies of the notice, on forms
provided by the Regional Director for Region 28, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted.23 Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since January 30, 2007.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations not found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf

22 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
23 On May 14, 2010, the Board invited all interested parties to file
briefs in this and two other cases regarding the question of whether
Board-ordered remedial notices should be posted electronically, such as
via a companywide email system and, if so, what legal standard should
apply. The Board has decided to sever this issue and retain it for fur-
ther consideration in order to expedite the issuance of this decision
regarding the remaining issues in this case. The Board will issue a
supplemental decision regarding electronic notice posting at a later
date.
J. PICINI FLOORING 613
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail and refuse to bargain collectively and
in good faith with International Union of Painters and
Allied Trades, District Council 15 as the exclusive col-
lective-bargaining representative of our employees in the
unit set forth below:

All full-time and regular part-time Floorcovering Han-
dlers, Apprentices, Journeymen, and Foremen employ-
ees, excluding all other employees, office clerical em-
ployees, professional employees, guards, and supervi-
sors as defined in the Act.

WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL recognize and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive our unit employees, and put in writing and sign any
agreement reached on terms and conditions of employ-
ment for our employees in the bargaining unit.

FLOORING SOLUTIONS OF NEVADA, INC., D/B/A FSI
Mara-Louise Anzalone, Atty., for the General Counsel.
Gregory E. Smith and Joseph T. Prete, Attys. (Smith &
Kotchka), of Las Vegas, Nevada, for Respondents Custom
Floors, Inc., J&R Flooring, Inc. d/b/a Picini Flooring,
Freeman’s Carpet Service, Inc., and FCS Flooring, Inc.
Thomas A. Lenz, Atty. (Atkinson, Andelson, Loya, Ruud &
Romo), of Las Vegas, Nevada, for Respondent Flooring So-
lutions of Nevada, Inc. d/b/a FSI.
David A. Rosenfeld, Atty., of Los Angeles, California, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
LANA H. PARKE, Administrative Law Judge. This matter was
tried in Las Vegas, Nevada, on May 29–30, 2007, upon a con-
solidated complaint (the complaint) issued March 30, 2007,1 by
the Regional Director for Region 28 of the National Labor Re-
lations Board (the Board) based on charges filed by the Interna-
tional Union of Painters and Allied Trades, District Council 15
(the District Council). The complaint, as amended, alleges
Custom Floors, Inc. (Respondent Custom), J&R Flooring, Inc.
d/b/a Picini Flooring (Respondent Picini), Freeman’s Carpet
Service, Inc. (Respondent Freeman’s), FCS Flooring, Inc. (Re-
spondent FCS) (the non-FSI Respondents), and Flooring Solu-
tions of Nevada, Inc. d/b/a FSI (Respondent FSI) (the non-FSI
Respondents and Respondent FSI are collectively the Respon-
dents) violated Section 8(a)(1) and (5) of the National Labor

1 All dates are 2007, unless otherwise specified.
Relations Act (the Act) by failing and refusing to honor the
results of third party card checks conducted pursuant to article
4 of a collective-bargaining agreement between, respectively,
each of the Respondents and International Union of Painters &
Allied Trades Local #159 (Local #159).2 The Respondents
essentially denied all allegations of unlawful conduct.
I. ISSUES
Did the non-FSI Respondents and Respondent FSI violate
Section 8(a)(1) and (5) of the Act by failing to continue in ef-
fect all the terms and conditions of the collective-bargaining
agreement effective February 1, 2004, through January 31,
2007, between, respectively, Respondent Custom, Respondent
Picini, Respondent Freeman’s, Respondent FCS, Respondent
FSI, and Local #159 by failing and refusing to honor the results
of third party card checks conducted pursuant to article 4 of
said collective-bargaining agreement and by failing and refus-
ing to recognize the Union as the exclusive collective-
bargaining representative of each respective unit pursuant to
9(a) of the Act?
II. JURISDICTION
Respondent Custom, a Nevada corporation with a facility
and place of business located in Las Vegas, Nevada, has been
engaged in business as a commercial and industrial flooring
contractor in the construction industry.3 During the 12-month
period ending February 1, Respondent Custom, in connection
with its construction business annually purchased and received
at its facility goods valued in excess of $50,000 directly from
points outside the State of Nevada.
Respondent Picini, a Nevada corporation with a facility and
place of business located in Las Vegas, Nevada, has been en-
gaged in business as a commercial and industrial flooring con-
tractor in the construction industry. During the 12-month pe-
riod ending February 1, Respondent Picini, in connection with
its construction business, annually purchased and received at its
facility goods valued in excess of $50,000 directly from points
outside the State of Nevada.
Respondent Freeman’s, a Nevada corporation with a facility
and place of business located in Las Vegas, Nevada, has been
engaged in business as a commercial and industrial flooring
contractor in the construction industry. During the 12-month
period ending February 1, Respondent Freeman’s, in connec-
tion with its construction business, annually purchased and
received at its facility goods valued in excess of $50,000 di-
rectly from points outside the State of Nevada.
Respondent FCS, a Nevada corporation with a facility and
place of business located in North Las Vegas, Nevada, has been
engaged in business as a commercial and industrial flooring
contractor in the construction industry. During the 12-month
period ending February 1, Respondent FCS, in connection with

