Garner/Morrison, LLC

National Labor Relations Board - Board Decisions

Aug 27, 2018

366 NLRB No. 184 (N.L.R.B. 2018)

366 NLRB No. 184
NOTICE: This opinion is subject to formal revision before publication in the bound
volumes of NLRB decisions. Readers are requested to notify the Executive Sec-
retary, National Labor Relations Board, Washington, D.C. 20570, of any ty-
pographical or other formal errors so that corrections can be included in the
bound volumes.
Garner/Morrison, LLC and International Union of
Painters and Allied Trades, District Council #15,
Local Union #86, AFL–CIO–CLC and South-
west Regional Council of Carpenters. Cases 28–
CA–021311 and 28–CB–006585
August 27, 2018
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS PEARCE
AND EMANUEL
The issue presented in this case, on remand from the
United States Court of Appeals for the District of Co-
lumbia Circuit, is whether it is distinguishable from
Coamo Knitting Mills, 150 NLRB 579 (1964), in which
the Board dismissed allegations that the presence of
management personnel at a meeting where employees
signed authorization cards violated Section 8(a)(1) and
(2) of the Act. The court, in remanding this case, held
that the “Board evaluated nearly identical conduct and
the same legal questions here and in Coamo” and de-
clared that the “only material difference was the result.”
NLRB v. Southwest Regional Council of Carpenters and
Garner/Morrison LLC, 826 F.3d 460, 466 (D.C. Cir.
2016). For the reasons that follow, we agree with the
court that the instant case is not materially distinguisha-
ble from Coamo, to which we adhere, and thus that dis-
missal of the allegations here is warranted.
On May 27, 2011, the National Labor Relations Board
issued a Decision and Order in this proceeding,1 finding
that the presence of Respondent Garner/Morrison’s rep-
resentatives at a meeting where Respondent Southwest
Regional Council of Carpenters (Carpenters) distributed
authorization cards to Garner/Morrison’s employees con-
stituted unlawful surveillance and assistance tainting the
Carpenters’ showing of majority support based on those
cards. The Board therefore found that Garner/Morrison
violated Section 8(a)(1) of the National Labor Relations
Act by surveilling its employees and Section 8(a)(2) by
assisting the Carpenters in obtaining authorization cards
and granting 9(a) recognition to the Carpenters based on
those cards. The Board further found that the Carpenters
violated Section 8(b)(1)(A) of the Act by accepting the
assistance and recognition and entering into a new col-
lective-bargaining agreement with Garner/Morrison. The
Respondents filed a motion for reconsideration of the
Board’s decision, arguing that Coamo Knitting Mills

1 Garner/Morrison, LLC, 356 NLRB 1301 (2011), affirming in part
353 NLRB 719 (2009).
required a contrary result. By unpublished Order dated
August 18, 2011, the Board denied the motion.
The Respondents each filed a petition for review in the
United States Court of Appeals for the District of Co-
lumbia Circuit, and the General Counsel filed a cross-
application for enforcement. On June 21, 2016, the court
granted the petitions for review and remanded this pro-
ceeding to the Board. The court held that it could not
reconcile the Board’s decision in this case with Coamo,
which presented both “similar facts” and “mirror” image
“legal issues,” and that the Board had presented no ade-
quate justification for distinguishing Coamo. 826 F.3d at
465. The court remanded this case to the Board to dis-
tinguish Coamo or explain its departure from established
precedent. On September 13, 2016, the Board notified
the parties that it had accepted the court’s remand and
invited them to file statements of position with respect to
the issues raised by the remand. The Respondents filed
statements of position.2
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the record in light of the
court’s remand. Because Coamo is not materially distin-
guishable from this case, we reverse our prior decision
and dismiss the complaint.
