J.T. Thorpe and Son, Inc.

National Labor Relations Board - Administrative Judge Opinions

Feb 26, 2010

27-CA-021099 (N.L.R.B. Feb. 26, 2010)

JD(SF)–09–10
Salt Lake City, Utah
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES SAN FRANCISCO BRANCH OFFICE
J.T. THORPE AND SON, INC.,
and Cases 27-CA-21099
27-CA-21196
LABORERS’ INTERNATIONAL UNION 27-CA-21212
OF NORTH AMERICA, LOCAL 295,
Nancy S. Brandt, Atty., NLRB Region 27
Denver, Colorado, for General Counsel.
Jeffery R. Price and Daniel R. Widdison, Attys.
(Bostwick & Price) Salt Lake City, Utah,
for Respondent.
Russell T. Monahan, Atty. (Cook & Monahan, P.C.)
Salt Lake City, Utah, for Charging Party.
DECISION
Statement of the Case
WILLIAM L. SCHMIDT, Administrative Law Judge. I heard this case at Salt Lake City,
Utah, on August 26 and 27, 2009. The portion of the General Counsel’s June 24, 2009,
consolidated complaint left to be decided here alleges that J.T. Thorpe and Son, Inc. (Thorpe,
Company, or Respondent) withdrew recognition of Laborers’ International Union of North
America, Local 295 (Local 295, Union, or Charging Party), ceased giving effect to the parties’
expired collective bargaining agreement, recognized entered into a labor agreement with
another labor organization, and made certain unilateral changes to its terms of employment in
violation of Section 8(a)(1) and (5) of the Act.1 The outcome of this labor dispute turns on
whether Thorpe recognized Local 295 as the Section 9(a) representative of its mason tender
employees in 2003 as claimed by the General Counsel and Local 295.
On the entire record, including my observation of the demeanor of the witnesses, and
after carefully considering the arguments in the briefs filed by the General Counsel, Thorpe, and

1 Originally the consolidated complaint included other allegations arising from the Local
295’s charge in Case 27-CB-5129 that pertained to the recognition of the International Union of
Public and Industrial Workers (IUPIW) as the exclusive representative of the unit employees
involved here. Prior to the hearing, the regional director approved a settlement agreement in
that case that resolved and severed the issues presented in paragraph 10(a), (b) and (c) of the
consolidated complaint. Following the hearing, I approved an all-party, partial settlement
agreement in Case 27-CA-21196, that resolved and withdrew the allegations contained in
paragraphs 9(c) through 9(f), and paragraphs 11(a) and 11(b) of the consolidated complaint.
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Local 295, I conclude that Respondent violated Section 8(a)(1) and (5) of the Act by withdrawing
recognition from Local 295, a Section 9(a) representative, and by changing the existing terms of
employment in the most recent collective bargaining agreement based on the following:2
Findings of Fact
I. Relevant Facts
Thorpe, a construction industry employer incorporated in California, supplies and installs
refractory, acid resistant, and fireproofing materials.3 Thorpe maintains an office and place of
business at Salt Lake City, Utah, the only facility involved in this proceeding, where it annually
purchases and receives goods, supplies, and materials valued in excess of $50,000 directly
from points located outside the State of Utah.
From at least the 1990s onward, Thorpe and two other area contractors, Western
Refractory (Western) and Judd Jones (Jones), negotiated a series of successive collective
bargaining agreements with Local 295 known as the Mason Tender & Refractory Agreements
(MTA or mason tender agreements).4 These agreements established the wages, hours, and
other terms and conditions of employment for their mason tenders in this appropriate unit:
All employees wherever and whenever employed by the Employer as Mason Tenders
and any other classifications of employees employed to do work within the work
jurisdiction of Local No. 295 as determined by the Laborers' International Union of North
America concerning work jurisdiction.
Local 295’s geographical “work jurisdiction” in Utah is statewide. Throughout its bargaining
relationship with these contractors, Local 295 referred numerous employees from its hiring hall,
many of whom admittedly belonged to Local 295, for employment with the three signatory MTA
contractors.
The most recent collective bargaining agreement between Thorpe and Local 295 expired
by its terms on December 5, 2008. (Jt. Exh. 1) By letter dated September 4, 2008, Local 295’s
business manager, Michael Madrid, notified Thorpe that the union that it wanted to negotiate a
new agreement. (Jt. Exh. 7) In a letter dated September 26, Ryan Davis, Thorpe’s regional
manager, notified Local 295 that the company intended to terminate “all Collective Bargaining
agreements” and “affiliations” with Local 295 when the existing MTA expired. (Jt. Exh. 8)

2 The findings here incorporate the credibility resolutions I have made. My credibility
conclusions have been informed by the following factors: the witness’ opportunity to be familiar
with the subjects covered by the testimony given; established or admitted facts; witness bias;
the quality of the witness’ recollection; testimonial consistency; the presence or absence of
corroboration; the strength of rebuttal evidence; if any; the inherent probabilities; reasonable
inferences available from the record as a whole; the weight of the evidence; and witness
demeanor while testifying. More detailed discussions of specific credibility resolutions appear
below in those situations that I perceived to be of particular significance.
3 Thorpe is a subsidiary of Terra Millennium Corporation.
4 Although the three contractors negotiated together, no multi-employer agreement or
organization exists. At the conclusion of the negotiations for a successor MTA, each signed a
separate contract with Local 295 apparently containing identical terms.