2 The complaint refers to the District Council and Local #159 indist-
inguishably as the Union. Herein, the two entities are collectively
called the “Union.”
3 The parties entered into a joint stipulation of facts (joint stipula-
tion), which largely forms the evidence. Unless otherwise explained,
findings of fact herein are based on party admissions, stipulations,
including the joint stipulation, and uncontroverted testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 614
its construction business, annually purchased and received at its
facility goods valued in excess of $50,000 directly from points
outside the State of Nevada.
Respondent FSI, a Nevada corporation with a facility and
place of business located in Las Vegas, Nevada, has been en-
gaged in business as a commercial and industrial flooring con-
tractor in the construction industry. During the 12-month pe-
riod ending February 1, Respondent FSI, in connection with its
construction business, annually purchased and received at its
facility goods valued in excess of $50,000 directly from points
outside the State of Nevada.
The non-FSI Respondents and Respondent FSI, respectively,
admit, and I find, each has at all relevant times been an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act, and the District Council and Local
#159 are labor organizations within the meaning of Section 2(5)
of the Act.
IV. THE FACTS
A. Collective-bargaining Relationships of the non-FSI
Respondents and Respondent FSI and the Union
Between February 1, 2004, and January 31, the non-FSI Re-
spondents were signatory to a collective-bargaining agreement
(the Master Agreement) between Local #159 and the Independ-
ent Floorcovering Contractors of Nevada entitled “Floorcover-
ers Master Agreement.” Respondent FSI was bound to the
Master Agreement pursuant to a Memorandum of Understand-
ing between it and the Union dated September 14, 2004.4
These bargaining relationships were governed by Section 8(f)
of the Act.
Each of the above-described collective-bargaining agree-
ments by its terms covers the following unit of employees:

All full-time and regular part-time Floorcovering Handlers,
Apprentices, Journeymen, and Foremen employees, exclud-
ing all other employees, office clerical employees, profes-
sional employees, guards, and supervisors as defined in the
Act.5

The Master Agreement contains the following provision (art.
4):
Article 4
Union Recognition &
Territorial Jurisdiction
The Employer hereby recognizes the Union as the sole and
exclusive bargaining agent of employees classified herein
who are engaged to perform work covered by this Agreement
in the area defined as Clark, Lincoln, Nye and Esmeralda

4 Although the joint stipulation calls this agreement a “memorandum
of understanding,” the referenced document is entitled “Memorandum
of Understanding.”
5 The Respondent FSI admitted, but the non-FSI Respondents de-
nied, complaint allegations that the described unit was an appropriate
unit of employees for purposes of collective bargaining within the
meaning of Sec. 9(b) of the Act. The non-FSI Respondents having
provided no evidence as to inappropriateness of the units set forth in
their collective-bargaining agreements with the Union, I find the units
appropriate within the meaning of Sec. 9(b) of the Act.
Counties in the State of Nevada. The Employer agrees that if
a majority of its employees authorize the Union to represent
them in collective bargaining, the Employer will recognize
the Union as the NLRA Section 9(a) majority collective bar-
gaining agent for all employees performing work within the
jurisdiction of this Agreement. The Employer agrees fur-
thermore upon demand by the Union to submit to a third party
card check to determine the majority status of the Union. Any
disputes concerning this provision shall be resolved by expe-
dited arbitration under the terms of this Agreement.

The Master Agreement further provides, at article 22, for a
Floorcovering Joint committee to administer a final and binding
grievance and arbitration procedure (Grievance/Arbitration
Clause). The Grievance/Arbitration Clause vests the Joint Com-
mittee with power to adjust all disputes and grievances arising
out of the application or interpretation of the Master Agreement.
During December 2006, the Union obtained union authoriza-
tion cards from unit employees of the non-FSI Respondents and
Respondent FSI. Followed by spaces for name, address, and
employment information, the cards bore the following legend:
AUTHORIZATION FOR REPRESENTATION
I authorize the International Union of Painters and Allied
Trades or its affiliated Local Union or District Council to act
as my exclusive collective bargaining representative with any
present or future employer in all matters pertaining to wages,
hours and other conditions of employment. I understand that
this authorization can be used by the union to petition for an
NLRB election or obtain recognition from my employer
without an election. I understand that revocation of my au-
thorization can only be done in writing.
B. The Union’s Card Check for Unit Employees
of Respondent FSI
By letter dated December 13, 2006, the Union notified Re-
spondent FSI, inter alias, of its intent to modify the terms and
conditions of the Master Agreement upon its January 31 expira-
tion date. By letter dated December 15, 2006, Bryan Price
(Price), vice president of Respondent FSI notified the Union of
the Company’s intent to terminate its extant memorandum of
understanding with the Union upon the expiration of those con-
tracts.
By letter dated January 17, the Union demanded, in accor-
dance with article 4, that Respondent FSI submit to a third
party card check to determine majority status of the Union,
stating, in pertinent part:

To achieve a true and consistent card check, the Union has se-
cured a majority of authorization cards of workers employed
by your company according to your most recent remittance
report, which was filed with our office in December of 2006
that covered hours worked and or paid during the period of
10/28/2006 to 11/24/2006.