Facts
Garner/Morrison is an employer in the construction in-
dustry. In December 2003, Garner/Morrison entered into
a collective-bargaining agreement with the Carpenters,
recognizing it as the bargaining representative of its car-
penters as well as its painters and tapers unless they were
covered by an agreement with the Painters Union. Gar-
ner/Morrison and the Carpenters entered into a similar
successor agreement in 2006. In 2004, Garner/Morrison
executed two Section 8(f) collective-bargaining agree-
ments with the International Union of Painters and Allied
Trades, District Council #15, Local Union #86, AFL–
CIO–CLC (Painters), one covering painters and the other
covering tapers. Both agreements expired on March 31,
2007.
Garner/Morrison’s principals separately met with rep-
resentatives of the Painters and the Carpenters to deter-
mine representation for Garner/Morrison’s painters and
tapers upon the March 31 expiration of the 8(f) agree-
ments with the Painters. Garner/Morrison was unhappy
with the wage increases sought by the Painters in these
discussions. Accordingly, Garner/Morrison informed the
Carpenters that it was not entering into a successor
agreement with the Painters covering painters and tapers.

2 The General Counsel did not file a statement of position.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
In response, the Carpenters assured Garner/Morrison
that its painters and tapers would automatically be cov-
ered pursuant to their 2006 contract when the Painters’
agreements expired, and that the painters and tapers
would be eligible for immediate coverage under the Car-
penters’ health insurance plan.
The Carpenters scheduled a meeting on April 2 with
the painters and tapers to explain the Carpenters’ contract
and benefits and ensure continued health insurance cov-
erage.3 The Carpenters selected the time and place for
the meeting and paid for the hotel conference room in
which it was held. Garner/Morrison did not require its
painters and tapers to attend the meeting, which was held
on nonworking time. Garner/Morrison part-owner Chris
Morrison informed the employees in brief remarks that
the Painters’ agreements had expired and that “he
thought the Carpenters was better for the Company and
for the men,” “[t]his is probably the way we want to go,”
and “we think it is a good deal.” The Carpenters’ offi-
cials then gave the employees an hour-long power point
presentation about their contract, wages, and benefit
plans. At its conclusion, the Carpenters directed the em-
ployees to the back of the room, where representatives of
the Carpenters’ health insurance and pension funds pro-
vided them brochures, medical and dental enrollment
forms, beneficiary cards, and HIPAA authorization
forms. At the same time, Carpenters’ representatives
went to the back of the room and distributed union au-
thorization cards.
While this was occurring, Garner/Morrison’s three
owners and one supervisor remained in the front of the
conference room approximately 60–70 feet away from
the employees and Carpenters’ representatives in the
back of the room. They could not see the documents the
employees were signing, and they did not know the Car-
penters planned to distribute authorization cards at the
meeting. At the conclusion of the meeting, the Carpen-
ters presented Garner/Morrison’s owners with authoriza-
tion cards signed by a majority of the painters and tapers.
Garner/Morrison promptly signed a 9(a) recognition
agreement with the Carpenters.
Analysis
As stated by the court in remanding, “Coamo closely
resembles this case.” 826 F.3d at 465. In Coamo, the
employer’s vice president conducted employee shift
meetings where he praised the union, stated that the un-

3 From Garner/Morrison’s standpoint, the purpose of the meeting
was to explain the Carpenters’ benefit structure and to assure employ-
ees that their coverage would be seamless. Garner/Morrison did not
intend the offsite meeting as an opportunity for the Carpenters to solicit
authorization cards. Indeed, as discussed below, it was entirely una-
ware that the Carpenters would do so.
ion would soon solicit employees to join, and urged the
employees to do so. 150 NLRB at 585. The next day, at
a meeting held on the factory floor at the shift change,
the vice president introduced representatives of the un-
ion, who were then permitted to address the approxi-
mately145–150 assembled employees and to distribute
union authorization cards. Id. at 586. Although the vice
president departed after the introductions, a plant manag-
er remained on the factory floor during the meeting and
while the union distributed the authorization cards. Id.