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On October 2, 2008, Madrid responded to Davis’ termination notice by claiming that
Thorpe was bound “to an agreement under section 9(a) of the National Labor Relations Act and
warned him against making any unilateral changes without affording Local 295 with an
opportunity to bargain. (Jt. Exh. 9) In a letter dated October 17, Thorpe’s labor counsel
disputed Madrid’s assertion that the 2006-2008 MTA was Section 9(a) agreement. Thorpe’s
counsel went on to assert that the existing agreement “is presumed to be a pre-hire agreement
arising under Section 8(f) because “there has never been any showing, or any offer of a
showing by the Union of support by a majority of employees in an appropriate bargaining unit as
required under Section 9 of the Act.” Counsel’s letter promised to make no unilateral changes
during the remaining term of the MTA but reiterated Davis’ earlier message that Thorpe “has no
intent or desire to continue in a bargaining relationship with your Union after the expiration of the
(existing mason tender agreement).” (Jt. Exh. 10) Thorpe’s counsel and Local 295 president,
Georg Erichson, exchanged further correspondence arguing about the statutory character of the
existing agreement. Erichson asserted that Local 295 became the 9(a) representative in the
course of the 2003 negotiations. Thorpe’s counsel continued to argue that Local 295 had never
demonstrated its majority standing by any means. (Jt. Exh. 11, 12, and 13)
On November 19, Local 295 filed a petition for an election in 27-RC-8545. (Jt. Exh. 14)
An election was conducted pursuant to that petition but the ballots have been impounded
pending the outcome of this matter. Thorpe admits that as of December 5, it withdrew
recognition of Local 295 as the representative of the mason tenders unit and since that date it
had not continued in effect the terms of the mason tenders’ agreement including the health and
welfare, pension, training, and vacation benefits. (GC Exh. 1(z), para 8) In addition, Thorpe
admits that after December 5, it granted wage increases to some of its mason tender
employees. (Jt. Exh. 23, p. 1) Thorpe also admits that after December 5, it recognized the
International Union of Public and Industrial Workers (IUPIW) as the representative of its mason
tenders and entered into a collective bargaining agreement with that union covering those
employees. (GC Exh. 1(z), para. 9(a) and (b)) The union filed the charge in 27-CA-21099 on
December 18 alleging that the Thorpe refused to bargain with Local 295 upon expiration of the
2005-2008 MTA and repudiated Local 295’s status as the Section 9(a) representative. The
charges in 27-CA-21196 and 21212 were filed on April 8 and April 17, 2009, respectively.
Those charges allege that Thorpe pressured and intimidated employees to becoming members
of the IUPIW.
Based on the foregoing, the principal issue in this case is whether, as claimed by the
General Counsel and the Union, Thorpe recognized Local 295 as the Section 9(a)
representative commencing in 2003.
II. The 2003 Negotiations
Beginning with the MTA effective October 1, 1995 and continuing until the MTA effective
March 1, 2003, the relevant contractual recognition language (Article III) accorded Local 295
recognition pursuant to Section 8(f) of the Act. The relevant language read as follows:
Section 1. The Employer understands the Union represents the majority of its employees
and recognizes the Union as the sole and exclusive collective bargaining representative
of all employees wherever and whenever employed by the Employer during the term of
this Agreement as Mason Tenders and any other classifications of employees employed
to do work within the work jurisdiction of Local No. 295 as determined by the Laborers'
International Union of North America concerning work jurisdiction.
* * *
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Section 3: The Employer agrees that, upon the union's presentation of evidence of
majority status among employees in the bargaining unit described herein, the Employer
will (voluntarily) recognize the Union as exclusive bargaining agent pursuant to Section
9(a) of the National Labor Relations Act for all employees within the bargaining unit on
all present and future job sites within the jurisdiction of the Union.
See Joint. Exhibits 4, 5, and 6.
Beginning with the 2003–2005 MTA, executed by Thorpe’s representative on or about
March 6, 2003, and continuing with the two successive agreements, the recognition language in
the Article III, Section 3, changed to the following:
Section 3: The Employer agrees that, the union has a majority status among employees
in the bargaining unit described herein, and the Employer recognizes the Union as
exclusive bargaining agent pursuant to Section 9(a) of the National Labor Relations Act
for all employees within the bargaining unit on all present and future job sites within the
jurisdiction of the Union.
See Joint Exhibits 1, 2, and 3.
The parties began negotiating for a successor agreement near the end of the 2000-2003
MTRA. They concluded an agreement after three face-to-face bargaining sessions on February
5, 17, and 24. The task of preparing the final agreement for signature fell to Local 295.
As in past years, Thorpe, Western, and Jones bargained jointly with Local 295. The
contractors selected David Miller, Thorpe’s territorial manager in 2003, as their informal
spokesman. Maynard Anderson, Thorpe’s manpower, safety, and warehouse manager at the
time, also attended all three sessions.5 Richard Altenreid, manager of Western’s Salt Lake City
office, and Judd Jones on behalf of his own company also attended all three sessions. Walt
Jones, formerly a salesman for Western, joined Altenreid for the session on February 24. Ross
Williams, Local 295’s business manager at the time served as the union’s spokesman. Mike
Madrid, at the time a Union field agent, attended all three sessions, and Georg Erickson, at the
time a Union field agent and organizer, attended the last two sessions.6
All agree that the economic issues dominated the negotiations. At the end of the
February 5 meeting, the parties agreed to postpone further meetings until the contractors
concluded their concurrent negotiations with the bricklayers. Direct negotiations commenced
again on February 17 but no agreement was reached. Williams and Miller met separately on
February 18 to haggle further over the economic issues. Williams sought to have the

5 As Thorpe’s territorial manager, Miller oversaw the operations of that firm’s two regional
offices in Salt Lake City, and Arizona. Anderson position in 2003 involved a degree of human
resources management. Although Anderson did not administer union contracts for
Thorpe, he “review(ed) contracts and ke(pt) an archive of contracts for the various unions
and groups across the country.” Tr. 433-34. No other participant on the contractor’s side
of the table professed any specialized knowledge or experience in human resources or
labor relations management; instead, they all essentially oversaw the operational
functions, including Judd Jones, who owned his own firm.