. . . .

[T]he Union is prepared [to conduct a third party card check]
on Tuesday January 23 at 9 am at your office. The Union has
chosen Ms. Sylvia Courtney, an attorney experienced in labor
law issues to act as the third party in this matter.
J. PICINI FLOORING 615

By letter dated January 18, Respondent FSI stated its un-
availability on January 23. By letter dated January 22, the Un-
ion asked Respondent FSI to name dates and times of availabil-
ity for the remainder of the week for participation in a card
check. Upon Respondent FSI’s failure to respond, the Union,
by certified letter and facsimile transmission dated January 25,
wrote to Respondent FSI, in pertinent part, as follows:

The Union has made repeated attempts to peacefully settle
what we believe to be a grievance. Your failure to respond to
requests for meetings to determine whether or not the Union
in fact has 9(a) status in accordance with Article 4 of the cur-
rent Contract is disappointing.

Since it appears that it is very difficult to set up a meeting
with you to adjust this grievance, you will find a copy of the
most recent remittance report from your company received in
our office last week representing hours worked by individuals
covered by the current Contract during the most recent month
(December 2006).

Additionally you will find copies of signed Authorization for
Representation Cards that we have received from a majority
of those individuals referred to above.6 . . . As the 9(a) repre-
sentative of your employees, it is my duty to inform you that
you are bound to negotiate in good faith with the Union for no
less than one year.

On January 29, Price emailed Mallory, informing him that
prospects for a meeting that day or the next were not good, but
“maybe” he would be available the following day (January
31).7
By certified mail and facsimile transmission on January 30,
the Union notified Price as follows:

The Union believes that you have been delaying meeting with
its officials to discuss whether or not your company’s em-
ployees have designated the Union as their sole and exclusive
bargaining representative as defined by section 9(a) of the
[Act]. The Union is utilizing the most recent remittance re-
port submitted by your company to determine the bargaining
unit and having done so believes that here is a strong majority
of your employees who have submitted authorization cards.

The union is meeting with [sic] at 12 pm today at the offices
of Father Machaca [sic] at the Church Amistad Christiana . . .
Father Machaca [sic] . . . h as been designated by the Union as
a third party and considered neutral. The Union is requesting
your presence at this meeting.

6 The Union’s January 25 communication to Respondent FSI en-
closed copies of 17 signed union authorization cards. Although there is
no specific evidence Price reviewed the copies, he testified he had no
doubt the Union had representation cards from a majority of the em-
ployees, but he did have a doubt as to how they were obtained.
7 At the hearing, Price admitted he “pretty much” had no intention of
meeting with the Union during the week of January 29. Although Price
testified he was not unwilling to utilize a card check procedure in de-
termining the Union’s majority status, he also testified the company’s
position was that “an election was the fairest and the only way to de-
termine [what] the employees wanted.”
On January 30, the Union filed a representation petition with
the Board for a unit of Respondent FSI’s employees. On the
same day, in the presence of two union representatives and in
the absence of any representative of Respondent FSI, Father
Menchaca, a local religious leader, conducted a card check at
the Church Cristiana Amistad in Las Vegas by comparing the
signatures of union authorization cards to the names of employ-
ees listed on the most recent remittance report submitted by
Respondent FSI to the Union for employee hours worked be-
tween December 1 and 23, 20068 (Respondent FSI Remittance
Reports). The card check revealed that the Union had obtained
authorization cards from a majority of Respondent FSI’s unit
employees as named on Respondent FSI Remittance Reports.
Following the card check, Father Menchaca executed a
”Memorandum Acknowledging Verification of Authorization
for Representation Cards” (Verification Memorandum), in
which he verified that of 22 FSI employees listed on Respon-
dent FSI’s remittance report, 20 had signed authorization cards.
Later that day, Mallory delivered copies of the Verification
Memorandum to Respondent FSI, and followed up with an e-
mail to Price suggesting a meeting for the following day, Janu-
ary 31, to discuss negotiations. By responsive email, Price
declined to meet with Mallory as he had two other meetings
and did not feel well. Later that same day, the Union, in its
asserted capacity as the 9(a) bargaining representative of Re-
spondent FSI’s employees, by certified mail and facsimile
transmission, proposed bargaining dates with Respondent FSI.
By letter to Price dated February 16, the Union repeated its
request for negotiations. By letter dated February 16, Respon-
dent FSI insisted that its only relationship with the union was
under 8(f) of the Act, which relationship ended upon the Janu-
ary 31 expiration of the master agreement. Ensuing communi-
cations between the Union and Respondent FSI hewed to the
same respective positions.
Following January 30, Respondent FSI has not engaged in
collective bargaining with the Union but has continued in effect
the terms and conditions of its unit employees’ employment,
including paying into the Union trust funds. On February 2, the
District Council filed unfair labor practice charges against Re-
spondent FSI. Neither the Union nor Respondent FSI pursued a
grievance concerning the dispute.
C. The Union’s Card Checks of the Unit Employees
of Each of the Non-FSI Respondents
By letter dated December 13, 2006, Gregory Smith (Smith),
counsel for the non-FSI Respondents, notified Jack Mallory
(Mallory) business representative of Local #159 that each of the
non-FSI Respondents intended to terminate the Master Agree-
ment on January 31, the contractual termination date. Smith
offered to bargain on behalf of the non-FSI Respondents over
the terms of an agreement to succeed the Master Agreement.
Thereafter, the non-FSI Respondents met in contract negotia-
tions with Local #159 on January 8, 16, 23, 29, and 30 without
reaching agreement and agreed to meet on January 31 at Local
#159’s offices in Henderson, Nevada.

