JT Thorpe & Sons Inc.

National Labor Relations Board - Board Decisions

Mar 17, 2011

356 N.L.R.B. 822 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 822
J.T. Thorpe and Son, Inc. and Laborers’ Internation-
al Union of North America, Local 295. Cases
27–CA–21099, 27–CA–21196, and 27–CA–21212
March 17, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE
AND HAYES
On February 26, 2010, Administrative Law judge Wil-
liam L. Schmidt issued the attached decision. The Re-
spondent and the General Counsel each filed exceptions
and supporting briefs. The Charging Party Union (the
Union) filed cross-exceptions and a supporting brief.
The General Counsel filed an answering brief and motion
to strike, to which the Respondent filed a reply brief.
The Respondent also filed an opposition brief to the
General Counsel’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs1 and has decided to
affirm the judge’s rulings, findings,2 and conclusions as
modified, to modify his remedy, and to adopt the rec-
ommended Order as modified.3
The central issue in this case is whether the bargaining
relationship between the parties, initially established un-
der Section 8(f) of the Act, was converted by the parties’
actions in 2003 to a relationship under Section 9(a) of the
Act, requiring the Respondent to continue to recognize
the Union after contract expiration.
We agree with the judge that the parties had a 9(a) re-
lationship in December 2008, when the Respondent
withdrew recognition, refused to bargain with the Union,
1 We find no need to pass on the General Counsel’s motion to strike
several attachments to the Respondent’s brief. All but one of those
documents are already part of the record in the case. The remaining
attachment is a copy of the General Counsel’s Advice Memoranda in
Morris Elec., Inc., Case 13–CA–44938, and we may take official notice
of that document.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Drywall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 In accordance with our decision in Kentucky River Medical Center,
356 NLRB 6 (2010), we modify the judge’s remedy by requiring that
backpay and/or other monetary awards shall be paid with interest com-
pounded on a daily basis.
We shall also modify the judge’s recommended Order to provide for
the posting of the notice in accord with J. Picini Flooring, 356 NLRB
11 (2010). For the reasons stated in his dissenting opinion in J. Picini
Flooring, Member Hayes would not require electronic distribution of
the notice.
and subsequently changed the affected unit’s terms of
employment. We therefore agree that the Respondent,
by these actions, violated Section 8(a)(5), and also that it
violated Section 8(a)(2) by recognizing a different union
as the unit’s bargaining representative shortly afterward.
However, in finding that the parties had a 9(a) relation-
ship, we rely on additional contractual evidence not re-
lied upon by the judge.
I. BACKGROUND
The Respondent, a construction industry employer,
recognized the Union as the bargaining representative for
a unit of mason tenders and laborers at issue in a series of
collective-bargaining agreements under Section 8(f).4
Section 8(f) permits unions and employers in the con-
struction industry to enter into collective-bargaining
agreements without a showing of majority support for the
union in the affected unit, as is required under Section
9(a). However, at the expiration of an 8(f) contract, the
employer can withdraw recognition from the union and is
under no further obligation to bargain. By contrast, if the
bargaining relationship exists under Section 9(a), the
union retains its representative status after the expiration
of the contract and the employer remains obligated to
bargain, absent an affirmative showing that the union has
lost its majority support.5
Beginning with the contract effective October 1, 1995,
and continuing through the contract that expired on Feb-
ruary 28, 2003, the relevant language in the recognition
article of each agreement read as follows:

Section 1: The Employer understands the Union repre-
sents 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. . . .

. . . .

Section 3: The Employer agrees that, upon the union’s
presentation of evidence of majority status among em-
ployees in the bargaining unit described herein, the
Employer will (voluntarily) recognize the Union as ex-
clusive bargaining agent pursuant to Section 9(a) of the
[NLRA] for all employees within the bargaining unit
4 The Respondent negotiated with the Union along with several other
employers, and the employers signed separate, identical contracts. The
Union’s bargaining relationships with the other employers are not at
issue.
5 Central Illinois Construction, 335 NLRB 717 (2001); John Dekle-
wa & Sons, 282 NLRB 1375 (1987), enfd. sub nom. Iron Workers
Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988), cert. denied 488 U.S.
889 (1988).
356 NLRB No. 112