6 My findings as to those in attendance at the face-to-face bargaining sessions rests
primarily on Madrid’s contemporaneous notes prepared at the bargaining sessions. See GC
Exhibits 10 through 12.
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contractors increase their economic offer from 35 cents to 40 cents per hour. By the end of their
meeting Miller agreed to discuss the union’s proposal with the other contractors and get back to
Williams. The following day Miller telephoned Williams with the news that the contractors would
not increase their proposal. That evening Williams met with some of the employees from
Thorpe and Western who authorized him to accept the contractors’ offer. The following day
Williams contacted Anderson about arranging another bargaining session. Eventually,
arrangements were made to meet on February 24 at the union’s office.
The vast majority of the time at the February 24 session was consumed with getting the
details of the economic issues ironed out. After that, Williams proposed that the contractors
recognize Local 295 as the 9(a) representative of the contractor’s mason tenders. Estimates by
the contractors’ witnesses indicate that this discussion probably consumed no more than two
minutes out of a two hour meeting. Anderson recalled that the union representatives distributed
a written copy of their proposal to modify the existing Article III, Section 3, language to the
contractors when they arrived at the union’s office for the meeting.
Two factors motivated Williams’ proposal to change the recognition language. First, for
some time officials of Local 295’s parent organization had been pressuring the local unions to
pursue Section 9(a) in response to the Board’s Deklewa decision.7 In addition, Williams had
become concerned that Thorpe might be phased out after another Terra Millennium subsidiary,
Brahama Group, Inc., began operating from Thorpe’s Salt Lake City office during this period.
In anticipation of making the 9(a) proposal, Williams and the Local 295 field agents
Madrid and Erichson began collecting signed authorization cards from the Thorpe and Western
Refractory employees during their regular job site visits in late January and early February.
They also obtained signed authorizations at the meeting William held with the unit employees
on February 19. Williams readily acknowledged that the Local 295 agents never obtained
authorizations from any Judd Jones’ employees because that contractor had no work underway
in Utah at that time.
During the four-month period from December 2002 through March 2003, Thorpe’s
reports to the union’s trust funds show that the company employed a range of unit employees
from a high of 44 in December 2002 to a low of 32 in February 2003.. Thorpe reported 42 unit
employees in March 2003 when the 2003-2005 MTA was executed. Twenty-six Thorpe
employees appear on the reports for all four months. Williams, Madrid, and Erichson claim that
virtually all of the laborers they solicited signed Local 295’s authorizations but by the time of this
hearing, the authorization cards executed during this period could not be located.8
All of the 2003 bargaining participants agree that Williams proposed that the contractors
recognize Local 295 as the 9(a) representative. Judd Jones vaguely remembered the
discussion but could not remember during which meeting it occurred. Miller, Anderson, and
Altenreid all recalled, in agreement with the union representatives, that Williams made this
proposal at the February 24 meeting. Anderson recalled that the Local 295 agents distributed

7 John Deklewa & Sons, 282 NLRB 1375 (1987).
8 Williams said that he left his 2003 MTA bargaining notes and the authorizations cards in
the business manager’s office files when he retired in 2004. Rod Ewell succeeded Williams and
remodeled the business manager’s office after taking over. In the process, he discarded some
of the office files. Ewell did not testify. Madrid succeeded Ewell when he retired in April 2008.
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written copies of the proposed revision of Article III, Section 3, to the contractors when they
arrived for the February 24 session.9
Williams, whose testimony on this score I credit, said he brought the authorization cards
that the Local 295 agents had recently solicited from the Thorpe and Western employees in to
the meeting in anticipation of making the 9(a) proposal. Williams recalled that he had them
separated by contractor and bound together with a rubber band. Union agents Madrid and
Erichson corroborate Williams’ claim about the presence of the authorization cards at the
February 24 meeting. The various contractor representatives vacillated between claims that
they could not recall seeing any authorization cards and claims couched in tones of certainty
that they never saw any authorization cards at the February 24 meeting.10
After the parties resolved their outstanding economic issues, Williams requested that the
contractors agree to his proposed revision of Article III, Section 3. Miller asked Williams to
explain what the proposed change meant.11 He told them that they were “currently . . . under
an 8(f) agreement” and he was proposing a change to a 9(a) agreement. Williams recalled
one of the contractor representatives then asked for an explanation of the difference. In
response, he told the contractors that they had no obligation to negotiate further once an
8(f) agreement expired but under a 9(a) agreement, they would be “bound to either
negotiate a successor agreement, bargain to impasse or the employees could hold an
election to vote us out.” He told the contractors that Local 295 had signed authorizations
from “a vast majority” of employees and he offered to show them the cards he brought to
the meeting. Williams recalled that he told the contractors how many of their employees
had signed authorization card but by the time of the hearing he could not recall the
specific numbers. He also told the contractors that he was confident Local 295 would win
an election if they filed a NLRB petition.

9 None of the Local 295 witnesses mention the distribution of a written recognition proposal
at the February 24 meeting. Williams recalled that the proposal was initially made verbally but
he also said that the contractors had the written copy of the final agreement containing the new
Article III, Section 3 recognition language for several days before they signed it. Tr. 53.