8 The joint stipulation of facts inadvertently states the period as De-
cember 1 and 23, 2007.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 616
On January 31, at 2:45 p.m., the following individuals, inter
alios, met in Local #159’s conference room: John Smirk
(Smirk), business manager and secretary-treasurer of the dis-
trict council; Smith on behalf of the non-FSI Respondents,
Jamie Picini of Respondent Picini, Frank Kopcha of Respon-
dent Custom, and Ken Freeman of Respondent Freeman’s (the
card check meeting).9 Witnesses to the meeting supplied fun-
damentally consistent accounts of what was said. The follow-
ing account is an amalgam of credible testimony: Smirk an-
nounced, essentially, that pursuant to article 4 the Union
wanted to convert its 8(f) relationship with each of the non-FSI
Respondents to a 9(a) relationship by means of card checks to
be conducted that day by an available third party from a local
church against the non-FSI Respondents’ December 2006 trust
fund remittance reports (the December remittance reports),
which covered the period between late November through De-
cember 26, 2006.10 Smith objected on grounds that the De-
cember remittance reports were not current lists of employees,
that the non-FSI Respondents had not been given an opportu-
nity to participate in the selection of the third party, and that it
was unethical for the Union to pursue such a course of action at
the eleventh hour.11 After 10–15 minutes of heated discussion,
Smith and representatives of the non-FSI Respondents signified
their intention of leaving the card check meeting. Smirk said
the Union was going to continue with the card check in their
absence and certify the employee units. Smith and his clients
walked out of the card check meeting.
After the non-FSI Respondents left the card check meeting,
Maria Castillo Couch (Couch), of whom no further evidence
was provided, conducted a card check of the non-FSI Respon-
dents’ unit employees by comparing the signatures of union
authorization cards to the names of employees listed on the
non-FSI Respondents’ respective December remittance reports.
The card check demonstrated that the Union had obtained au-
thorization cards from a majority of each of the non-FSI Re-
spondents’ employees so listed, and Couch prepared a card
check certification for each of the non-FSI Respondents’ em-
ployee units.12
On January 31 following the card check meeting, by facsim-
ile transmission and certified mail, the District Council wrote to
Smith, suggesting prospective bargaining dates and sites and

9 Smith conducted similar bargaining with the Union on behalf of
four other companies, some representatives of which were also present
at this meeting. Details regarding those companies are immaterial to
this matter.
10 Remittance reports were not due until the 20th of each month and
not delinquent until the 30th; the December 2006 report was the most
recent available to the Union.
11 On January 31, each of the non-FSI Respondents had payroll re-
cords and signature exemplars covering unit employees available at
their offices and had access to FAX machines. The Union did not
request any such documents, and neither Smith nor his clients proffered
any.
12 The Union did not transmit the certification to any of the non-FSI
Respondents because, according to Smirk, “I think that it was assumed
that we had established Sec. 9(a), and we proceeded as if we had. And
[the non-FSI Respondents] had refused to participate in the process,
and I assumed that we would be here at some time, so if [they] wanted
it, [they] could have requested it.”
stating:

We are disappointed in your decision to not continue negotia-
tions today. The Union continued with the process of having
a third party certify that the Union is in fact the 9(a) collective
bargaining representative of the employees of your clients.13

Later the same day, by telecopy and letter dated January 31,
Smith wrote to the Union, summarizing the earlier events in
pertinent part, as follows:

[At the card check meeting], I informed you that we were not
prepared for a card check, that there had never been any dis-
cussion in our prior meeting about a card check, and that we
had not agreed to any third-party to perform the card
check. . . . You claimed that the person you selected was a
“third-party” because he was from a local church but, of
course, we had no way of verifying the truth of what you said
or whether this individual, even if from a local church, was in
fact unbiased.