J.T. THORPE & SON, INC. 823
on all present and future job sites within the jurisdiction
of the Union.
The judge found from the credited record testimony
that the Union began to collect signed authorization cards
from the unit employees in early 2003, and obtained
cards from the majority of the employees in the unit. As
the judge found, and discussed in greater detail, at a ne-
gotiating session for a new contract on February 24,
2003, the Union’s business manager and chief negotiator,
Ross Williams, requested 9(a) recognition from the Re-
spondent, gave copies of a proposed modification of the
recognition language to this effect to the Respondent’s
negotiators, and offered for inspection the authorization
cards it had collected.6
The Respondent’s chief negotiator, David Miller,
asked what the proposed change would mean, and Wil-
liams explained that while the Respondent had no obliga-
tion to negotiate with the Union after an 8(f) agreement
expired, under a 9(a) agreement it would be “bound to
either negotiate a successor agreement, bargain to im-
passe or the employees could hold an election to vote us
out.” Williams added that the signed cards he was prof-
fering came from “a vast majority” of the unit employ-
ees. He also said he was confident that the Union would
win a Board election if one were held. The judge not
only found that Williams was confident that he had
signed authorization cards from the majority of the em-
ployees, but credited testimony that Williams told the
employers the specific number of employees who had
signed the authorization cards and that the Union promi-
nently displayed “piles of authorization cards” to the
employers’ representatives. The employers then asked
for a management caucus,7 and the union representatives
left the room, leaving the cards on the table for inspec-
tion.
When the session resumed, Miller said he would con-
sult the Respondent’s counsel, and that the Respondent
would agree to the conversion to a 9(a) relationship if the
Union’s explanation was accurate. Miller admitted at the
hearing that he did subsequently discuss the proposal
with counsel.
After the February 24 bargaining session, the Union
sent the Respondent a draft for the proposed 2003–2005
contract, including new recognition language that read:

6 The judge also implicitly found that by the time of the 2009 hear-
ing in this proceeding, the cards had been lost.
7 As noted earlier, the Union’s bargaining relationships with the oth-
er employers are not at issue, and the above is the essence of the inter-
action between the Respondent and the Union at the February 24 ses-
sion concerning recognition.
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 Un-
ion as exclusive bargaining agent pursuant to Section
9(a) of the National Labor Relations Act for all em-
ployees within the bargaining unit on all present and fu-
ture job sites within the jurisdiction of the Union.