10 I have credited Williams’ testimony about the authorizations cards at the February 24
meeting because it struck me as free of exaggeration, authentic, and quite probable. The
recollection from some of the witnesses on the contractors’ side of the table that Williams made
some mention of “voting” reinforces Williams’ testimony about his claim that Local 295 would
win handily if he petitioned for an election. I find it improbable that such an assertion would
have occurred had Williams not been confident that he had signed authorizations from a “vast
majority” of the employees as he asserted. And the fact that Miller later conferred with the
company’s attorney about the 9(a) recognition proposal raised at the February 24 meeting and
then signed the new contract containing the revised recognition language without challenging
Local 295 to prove its majority status lends credence, in my judgment, to the claim by the Local
295 witnesses that the piles of authorization cards present at the February 24 meeting were
prominently displayed to the contractors’ representatives and Williams’ assertion that he told the
contractors the specific number of employees who had signed the authorizations.
11 Williams was less than certain that Miller requested an explanation for the MTA Section 3
revision. Anderson claimed that he read over the written proposal, pointed out the 9(a)
language to Miller, and suggested that Miller ask for an explanation which Miller did. Anderson
said the reference to 9(a) attracted his attention because he had not seen that reference before.
In fact, Article III, Section 3, always contained a reference to 9(a). None of the agreements in
evidence contain any reference to Section 8(f).
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Union agents Madrid and Erichson provided substantial corroboration for Williams’
account. They remembered that Williams discussed the cards in the course talking about
the 9(a) proposal at the bargaining table. Madrid recalled that Williams picked the cards
up and set them down and stated that Local 295 could file for an election. Erichson
remembered that Williams offered the authorization cards to the contractors but he could
not recall that the contractors ever looked at them.
Following the proposal, the contractors’ side asked for a caucus and the union
agents left the room. Williams said that he left the cards on the table in front of his other
documents. After the caucus, Williams said that Miller told the union negotiators that the
contractors needed a few days to check out whether William’s explanation about the
difference between 8(f) and 9(a) was true and, if so, they would go along with his
proposal. Madrid and Erichson also asserted that Miller agreed to the 9(a) language
change if Williams’ explanation checked out. Madrid’s 2003 bargaining notes concerning
the February 24 meeting (General Counsel Exhibit 12) state:
Union - Ross proposed take the .35 per year for 2 years and change the
Agreement to a 9-A
Co. Dave Miller said ok to the proposal. They asked for a few days to
check out the status from 8-F to 9-A.
Erichson remembered that Williams raised the 9(a) issue toward the end of the meeting
and that there was neither an agreement nor a disagreement at the time but a contingent
understanding about the proposal. Following the meeting, Erichson e-mailed Anderson a
copy of Sections 8(f) and 9(a) language that he obtained from the NLRB’s web site.
After the February 24 bargaining session, Williams and an office assistant prepared
a final draft of the new agreement and sent it to the contractors for review. On March 3,
Williams spoke with Miller about the draft. Without discussing any particular change,
Miller told Williams that the draft was okay and that the contract should be printed for
signature. Miller acknowledged that he spoke with the company’s attorney about the 9(a)
recognition proposal following the February 24 meeting but he had no recollection that he
spoke to William after the February 24 meeting.12 However, on March 6, Miller executed
the 2003-2005 MTA on Thorpe’s behalf that contained the revised language in Article III,
Section 3. His predecessors signed two more agreements on Thorpe’s behalf containing
the same Article III, Section 3 provision that first appeared in the 2003-2005 MTA.
III. Further Findings, Argument, and Conclusions
The portion of Section 8(f) of the Act relevant here provides that “(i)t shall not be an
unfair labor practice . . . for an employer engaged primarily in the building and construction
industry to make an agreement covering employees engaged (or who, upon their employment,
will be engaged) in the building and construction industry with a labor organization of which
building and construction employees are members (not established, maintained, or assisted by

12 I found Miller’s recollection about the events that transpired through this period of 2003
particularly unreliable and easily the worst of all of the contractor witnesses. By way of
example, Miller at one point testified that he could not recall if the economic package amounted
to “35 cents or $3.50” (Tr. 492) even though the other contractor representatives described the
monetary package as the overwhelmingly dominant aspect of the 2003 negotiations.
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any action defined in section 8(a) . . . ) because (1) the majority status of such labor
organization has not been established under the provisions of section 9 of this Act prior to the
making of such agreement . . . .” The relevant portion of Section 9(a) of the Act provides that
“(r)epresentatives designated or selected for the purposes of collective bargaining by the
majority of the employees in a unit appropriate for such purposes, shall be the exclusive
representatives of all the employees in such unit for the purposes of collective bargaining in
respect to rates of pay, wages, hours of employment, or other conditions of employment . . . .”
As will be seen from the discussion of the case law below, once a labor organization becomes a
9(a) representative by demonstrating its majority status in an appropriate unit, it enjoys a
rebuttable presumption that its majority standing continues. One effect of this presumption is
that an employer remains obliged to bargain with that labor organization following the expiration
of a collective bargaining agreement.
In Deklewa, the Board sought to address the “serious shortcomings” that emerged from
various prior decisions interpreting and applying Section 8(f). Beginning with Deklewa, the
Board presumed that a relationship between a union and a construction industry employer was
governed by Section 8(f) and that a party asserting the existence of a 9(a) relationship had the
burden of proving it. 282 NLRB 1385, fn. 41. The Board said in Deklewa that a union had two
options for overcoming the 8(f) presumption and proving that a 9(a) relationship existed: (1) a
statutory certification following a Board conducted election under Section 9 (282 NLRB 1385-
86); or (2) voluntary recognition by the employer based on proof, such as valid authorization
cards, that it represented a majority of the unit employees (282 NLRB 1387, fn.53). Deklewa
and its progeny required a union to show three things to prove its 9(a) status by way of the
voluntary recognition option: (1) the union’s unequivocal demand for recognition as the 9(a)
representative; (2) the employer’s unequivocal and voluntary grant of such recognition; and (3)
a contemporaneous showing of majority support. See Triple C Maintenance, Inc., 219 F.3d
1147, 1152-53 (10th Cir. 2000).