I also stated that you did not have a current list of employees
of each employer. You stated you had trust fund remittance
reports but the most recent report you could possibly have
would have been for the month of December 2006 . . . those
reports are not a current listing of employees who would be
eligible to participate in the card check. Such a list should be
a current list as of today, or at lest within the last day or two.

. . . .

My clients could not condone your unilateral attempt [to do a
card check]. Accordingly, we left.

On February 1, the District Council filed unfair labor prac-
tice charges against each of the non-FSI Respondents. Neither
the Union nor any of the non-FSI Respondents pursued a griev-
ance concerning the dispute. The non-FSI Respondents and the
Union met in collective-bargaining for a successor agreement
on February 1, 2, 13, 22, 27, March 5, and April 17 but did not
discuss the card checks or certifications.
Based on later-provided payroll reports for each of the non-
FSI Respondents, the authorization card results as compared to
names of employees employed as of January 31 were as fol-
lows:

Respondent Custom: 24 of 41
Respondent FCS: 12 of 20
Respondent Freeman’s: 19 of 30
Respondent Picini: 43 of 48
V. DISCUSSION
A. Legal Principles
Section 8(f) permits unions and employers in the construc-
tion industry to enter into collective-bargaining agreements
without the union having to establish that it has the support of a
majority of the employees in the covered unit.14 Section 8(f)

13 Although the letter inadvertently courtesy-copied clients of Smith
other than the non-FSI Respondents, the Union did not claim certifica-
tion of representative for clients other than the non-FSI Respondents.
14 Sec. 8(f) of the Act provides, in pertinent part:
J. PICINI FLOORING 617
creates an exception to Section 9(a)’s general rule requiring an
employee showing of majority support for the union.15 An 8(f)
collective-bargaining agreement is enforceable throughout its
term,16 and an employer violates Section 8(a)(5) and (1) of the
Act by failing to adhere to, or by repudiating an 8(f) agreement
during its term.17
While an 8(f) relationship between an employer and a union
may be terminated by either party upon the expiration of their
collective-bargaining agreement,18 a 9(a) relationship (and the
concomitant obligation to bargain) continues after contract
expiration, unless and until the union is shown to have lost
majority support.19 Unlike a 9(a) contract, an 8(f) contract does
not bar a representation petition under Section 9.20
An 8(f) representative may achieve 9(a) status either through
a Section 9 certification proceeding or “from voluntary recogni-
tion . . . where that recognition is based on a clear showing of
majority support among the unit employees, e.g., a valid card
majority.”21 A 9(a) relationship is established where “(1) the
union requested recognition as the majority or 9(a) representa-
tive of the unit employees; (2) the employer recognized the
union as the majority or 9(a) bargaining representative; and (3)
the employer's recognition was based on the union’s having
shown, or having offered to show, evidence of its majority
support.”22 In order to establish voluntary recognition, there
must be evidence that “the union unequivocally demanded
recognition as the employees’ 9(a) representative” and that “the
employer unequivocally accepted it as such.”23 The Board has
signified approval of recognitional agreements that provide a
method for determining majority status.24