The trial examiner (now called an administrative law
judge) found that the presence of the plant manager at the
meeting while the union solicited employees to sign au-
thorization cards “necessarily had a coercive effect” on
the employees, and he therefore concluded that the em-
ployer violated Section 8(a)(1) and (2) of the Act. Id. at
589. The Board disagreed. Reversing the judge, the
Board held that “the mere presence” of the plant manager
was insufficient to support a finding that the employees
were coerced in their selection of the union or that the
card majority was tainted. Id. at 581. The Board empha-
sized that the manager stood apart from the employees
where he “could not and did not see any employees sign-
ing the cards,” and that the employer made no attempt to
ascertain which employees attended the meeting. Id. at
581–582.
In its decision remanding, the court compared the key
features of Coamo and the instant case and found no ma-
terial difference other than the outcome. Thus, in both
cases, the union held a meeting for the company’s em-
ployees at which employer representatives made state-
ments in support of the union. In both, employer repre-
sentatives were present while employees were solicited
to sign authorization cards, and the signing of those cards
resulted in majority support for the union. Finally, in
both cases, the employer representatives stood apart from
the employees where they could not see the employees
signing authorization cards. See 826 F.3d at 465. As
discussed above, in Coamo, the Board found that these
circumstances were insufficient to support a finding that
the employees were coerced in their selection of the un-
ion or that the authorization cards were tainted. Absent
any material differences between Coamo and this pro-
ceeding, the same conclusion is warranted in this case.
Our dissenting colleague does not dispute these core
similarities between the two cases, described by the court
as “nearly identical conduct” posing “the same legal
questions.” 826 F.3d at 465. The dissent instead cites
marginal distinctions, which are insufficient to substan-
GARNER MORRISON LLC 3
tively distinguish Coamo.4 For example, the dissent cites
a higher ratio of employer representatives to employees
at the meeting here compared to the one held in Coamo.
In both cases, however, the employer representatives
were not in a position to see what forms employees were
signing. The employees in this case therefore had no
more reason than the employees in Coamo to reasonably
fear that their employer was monitoring whether they
executed, or refused to execute, authorization cards. The
dissent also compares the grant of recognition in each
case, at the conclusion of the meeting here but 2 days
after the meeting in Coamo. There is no prescribed wait-
ing period for recognition upon presentation of authori-
zation cards, however,5 and the Coamo decision ascribes
no significance to this temporal factor. Nor did the
Coamo decision find any significance in which party—
union or employer—initiated contact, as does the dis-
sent.6 Finally, while our colleague points out that Gar-
ner/Morrison and the Carpenters were aware of rival un-
ion activity and the employer in Coamo was not, he does
not assert that this resulted in meaningfully distinguisha-
ble conduct. In fact, it was the employer in Coamo that
provided physical assistance (meeting space on the facto-
ry floor) to the union, unlike Garner/Morrison, which did
not take such measures in favor of the Carpenters despite
its knowledge of union rivalry.7 The knowledge of rival
union activity here thus did not result in more deleterious
conduct by Garner/Morrison than by the employer in
Coamo. The key parallel question in each case remains
whether the presence of management at a union meeting
where employees signed authorization cards is unlawful.
Moreover, our dissenting colleague overlooks that the
meeting in this case occurred after Garner/Morrison law-
fully ended its 8(f) relationship with the Painters cover-
ing painters and tapers and entered into an 8(f) relation-

4 The dissent’s assertion that Coamo is of “doubtful precedential
value” is unsupported.
5 See Tecumseh Corrugated Box Co., 333 NLRB 1, 8 (2001) (Board
law does not prohibit employer from granting recognition immediately
based on authorization cards gathered at workplace meeting).
6 Of course, contact from Garner/Morrison to the Carpenters is
hardly surprising as they were parties to a collective-bargaining agree-
ment, and Garner/Morrison was considering its options at the conclu-
sion of its 8(f) agreement with the Painters.