In this case, the parties have fashioned various arguments concerning the outcome from
the Board’s more recent decision in Staunton Fuel & Material, Inc., (a/k/a Central Illinois
Construction), 335 NLRB 717 (2001) (Staunton Fuel), a case in which the Board set forth
minimum requirements of a written recognition agreement in order for a union to be recognized
as the 9(a) representative without resort to extrinsic evidence. The General Counsel and Local
295 claim that the parties established a 9(a) relationship in February and March 2003 when they
negotiated and executed the 2003-2005 MTA.
However, Local 295 argues that the recognition language used in the MTA contract
executed in 2003 “established, at least facially, a 9(a) relationship” and that Thorpe “should be
barred from attacking the relationship based on a lack of majority status.” The General Counsel
argues that the recognition language from 2003 onward is not sufficient by itself to meet the
Staunton requirements but, when that MTA recognition language is considered together with the
extrinsic evidence surrounding the 2003 negotiations, the parties’ intent to establish a 9(a)
relationship in the 2003-2005 MTRA is clear. Alternatively, Local 295 would join the General
Counsel’s argument.
By contrast, Respondent argues that the recognition language in the 2003-2005 MTA
fails to meet the Staunton Fuel requirements, and that the “General Counsel’s resort to extrinsic
evidence of matters not related to Staunton Fuel’s three-prong test is inappropriate and
inadmissible to prove such a conversion occurred.”
Although I agree that Staunton Fuel is important to the outcome here I do not share the
parties’ views that it amounts to the controlling precedent in this case.
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The employer and the union in Staunton Fuel executed a three-year collective
bargaining agreement that carried over language from prior agreements recognizing the union
“as the sole and exclusive collective bargaining agent.” The newly executed agreement also
provided that the employer recognized the union “as the Majority Representative of all
employees (in the appropriate bargaining unit).” When that contract expired, the employer
withdrew further recognition of the union and made a number of unilateral changes.
Subsequently, the General Counsel issued a complaint based on the union’s charge alleging
that the employer’s conduct violated Section 8(a)(5). The administrative law judge reasoned in
her decision that the contractual recognition language and existing Board precedent supported
a conclusion that the union had become a Section 9(a) representative when the new three-year
agreement was executed. The judge also concluded that the employer was time barred under
Section 10(b) from challenging the union’s 9(a) status.
The employer filed exceptions to the judge’s determinations with the Board. The Board,
acknowledging that its recent decisions on this subject had not always been enforced by the
courts, addressed the difficulties presented by post-Deklewa cases in determining from contract
language “what constitutes voluntary ‘recognition’ by an employer ‘based on a clear showing of
majority support among the union employees’” within the meaning of Deklewa. As noted before,
the Board’s Staunton Fuel decision sought to define “the minimum requirements for what must
be stated in a written recognition agreement or contract clause in order for a union to attain 9(a)
status solely on the basis of such an agreement.” (Emphasis mine) Those minimum
requirements, the Board said, will be met where the contract language “unequivocally indicates
that (1) the union requested recognition as the majority or 9(a) representative 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.”
Based on these requirements, I find that the contractual language in the 2003-2005 MTA
fails to satisfy the requirements of Staunton Fuel because Article III, Section 3, does not provide
that the 9(a) recognition was based on “the union’s having shown, or having offered to show,
evidence of its majority support” or something approximating that type of language. For that,
the General Counsel offered extrinsic evidence from the February 24, 2003, bargaining session
to establish this missing Staunton Fuel element. Although resort to extrinsic evidence is always
permitted to establish the existence of a Section 9(a) relationship (335 NLRB 720, fn. 15),
where, as here, that becomes necessary, the case ceases to be governed by Staunton Fuel
because the existence of the 9(a) status cannot be discerned solely from contractual language.
Local 295’s contention that the contractual language suffices in this case, rests largely
on the rationale of the Tenth Circuit in the Triple C Maintenance case. There, the employer
executed a series of successive short-term agreements stating that it recognized the union “as
the sole and exclusive bargaining agent for employees in a unit appropriate for bargaining within
the meaning of 9(a)” and “this recognition [was] predicated on a clear showing of majority
support for [the Union] indicated by [the] bargaining unit employees.” Triple C Maintenance,
219 F.3d 1150. Although it is possible to infer in this case by comparing the pre-2003 Section 3
recognition language with the Section 3 language in 2003 MTA and its successors that Local
295 must have presented Thorpe with “evidence of (its) majority status among employees in the
bargaining unit” (Local 295’s Br., p. 3), no explicit statement to that effect is ever made in an
MTA purporting to grant recognition pursuant to Section 9(a).
Moreover, I find good reason here to reject any suggestion that Local 295’s 9(a) status
should determined solely on the basis of the contractual language under any rationale. Under
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Deklewa, the appropriate unit for determining majority status in the 8(f) situation is normally a
single employer unit even in those situations where a single employer unit may have been
merged into a multiemployer unit. 282 NLRB 1385. The evidence here infers that in March
2003 Thorpe, Western, and Jones, consistent with their past practice, executed separate but
identical agreements. If so, Local 295’s admission that it had no authorization cards from
Jones’ employees effectively nullifies the contractual recognition language in the 2003-2005
MTA at least as to Judd. In these circumstances, I find that reliance solely on the MTA’s
contractual recognition language to establish a Section 9(a) relationship would be inappropriate.