Several days later, Miller told Williams that the draft
“was okay” without requesting any change, and that it
should be printed for signature. Miller signed the draft a
few days later. The Respondent subsequently signed two
successor agreements running through December 5,
2008, containing the same recognition language.
In September 2008, the Respondent informed the Un-
ion that it would withdraw recognition when the current
contract expired in December. The Union asserted that it
had 9(a) status and that the Respondent was consequently
required to continue recognizing it; the Union also filed a
petition for a Board election. In December the Respond-
ent withdrew recognition, recognized another union, and
changed the unit employees’ terms of employment.8 The
Union then filed the charges leading to the complaint in
this case.9
The General Counsel submitted and the judge correctly
found that the original and revised recognition language
in the parties’ contracts did not satisfy the requirements
of Central Illinois, supra, for basing a conversion of an
8(f) bargaining relationship to a 9(a) relationship solely
on contract language. Specifically, as the judge noted,
that language did not recite that the Union had proffered
a showing of majority support. The judge therefore re-
jected the Union’s argument (repeated on exception) that
the contract language was independently sufficient to
establish a 9(a) relationship and that the Respondent was
therefore barred from attacking the Union’s majority
status under Section 10(b) of the Act.
However, relying on the recognition language in the
2000–2003 contract and its predecessors, the judge found
that the Respondent had committed itself to recognizing
the Union as a 9(a) representative if and when the Union
made the required majority showing during the contract’s
term. He also found from the credited record that the
Union met that condition by making the required show-
ing on February 24, 2003, that as a matter of contract the
8 The Respondent’s actions concerning dues collection on behalf of
the other union were the subject of separate unfair labor practice charg-
es which have been settled.
9 The election was conducted by mail ballot and the ballot count was
scheduled for January 5, 2009. The count was blocked on December
18, 2008, the date that the Union filed the unfair labor practice charge
in Case 27–CA–21099, alleging that the Respondent refused to bargain
and repudiated the Union’s 9(a) status.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 824
Respondent accordingly recognized the Union’s 9(a)
status, and that the Respondent confirmed such recogni-
tion by signing the 2003–2005 contract containing the
revised recognition language.
The judge acknowledged that the First Circuit Court of
Appeals had refused to enforce a bargaining order issued
by the Board in similar circumstances in NLRB v. Good-
less Bros. Electric Co., 285 F.3d 102 (1st Cir. 2002), and
NLRB v. Goodless Electric, 124 F.3d 322 (1st Cir.
1997).10 He noted, however, that the Board had reaf-
firmed in Central Illinois, supra, 335 NLRB at 719 fn. 8,
that it would continue to rely on a combination of condi-
tional contract language and extrinsic evidence to find
that a 9(a) relationship was established.
Having found that the parties here had a 9(a) relation-
ship when the Respondent withdrew recognition, the
judge found that the Respondent violated Section 8(a)(5)
by that action, by refusing to bargain with the Union and,
by changing the unit’s terms of employment. He also
found that the Respondent violated Section 8(a)(2) by
recognizing another union.
II. ANALYSIS
As established in Deklewa and Central Illinois, the
parties to an 8(f) agreement can convert their relationship
to 9(a) in any one of three ways. The union can obtain a
majority vote in a Board election; an employer can make
an “immediate” grant of 9(a) recognition when the union
proffers a showing of majority support; or, as the judge
noted, the parties can take what we have referred to as
the “third option”11—agree on contract recognition lan-
guage committing the employer to recognize the union as
9(a) representative if and when the union proffers a
showing of majority support during the contract’s term,
with the union subsequently making the required show-
ing.
Although we agree with the judge’s finding that the
parties in this case established a 9(a) relationship through
the third option,12 we need not rely only on the pre-2003
10 In Goodless, the parties signed a letter of assent agreeing that, if a