7 Indeed, the dissent ignores that the facts in Coamo provide strong-
er evidence of coercion and assistance than do the facts in this case. As
noted, in Coamo, the vice president informed the employees that the
union would soon solicit them to join, he encouraged them to do so,
and, the next day, he permitted the union to meet with the employees
on company property for the specific purpose of soliciting authorization
cards upon which the employer intended to grant 9(a) recognition to the
union. In contrast, Garner/Morrison’s officials did not even know that
the Carpenters planned to distribute authorization cards at the April 2
meeting, which was not held on company property.
ship with the Carpenters as to those employees.8 In this
context, the presence of Garner/Morrison’s executives at
the April 2 meeting was not coercive. As noted, the pur-
pose of meeting was to announce the change in repre-
sentative, to inform the employees about their new con-
tract, and to enroll the employees in the Carpenters’ ben-
efit plans. As the administrative law judge properly ob-
served, it is not coercive for an employer in the construc-
tion industry to inform employees that it has ended its
8(f) relationship with one union and entered into an 8(f)
relationship with another union, or to describe the bene-
fits it has negotiated with the second union, or to inform
employees how to obtain those benefits. See 356 NLRB
at 1315–1316. Nor is it unlawful for an employer in a
rival union organizing situation to express a preference
for one union in the absence as here of threats or un-
lawful promises. See Amboy Care Center, 322 NLRB
207, 207–208 (1996).
In sum, while the presence of employer representatives
at a meeting where authorization cards are distributed
might, under different circumstances, constitute unlawful
surveillance, interference, or assistance in violation of
Section 8(a)(1) and (2) of the Act, and lead to unlawful
acceptance of assistance in violation of Section

8 We agree with the Respondents that they had a valid 8(f) agree-
ment as of April 1, the day before the meeting. The credited testimony
of Carpenters’ contract administrator Hubel and Garner/Morrison part-
owner Chris Morrison establishes that the Respondents orally agreed,
prior to the expiration of the Garner/Morrison-Painters’ 8(f) agreement
on March 31, 2007, to apply the 2006 Master Agreement to the painters
and tapers upon the expiration of those 8(f) agreements. Hubel testified
that shortly before the Painters’ agreements expired, Morrison informed
him that Garner/Morrison was not going to renew its agreements with
the Painters, and Hubel responded, “Fine, [the Carpenters] would like
to represent your drywall finishers [i.e., painters and tapers].” Morrison
then asked “what they had to do,” and Hubel answered: “You don’t
have to do anything. As long as you don’t sign a new contract or an
extension [with the Painters], our contract kicks in, and then they will
be covered by the Carpenters agreement.” Hubel further testified that
the painters and tapers were covered by the 2006 Master Agreement as
of April 1. Morrison similarly testified Garner/Morrison was “actively
seeking for the Carpenters to be the representative of our tapers and
painters” and that he set up a meeting with the Carpenters during the
week ending March 31 to accomplish that and to discuss whether the
employees would experience a lapse in benefit coverage when the
Carpenters agreement “rolled” in. We find that, by orally agreeing to
apply the 2006 Carpenters Master Agreement to the painters and tapers
upon the expiration of the Painters’ agreements at a time when the
Carpenters had not established majority status among those employees,
the Respondents entered into a valid 8(f) collective-bargaining agree-
ment that was effective on April 1. See E.S.P. Concrete Pumping, 327
NLRB 711, 713 (1999) (“reaffirm[ing] in the 8(f) context the Board’s
longstanding rule that an employer and a union may enter into a collec-
tive-bargaining agreement without having reduced to writing their
intent to be bound”); Local Union 530 (Cape Construction Co.), 178
NLRB 162, 164 (1969) (affirming judge’s finding that construction
industry employer entered into a lawful 8(f) agreement by orally agree-
ing to be bound).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
8(b)(1)(A) of the Act, the record as a whole does not
support a finding of illegality in the instant case. The
Board in Coamo found lawful conduct that is materially
indistinguishable from that of the Respondents here. Ac-
cordingly, we find that Garner/Morrison did not engage
in unlawful surveillance in violation of Section 8(a)(1) of
the Act, and we shall dismiss that allegation. We further
find that the authorization cards were not tainted, and
therefore the Carpenters represented an uncoerced major-
ity of the employees on April 2, when Garner/Morrison
extended 9(a) recognition to the Carpenters and the Re-
spondents entered into a new memorandum agreement.