However, I find in this case that the extrinsic evidence adduced by the General Counsel
establishes that Local 295 satisfied the agreed-upon condition in the parties’ pre-2003 MTAs
and, therefore, I recommend that the Board give effect to the 9(a) recognition language in the
mason tender agreements between Thorpe and Local 295 from 2003 onward. The factual
situation here is analogous to that found in Goodless Electric Co., 321 NLRB 64 (1996)
(Goodless I), where the employer signed a letter of assent in July 1992 agreeing to follow a
multiemployer agreement. But, as I will summarize below, the Goodless case has a long,
problematic history that at first blush might lead some to conclude that it lacks viability as
controlling Board precedent. However, I have concluded that the framework ultimately
established by the Board in the Goodless litigation, together with the Board’s reference to that
framework in Staunton Fuel represents binding Board precedent even though a court of appeals
twice refused to enforce the Board’s order in that litigation.
The letter of assent in Goodless contained recognition language providing “that if a
majority of its employees authorize the Local Union to represent them in collective bargaining,
the Employer will recognize the Local Union as the NLRA Section 9(a) (representative).” Near
the end of the contract term, the employer told the union on more than one occasion that it
planned to terminate its relationship with the union when the contract expired on June 30, 1993.
Six days prior to the contractual expiration date, the employer’s entire work force signed
authorization cards designating the union as their collective bargaining representative. The
following day the union asserted that the employees wanted to union to continue representing
them and presented the cards to the employer to prove that claim. The employer examined the
cards and independently verified them. Subsequently, the parties extended their agreement for
six months. Just prior to the expiration of the extension, around the time when the employer
again began to threaten the withdrawal of recognition, all but one of the employees signed and
submitted a union form letter inviting the employer to contact their union agent if it wanted to
discuss any matters concerning their wages or terms and conditions of employment because
they intended to continue their union membership and they expected the employer to continue
to comply with the union contract. Despite all of this, the employer withdrew recognition at the
end of the extension period, and made several unilateral changes.
On these facts, the Board found in Goodless I that the employer violated Section 8(a)(5)
by withdrawing recognition and implementing new employment terms at the end of the six-
month extension period.13 It concluded that the letter of assent recognition language
constituted, for the remainder of its term, both a continuing request for recognition and a
continuing, enforceable promise by the employer to grant voluntary 9(a) recognition if the union
demonstrated majority support. Viewing the recognition language in this manner, the Board
found that the union “has proved that it met all of the Board’s requirements for establishment of
a 9(a) relationship” as of June 25, 1993, when the union presented the employer with signed
authorization cards from all of the unit employees. The Board found that the union enjoyed a

13 Goodless also involved constructive discharge issues not relevant here.
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rebuttable presumption of majority status as the 9(a) representative when the contract expired.
Because the employer failed to rebut that presumption, the Board held that it could not lawfully
alter the terms and conditions of employment unilaterally.
A court of appeals panel denied enforcement of the Board’s order. NLRB v. Goodless
Elec. Co., Inc., 124 F.3d 322 (1st Cir. 1997) (Goodless II). The court rejected the Board’s
conclusion that the recognition language constituted a continuing demand for recognition and a
continuing, enforceable promise to grant voluntary recognition if the union demonstrated
majority support. Ibid at 330. Without that essential construction of the contract language, the
court held that the Board had failed to explain why it departed from its own post-Deklewa
precedent requiring that, in voluntary recognition cases, the demand and the recognition “must
be based on a contemporaneous showing that the union enjoys majority support of the
employers’ workforce” Ibid. at 328-29. The court reversed and remanded the case to the Board
“for further proceedings in accordance with (its) opinion.”
On remand, the Board acknowledged that the court’s opinion constituted the law of the
case but used the occasion to “provide the explanation” the court found missing from its
Goodless I decision for not following its post-Deklewa precedent relating to voluntary
recognition. Goodless Electric Co., 332 NLRB 1035, 1037 (2000) (Goodless III). In Goodless
III, the Board said:
(I)n the construction industry, as in other industries, agreements for future 9(a)
recognition are permissible and do not depend for their validity on showing of majority
status at the time of the execution of the agreement. * * * (W)here, as here, the parties’
agreement so specifies, the union’s providing the employer with reliable evidence of its
majority status during the term of the 8(f) agreement is sufficient to trigger the
employer’s contractual obligation to grant 9(a) recognition to the union.
The Board analogized this situation to its long-standing practice of enforcing so-called “after-
acquired store” clauses in the retail industry that require an employer to recognize the union as
the 9(a) representative of employees at stores acquired or opened after the parties sign a
contract if the union later demonstrates that it represents a majority of the employees at the
after-acquired location. In support, the Board cited its decisions in Snow & Sons, 134 NLRB
709 (1961), enf’d. 308 F.2d 687 (9th Cir. 1962), and Kroger Co. 219 NLRB 388, 389 (1975). In
addition, the Board pointed to the conclusion in Hotel Employees Local 2 v Marriott Corp., 961
F.2d 1464, 1468 (9th Cir. 1992) that endorsed Kroger and enforced a prehire agreement
whereby the employer agreed “to accept the results of a card check in lieu of an NLRB election”
because the court found the agreement to be consistent with national labor policy. Based on its
clarification, the Board adhered to its original decision in Goodless I.
In NLRB v. Goodless Bros. Elec. Co., Inc., 285 F.3d 102 (1st Cir. 2002) (Goodless IV),
the court disagreed assumption made by the Board in Goodless III that it could provide added
rationale and reach the same conclusion after accepting the remand from Goodless II.
Accordingly, the court reversed the Board’s decision in Goodless III and remanded the case to
the Board again with a specific direction to dismiss the case against that particular employer.
However, in doing so, the court observed that the Board could have dismissed the complaint as
to that particular employer in Goodless III but announced that henceforth “its new construction
of the contemporaneity requirement would govern this area of the law.” 285 F.3d 111. On
remand from Goodless IV, a substantially new Board panel dismissed the complaint as
instructed by the court. Goodless Electric Co., 337 NLRB 1259 (2002) (Goodless V). The two
new members of the Board panel used the occasion to announce in a footnote that they had not
participated in the prior Board decisions and expressed no view as to those decisions.