It shall not be an unfair labor practice under subsecs. (a) and (b) of this
section for an employer engaged primarily in the building and con-
struction industry to make an agreement covering employees engaged
(or who, upon their employment, will be engaged) in the building and
construction industry with a labor organization of which building and
construction employees are members . . . because (1) the majority
status of such labor organization has not been established under the
provisions of [Sec.] 9 prior to the making of such agreement.
15 Sec. 9(a) states, in pertinent part:
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 em-
ployees in such unit for the purposes of collective bargaining in re-
spect to rates of pay, wages, hours of employment, or other conditions
of employment.
16 John Deklewa & Sons, 282 NLRB 1375 fn. 62 (1987), enfd. sub
nom. Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988).
17 Horizon Group of New England, 347 NLRB 795, 807 (2006); see
also Madison Industries, 349 NLRB 1306 (2007). The same principles
apply to a supplemental agreement in which an employer consents to be
bound to a master agreement. Cedar Valley Corp., 302 NLRB 823, 830
(1991).
18 Deklewa, supra at 1386–1387.
19 Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001).
20 Deklewa, supra at 1387.
21 Deklewa, supra at 1387 fn. 53.
22 Staunton Fuel & Material, 335 NLRB 717, 720 (2001).
23 J & R Tile, 291 NLRB 1034, 1036 (1988).
24 See Goodless Electric Co., 321 NLRB 64 (1996), rev. and re-
manded 124 F.3d 322 (1st Cir. 1997), reaffd. 332 NLRB 1035 (2000),
For voluntary recognition, the majority showing need not
adhere to formal standards. See Saylor’s, Inc., 338 NLRB 330
(2002), (9(a) relationship established by contract provision
stating the employer recognized the union as the 9(a) represen-
tative based on the union’s having shown evidence of majority
support); Hayman Electric, Inc., 314 NLRB 879 (1994) (au-
thorization cards of employees whose names appeared on the
union’s manning board for the contractor shown to employer);
Island Construction, 135 NLRB 13 (1962) (employer’s volun-
tary recognition based on authorization-card majority checked
against payroll list);25 but see J & R Tile, supra at 1037 (evi-
dence that a successor employer’s contract provided for health,
welfare, and pension benefits and that the predecessor em-
ployer's president must have known his employees were union
members “insufficient to establish that the contract . . . was
entered into pursuant to Section 9(a) of the Act”).
The Board has placed the burden of proving that a construc-
tion-industry relationship falls under 9(a) rather than under 8(f)
on the party making that assertion.26 The Board’s general in-
tent is to “apply existing eligibility and election rules to the
extent feasible.”27
In Board-conducted representation elections among the em-
ployees of employers engaged in the building and construction
industry, the construction industry employee eligibility formula
applies.28 The Daniel/Steiny eligibility formula applies to the
voting eligibility of all employees in the construction industry
unless the involved parties stipulate not to use it. Signet Test-
ing Laboratories, 330 NLRB 1 (1999). The Board has also
utilized the Daniel/Steiny eligibility formula in card-majority
Gissel29 cases. See Michael’s Painting, Inc., 337 NLRB 860,
861 fn. 7 (2002).
B. Positions of the Parties
The Complaint alleges that Respondent FSI and each of the
non-FSI Respondents violated Section 8(a)(1) and (5) of the
Act by failing and refusing to honor the results of third party
card checks conducted by the Union on January 30 and 31,
respectively, and by thereafter refusing to recognize the Union
as the 9(a) exclusive collective-bargaining representative of