We therefore dismiss the 8(a)(2) and 8(b)(1)(A) allega-
tions as well.
ORDER
The complaint is dismissed.
Dated, Washington, D.C. August 27, 2018
______________________________________
John F. Ring, Chairman
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONSBOARD
MEMBER PEARCE, dissenting.
I would affirm the Board’s prior Decision and Order,1
in which the Board found that the presence of Respond-
ent Garner/Morrison’s representatives at a meeting while
Respondent Southwest Regional Council of Carpenters
(Carpenters) solicited Garner/Morrison’s employees to
sign authorization cards constituted unlawful surveil-
lance and assistance and tainted the Carpenter’s showing
of majority support based on those cards.
Contrary to the majority, I find unpersuasive the Re-
spondents’ reliance on a Board decision, over 50 years
old, declining to find unlawful assistance and coercion in
circumstances that were, in some respects, similar to
those presented here. See Coamo Knitting Mills, Inc.,
150 NLRB 579 (1964). In my view, Coamo is of doubt-
ful precedential value in light of the Board’s subsequent
decisions defining what constitutes unlawful coercion
and assistance. In any event, Coamo is readily distin-
guishable on its facts. Therefore, I find it is not control-
ling.

1 Garner/Morrison, LLC, 356 NLRB 1301 (2011), affirming in part
353 NLRB 719 (2009).
The Board has long recognized that the test of interfer-
ence, restraint and coercion under Section 8(a)(1) is an
objective one that turns on whether the conduct has a
reasonable tendency to interfere with the free exercise of
rights under the Act. See, e.g., CWI of Maryland, Inc.,
321 NLRB 698, 706 (1996) (“It is too well settled to
brook dispute that the test of interference, restraint and
coercion under Section 8(a)(1) of the Act does not de-
pend on an employer’s motive nor on the successful ef-
fect of the coercion. Rather, the illegality of an employ-
er’s conduct is determined by whether the conduct may
reasonably be said to have a tendency to interfere with
the free exercise of employee rights under the Act.”),
enfd. in relevant part 127 F.3d 319 (4th Cir. 1997).
Similarly, in order to establish a violation of Section
8(a)(2), it is not necessary to demonstrate a specific mo-
tive to interfere with employees’ selection of a bargain-
ing representative, or that the employees actually felt
coerced by the employer’s actions.2 The gravamen of an
unlawful assistance violation is the tendency of the em-
ployer’s assistance to coerce employees in the exercise of
their organizational rights. The Board considers the to-
tality of the circumstances, and the circumstances must
be viewed from the employees’ prospective, and not, as
in Coamo, from the prospective of the employer.3
Applying these principles to the facts of this case, I
find that the presence of Garner/Morrison’s executives at
a meeting where the Carpenters solicited employees to
sign authorization cards constituted unlawful surveil-
lance and reasonably tended to interfere with the em-
ployees’ freedom of choice in selecting or rejecting the
Carpenters as their collective-bargaining representative.
Briefly, the facts are as follows. Garner-Morrison is a
construction industry employer engaged in drywall in-
stallation and tenant improvement work in office build-
ings and at commercial construction sites. In 2004, Gar-
ner/Morrison entered into two 8(f) collective-bargaining

2 International Ladies’ Garment Workers’ Union (Bernhard Alt-
mann) v. NLRB, 366 U.S. 731, 739 (1961) (“The act made unlawful by
[Sec.] 8(a)(2) is employer support of a minority union. . . . . More need
not be shown, for, even if mistakenly, the employees’ rights have been
invaded. It follows that prohibited conduct cannot be excused by a
showing of good faith.”).