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However, in Staunton Fuel, the Board, independent of the Goodless litigation, confirmed
its adoption of the principle it announced in Goodless III, which the court in Goodless IV said the
Board would be at liberty to do despite its refusal to enforce the Board’s Goodless III order as to
that particular employer. Thus, in Staunton Fuel, which issued between Goodless III and
Goodless IV, the Board stated:
Recently, in Goodless Electric Co., 332 NLRB 1035 (2000), on remand from 124 F.3d
322 (1st Cir. 1977), we found that where the parties’ contract language commits the
employer to recognizing the union’s majority representative status in the future if the
union demonstrates that it has majority support, 9(a) recognition will be established if
and when the union subsequently meets that condition within the term of the
agreement.8
_________________
8 We have referred to this procedure as the “third option” for a union to obtain 9(a)
status, in addition to the earlier recognized options of (1) winning a Board-certified
election, and (2) obtaining the employer’s immediate voluntary recognition. Goodless
Electric Co., 332 NLRB 719, fn.10. See also NLRB v. Goodless Electric Co. Inc., 124
F.3d at 328–329.
Staunton Fuel, 335 NLRB 719. Based on this Board declaration approving a so-called “third
option”, I find Goodless III to be controlling precedent in situations, such as this, that involve a
collective bargaining agreement, initially executed under Section 8(f), containing a prospective
9(a) recognition clause later satisfied by a showing of the union’s majority status.
Based on the Goodless III principle, I conclude that Thorpe and Local 295 were bound to
agreements from 1995 to 2003 that contained a prospective recognition clause at Article III,
Section 3. Therefore, when Williams claimed that Local 295 represented the vast majority of
Thorpe’s employees at the February 24 meeting and held up the authorization cards in support
of that claim, Thorpe was contractually required to recognize Local 295 then and there as the
9(a) representative. And in fact, Miller complied with that contractual requirement on behalf of
Thorpe two weeks later when he signed the 2003-2005 MTA.
The fact that the Thorpe representatives failed to inspect the authorization card to verify
Local 295’s majority claim or take any other steps to verify that claim before Miller executed the
new agreement on March 6 is of no moment where, as here, the agreement he executed
acknowledged Local 295’s majority standing among its mason tenders and recognized that
union as their Section 9(a) representative. See Staunton Fuel, 335 NLRB 719, fn. 10 and the
cases cited there. Likewise, the fact that the parties may have mutually agreed on February 24
to defer actual recognition for the time being while Miller educated himself as to the difference
between Sections 8(f) and 9(a) has no significance since he executed the 2003-2005 MTA
recognizing Local 295 as the 9(a) representative without qualification and his successors signed
two additional MTAs containing the same recognition language.
Because Thorpe erroneously treated the 2006-2008 MTA as an 8(f) agreement, it made
no effort here to rebut the presumption that Local 295’s majority standing continued after
December 5, 2008. Accordingly, I find Respondent violated Section 8(a)(1) and (5), as alleged,
by refusing to recognize and bargain with Local 295 after December 5, 2008. Further, it follows
that by recognizing and entering into a collective bargaining agreement with the IUPIW as the
representative of its mason tender employees at a time when it was legally obliged to recognize
Local 295, Thorpe violated Section 8(a)(1) and (2) as alleged.
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Conclusions of Law
1. Respondent is an employer engaged in commerce or an industry affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Local 295, a labor organization within the meaning of Section 2(5) of the Act, is the
exclusive collective bargaining representative of the following appropriate union of employees
within the meaning of Section 9(a) of the Act:
All employees wherever and whenever employed by the Employer as Mason Tenders
and any other classifications of employees employed to do work within the work
jurisdiction of Local No. 295 as determined by the Laborers' International Union of North
America concerning work jurisdiction.
3. By recognizing and entering into a collective bargaining agreement with the
International Union of Public and Industrial Workers, a labor organization within the meaning of
Section 2(5) of the Act, applicable to the employees in unit described in paragraph 2, above,
Respondent violated Section 8(a)(1) and (2) of the Act.
4. By withdrawing recognition from Laborers' Local 295, effective December 5, 2008; by
failing to continue in effect the terms of the 2006-2008 MTA after December 5, 2008; by
unilaterally granting wage increases to unit employees after December 5, 2008; and by failing to
make trust fund payments required under the 2006-2008 MTA after December 5, 2008,
Respondent engaged in unfair labor practices affecting commerce within the meaning of Section
8(a)(1) and (5), and Section 2(6) and (7) of the Act.
Remedy
Having found that Thorpe engaged in certain unfair labor practices, my recommended
order will require that it be ordered to cease and desist from its unlawful conduct and to take
certain affirmative action designed to effectuate the policies of the Act.
Affirmatively, my recommended order requires Thorpe to withdraw and withhold
recognition of the IPUIW as the representative of the employees already represented by Local
295, unless and until the IPUIW becomes duly certified by the Board as the collective-
bargaining representative of such employees. In addition, Thorpe is required to cease giving
any effect to the collective bargaining agreement that it entered into with the IUPIW after
December 5, 2008.