again rev. and remanded 285 F.3d 102 (2002), complaint dismissed 337
NLRB 1259 (2002); Hovey Electric, Inc., 328 NLRB 273 (1999).
25 Cited in Deklewa, supra at fn. 53.
26 Donaldson Traditional Interiors, 345 NLRB 1298 (2005); Dek-
lewa, supra at 1385 fn. 41; see also Madison Industries, supra, slip op.
at 4.
27 Deklewa, supra at fn. 42.
28 Daniel Construction Co., 133 NLRB 264 (1961), modified 167
NLRB 1078 (1967), reaffirmed and further modified in Steiny & Co.,
308 NLRB 1323 (1992), provides that in addition to unit employees
employed during the payroll period immediately preceding the date of
the issuance of a Regional Director’s notice of election, all employees
in the unit who have been employed for a total of 30 days or more
within the period of 12 months, or who have had some employment in
that period and who have been employed 45 days or more within the 24
months immediately preceding the eligibility date for the election, and
who have not been terminated for cause or quit voluntarily prior to the
completion of the last job for which they were employed, are eligible to
vote.
29 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 618
their respective employees.
The General Counsel’s position is that by agreeing to article
4, Respondent FSI and the non-FSI Respondents each assumed
an express obligation to submit to the Union’s demand for Sec-
tion 9(a) card check recognition, and, upon demonstration of
majority status, to recognize the Union as the Section 9(a) rep-
resentative of their respective unit employees. The General
Counsel argues (1) that article 4 validly waived the Respon-
dents’ rights to insist on a Board-conducted election, (2) that
following the card check performed in their absences, the Re-
spondents had no good-faith doubt of the Union’s majority
status, and (3) that each of the Respondents deliberately and
unlawfully undermined the contractually mandated recognition
procedures.
The Charging Party argues that article 4 expressly provides
that the Respondents recognize the Union as the Section 9(a)
majority representative of their respective employees upon
either the Union’s achieving majority status or upon a demand
by the Union to submit the majority status question to a third
party card check. The Charging Party contends that when Re-
spondent FSI and the non-FSI Respondents declined to partici-
pate in the Union’s majority status demonstrations conducted
on January 30 and 31, respectively, the Respondents unlawfully
repudiated article 4. The Union further argues that as the evi-
dence shows that majorities of the Respondents’ respective
employees authorized the Union to represent them, and as none
of the Respondents have filed grievances over the majority
demonstration procedures utilized by the Union or established
bias on the part of the third-party card checkers, the Respon-
dents must recognize the 9(a) status of the Union pursuant to
the provisions of article 4.
Respondent FSI contends that the Union may not bind it to a
9(a) relationship through a unilateral card check. Moreover,
Respondent FSI contends the card check could not be relied
upon, as it was tainted by the following deficiencies: the Union
unilaterally designated Father Menchaca as the third party card
checker; the card check did not apply the Daniel/Steiny eligibil-
ity formula; the card checker did not compare signatures; and
some authorization cards were inappropriately counted for
more than one employer.
The non-FSI Respondents argue that the Union has not es-
tablished 9(a) status because (1) the Union never made an un-
equivocal demand for recognition; (2) the non-FSI Respondents
never unequivocally granted 9(a) recognition; and (3) the card
check procedure was legally insufficient and lawfully rejected
by the non-FSI Respondents.
No party contends that article 4, which grants the Union an
opportunity to make a demand for 9(a) recognition upon dem-
onstration of majority employee support, is other than a lawful
agreement establishing a method whereby the Union may ob-
tain 9(a) status.
C. The Union’s Demand for 9(a) Recognition
Clearly, the Union demanded 9(a) recognition from each of
the Respondents in the course of announcing and implementing
its January card checks under the aegis of article 4. The ques-
tion is whether, having failed to obtain any Respondent’s ac-
quiescence in its proposed implementation of article 4, the Un-
ion was entitled unilaterally to declare itself the 9(a) representa-
tive of the Respondents’ respective unit employees based upon
the card checks conducted on January 30 and 31.
Pursuant to article 4, the Respondents agreed that “if a ma-
jority of [their respective] employees authorize[d] the Union to
represent them in collective bargaining, the Employer [would]
recognize the Union as the NLRA 9(a) majority collective bar-
gaining agent for [their respective unit] employees.” The Re-
spondents further agreed to submit, upon demand by the Union,
to a third party card check to determine the majority status of
the Union. Article 4 was silent as to the method of third party
selection and/or the formula by which employee eligibility was
to be determined, reserving resolution of any disputes concern-
ing its terms to expedited arbitration under the terms of the
Master Agreement.
The General Counsel and the Union maintain article 4 re-
quires each of the Respondents to recognize the Union as the
9(a) representative of its respective employees upon majority
employee authorization and allows the Union to demand that
each of the Respondents submit to a third party employee card
check, the results of which would determine whether each Re-
spondent was thereafter bound to a 9(a) relationship with the
Union. I agree that such is a clear and unambiguous reading of
afrticle 4. However, neither the General Counsel nor the
Charging Party has persuasively explained how article 4 man-
dates the Union to devise the procedures by which majority
authorization shall be determined or by which the card check
should be conducted. Further, neither the General Counsel nor
the Charging Party has explained why the Union’s choice of
card-check procedures should trump alternate views of appro-
priate measures, and finally, neither the General Counsel nor
the Charging Party has clarified why, when the parties dis-
agreed on what submitting to “a third party card check” com-
prehended, the grievance/arbitration of the Master Agreement
should not have been applied to.
Counsel for the General Counsel cites the Goodless series of
cases as authority for the validity of the Union’s January 30 and
31 card checks. The contractual clause contained in the Good-
less letter of assent is strikingly similar to Article 4, excepting
Article 4’s provision for a third party card check and dispute
resolution by expedited arbitration. However, the facts and
issues of Goodless are dissimilar. In Goodless, the union repre-
sentative presented the employer with signed authorization
cards from all the employer’s unit employees, which the em-
ployer examined and independently verified.30 The employer
in Goodless never contended the union’s majority status should
have been otherwise demonstrated but attacked the reliability of
the authorization cards, which issue the Board addressed.
Goodless cannot, therefore, constitute authority for the proposi-
tion that article 4 mandated the Union’s formulation of card
check procedures.
Counsel for the General Counsel argues that the Respon-
dents’ refusals to accept the card checks were in bad faith

30 An employer may be bound by the results of card checks it has
performed if the union is led to believe that the purpose of the card
check is for recognition. Research Management Corp., 302 NLRB 627
(1991); Snow & Sons, 134 NLRB 709 (1961).
J. PICINI FLOORING 619
based, primarily, on her inference that “the Respondents had
absolutely no reason to doubt the Union’s majority status.”
Counsel for the General Counsel also argues that the Respon-
dents’ objections to the card check were afterthoughts, thereby
demonstrating bad faith. It is true that prior to January 30 Re-
spondent FSI voiced no objection to the Union’s proposed card
check procedures. Rather, Respondent FSI consistently iterated
its intention to terminate its agreement with the Union upon its
January 31 expiration and dodged the Union’s attempts to meet
during the last two weeks of the contract term, thereafter insist-
ing that “an election was the fairest and the only way to deter-
mine [what] the employees wanted.”31 Respondent FSI’s posi-
tion that only an election could appropriately determine its
employees’ representational wishes may be ultimately unavail-
ing, but neither a weak argument nor an avoidance of the pro-
posed card check proves union animus.32 As for the non-FSI
Respondents, on January 31 when the Union effected its third
party card checks of their respective employees, two areas of
controversy—the identity of the third party and the employee
eligibility formula—remained unresolved. Neither of the Re-
spondents’ objections is so frivolous as to show animus. In-
deed, the Union’s proposed employee eligibility formula was a
departure from the norm, inasmuch as, absent a modifying
stipulation, the Daniel/Steiny eligibility formula is the appro-
priate method for determining voting eligibility of employees in
the construction industry. Signet Testing Laboratories, supra.
See also Michael’s Painting, Inc., supra. No other evidence of
animus on the part of the non-FSI Respondents has been ad-
vanced, and the non-FSI Respondents have continued bargain-
ing with the Union as the 8(f) representative of their respective
employees, which is inconsistent with animus.
In the absence of evidence of animus or intent to undermine
the Union, the General Counsel cannot prove bad faith merely
by the Respondents’ refusal to accede to the Union’s proposed
third party card check procedures. Ultimately, the dispute be-
tween each of the Respondents and the Union boils down to a
question of how article 4 should be interpreted. Respondent
FSI and the non-FSI Respondents advocated methods of deter-
mining majority employee authorization that differed from
those proposed by the Union, while the Union insisted on utiliz-
ing the procedures it had devised. The Union’s procedures
were not, as argued by the Respondents, unfair or unreasonable,
but they were not consensual, and nothing in Article 4 put its
imprimatur on any specific procedure. Accordingly, neither the
Respondents’ views nor the Union’s could be accorded contrac-
tual deference. “Where . . . the dispute is solely one of contract
interpretation, and there is no evidence of animus, bad faith, or
an intent to undermine the Union, [the Board] will not seek to
determine which of two equally plausible contract interpreta-
tions is correct.” Atwood & Morrill Co., 289 NLRB 794, 795
(1988).