majority of employees authorized the union to represent them before
the expiration of the letter, the employer would recognize the union as a
9(a) representative. The Board found that the parties established a 9(a)
relationship when the union presented authorization cards signed by a
majority of employees. Goodless Electric Co., 321 NLRB 64 (1996).
The court, however, found that the requirement of Deklewa, 282 NLRB
1375 (1987), that the demand for, and the grant of, recognition be based
on a contemporaneous showing of majority support had not been satis-
fied, because the showing of majority support was presented well after
the union had presented its demand for recognition, i.e., the letter of
assent, to the employer.
11 J. Picini Flooring, 355 NLRB 620, 625 (2010); Central Illinois,
335 NLRB at 719 fn. 8.
12 While we treated the First Circuit’s two decisions in Goodless as
the law of that case, 337 NLRB 1259 (2002), we respectfully note our
contractual language and extrinsic evidence that supports
that finding. In this case we also rely on credited testi-
mony and the parties’ revised recognition language in
their 2003 and successor contracts. In those contracts the
Respondent agreed that “the union has a majority status
among employees in the bargaining unit” and that “the
Employer recognizes the Union as exclusive bargaining
agent pursuant to Section 9(a) of the [NLRA].” As the
judge found, this language would not, by itself, establish
a 9(a) relationship because it does not contain Central
Illinois’ required statement that the union proffered a
showing of majority support. It does, however, corrobo-
rate the credited testimony that the Union requested 9(a)
recognition and made a contemporaneous proffer of ma-
jority support at the February 24 bargaining session. The
credited testimony also established that after the Re-
spondent was informed of the legal distinction between
9(a) and 8(f) recognition, it consulted with legal counsel
regarding the proposed change in the pertinent contract
language, before signing the 2003 contract.13
disagreement with them. We note further that in the second of those
decisions the court acknowledged that the Board, while bound by its
holding in that case, was nonetheless authorized to “announc[e] that,
henceforth, its new construction of the contemporaneity requirement
would govern this area of labor law.” 285 F.3d at 111 (citing NLRB v.
Majestic Weaving Co., 355 F.2d 854, 859 (2d Cir.1966) (permitting the
Board to “fashion for prospective application a principle along the
general lines of that adopted here. . . .”). We accordingly reaffirm that
the “third option” for 8(f)–9(a) conversion, as recognized in our previ-
ous cited holdings, remains viable.
As stated below in fn. 13, Member Hayes does not join in reaffirm-
ing the Goodless doctrine.
13 The facts here are similar to those in Donaldson Traditional Inte-
riors, 345 NLRB 1298 (2005). In that representation case the Board
found that the intervenor established that the multiemployer association
voluntarily recognized it as the 9(a) representative of a majority of
employees employed by each association member. The Board based
this finding on both extrinsic evidence and contract language. First, the
association’s president testified that the intervenor offered to show him
authorization cards of the employees of each employer-member of the
association and had segregated the cards into piles for each of the asso-
ciation members. The association’s president testified that the associa-
tion had recognized the intervenor as the majority representative of
employees of each member of the association. Second, the Board stat-
ed that the contract contained a recognition clause that recognized the
intervenor “as the employees’ majority representative pursuant to Sec-
tion 9(a) of the Act.” Id. at 1300.
Member Hayes concurs in affirming the judge’s findings and con-
clusions on limited grounds that the credited extrinsic evidence of the
parties’ 2003 negotiations and their revised 2003 recognition language
confirm that the parties’ 8(f) relationship was converted to 9(a) status in
2003 based on a contemporaneous claim and proof of majority status.
He finds no need to apply or pass on the Goodless theory of establish-
ing a 9(a) bargaining relationship in the construction industry. He also
agrees with the judge and his colleagues that the recognition language
in the parties’ contracts did not satisfy the requirements of Central
Illinois Construction for basing a conversion of an 8(f) bargaining
relationship to a 9(a) relationship solely on contract language. Conse-