In addition, the recommended order requires Thorpe to recognize and bargain with Local
295 as the representative of its mason tender employees. Thorpe is also required to give effect
to the 2006-2008 MTA agreement until a new agreement is negotiated or an impasse is reached
in the negotiations for a new agreement. If requested by Local 295, Thorpe must also rescind
any wage increases unilaterally given to unit employees after December 5, 2008. Finally,
Thorpe must make whole employees and the various benefit trust funds provided for under the
2006-2008 MTA for any losses suffered as the result of its failure to give effect to that collective
bargaining agreement after December 5, 2008, as provided in Kraft Plumbing and Heating, Inc.,
252 NLRB 891 (1980), fn. 2; Merryweather Optical Company, 240 NLRB 1213 (1979), and Ogle
Protection Service, 183 NLRB 682 (1970), plus interest, where appropriate, as computed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended14
ORDER
The Respondent, J.T. Thorpe & Son, Inc., Salt Lake City, Utah, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with Laborers’ International Union of North
America, Local 295, as the exclusive collective bargaining representative of its employees under
Section 9(a) of the National Labor Relations Act, as amended, in the following appropriate unit:
All employees wherever and whenever employed by the Employer as Mason Tenders
and any other classifications of employees employed to do work within the work
jurisdiction of Local No. 295 as determined by the Laborers' International Union of North
America concerning work jurisdiction.
(b) Refusing to give effect to the terms and conditions of employment for the employees
in the above appropriate unit as set forth in the 2006-2008 Mason Tender & Refractory
Agreement until a successor agreement has been negotiated or an impasse has been reached
in negotiations.
(c) Granting employees in the above appropriate unit increased pay rates without giving
Laborers’ International Union of North America, Local 295, prior notice and an opportunity to
bargain concerning any proposed pay rate increases.
(d) Recognizing and entering into a collective bargaining agreement with the
International Union of Public and Industrial Workers as the collective-bargaining representative
the employees in the above appropriate unit at a time when it was lawfully required to recognize
and bargain with Laborers’ International Union of North America, Local 295, as the exclusive
representative of the employees in that unit.
(e) In any like or related manner interfering with, restraining, 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) Withhold recognition of International Union of Public and Industrial Workers as the
representative of its mason tender employees until that labor organization becomes certified by
the National Labor Relations Board as their exclusive collective-bargaining representative.
(b) Cease giving effect to the collective bargaining agreement entered into with
International Union of Public and Industrial Workers applicable to the employees in the above
appropriate unit.

14 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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(c) On request, bargain with the Laborers’ International Union of North America, Local
295, as the exclusive representative of the employees in the above appropriate unit concerning
terms and conditions of employment and, if an understanding is reached, embody the
understanding in a signed agreement.
(d) If requested by Laborers’ International Union of North America, Local 295, rescind
any pay rate increases unilaterally given to the unit employees after December 5, 2008.
(e) Apply the terms and conditions of employment for the employees in the above
appropriate unit as set forth in the 2006-2008 Mason Tender & Refractory Agreement until a
successor agreement has been negotiated or an impasse has been reached in negotiations.
(f) Make whole employees and the benefit trust funds provided for under the 2006-2008
Mason Tender & Refractory Agreement for any losses suffered as the result of its failure to give
effect to that collective bargaining agreement after December 5, 2008, in the manner set forth in
the remedy section of this decision together with interest as provided by law.
(g) Within 14 days after service by the Region, post at its facilities and job sites in the
State of Utah, copies of the attached notice marked “Appendix.”15 Copies of the notice, on forms
provided by the Regional Director for Region 27, after being signed by the Respondent’s
authorized representative, 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. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate 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 December 5, 2008.
(h) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C. February 26, 2010.

WILLIAM L. SCHMIDT
Administrative Law Judge

15 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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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 violated 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
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT refuse to recognize and bargain with Laborers’ International Union of North
America, Local 295, as the exclusive collective bargaining representative of our employees
under Section 9(a) of the National Labor Relations Act, as amended, in this appropriate unit:
All employees wherever and whenever employed by the Employer as Mason Tenders
and any other classifications of employees employed to do work within the work
jurisdiction of Local No. 295 as determined by the Laborers' International Union of North
America concerning work jurisdiction.
WELL WILL NOT refuse to give effect to the terms and conditions of employment for our
employees in the above appropriate unit as set forth in the 2006-2008 Mason Tender &
Refractory Agreement until a successor agreement has been negotiated or an impasse has
been reached in negotiations.
WE WILL NOT grant employees in the above appropriate unit increased pay rates without
giving Laborers’ International Union of North America, Local 295, prior notice and an opportunity
to bargain concerning any proposed pay rate increases.
WE WILL NOT recognize and enter into a collective bargaining agreement with the International
Union of Public and Industrial Workers as the collective-bargaining representative the
employees in the above appropriate unit.
WE WILL NOT in any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL withhold recognition of International Union of Public and Industrial Workers as the
representative of our mason tender employees until that labor organization becomes certified by
the National Labor Relations Board as their exclusive collective-bargaining representative.
WE WILL cease giving effect to the collective bargaining agreement entered into with
International Union of Public and Industrial Workers applicable to our mason tender employees.
WE WILL, on request, bargain with the Laborers’ International Union of North America, Local
295, as the exclusive representative of our mason tender employees concerning terms and
conditions of employment and, if an understanding is reached, embody the understanding in a
signed agreement.
WE WILL, if requested by Laborers’ International Union of North America, Local 295, rescind
any pay rate increases unilaterally given to our mason tender employees after December 5,
2008.
WE WILL apply the terms and conditions of employment for our mason tender employees as set
forth in the 2006-2008 Mason Tender & Refractory Agreement until a successor agreement has
been negotiated or an impasse has been reached in negotiations.
WE WILL make whole our employees and the benefit trust funds provided for under the 2006-
2008 Mason Tender & Refractory Agreement for any losses suffered as the result of our failure
to give effect to that collective bargaining agreement after December 5, 2008, together with
interest as provided by law.
J.T. THORPE & SON, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
600 17th Street, 7th Floor, North Tower
Denver, Colorado 80202-5433
Hours: 8:30 a.m. to 5 p.m.
303-844-3551.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 303-844-6647.