3 NLRB v. Link-Belt Co., 311 U.S. 584, 588 (1941) (“It would in-
deed be a rare case where the finders of fact could probe the precise
factors of motivation which underlay each employee’s choice.”). See
also Farmers Energy Corp., 266 NLRB 722, 722 (1983) (“In assessing
the impact of a respondent's assistance to a union, the Board examines
the totality of circumstances to determine whether the respondent’s
conduct tainted the union’s majority status.”). Cf. The Boeing Co.,
365NLRB No. 154, slip op. at 16 fn. 82 (2017) (“This emphasis on the
employees’ perspective furthers the Act’s policy of industrial peace.”)
quoting Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 43
(1987).
GARNER MORRISON LLC 5
agreements with the International Union of Painters and
Allied Trades, District Council #15, Local Union #86,
AFL–CIO–CLC (Painters), one covering painters and the
other covering tapers. Both agreements bore a March 31,
2007 expiration date. In early 2007, while the parties
were engaged in negotiations for successor collective-
bargaining agreements, the Painters informed Gar-
ner/Morrison that it had obtained an authorization card
majority and was seeking voluntary recognition as the
9(a) representative of Garner/Morrison’s painters and
tapers.4 In response, Garner/Morrison immediately em-
barked on a course of conduct designed to insure that its
painters and tapers would be represented by the Carpen-
ters rather than the Painters.5 First, Garner/Morrison
contacted the Carpenters and agreed to extend the 2006
Carpenters’ Master Agreement to cover the painters and
tapers upon the expiration of the Painters’ agreements.
Then, Garner/Morrison instructed the Carpenters to ar-
range a meeting with the painters and tapers to announce
the change in representative, and Garner/Morrison sum-
moned its employees to the meeting, telling them that it
was important that they attend because it affected their
health insurance benefits. The meeting was held on
Monday, April 2, in a hotel conference room. Twenty-
three of Garner/Morrison’s 25 painters and tapers attend-
ed, along with 15 to 16 Carpenters representatives, 3
Carpenters health insurance representatives, and 4 Gar-
ner/Morrison officials (the 3 owners and 1 superinten-
dent). When the employees arrived, Garner/Morrison
part-owner Chris Morrison advised them that the Paint-
ers’ agreements had expired and that the “Carpenters was
better for the Company and for the men,” “[t]his is prob-
ably the way we want to go,” and “we think it is a good
deal.” The four Garner/Morrison top executives then
remained in the room while the Carpenters described the
benefits of membership and solicited employees to sign
authorization cards. Garner/Morrison then immediately
recognized the Carpenters as the 9(a) representative of
the painters and tapers based on authorization cards ob-
tained at the meeting and, the same day, entered into a
memorandum agreement binding it to the terms of the
Carpenters’ 2006 Master Agreement and any subsequent
master agreements until June 30, 2010.

4 All dates are in 2007, unless otherwise indicated.
5 Garner/Morrison was already party to a memorandum agreement
with the Carpenters that bound the Company to the terms of a 2006
drywall multiemployer master agreement (2006 Master Agreement).
The 2006 Master Agreement expressly covered drywall finishing work,
as well as carpentry and drywall hanging work, but it contained a juris-
dictional waiver pursuant to which the Carpenters agreed not to create a
recognition dispute with any signatory employer that was also signatory
to a collective-bargaining agreement with the Painters covering drywall
finishing work “as long as [the Painters’] contract remains in effect.”
Meanwhile, Garner/Morrison had not notified the
Painters that it would cease recognizing it as the repre-
sentative of its painters and tapers when their collective-
bargaining agreement expired. When Garner/Morrison’s
owners returned to their offices after the April 2 meeting,
they discovered copies of representation petitions that the
Painters had filed with the Regional Office earlier that
day.
Even in the absence of threats or promises of benefits,
the actions of Garner/Morrison in contacting the Carpen-
ters, arranging the April 2 meeting, urging all of its
painters and tapers to attend the “important” meeting,
and jointly conducting the meeting with the Carpenters
constituted unlawful assistance. The painters and tapers,
a majority of whom had recently executed authorization
cards for the Painters, would reasonably understand that
the purpose of the meeting was to insure that they select-
ed the Carpenters instead of the Painters as their collec-
tive-bargaining representative. Indeed, Chris Morrison’s
comments that the “Carpenters was better for the Com-
pany and for the men” and “[t]his is probably the way we
want to go” left no doubt about the reasons they were
there. When the additional fact that Garner/Morrison’s
executives were present while the employees were solic-
ited to sign, and did sign, authorization cards is consid-
ered, the conclusion becomes inescapable that the em-
ployee sentiment as expressed by their signing of author-
ization cards on April 2 was coerced.