J.T. THORPE & SON, INC. 825
In short, here the parties’ pre-2003 contract language,
the credited extrinsic evidence of their interaction at the
2003 negotiations, and their revised 2003 recognition
language confirm that the parties’ 8(f) relationship was
converted to 9(a) status in 2003.14
Because the parties had a 9(a) bargaining relationship
when the Respondent withdrew recognition, we adopt the
judge’s findings that that action, the Respondent’s subse-
quent changes in the unit’s terms of employment, and its
subsequent recognition of another union were unlawful.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, J.T.
Thorpe and Son, Inc., Salt Lake City, Utah, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
Substitute the following for paragraph 2(g).
“(g) Within 14 days after service by the Region, post at
its facilities and jobsites 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 au-
thorized representative, shall be posted by the Respond-
ent and maintained for 60 consecutive days in conspicu-
ous places including all places where notices to employ-
ees are customarily posted. In addition to physical post-
ing of paper notices, notices shall be distributed electron-
ically, such as by email, posting on an intranet or an in-
ternet site, and/or other electronic means, if the Respond-
ent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since December 5, 2008.”

quently, there is no need to address whether he agrees with the Board’s
holding in that case.
14 The Respondent contends, with no supporting authority, that the
Union, by petitioning for a Board election after the Respondent first
indicated its intent to withdraw recognition, admitted that it had only
8(f) bargaining status and was barred from filing a charge of unlawful
refusal to bargain. This is incorrect as a matter of law. The Act does
not preclude a union from simultaneously seeking Board certification
as a 9(a) bargaining representative and asserting through an unfair labor
practice charge that it has already obtained 9(a) status by alternative
means.
Nancy S. Brandt, Esq., for the General Counsel.
Jeffery R. Price and Daniel R. Widdison, Esqs. (Bostwick &
Price), of Salt Lake City, Utah, for the Respondent.
Russell T. Monahan, Esq. (Cook & Monahan, P.C.), of Salt
Lake City, Utah, for the 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 consolidat-
ed 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 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 de-
meanor of the witnesses, and after carefully considering the
arguments in the briefs filed by the General Counsel, Thorpe,
and Local 295, I conclude that Respondent violated Section
8(a)(1) and (5) of the Act by withdrawing recognition from
Local 295, a 9(a) representative, and by changing the existing
terms of employment in the most recent collective bargaining-
agreement based on the following2
FINDINGS OF FACT
I. RELEVANT FACTS
Thorpe, a construction industry employer incorporated in
California, supplies and installs refractory, acid resistant, 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 para. 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 paras. 9(c) through (f), and paras. 11(a) and (b)
of the consolidated complaint.
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 cov-
ered 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 demean-
or while testifying. More detailed discussions of specific credibility
resolutions appear below in those situations that I perceived to be of
particular significance.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 826
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 Em-
ployer as Mason Tenders and any other classifications of em-
ployees 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 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 ter-
minate “all Collective Bargaining agreements” and “affilia-
tions” with Local 295 when the existing MTA expired. (Jt.
Exh. 8.)
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 disput-
ed 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
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.
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 con-
tinued to argue that Local 295 had never demonstrated its ma-
jority 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 repre-
sentative 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 vaca-
tion benefits. (GC Exh. 1(z), para 8.) In addition, Thorpe ad-
mits 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 repre-
sentative of its mason tenders and entered into a collective bar-
gaining agreement with that union covering those employees.
(GC Exh. 1(z), par. 9(a) and (b).) The union filed the charge in
27–CA–21099 on December 18 alleging that the Thorpe re-
fused 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 employ-
ees 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 9(a) representative com-
mencing in 2003.
II. THE 2003 NEGOTIATIONS
Beginning with the MTA effective October 1, 1995 and con-
tinuing 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 rele-
vant language read as follows:

Section 1. The Employer understands the Union rep-
resents the majority of its employees and recognizes the
Union as the sole and exclusive collective bargaining rep-
resentative of all employees wherever and whenever em-
ployed by the Employer during the term of this Agreement
as Mason Tenders and any other classifications of em-
ployees employed to do work within the work jurisdiction
of Local No. 295 as determined by the Laborers' Interna-
tional Union of North America concerning work jurisdic-
tion.
. . . .

Section 3. The Employer agrees that, upon the union's
presentation of evidence of majority status among em-
ployees in the bargaining unit described herein, the Em-
ployer 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 bargain-

J.T. THORPE & SON, INC. 827
ing unit on all present and future job sites within the juris-
diction 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 here-
in, and the Employer recognizes the Union as exclusive bar-
gaining 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 Exhs. 1, 2, and 3.
The parties began negotiating for a successor agreement near
the end of the 2000–2003 MTRA. They concluded an agree-
ment after three face-to-face bargaining sessions on February 5,
17, and 24. The task of preparing the final agreement for signa-
ture 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 spokes-
man. Maynard Anderson, Thorpe’s manpower, safety, and
warehouse manager at the time, also attended all three ses-
sions.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 negotia-
tions. 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 nego-
tiations 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 contractors increase their economic offer from 35
cents to 40 cents per hour. By the end of their meeting Miller
5 As Thorpe’s territorial manager, Miller oversaw the operations of
that firm’s two regional offices in Salt Lake City, and Arizona. Ander-
son position in 2003 involved a degree of human resources manage-
ment. Although Anderson did not administer union contracts for
Thorpe, he “review[ed] contracts and ke[pt] an archive of con-
tracts for the various unions and groups across the country.” Tr.
433–434. No other participant on the contractor’s side of the
table professed any specialized knowledge or experience in hu-
man 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 Exhs. 10–12.
agreed to discuss the union’s proposal with the other contrac-
tors and get back to Williams. The following day Miller tele-
phoned 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 Wil-
liams contacted Anderson about arranging another bargaining
session. Eventually, arrangements were made to meet on Feb-
ruary 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 recog-
nize 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 pro-
posal 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 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 Re-
fractory employees during their regular job site visits in late
January and early February. They also obtained signed author-
izations 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 4-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 solicit-
ed 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)
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 discard-
ed some of the office files. Ewell did not testify. Madrid succeeded
Ewell when he retired in April 2008