31 Since January 30, Respondent FSI has also argued that deficien-
cies in the Union’s January 30 card check rendered the results unreli-
able.
32 Following the expiration of the Master Agreement, Respondent
FSI has continued in effect all its terms and conditions, including union
trust fund contributions, which is inconsistent with animus.
Pursuant to the language of Article 4, when the Respondents
opposed the Union’s self-devised third party card check, the
Union’s appropriate recourse was not to implement what
amounted to a default card check, reasonable and fair though its
effectuation may have been, but to address the disagreement
through the grievance procedure. No party availed itself of the
grievance and arbitration procedure in the Master Agreement
regarding the third party card checks conducted on January 30
and January 31, respectively,33 and no expedited arbitration was
conducted. Until disagreements over the manner of determin-
ing majority status were settled, either by mutual accord or by
recourse to contractual dispute resolution, the Union was not
entitled to declare the card check valid and binding.34
The Charging Party argues that by refusing to participate in
the January card checks, the Respondents repudiated Article 4
and, concomitantly, their respective collective-bargaining rela-
tionships with the Union.35 The complaint fails to allege such
conduct as unlawful, limiting allegations of illegality to the
Respondents’ refusals to honor the results of the third party
card check. While the Board may find and remedy a violation
of the Act even in the absence of a specific complaint allega-
tion, the issue must be closely connected to the subject matter
of the complaint and have been fully and fairly litigated. Park
N Fly, Inc., 349 NLRB 132 (2007); Gallup, Inc., 334 NLRB
366 (2001); Pergament United Sales, 296 NLRB 333, 334
(1989). Here, neither the narrow complaint allegations nor the
General Counsel’s presentation of evidence put the Respon-
dents on notice that contract repudiation was at issue. Accord-
ingly, I do not address the question. See International Baking
Co. & Earthgrains, 348 NLRB 1133 (2006); Dilling Mechani-
cal Contractors, 348 NLRB 98, 107–108 (2006).36

33 In its January 25 letter to Respondent FSI, the Union referred to
Respondent FSI’s asserted refusal to comply with Article 4 as a “griev-
ance,” but there is no evidence the Union implemented the contractual
grievance procedure.
34 The Charging Party argues that the Respondents were obliged to
seek dispute resolution under the terms of Article 4 if they opposed the
Union’s card check procedures, but the Board has placed the burden of
proving that a construction-industry relationship falls under Section
9(a) rather than under 8(f) on the party making that assertion. There-
fore, while either the Respondents or the Union could have turned to
the grievance procedure, the Charging Party may not fault the Respon-
dents for not having done so.
35 Counsel for the General Counsel makes a similar, though limited,
argument in her post-hearing brief, asserting that each of the Respon-
dents deliberately and unlawfully undermined the contractually man-
dated recognition procedures.
36 I also find it unnecessary to address Respondent FSI’s argument,
in the circumstances of this case, that Article 4 does not survive the
expiration of the Master Agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 620
In the absence of majority employee authorization achieved
under the terms of Article 4, the Respondents were not obli-
gated to recognize the Union as the exclusive 9(a) collective-
bargaining representative of their respective employee units.
Accordingly none of the Respondents violated the Act by fail-
ing and refusing to honor the results of the third party card
checks conducted by the Union on January 30 and 31, respec-
tively, and none of the Respondents violated the Act by thereaf-
ter failing and refusing to recognize the Union as the exclusive
9(a) collective-bargaining representative of their respective unit
employees.
[Recommended Order omitted from publication.]