Contrary to the Respondents and my colleagues, the
coercive effect of Garner/Morrison’s conduct was not
vitiated by the fact that its executives could not see the
specific documents the employees were signing. As the
Board found in its prior decision “[t]his argument misses
the point.” 356 NLRB at 1305. When Carpenters repre-
sentatives directed the employees to go to the back of the
room, the employees were effectively being asked to
switch their allegiance from the Painters to the Carpen-
ters. Thus, even assuming Garner/Morrison’s executives
could not see the exact documents that were signed, they
could see which employees went to the back of the room,
and their presence in the room while the employees were
solicited to sign and signed the Carpenters’ documents
constituted unlawful surveillance that would reasonably
tend to coerce the employees in the exercise of their or-
ganizational rights. Id.
Coamo, assuming it remains good law, is distinguisha-
ble. In Coamo, one manager remained on the factory
floor during a meeting that was attended by 145–150
employees, and the Board found that the employer made
no effort to determine which of its approximately 170
employees were present. Here, in contrast, 4 of Gar-
ner/Morrison’s highest executives, including 3 owners,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
remained in the room while the Carpenters solicited au-
thorization cards from 23 employees. Even if Gar-
ner/Morrison’s executives could not identify the specific
documents the employees were signing, they could easily
see which of their 25 painting and taping employees at-
tended the meeting, which employees went to the back of
the room, and which employees accepted the documents
provided by the Carpenters. The employees in this case
would therefore have had much greater reason to fear
than the employees in Coamo that their employer was
monitoring whether they executed, or refused to execute,
authorization cards, and they would thus have felt pres-
sured to sign.
Additionally, in Coamo, the union initiated contact
with the employer, and neither was aware of any rival
union activity. 150 NLRB at 582, 584–585. The em-
ployer in Coamo also waited until the next day to recog-
nize the union. Id. at 587. In contrast, in this case, Gar-
ner/Morrison contacted the Carpenters and asked it to
arrange the April 2 meeting shortly after learning that the
Painters had obtained an authorization card majority and
was seeking recognition as the 9(a) representative of the
painters and tapers. Garner/Morrison also immediately
recognized the Carpenters at the April 2 meeting, without
examining the cards or authenticating the signatures.
This “instantaneous” 9(a) recognition of the Carpenters
deprived employees, who reasonably might have felt
pressured by the presence of Garner/Morrison’s execu-
tives to sign authorization cards, of the opportunity to
take subsequent action to either revoke their authoriza-
tion cards or to freely choose whether to be represented
by the Carpenters or the Painters through the Board’s
election procedures.6
My colleagues hold that because Garner/Morrison is
an employer in the construction industry and it had a
preexisting 8(f) agreement with the Carpenters (which
lasted one day April 1), its conduct of arranging and
attending the April 2 meeting did not constitute unlawful
assistance. However, my colleagues’ position is at odds
with the fundamental principles of Section 8(f). As the
Board recognized in Deklewa, although Section 8(f)
permits employers in the construction industry to enter

6 I do not suggest that Garner/Morrison’s instant recognition of the
Carpenters was unlawful in and of itself. However, when viewed with
Garner/Morrison’s other conduct, I find that it contributed to the coer-
cive atmosphere of the April 2 meeting and lends further support to a
finding that Garner/Morrison provided the Carpenters with unlawful
assistance. See Tecumseh Corrugated Box Co., 333 NLRB 1, 8 fn. 22
(2001) (recognizing that although an employer’s hasty recognition of a
union without an independent card check is not “without more” unlaw-
ful, it may contribute to a coercive atmosphere and, in combination
with other factors, give rise to an unlawful assistance violation), citing
Vernitron Electrical Components, Inc., 221 NLRB 464, 465 (1975).