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 828
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 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. Wil-
liams 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 authoriza-
tion 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
9 None of the Local 295 witnesses mention the distribution of a writ-
ten 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 art. III, sec. 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 wit-
nesses 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 ma-
jority” of the employees as he asserted. And the fact that Miller later
conferred with the company’s attorney about the 9(a) recognition pro-
posal raised at the February 24 meeting and then signed the new con-
tract 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 au-
thorizations.
11 Williams was less than certain that Miller requested an explana-
tion 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. Ander-
son said the reference to 9(a) attracted his attention because he had not
seen that reference before. In fact, art. III, sec. 3, always contained a
reference to 9(a). None of the agreements in evidence contain any
reference to Section 8(f).
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 con-
tractors 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 hear-
ing 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.
Union agents Madrid and Erichson provided substantial cor-
roboration for Williams’ account. They remembered that Wil-
liams 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 Wil-
liams 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 nego-
tiators 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 to-
ward the end of the meeting and that there was neither an
agreement nor a disagreement at the time but a contingent un-
derstanding about the proposal. Following the meeting, Erich-
son e-mailed Anderson a copy of Sections 8(f) and 9(a) lan-
guage 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 par-
ticular 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 meet-
ing but he had no recollection that he spoke to William after the
February 24 meeting.12 However, on March 6, Miller executed
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 amount-
ed to “35 cents or $3.50” (Tr. 492) even though the other contractor

J.T. THORPE & SON, INC. 829
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 employ-
er 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 build-
ing and construction employees are members (not established,
maintained, or assisted by 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 representa-
tives of all the employees in such unit for the purposes of col-
lective 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 col-
lective bargaining agreement.
In Deklewa, the Board sought to address the “serious short-
comings” that emerged from various prior decisions interpret-
ing and applying Section 8(f). Beginning with Deklewa, the
Board presumed that a relationship between a union and a con-
struction 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 elec-
tion under Section 9 (282 NLRB 1385–1386); or (2) voluntary
recognition by the employer based on proof, such as valid au-
thorization cards, that it represented a majority of the unit em-
ployees (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 une-
quivocal demand for recognition as the 9(a) representative; (2)
the employer’s unequivocal and voluntary grant of such recog-
nition; and (3) a contemporaneous showing of majority support.
See Triple C Maintenance, Inc., 219 F.3d 1147, 1152–1153
(10th Cir. 2000).
In this case, the parties have fashioned various arguments
concerning the outcome from the Board’s more recent decision
representatives described the monetary package as the overwhelmingly
dominant aspect of the 2003 negotiations.
in Staunton Fuel & Material, Inc, (a/k/a Central Illinois Con-
struction)., 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 estab-
lished 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 major-
ity 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 estab-
lish a 9(a) relationship in the 2003–2005 MTRA is clear. Al-
ternatively, Local 295 would join the General Counsel’s argu-
ment.
By contrast, Respondent argues that the recognition language
in the 2003–2005 MTA fails to meet the Staunton Fuel re-
quirements, 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 conver-
sion occurred.”
Although I agree that Staunton Fuel is important to the out-
come here I do not share the parties’ views that it amounts to
the controlling precedent in this case.
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 Gen-
eral 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 deci-
sions 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 show-
ing of majority support among the union employees’” within
the meaning of Deklewa. As noted before, the Board’s Staun-
ton 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

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 830
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 em-
ployer’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 lan-
guage 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 miss-
ing Staunton Fuel element. Although resort to extrinsic evi-
dence 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 dis-
cerned 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 recog-
nized the union “as the sole and exclusive bargaining agent for
employees in a unit appropriate for bargaining within the mean-
ing 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
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 evi-
dence 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 nulli-
fies 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 9(a) relationship would be inappropriate.
However, I find in this case that the extrinsic evidence ad-
duced by the General Counsel establishes that Local 295 satis-
fied 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 be-
tween 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 mul-
tiemployer 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 control-
ling 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 frame-
work 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 lan-
guage 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 con-
tractual expiration date, the employer’s entire work force
signed authorization cards designating the union as their collec-
tive bargaining representative. The following day the union
asserted that the employees wanted to union to continue repre-
senting them and presented the cards to the employer to prove
that claim. The employer examined the cards and independent-
ly 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 em-
ployees 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 em-
ployment because they intended to continue their union mem-
bership and they expected the employer to continue to comply
with the union contract. Despite all of this, the employer with-
drew recognition at the end of the extension period, and made
several unilateral changes.
On these facts, the Board found in Goodless I that the em-
ployer 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. View-
ing the recognition language in this manner, the Board found
that the union “has proved that it met all of the Board’s re-
quirements 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 rebuttable presumption of ma-
jority status as the 9(a) representative when the contract ex-
pired. Because the employer failed to rebut that presumption,
13 Goodless also involved constructive discharge issues not relevant
here.