into “pre-hire” agreements without a showing that the
union has majority support, Congress “was mindful of
employee free choice principles” and “sought to assure
that the rights and privileges accorded employers and
unions in . . . Section 8(f) would not operate to thwart or
undermine construction industry employees’ representa-
tional desires.” John Deklewa & Sons, 282 NLRB 1375,
1380–1381 (1987), enfd. sub nom. Iron Workers Local 3
v. NLRB, 843 F.2d 770 (3d Cir. 1988), cert. denied 488
U.S. 889 (1988). Congress therefore provided that an
employer may only enter into an 8(f) agreement with a
labor organization “not established, maintained, or as-
sisted by any action defined in Section 8(a) of the Act as
an unfair labor practice.”7 Congress also explicitly pre-
served the right of employees to petition for decertifica-
tion or for a change in bargaining representative during
the term of an 8(f) contract.8 In light of these safeguards,
it is clear that in enacting Section 8(f), Congress did not
intend to insulate employers and unions from liability for
conduct that interferes with employee free choice. How-
ever, Garner/Morrison did precisely that by coercing its
employees into supporting the Carpenters, and by rush-
ing to recognize and contract with the Carpenters, all for
the purpose of thwarting the employees’ recently ex-
pressed support for the Painters. This plainly falls outside
the purpose and protection of Section 8(f).
In sum, considering the totality of the circumstances
and the record as a whole, I find that the presence of
Garner/Morrison’s executives while the Carpenters solic-
ited employees to sign authorization cards constituted
unlawful surveillance and assistance and reasonably
tended to coerce employees in the free exercise of their

7 Consistent with this provision, the Board will find an 8(f) agree-
ment to be invalid if it is a byproduct of an employer’s unlawful assis-
tance, such as coercing employees to sign authorization cards or solicit-
ing membership on behalf of the union. The Board will also find that
by entering into such an agreement an employer and union violate Sec.
8(a)(2) and 8(b)(1)(A) of the Act respectively. See, e.g., Bell Energy
Management Corp., 291 NLRB 168, 169, 178 (1988) (employer unlaw-
fully assisted union by making initial contact, soliciting employee to
organize a meeting with union, and making premises available for
organizational activities; Board noted that 8(a)(2) assistance invalidated
contract whether the parties’ relationship was governed by 8(f) or 9(a));
Bear Creek Construction Co., 135 NLRB 1285 (1962) (employer un-
lawfully assisted union by soliciting membership applications and dues-
checkoff forms prior to contracting with union).
8 The second proviso to Sec. 8(f) states in part: “Provided . . ., That
any agreement which would be invalid, but for clause (1) of this sub-
section, shall not be a bar to a petition filed pursuant to section 9(c) or
9(e).” In contrast, a contract governed by Sec. 9(a) triggers a “contract
bar.” Under the contract-bar doctrine, collective-bargaining agree-
ments “for terms up to 3 years will bar an election for their entire peri-
od,” and “contracts having longer fixed terms will be treated for bar
purposes as 3-year agreements and will preclude an election for only
their initial 3 years.” General Cable Corp., 139 NLRB 1123, 1125
(1962).
GARNER MORRISON LLC 7
right to choose a bargaining representative. Accordingly,
I would affirm the Board’s prior findings that Gar-
ner/Morrison violated Section 8(a)(1) of the Act by sur-
veilling its employees’ protected activity and violated
Section 8(a)(2) of the Act by assisting the Carpenters
obtain authorization cards and by granting 9(a) recogni-
tion to the Carpenters based on the tainted cards. I would
also affirm the Board’s prior finding that the Carpenters
violated Section 8(b)(1)(A) of the Act by accepting the
assistance and recognition and entering into a new col-
lective-bargaining agreement with Garner/Morrison.
Dated, Washington, D.C. August 27, 2018
______________________________________
Mark Gaston Pearce, Member
NATIONAL LABOR RELATIONS BOARD