J.T. THORPE & SON, INC. 831
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 Electric Co., 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 sup-
port. 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’ work-
force” Ibid. at 328–329. 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 “pro-
vide 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, agree-
ments 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 em-
ployer’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 re-
tail 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 deci-
sions in Snow & Sons, 134 NLRB 709 (1961), enfd. 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 pre-
hire 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. Electric Co., 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 ra-
tionale and reach the same conclusion after accepting the re-
mand 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 ob-
served 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 re-
quirement 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 an-
nounce in a footnote that they had not participated in the prior
Board decisions and expressed no view as to those decisions.
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) obtain-
ing the employer’s immediate voluntary recognition. Goodless
Electric Co., 332 NLRB 719, fn.10. See also NLRB v. Goodless
Electric Co.[], 124 F.3d at 328–329.

Staunton Fuel, 335 NLRB 719. Based on this Board declara-
tion 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 832
that the parties may have mutually agreed on February 24 to
defer actual recognition for the time being while Miller educat-
ed himself as to the difference between 8(f) and 9(a) has no
significance since he executed the 2003–2005 MTA recogniz-
ing 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 presump-
tion that Local 295’s majority standing continued after Decem-
ber 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 agree-
ment 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.
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 Em-
ployer as Mason Tenders and any other classifications of em-
ployees 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, ef-
fective December 5, 2008; by failing to continue in effect the
terms of the 2006–2008 MTA after December 5, 2008; by uni-
laterally granting wage increases to unit employees after De-
cember 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 com-
merce within the meaning of Section 8(a)(1) and (5), and Sec-
tion 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 repre-
sentative 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 em-
ployees. 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 rec-
ognize 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 un-
der 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 &
Heating, 252 NLRB 891, 891 fn. 2 (1980); Merryweather Opti-
cal Co., 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).
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’ Inter-
national 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 Em-
ployer as Mason Tenders and any other classifications of em-
ployees 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 Agree-
ment until a successor agreement has been negotiated or an
impasse has been reached in negotiations.
(c) Granting employees in the above appropriate unit in-
creased 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 em-
ployees in the above appropriate unit at a time when it was
lawfully required to recognize and bargain with Laborers’ In-
ternational Union of North America, Local 295, as the exclu-
sive representative of the employees in that unit.
14 If no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.

J.T. THORPE & SON, INC. 833
(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 effec-
tuate 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 collec-
tive-bargaining representative.
(b) Cease giving effect to the collective-bargaining agree-
ment entered into with International Union of Public and Indus-
trial Workers applicable to the employees in the above appro-
priate unit.
(c) On request, bargain with the Laborers’ International Un-
ion of North America, Local 295, as the exclusive representa-
tive 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 pro-
vided 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 De-
cember 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 fa-
cilities 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 al-
tered, 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
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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT refuse to recognize and bargain with Laborers’
International Union of North America, Local 295, as the exclu-
sive collective bargaining representative of our employees un-
der Section 9(a) of the National Labor Relations Act, as
amended, in this appropriate unit:

All employees wherever and whenever employed by the Em-
ployer as Mason Tenders and any other classifications of em-
ployees 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.

WE 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 Un-
ion of North America, Local 295, prior notice and an oppor-
tunity 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 em-
ployees in the above appropriate unit.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL withhold recognition of International Union of Pub-
lic and Industrial Workers as the representative of our mason
tender employees until that labor organization becomes certi-
fied 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 repre-
sentative of our mason tender employees concerning terms and

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 834
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 uni-
laterally 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 Ma-
son Tender & Refractory Agreement until a successor agree-
ment 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 & Re-
fractory 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.